Posted by: Patricia Salkin | December 7, 2007

Ohio Appeals Court Reverses Holding that Variance Denial Is Unconstitutional Taking

The Haisleys purchased a lot in 1996 containing a single family residence, and then in 1997 purchased the adjoining lot that contained a previously damaged single family residence.  The Haisleys demolished the damaged residence prior to the end of 1998. Neither of the lots met the minimum front footage requirements and minimum size requirements for lots, and while this did not pose a problem for the first lot which contained the residence, the zoning board of appeals denied the Haisleys a variance to sell the second lot as a building lot for a single family residence. The Trial Court determined that the board’s denial of the variance was unreasonable and improper, and would result in an unconstitutional taking of the lot since it would render the lot useless for any practical purpose and amount to a confiscation of the property.  The zoning board appealed. 

The Appellate Court reversed and remanded, finding that the Trial Court erred in their finding that the minimum lot size requirement constituted an unconstitutional taking.  The Court reminded that “Decades of case law establish two unassailable propositions with respect to this court’s determination of whether a zoning ordinance is constitutional: (1) Zoning ordinances are presumed constitutional. (2) The party challenging the constitutionality of the zoning ordinance bears the burden of proof and must prove unconstitutionality beyond fair debate.” Citing to Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), the Court noted that the “sole test for whether an unconstitutional taking occurred in the present case is now whether the regulation completely deprived the owners of all economically beneficial uses of their property…”  In finding that neither the record nor the decision of the Trial Court demonstrated that the property owners carried their burden of proof, the Court held that that the Trial Court improperly looked to the zoning board to carry the burden of proving the constitutionality of the zoning code requirements. The Court was further troubled by the failure of the Trial Court to indicate what standard of review was applied when they reviewed the determination of the board.  

Therefore, the Appeals court remanded the decision to the Trial Court for a determination whether, pursuant to Lingle, the board’s denial of the variance is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by substantial, reliable and probative evidence. 

Haisley v. Mercer County Board of Zoning Appeals, 2007 WL 3342768 (Ohio App. 3 Dist. 11/13/2007). The opinion can also be accessed at:

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