High court backs Ottawa Hills resident

Ruling with statewide implications overturns village zoning restriction

11/8/2013

COLUMBUS — In a case closely watched by cities across the state, a sharply divided Ohio Supreme Court on Thursday held that a lot deemed buildable by Ottawa Hills when purchased 39 years ago remains buildable today despite zoning changes over the years.

This fight began before the village zoning commission in 2004 and worked its way up to the high court. By a vote of 4-3, the Supreme Court overturned the lower rulings and agreed with the owners — Annette Boice and her deceased husband, Willis — that they could sell the 33,000-square-foot lot as buildable.

Mrs. Boice has since sold the adjacent property on which their former home stands, but the vacant lot at 2570 Westchester Rd. remains unsold nine years later because the village would not allow a structure to be built there.

“The property has a negative value if you can’t build on it,” said the Boices’ Maumee attorney, Marvin Robon. “Only the two neighbors might want to buy it, and neither wanted it. Why should they pay the taxes on it if they can’t sell it, can’t put a swimming pool on it, and can be sued if they don’t cut the grass?”

Justice William O’Neill, writing for the majority, wrote Ottawa Hills cannot make the argument that the Boices surrendered their right to build on the property because they didn’t do so between the time they bought the lot in 1974 and when the minimum buildable lot size was changed in 1978 from 15,000 square feet to 35,000. That’s about 2,000 feet larger than the Boice lot.

To agree with the village, Justice O’Neill wrote, would mean “landowners in Ohio would hold title to vacant land at their own peril subject to government regulations that can change overnight. This result would eliminate the constitutional protections that people must be afforded with respect to their own private property.”

He said the county had reduced the property’s expected market value from a “nest egg” approaching $250,000 to $23,400 because it was deemed unbuildable. The majority also noted that other property owners in the area had received approval to build on smaller lots.

Justices Paul Pfeifer, Terrence O’Donnell, and Sharon Kennedy joined in the majority. Chief Justice Maureen O’Connor and Justices Judith Lanzinger and Judith French dissented.

Justice Lanzinger, of neighboring Toledo, countered that the majority misinterpreted the word “use” when deciding that the property’s use survived the zoning change.

“The Boices never used this property as anything but a side yard to their home,” she wrote. “Mere characterization of a piece of property as ‘buildable’ describes a potential use, not an existing or actual use. It is simply a possibility for future use of the property.

“The Boices could certainly have built a home on the property between 1974, when they purchased the two parcels, and 1978, when the new ordinance took effect,” Justice Lanzinger wrote. “They provided no evidence of seeking a variance for their second parcel until 26 years after the ordinance’s enactment, when they decided to sell their property.”

The village’s solicitor, Sarah McHugh, said the decision would have minimal impact on other properties in Ottawa Hills because there are few vacant lots left. But the effects of the case go beyond Ottawa Hills.

“It changes the zoning law on nonconforming use,” she said. “Previously, in order to be considered a nonconforming use, you had to be actually using the property. This case broadens the noncomforming use to include how a landowner may have expected to use the property in the future.”

The Ohio Municipal League had filed a brief urging the court to uphold the 6th District Court of Appeals’ decision backing the zoning commission.

A decision otherwise, it argued, “would render zoning regulations ineffective and negatively impact the ability of zoning regulations to regulate land use for the benefit of the public health, safety, and welfare.”

The Boices’ son, Peter, said they will consider this to be a victory only when they get a letter from Ottawa Hills stating the property is considered buildable for the next owner.

“Having gone through this into the 10th year, we found that a mostly black-and-white-seeming thing is not always black and white,” he said. “Even though the Supreme Court has given us a nice ruling here, it has remanded it back down to the lower court. We’re close to the finish line but not there yet.”

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.