This post was authored by Zoe Ferguson, JD
Neither party prevailed in an Ohio case where a nonconforming use issue turned on whether the parties could show that a building’s transformation—from a non-profit residential facility for elderly women to a non-profit residential treatment facility—constituted a change of use, or a continuation.
The Washington County Woman’s Home, a non-profit home for elderly women in Marietta, Ohio, operates as a lawful nonconforming use. In 2018, non-profit Oriana House bought the building, planning to run a residential treatment facility. The city filed a complaint against the Woman’s Home in 2019, alleging the non-profits were violating zoning ordinances by planning to operate the residential treatment facility without a special use permit and requesting a permanent injunction on its operation. The city argued the special use permit was necessary because the facility constituted a change in the nonconforming use. The non-profits argued that the ordinance required only a use and occupancy permit because this was a mere continuation of the existing nonconforming use.
The Woman’s Home argued that Oriana House was a continuation because their facilities are of the “same kind”—both are “nonprofit institutions with sleeping accommodations.” They alternatively argued that even if the facility is not of the same kind, the ordinance states that parties may, as a matter of right, substitute one nonconforming use for another one time, if both are of the same classification and they obtain a use and occupancy permit. The Woman’s Home sought judgment as a matter of law.
While agreeing both were of the same classification, the city argued Oriana House still needed a special use permit because a residential treatment facility is so different from a residential facility for elderly women as to constitute a change, not a continuation. The trial court granted summary judgment to the city, holding that this was a change requiring a special use permit, and enjoining Oriana House from operating the facility. Appellants appealed, arguing that the trial court erred in construing the ordinances because they do not clearly and unambiguously require a special use permit.
On appeal, the court held that neither the city of Marietta nor the non-profits had met their respective burdens for summary judgment. Stating that the city had shown no evidence that the uses were sufficiently different to require a change, and Woman’s Home had not shown there could be no doubt that they posed no imminent threat of violating the ordinance, the court reversed and remanded.
City of Marietta v. Board of Trustees for Washington County Woman’s Home, 2020 WL6393917 (OH App. 10/26/2020)
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