QRP Dayton Properties, L.L.C. v. Jefferson Twp. Bd. of Zoning Appeals

[Cite as QRP Dayton Properties, L.L.C. v. Jefferson Twp. Bd. of Zoning Appeals, 2014-Ohio-2209.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
QRP DAYTON PROPERTIES, LLC :
dba COHEN
Plaintiff-Appellant : C.A. CASE NO. 25984
v. : T.C. NO. 13 CV 1739
JEFFERSON TOWNSHIP BD. OF : (Civil appeal from
ZONING APPEALS, et al. Common Pleas Court)
Defendants-Appellees :
:
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OPINION
Rendered on the 23rd day of May , 2014.
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MARTY BEYER, Atty. Reg. No. 0060078, 204 S. Ludlow Street, Suite 204, Dayton, Ohio
45402
Attorney for Plaintiff-Appellant
JEFFREY C. TURNER, Atty. Reg. No. 0063154 and DAWN M. FRICK, Atty. Reg. No.
0069068 and KEVIN A. LANTZ, Atty. Reg. No. 0063822, 1 Prestige Place, Suite 700,
Miamisburg, Ohio 45342
Attorneys for Defendants-Appellees
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DONOVAN, J.
{¶ 1} Plaintiff-appellant QRP Dayton Properties, L.L.C., dba Cohen (hereinafter
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“Cohen”) appeals a judgment of the Montgomery County Court of Common Pleas affirming
a decision rendered by the Jefferson Township Board of Zoning Appeals (hereinafter
“BZA”) which upheld the Jefferson Township Zoning Department’s decision to issue a
Legal Notice of Violation to Cohen. Cohen filed a timely notice of appeal with this Court
on November 1, 2013.
{¶ 2} The relevant history of the property at issue, 5940 West Third Street in
Jefferson Township, Ohio, began in the 1950's when the property housed an auto parts retail
store, Al’s Auto Parts. Sometime later, the name of the business was changed to Affordable
Auto Parts, but the focus of the business remained the sale of auto parts from junked
vehicles. For approximately sixty years, the property has consistently been used “to take in
junked cars and sell off the parts” by the prior owners of Al’s and Affordable. Neither Al’s
nor Affordable engaged in a scrap metal line of business.
{¶ 3} The record is not clear regarding Al’s zoning classification under the
Montgomery County Zoning Resolution (MCZR) which governed Jefferson Township
zoning issues from approximately 1957 until 1970. The property, however, was zoned to
permit the operation of an auto parts salvage business. Pursuant to the Jefferson Township
Zoning Resolution (JTZR), which took effect after 1970 until now, the property is currently
zoned as I-1, light industrial. The current zoning scheme does not permit the operation of
an auto salvage business. Accordingly, the auto salvage business is a non-conforming use
of the property under the JTZR.
{¶ 4} In September of 2011, Cohen purchased the property from Affordable.
According to Cohen, he “met with [Jefferson] Township’s Administrator Len Roberts and its
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Zoning Director Kevin Ney ***, disclosed [its] intent to add a scrap [metal] line of business,
to which Roberts and Ney responded that [it] would not need any zoning change to
accomplish this.” Cohen continued using the property for the business of selling auto parts
from junked vehicles. Cohen further expanded his business to include “scrap metal sales”
and advertised his new business with a street sign. Cohen’s scrap metal sales consisted of
“walk-ups,” or “people *** dragging there [sic] trashcans or their shopping carts *** and all
the *** stuff that just doesn’t look great[,]” including “aluminum, wrought iron, beer cans,
tires, circuit boards, computers, air conditioners and refrigerators free of hazardous
substances, copper, speakers, and wires.”
{¶ 5} On December 4, 2012, Jefferson Township Zoning Director Kevin R. Ney
issued a “Legal Notice of Violation” (LNV) to Cohen for “operating [the] business out of the
scope of allowable use[,]” and “[p]lacing multiple signs in right a way [sic] on daily and
flashing marquee[.]” Cohen appealed the LNV to the Jeffererson Township BZA on
December 26, 2012. On January 24, 2013, and February 28, 2013, the BZA conducted
hearings on Cohen’s appeal of the LNV. In the hearings, Cohen requested “a continuation
of nonconforming use dealing with junk.” Essentially, Cohen argued that the property was
primarily used to recycle junked automobiles and sell the parts. Cohen pointed out that only
a small part of the property was used for purchasing scrap metal “which is merely another
form of junk.” Cohen asserted that the JTZR encompasses “both wrecked cars and common
scrap” and explicitly provides that a property owner is permitted to continue a
nonconforming use of his property. Cohen stated that he has simply supplemented the
original prior nonconforming use without changing the property’s nature and character.
