Posted by: Patricia Salkin | January 5, 2014

Ohio Appeals Court Finds Village Zoning Ordinance Nonconforming Use Language Dealing with Mobile Homes Facially Unconstitutional

Sunset and Meadowview each own a parcel of land in Lodi on which each operates a mobile home park. Both of the properties are zoned R–2 for residential use, not MH for manufactured homes park use. However, both mobile home parks constitute authorized nonconforming uses of the properties. Twenty-one of Sunset’s thirty-three mobile home lots and seventeen of Meadowview’s forty-four lots had been vacant for more than six months. Lodi refused to reactivate utilities for those lots for the asserted reason that the nonconforming use of those particular lots had been abandoned pursuant to the terms of the local zoning code. The trial court granted summary judgment in favor of Lodi and declared that L.Z.C. 1280.05 is not unconstitutional or in conflict with state law.

Section 1280.05(a) of the Lodi Zoning Code (“L.Z.C.”) addresses discontinuance or abandonment of a nonconforming use of property and provides:
Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further use shall be in conformity with the provisions of this Zoning Code. In the case of nonconforming mobile homes, their absence or removal from the lot shall constitute discontinuance from the time of absence or removal.

On de novo review, the Court of Appeals determined the not only was this zoning ordinance ambiguous in whether it was referring to mobile homes or mobile home parks, but the ordinance contained no provision for delimiting the nonconforming use of any other type of business in which individual units on the property remain vacant and are not utilized within the scope of the nonconforming use. Instead, only in cases of the absence or removal of mobile homes from portions of the park property does the village attempt to extinguish the nonconforming use of the property on a piecemeal basis. It is because of this discrepancy that the ordinance is arbitrary and unreasonable in its intent to address a valid public interest which might, when justified, reasonably be addressed by way of a nuisance action.

Furthermore, by refusing to provide utility services via the utility lines and systems which remain intact, the village has forced the abandonment of various lots within the parks that have not abandoned the nonconforming use of the land (use as a mobile home park). In so doing, Lodi has caused the abandonment of the lots within the park by systematically squeezing the life out of the parks’ businesses in an attempt to slowly extinguish the nonconforming use. Therefore, this practice clearly negatively impacts the park owners’ substantive due process rights.

The court found L.Z.C. 1280.05 to be facially unconstitutional and reversed the trial court’s holding.

Sunset Est. Properties, L.L.C. v. Village of Lodi, 2013-Ohio-4973 (Ohio App. 9th Dist. 11/12/2013)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2013/2013-ohio-4973.pdf


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