State v. Stevens , 2023 Ohio 3368 ( 2023 )

[Cite as State v. Stevens, 2023-Ohio-3368.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220494
TRIAL NO. 20CRB-526
Plaintiff-Appellee, :
O P I N I O N.
vs. :
OTIS STEVENS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 22, 2023
Emily Smart Woerner, City Solicitor, and Jon Vogt, Assistant City Solicitor, for
Plaintiff-Appellee,
Bradley R. Hoyt, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Otis Stevens appeals his conviction for violating a
provision of the Cincinnati Municipal Code regarding the operation of nonconforming
uses, specifically a contractor’s storage lot. He argues that the trial court erred in
failing to find that operation of the contractor’s storage lot was a lawful nonconforming
use, that there was insufficient evidence to demonstrate that he had control over the
property, and that both the complaint and the ordinance under which he was charged
were unconstitutional. Finding no merit to these arguments, we affirm Stevens’s
conviction.
Factual and Procedural Background
{¶2} The charges against Stevens relate to the condition of a property located
at 1707 Vine Street (the “Property”). Stevens was charged with violating Cincinnati
Municipal Code 1451-09, which criminalizes the failure to comply with lawful orders
from the city’s Director of Buildings and Inspections. The complaint alleged Stevens,
in violation of Cincinnati Municipal Code 1400-05 and 1401-01-C19, failed to
discontinue using his property as a contractor’s storage lot, a prohibited use, after
being ordered to do so.
{¶3} Part of the complaint appeared to contain a typographical error.
Cincinnati Municipal Code 1401-01-C19 contains the definition for congregate
housing, not the definition for contractor’s storage. That definition is contained in
Cincinnati Municipal Code 1401-01-C20.
{¶4} The case proceeded to a bench trial. At trial, the city called three
witnesses from the Department of Buildings and Inspections. Greg Wiles, Assistant
Supervisor for Inspections, testified that he inspected the Property in February 2020
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OHIO FIRST DISTRICT COURT OF APPEALS
and found it was in extreme disrepair. Wiles testified that Stevens was present at the
Property for the inspection and did not give any indication that he could not make the
necessary repairs that were ordered.
{¶5} James Brunner, Assistant Supervisor of Inspections, testified that after
an amendment to the zoning code in 2004, the Property was zoned as “commercial
community pedestrian,” making use of the lot for contractor’s storage unlawful.
Brunner further testified that if use of the Property for contractor storage had been
established prior to the adoption of the 2004 amendment, this would have been a
lawful nonconforming use of the Property. Brunner testified there were no records
showing that Owens had lawfully established a contractor storage use prior to the
2004 amendment.
{¶6} Walt Moeller, a Cincinnati Zoning Plans Examiner, testified that even if
the Property did have a permit for contractor storage, the disorderly state of the
Property would have still violated the city’s rules for contractor storage. Moeller
further testified there was nothing in the city’s records indicating that the Property
had been used as a contractor storage yard prior to 2004. But Moller testified that he
did not review any records prior to the year 2000.
{¶7} Stevens testified on his own behalf. He testified that he was not a
member of the Property Acquisition Group, LLC, which was listed as the owner of the
Property. But Stevens also testified that the Stevens Family Trust owned the Property
Acquisition Group, LLC, and that he was a beneficiary of that trust. Stevens testified
that he was the managing member of Speedy Maintenance Service, a repair service,
and this office was located on the Property.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} Stevens also testified that the Property had been used to house storage
materials for many years dating back to the 1970s. He presented grainy aerial
photographs from 1996 that purported to show the Property with storage contents in
the yard.
{¶9} At the conclusion of the trial, the trial court found Stevens guilty. The
trial court continued Stevens’s sentencing hearing for 90 days to give him time to clean
up the Property. Because Stevens repeatedly failed to appear in court and clean up the
Property, multiple capiases for Stevens were issued and recalled. Eventually, the trial
court sentenced Stevens to 20 days’ incarceration and remitted any fines.
{¶10} Stevens filed a motion to mitigate the remainder of his sentence. The
trial court granted this motion in part and stayed the balance of days in Stevens’s
sentence.
{¶11} Stevens now appeals.
Nonconforming Use
{¶12} In his first assignment of error, Stevens argues that the trial court erred
in failing to find that use of the Property as a contractor’s storage lot was a lawful
nonconforming use.
{¶13} “In a prosecution for a zoning violation, a defendant may assert the
existence of a prior nonconforming use as an affirmative defense.” City of Hudson v.
Patel, 9th Dist. Summit No. 18434, 1997 Ohio App. LEXIS 5758, 4 (Dec. 24, 1997).
The defendant bears the burden of proving the existence of the nonconforming use.
