Posted by: Patricia Salkin | March 25, 2020

OH Appeals Court Holds Property Owner Failed to Show That It Was Deprived of Any Property Interest When Ordered to Remove Nonconforming Billboard

This post was authored by Matthew Loescher, Esq.
Ehemann Real Estate owned property located at 5060 Batavia Pike in Hamilton County, Ohio, and leased the property to EME Fence Company, Inc., (“EME”). EME leased a small portion of the land to Lamar Advantage GP Company, on which Lamar has been operating a legal nonconforming billboard. This case arose from the Township’s decision that the billboard must be taken down.
In its first assignment of error, the Township claimed the trial court improperly reversed the Township’s zoning decision. The court therefore analyzed whether the 2008 planned unit development (“PUD”), which did not mention the nonconforming billboard, required the billboard to be removed. The Township argued that the magistrate improperly “reopened” the 2008 PUD and made factual findings regarding the 2008 PUD, even though the 2008 PUD was never appealed and was not before the trial court in this case. The court found that it was unclear from the 2008 PUD whether the parties intended for the billboard to remain in place. Because Paul Drury, the secretary for the zoning commission, testifying to this during the hearing on the 2012 PUD application, the magistrate did not exceed his authority in considering the record from the 2008 PUD as it was included in the record
In its second assignment of error, the Township contended that the 2008 PUD did not include a condition for the billboard, and so the continued use of the billboard was not permitted as the billboard was a nonconforming use. The court found a preponderance of the evidence supported the magistrate’s holding that the omission of the billboard from the 2008 PUD was an oversight, and not an intentional relinquishment of Lamar’s property rights in the billboard. Here, in adding the condition requiring removal while approving the 2012 PUD application, the Township modified the written conditions of the 2008 PUD, and thereby violated ATZR 4.1.I. As such, the Township’s second assignment of error was overruled.
Lamar argued that the Township violated its constitutional rights by substantially interfering with Lamar’s property. Specifically, Lamar claimed that it was entitled to a writ of mandamus against the Township, because the Township used the PUD process to substantially interfere with Lamar’s property, resulting in a taking of Lamar’s property. The court found Lamar’s substantive-due-process argument failed under both the state and federal standards, as Lamar failed to show that it was deprived of any property interest or that the Township’s ruling on the 2012 PUD application was arbitrary or unreasonable. The court further found the fact that the Township’s ruling was contrary to law was not sufficient to sustain a claim of violation of substantive due process. The trial court’s judgment was therefore affirmed.
Ehemann Real Estatet, Ltd v Anderson Township Zoning Commission, 2020 WL 1488722 (OH App. 3/25/2020)

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