Posted by: Patricia Salkin | September 5, 2019

OH Appeals Court Affirms Holding that Grain Business was Not a Nonconforming Use

This post was authored by Matthew Loeser, Esq.

In 2005, Penewit purchased four parcels of land surrounded by Ohio Department of Transportation property, residential properties, and historical and business zoning. Since 1988, the property had been zoned “Village Business,” and was originally zoned to be run as a grain business. In December 2015, Al Kuzma, the Chief Building Official for Greene County, Ohio, issued an adjudication order to Penewit, stating that an inspection had been performed and that the buildings on the property violated the Ohio Building Code (“OBC”) and were unsafe, due to structural deterioration and lack of maintenance. The order further stated that “lack of maintenance through the years has caused the structure to deteriorate to the point where it is considered not habitable, a public nuisance, a blight to the community and endangerment to the public use of the adjacent bikeway and street.”

Penewit argued that the trial court erred in affirming the Spring Valley Board of Zoning Appeals (“BZA”) decision, which forced him to use a variance/conditional use application process and placed stipulations on his property use even though he provided evidence of his historic non-conforming use. The court noted that the correct analysis for this case would have involved an analysis of whether a nonconforming use existed when the Village Zoning Districts were established in 1988 or 1989. Here, the magistrate concluded that Penewit’s use was not a preexisting nonconforming use because agricultural and trucking uses were not included among the allowed principal, accessory, or conditional uses in the Village Business District, and Penewit never applied for a permit to store grain. The court found this error was harmless, however, as the magistrate also found a lack of evidence in the record that a preexisting nonconforming use existed when the Village zoning regulations were adopted or amended.

Penewit next claimed that the BZA committed administrative error by forcing him to apply for a zoning permit and by failing to have appropriate forms that would reflect his argument about nonconforming uses. As Penewit failed to raise this issue before the trial, court held that the issue had been waived. Penewit lastly contended that the use of his property was agricultural and that agricultural uses were exempt from the requirement of a permit under Section 1001 of the Zoning Code. The court rejected this argument, finding the zoning code that Penewit relied on in the trial court was the Spring Valley Township Zoning Code, which did not apply. Conversely, the Village’s zoning code, which applied to this case, did not contain any such exemption. Accordingly, the judgment of the trial court was affirmed.

Penewit v Spring Valley Zoning Board of Appeals, 2019 WL 3761907 (OH App. 8/9/2019)


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