OH Appeals Court Finds Demolition is not a Land Use that can be Permitted through a Use Variance

This post was authored by Caleb Brown, Touro University Jacob D. Fuchsberg Law Center

            In Mt. Lookout Community Council v. Cincinnati, Plaintiff-Appellant Mt. Lookout Community Council (“MLCC”) sought review by the Court of Appeals of Ohio of the city’s Zoning Board of Appeals’ (“ZBA”) which affirmed a use variance application that permitted the demolition of four existing single-family homes to be  replaced  with a multi-family development.

            Under the Cincinnati Zoning Code, the property was located in a Commercial Neighborhood Pedestrian (“CN-P”) zone within an Urban Design Overlay District (“UDOD”) and a Hillside Overlay District. The zoning code permitted both single and multi-family homes in the CN-P zone. However, at the time of the application by the developers, demolition was not permitted in the UDOD, unless ordered by the Director of Buildings and Inspectors for reasons of public health and safety.

            MLCC argued that the trial court erred in holding that a use variance can be used to permit the demolition of the four single-family homes in the case The basis for this argument was that: (1) that Ohio law permits a use variance only to permit a specifically prohibited land use, and only when the legislature has specifically delegated such authority; (2) that demolition does not constitute as a land use; and (3) that the city council has not, through the Cincinnati Zoning Code, delegated the authority to the Zoning Hearing Examiner (“ZHE”) to grant use variances from the regulations pertaining to the UDOD.

            At issue in the case is the Cincinnati Municipal Code which delegates the power to grant the use variance to the ZHE under limited conditions. A use variance allows a use not permissible under the Zoning Code in which the property is located. In order to be granted a use variance, the applicant must show it will suffer unnecessary hardship if strict compliance with the code is upheld. This must be done through a showing of clear and convincing evidence. 

            Among the various permitted uses in a CN-P district, of which the subject property lies, includes residential—single and multi-family—assisted living, commercial uses, industrial uses, and accessory uses. The code’s schedule is silent  as to construction, remodeling, refurbishment, or demolition, as these  actions are all processes by which land might be transformed and changed from one use to another. Since they are not purposes for which land is used, but rather a process by which land is transformed or changed, same is not considered a use. If demolition was considered a use, then no demolition could occur in any zoning district without first obtaining a use variance. This would be nonsensical and create difficulty to conduct any demolition and transformation of properties.

            Therefore, the court held that zoning code in the UDOD prohibits demolition unless certain listed perquisites are met. Demolition is not a land use that can be permitted through a use variance. Accordingly, the court reversed the judgement of the court of common pleas and remanded it back to the ZBA with instructions to enter into an order vacating the Developer’s use variance.

Mt. Lookout Community Council v. Cincinnati, 215 N.E.3d 599, 2023 WL 3607954 (OH App. 5/24/2023)