587 N.E.2d 375 | Ohio Ct. App. | 1990
Lead Opinion
Dana R. Booghier, Clark County Zoning Inspector, filed a complaint which sought to enjoin Mark E. Wolfe's use of 3016 Lake Road, Medway, for an adult entertainment business. Booghier alleged that this use violated the Clark County Zoning Regulations.
The case was eventually submitted to the court of common pleas on stipulated facts filed December 2, 1988. Although it appears that the trial court and counsel for the parties contemplated, as of December 2, 1988, that briefs would be filed, the record fails to reflect that briefs were ever filed. The stipulated facts are as follows:
"1. The premises known as 3016 Lake Road, Medway, Ohio, and described as Lots 154, 155, 156, 157, 176, 177, 178, and 179, Map of Crystal Lakes, beginning in 1969 and continuously thereafter (except as stated hereafter) were used for the operation of an adult entertainment establishment (as currently defined under Clark County Zoning Regulations). These premises were under the zoning jurisdiction of Crystal Lakes from 1969 to May 18, 1987.
"2. Following an investigation in the fall of 1985, a statutory nuisance action was filed against the land owner and business operators of the premises, based upon prostitution occurring on the premises[.] Nude dancing was not alleged to have been the nuisance activity. The action was captioned State,ex rel. Schumaker, v. Rapid Inc., Clark County Court of Common Pleas, Case No. 85-CIV-1782, and was heard before Judge Lorig. The parties incorporate by reference the transcript of the trial proceedings. A copy of the *469 Judgment Entry is attached hereto. Pursuant to the Judgment Entry, the premises were ordered padlocked from December 3, 1985 through December 3, 1986.
"3. The premises were purchased by Defendant Mark Wolfe by deed executed on July 29, 1986 and recorded on May 1, 1987. A copy of the deed is attached hereto. Subsequently to this purchase and during the closure, Mr. Wolfe attended the statutory auction of personal property located within the premises, purchased the back and front bar counters, and directed that these items remain located in the premises. The dancing stage was not sold and remained on the premises.
"4. Mr. Wolfe intended to retain the adult entertainment use of these premises. Towards this goal, he granted to a tenant of his, John Canter, of [sic] the option to lease the premises for the operation of adult entertainment. John Canter was a tenant of Mr. Wolfe's in Franklin County who operated a similar establishment under a lease from Mr. Wolfe. A copy of the lease is attached hereto and contains an option provision for these premises therein.
"5. On or about May 5, 1987, the voters of Crystal Lakes approved incorporation of their zoning jurisdiction into that of Clark County and on May 18, 1987 County Zoning took effect. Clark County zoning regulations, in the absence of any intervening legal authority relevant hereto, would prohibit the use of these premises for adult entertainment, except if such a use existed as a valid non-conforming use prior to the adoption of the regulations.
"6. The re-opening of the premises for adult entertainment was delayed by John Canter's failure to effectuate his option. By Agreement executed on February 9, 1988, a copy of which is attached hereto, John Canter released his option on the premises.
"7. Mr. Wolfe sought to obtain a suitable tenant who would not repeat the prior course of misconduct that had led to the nuisance action. During October 1987, Mr. Wolfe negotiated with one June Tinney and Robert Wissinger to reopen the premises, featuring adult entertainment. This did happen during late October-early November, 1987. A copy of the Vendor's License obtained by Robert Wissinger is attached hereto.
"8. Under the facts stipulated above, the parties disagree as to whether or not there existed a valid non-conforming use of adult entertainment at these premises as of the incorporation of Clark County Zoning jurisdiction."
On August 25, 1989, the trial court entered the following judgment, which prompts this appeal: *470
"Based on the stipulated facts, the Court finds that the Defendant did not have a valid non-conforming use at the time of the incorporation of Clark County zoning jurisdiction.
"THEREFORE, the Defendant is permanently enjoined from operating an adult entertainment business on the premises located at 3016 Lake Road, Medway, Ohio."
On appeal, Wolfe advances a single assignment of error as follows:
"The trial court erred as a matter of law, and to the prejudice of the Appellant, in failing to rule that the non-conforming use doctrine appearing in the Revised Code, Clark County Zoning Regulations, and case law, permitted the continued use of 3016 Lake Road, Medway, Ohio for adult entertainment, following adoption of Clark County Zoning Regulations for Medway, Ohio, and in failing to grant the Defendant-Appellant judgment accordingly."
Wolfe's two principal arguments in support of his assignment can be capsulized as follows:
1. There was a lawful existing use at the premises as of May 18, 1987, the effective date of the Clark County Zoning Regulations as to the premises. (See R.C.
2. Even if there were no lawful existing use May 18, 1987, there was less than a two-year interruption of the lawful use that ended December 3, 1985 when the premises were padlocked, and resumed in late October-early November 1987, when the premises reopened, featuring adult entertainment. Pursuant to R.C.
R.C.
"The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enactment of a zoning resolution or amendment thereto, may be continued, although such use does not conform with the provisions of such resolution or amendment, but if any such
nonconforming use is voluntarily discontinued for two years or more, any future use of land shall be in conformity with sections
R.C.