Rice v. Slyder, 9th Dist. Summit No. 13324, 1988 Ohio App. LEXIS 1295, 3 (Apr. 6,
1988). A prior nonconforming use must meet two requirements: (1) the use must
have been in existence prior to the enactment of the prohibitory land use regulation;
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OHIO FIRST DISTRICT COURT OF APPEALS
and (2) the land use in question must have been lawful when it
commenced. Verbillion v. Enon Sand & Gravel, LLC, 2021-Ohio-3850, 180 N.E.3d
638, ¶ 120 (2d Dist.).
{¶14} Here, Stevens did not meet his burden in showing that a lawful
nonconforming use existed on the Property. With regard to whether the Property was
used as a contractor’s storage lot prior to 2004, Stevens presented very little proof that
it was. The 1996 aerial photographs are not of sufficient quality to conclusively
demonstrate what the Property was being used for at that time, and the city’s witnesses
found no records indicating the Property had ever been used for contractor’s storage.
{¶15} Moreover, even if Stevens had somehow demonstrated that the
Property had contained a contractor’s storage lot before 2004, he failed to meet the
second part of the nonconforming use test: that the use was lawful. As Brunner and
Moeller testified, contractor’s storage lots require a permit, and Stevens presented
none.
{¶16} Stevens therefore failed to meet his burden of proof in demonstrating
that a contractor’s storage lot was a nonconforming use of the Property. His first
assignment of error is accordingly overruled.
Person in Control
{¶17} Stevens next argues, in essence, that the trial court lacked sufficient
evidence to find that he was a person in control of the Property. We find this
assignment of error not well-taken.
{¶18} Cincinnati Municipal Code 1123-3-9 broadly defines the term “person
in control” with regard to zoning offenses:
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OHIO FIRST DISTRICT COURT OF APPEALS
‘Person in control’ shall mean the person, persons, or entity holding title
to the freehold estate of the premises; a mortgagee or vendee in
possession; a receiver; an executor; a trustee; and any person, public or
private entity, lessee or holder of a lesser estate in the premises, and/or
its duly authorized agent(s), with the authority to bring a building or
premises into compliance with the provisions of this code, including,
but not limited to any mortgagee that has filed an action in foreclosure
on the particular premises at issue, until title to the premises is
transferred to a third party.
{¶19} The evidence at trial demonstrated that Stevens held himself out as a
person responsible for upkeep of the Property. He was present during Wiles’s
inspection and did not give any indication that he lacked authority to make repairs.
Moreover, Stevens is a beneficiary of the trust that currently owns the Property. He
further owns a repair service which has contracts with the Property, and his office for
this repair service is located at the Property. Thus, there was sufficient evidence to
find Stevens was a person in control of the property, particularly given the broad scope
of the zoning code.
{¶20} Stevens’s second assignment of error is accordingly overruled.
Unconstitutionality
{¶21} Lastly, Stevens contends that both the complaint and Cincinnati
Municipal Code 1401-01-C19, which defines congregate housing, are unconstitutional.
He contends that both are vague in the context of this case, given that Stevens was
alleged to have operated an unlawful contractor’s storage lot, not unlawful congregate
housing.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} With regard to Stevens’s constitutional challenge to the zoning code, we
find no basis upon which to invalidate the definition of congregate housing. The mere
reference to an irrelevant section of code in Stevens’s complaint does not serve to make
the code itself unconstitutional.
{¶23} With regard to Stevens’s concerns about the complaint, we find this
point potentially more troubling.1 It appears that the city intended to cite subsection
C20, which contains the definition of contractor’s storage, rather than subsection C19,
in charging Stevens. It certainly would have been preferable for the city to amend its
complaint to correct this obvious typographical error.
{¶24} However, Stevens was charged with violating Cincinnati Municipal
Code 1451-09, which prohibits the failure to comply with directives of the building and
inspections director. The terms of this ordinance are readily understandable, and
indeed Stevens does not challenge them on appeal. At the time he was charged,
Stevens was aware that he had been ordered to discontinue use of the Property as a
contractor’s storage lot. He prepared to defend himself from that allegation at trial by
collecting aerial photographs from 1996 and addressing how the Property had been
used in the past to store contractor’s materials.
{¶25} We therefore find no unconstitutionality in either Cincinnati Municipal
Code 1401-01-C19 or Stevens’s complaint and overrule his third assignment of error.
Conclusion
{¶26} For the reasons set forth in this opinion, the judgment of the trial court
convicting Stevens of violating Cincinnati Municipal Code 1451-09 is affirmed.
1 We note that Stevens couches his arguments only in terms of unconstitutionality and does not
challenge the sufficiency of the complaint under the Criminal Rules. Our holding is thus confined
to resolving the alleged constitutional issue Stevens asks us to consider.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
CROUSE, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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