Posted by: Patricia Salkin | November 10, 2020

OH Appeals Court Finds Company was Properly Enjoined from the Continued Use of Bench Billboards in Public Rights-Of-Way

This post was authored by Matthew Loescher, Esq.

Bench Billboard Company (“BBC”) maintained benches in Colerain both on private property and in the public right-of-way for decades. In October 2014, Colerain adopted Zoning Resolution 63-14, which declared all benches existing within the public right-of-way to be a public nuisance. In February 2015, the township commenced this action seeking: a declaration the benches listed in the complaint were in the right-of-way within its jurisdiction; an injunction forcing the removal of the benches; and the imposition of fines for each violation.

BBC first contended that the trial court improperly granted Colerain’s request for injunctive relief because the benches were legal, nonconforming uses. The record reflected that BCC never sought or received certificates of nonconforming use for the benches in the public right-of-way. Absent receiving those certificates, the only claim of a right to a nonconforming use would have to be based in the ownership of the land on which the use was being continued – which was not the case here. Furthermore, Colerain provided testimony from various sources that the benches in this case were sources of litter, including discarded drug paraphernalia, that homeless sleep on them and then loiter in nearby businesses during the day, and that the benches were a distraction to drivers.

BBC next argued that the trial court improperly concluded that its counterclaims for declaratory and/or injunctive relief were barred by its failure to exhaust its administrative appeal rights. Specifically, BBC claimed that an appeal would have been fruitless because the appeal could not have addressed its statutory or constitutional challenges to the zoning decisions. The court rejected this contention, finding that these issues were addressed elsewhere by the trial court and were not subject to its decision that the claims were barred by the failure to appeal administratively. Thus, while the trial court should have addressed the benches on private property separately, and the record did not support the denial of that portion of the claim for declaratory relief on the basis of the failure to exhaust administrative remedies, the court affirmed the trial court’s dismissal of the claim.

In its final assignment of error, BBC alleged that Colerain’s restrictions on benches violated its First Amendment rights. Here, Colerain presented substantial testimony that benches along the roadway, whether in the public right-of-way or inches outside of it on private property create health and safety issues, ran contrary to an aesthetic that Colerain has an interest in cultivating along its business corridor, and created significant issues for traffic. Accordingly, the court overruled BBC’s third assignment of error. In determining whether the enforcement of zoning ordinances was entitled to immunity, the court held that the fact that enforcement occurred on private property was not relevant, and BBC failed to cite any authority to the contrary. Consequently, the court affirmed the judgment of the trial court.

Colerain Township Board of Trustees v Bench Billboard Company, 2020 WL 5820969 (OH App 9/30/2020)

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