Booghier contends here, and we agree, that the dispositive issue is the first issue, i.e., whether a lawful use existed as of May 18, 1987, when the *471 change of zoning became effective. Indeed, the parties stipulated this was the dispositive issue. See stipulation 8.
The trial court found that Wolfe "did not have a valid non-conforming use at the time of the incorporation of Clark County zoning jurisdiction."
The trial court's judgment can be read as determining that (a) there was no existing valid nonconforming use as of the change in zoning, (b) there was no valid nonconforming use as of the change in zoning, or (c) both (a) and (b), i.e., the contemplated use as of the change in zoning was not lawful.
The parties had stipulated that the premises had been used for adult entertainment from 1969 until December 3, 1985, when the premises were padlocked. The parties had also stipulated that use of the premises for adult entertainment would be permissible under Clark County Zoning Regulations "if such useexisted as a valid non-conforming use prior to the adoption of the regulations." (Stipulation 5; emphasis added.) We thus conclude that the trial court found that the use did notexist as of May 18, 1987, the date the zoning was changed.
The question for our determination becomes whether this finding is supported by the evidence. It is clear from the stipulations that the premises were not open for business as of the date the zoning was changed. See Stipulations 3, 4, 6, 7.
In Torok v. Jones (1983),
"In Smith v. Juillerat, supra, this court faced a similar situation. There, the property owner wished to strip mine his land. Prior to the adoption of the local zoning ordinance, which prohibited strip mining, the land owner had expended money in preparation for mining. Nevertheless, this court held that a nonconforming use had not been established, stating:
"`Where no substantial nonconforming use is made of property, even though such use is contemplated and money is expended in preliminary work to that end, a property owner acquires no vested right to such use and is deprived of none by the operation of valid zoning ordinance denying the right to proceed with his intended use of the property.'"
In our judgment, the evidence in this case no more required the trial court to find that there was an existing nonconforming use when the zoning was changed, than did the evidence inSmith v. Juillerat.
Assuming that the judgment should be read to mean that there was no valid nonconforming use as of the change in zoning, we are satisfied that this determination would also find support in the record. *472
In its Entry and Order of Abatement of December 3, 1985, the trial court had made the following finding:
"The premises located at 3016 Lake Road, Medway, Ohio 45341, commonly known as the `Show 'N Tell' and now also known as `Lucky Star Lounge,' is a nuisance, in that: (a) it is a place in or upon which prostitution is conducted, permitted, continued, and exists: (b) it is a place in or upon which obscene films are exhibited and shown; and (c) it is a place in or upon which obscene film positives are photographed, exhibited, or shown."
In Matthews v. Pernell (1990),
"Appellants also argue that the lack of new, substantive evidence presented in this action to support a denial of nonconforming use status deprives them of property arbitrarily and without due process of law. We do not agree. The determination in Falke [State, ex rel. Falke, v. Adams (Feb. 23, 1983), Montgomery C.P. Nos. 83-1093, 83-1094 and 83-1095, unreported] [that the premises were a nuisance] was made by a court of competent jurisdiction before which appellants appeared. That court's determination of illegality is binding [upon] appellants and their business activity in any substantially similar form. No showing was made that the current business of A Touching Place was substantially or significantly different from that found to be a public nuisance. The trial court below properly took judicial notice of that prior determination of illegality pursuant to Civ.R. 44.1 in construing the applicability of R.C.
In our judgment, the trial court could have reasonably inferred from the stipulations, that included the December 3, 1985 entry and order of abatement, that the use, existing or contemplated, as of the change of zoning could not or would not be carried on absent the type of activities that had previously resulted in the declaration that the premises were a nuisance.
Accordingly, we reject Wolfe's first argument.
In his second argument, Wolfe contends that R.C.
The flaw in this argument is that the so-called "two-year state grandfathering statute," i.e. R.C.
Even assuming, arguendo, that Wolfe had a right under R.C.
Wolfe also cites R.C.
"(A) The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:
"* * *
"(2) Affect any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred thereunder[.]" (Emphasis added.)
Assuming arguendo the application of R.C.
By its terms, R.C.
The assignment of error is overruled.
The judgment of the trial court will be affirmed.
Judgment affirmed.
FAIN, J., concurs in judgment.
GRADY, J., concurs in part and in judgment.
Concurrence Opinion
I conclude that this case is similar to Matthews v. Pernell
(1990),
I find it unnecessary in this case to determine whether an owner of land that is "temporarily" out of use (i.e., during a period of less than two years) when his land is rezoned to exclude the current use can constitutionally be given less protection than an owner of land that is in use at the time of rezoning.
Concurrence Opinion
I concur with that part of the opinion of the majority finding that defendant-appellant is not entitled to the protections of the prior nonconforming use exemptions of the Clark County Zoning Regulations because the prior use concerned was an illegal use and, thus, specifically excluded from the exemption provided. A determination that a use is illegal destroys the exemption for any subsequent use when the two fall within the same classification of the zoning code concerned. SeeMatthews v. Pernell (1990),
