OH Appeals Court Affirms the Denial of Use Variance for a Campground/Tent Community on Private Property

This post was authored by Sonia Canales, Jacob D. Fuchsberg Touro Law Center

The appellants, The Homeless Charity, Sage Lewis LLC, and Sage Lewis, submitted a request to the Akron City Council in September 2018 for a conditional use variance to allow a campground tent community for the homeless on property owned by Sage Lewis LLC. Subsequently, it was denied and the appellants were issued a Notice of Violation/Order due to a zoning ordinance violation from tents the remained on the property. Prior to the conditional use variance for the existence of a campground, tents for homeless individuals were already established on the aforementioned property. Their reasoning for the conditional use variance was to provide an “emergency, potentially lifesaving shelter to the most destitute members of the community.”

The appellants then sought an appeal of the denied request from the Akron Board of Zoning Appeals (henceforth BZA). The BZA held a public hearing in which the Akron City Planning Commission openly and obviously opposed the variance and continued to state that BZA did not hold the authority to even grant the variance. Ultimately, BZA upheld the City’s decision and also denied the variance request.

Further litigation ensued when the appellants submitted an administrative appeal in the Summit County Court of Common Pleas (henceforth trial court) to allow additional evidence and discovery to support their request for a campground of tents and to prove the unconstitutionality of the zoning ordinance. Trial court granted discovery solely to support the constitutionality arguments. Once more, the appellants’ variance request was denied because the trial court found that only Sage Lewis LLC held standing on the constitutional arguments because he was the property owner of the plot of land that was in at the core of this battle.

The appellants sought an appeal of the trial’s court decision in Ohio’s Court of Appeals, 9^th Judicial District. They asserted that the trial court erred in holding that appellants Sage Lewis and HC lacked standing, in upholding the variance denial, and in in holding that appellants failed to state as applied substantive due process claims under the federal and state constitutions. All three errors of assignments were overruled and the Court of Appeals affirmed the trial court’s decision.

After reviewing the zoning codes in question, such as 153.240, which noted the use and prohibitions of each district, the Court of Appeals found that the structure of a campground was not prohibited since it was not listed a prohibition in the 24 different circumstances and structures that could apply. Thus, since campground was not a building that was prohibited, they followed with an analysis on whether the use of the campground was in general keeping and appropriate to the authorized uses of the district it was in.

Sage Lewis LLC was located in Class U1 District, which was residential with one family homes, two family homes in certain areas within the district, and a few public spaces such as schools and museums. The trial court determined they had a preponderance of reliable, probative, and substantial evidence as a matter of law that the use of the property was prohibited because of the character of use. The court determined that tents for homeless people in a residential neighborhood was an eyesore when seen adjacent to the apartment building. The character use was also targeted at the homeless people in the neighborhood as that also was not a character of use in accordance to the zoning ordinance. The tents would supersede how many people may reside on a lot of land. Despite the appellants’ pleas about limiting the number of tents and keeping them out of sight, the appeals court determined that there was a preponderance of evidence that the tent campground was not an appropriate use in District U1.

The arguments of constitutionality also revolved around the aforementioned rationale. The Court of Appeals asked “whether the ordinance, in prescribing a landowner’s proposed use of his land, has any reasonable relationship to the legitimate exercise of police power by municipality.” They determined the city of Akron did due to the presumed and unconstitutional use described above. The appellants originally argued that based on Ohio’s constitution, they were being deprived of a property interest in sheltering homeless individuals in tents on their property in the past and intended to the same in the future for the same purpose. However, one does not have that interest if the use was not granted in accordance to the zoning codes.

The Court of Appeals also disagreed with the appellants’ right to rescue argument which came about from a 7^th circuit case. The 7^th Circuit did not recognize a constitutional right to be rescued or to rescue under the 14^th Amendment but it acknowledged that arbitrary state action that may unconstitutionally deprive an individual of the right to life for purposes of the 14^th Amendment. The Court found that there was no deprivation of the appellants’ right to rescue nor the homeless individuals’ right to being rescued as that has no bearing on use and second, they found it to be arbitrary in the argument. Due to the overruled arguments regarding use and constitutionality of the zoning ordinance, the Court of Appeals immediately discarded the holding that appellants Sage Lewis and HC lacked standing and marked it moot.

 Homeless Charity v. Akron Bd. of Zoning Appeals, 2022-Ohio-1578 (2022)