[Cite as QRP Dayton Properties, L.L.C. v. Jefferson Twp. Bd. of Zoning Appeals, 2014-Ohio-2209.]
{¶ 6} The BZA also heard testimony from residents in the surrounding
community. The general theme of their testimony was that Cohen’s scrap business resulted
in increased theft in the area. Specifically, residents testified that people were stealing scrap
metal and other property from occupied houses and selling the stolen materials to Cohen.
On February 28, 2013, the BZA voted unanimously to uphold the LNV pursuant to §
3604.04 of the JTZR because Cohen had improperly extended, enlarged, and/or increased in
intensity its nonconforming use of the property.
{¶ 7} On March 19, 2013, Cohen filed a Notice of Administrative Appeal with the
trial court in order to appeal the BZA’s decision upholding the issuance of the LNV. Again,
Cohen argued that scrap is “just another form of junk” and therefore, “he hasn’t changed the
nature and character of the property’s use.” Cohen further argued that he only
supplemented the original nonconforming use and the JTZR encompasses “both wrecked
cars and scrap.” Cohen asserted that the trial court should strictly construe the JTZR in his
favor and reverse the BZA decision.
{¶ 8} Conversely, the BZA argued that its decision was supported by a
preponderance of reliable, probative, and substantial evidence. Specifically, the BZA
asserts that Cohen’s scrap metal business must comport with the Montgomery County
Zoning Resolution, rather than the JTZR, for it to maintain its prior nonconforming use of
the property. Because the property had consistently been used to receive junked cars and
sell their parts prior to the enactment of the JTZR, such a prior use must have been legal
under the MCZR in order for such a use to subsequently qualify as a valid nonconforming
use. Pursuant to the definition of “junkyard” in the MCZR, the BZA argues that the types
of scrap that Cohen purchases are “necessarily excluded.” Accordingly, Cohen’s expansion
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of the property into a scrap metal business changed the basic nature and character of the
original nonconforming use, thus “resulting in increased crime to the detriment of public
health and safety.”
{¶ 9} The trial court ultimately held that the BZA’s decision upholding the
issuance of the LNV was supported by a preponderance of reliable, probative, and
substantial evidence. Specifically, the trial court found that Cohen’s “use of the property to
purchase scrap metal does not bear a reasonable similarity to its [original] nonconforming
use in auto part sales.” The trial court also found that it was reasonable for the BZA to
consider the testimony of nearby property owners and residents regarding the negative effect
the scrap metal business was having on the surrounding area.
{¶ 10} It is from this decision that Cohen now appeals.
{¶ 11} “THE TRIAL COURT INCORRECTLY AFFIRMED THE BZA’S
DECISION BECAUSE IT FAILED TO STRICTLY CONSTRUE THE TOWNSHIP’S
ZONING CODE IN COHEN’S FAVOR AND BECAUSE COHEN’S USE DIDN’T
CHANGE THE NATURE AND CHARACTER OF THE PROPERTY’S USE.”
{¶ 12} In his sole assignment, Cohen contends that the trial court erred when it
upheld the decision of the BZA because it failed to strictly construe the JTZR in his favor.
Cohen also argues that his expanded use of the property as a scrap metal business did not
change the nature and character of the property’s prior nonconforming use as an automobile
junkyard that sells salvaged auto parts.
{¶ 13} Initially, we note that the standards of review for a court of common pleas
and an appellate court differ considerably when an administrative appeal is involved. In the
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case of In re Application for Conditional Use of Watkins, 2d Dist. Montgomery No. 17723,
2000 WL 192430 (Feb. 18, 2000), this court confirmed that a court of common pleas must “
‘determine whether there exists a preponderance of reliable, probative, and substantial
evidence’ ” to support an agency decision. Id. at *2, quoting Dudukovich v. Lorain Metro.
Hous. Auth., 58 Ohio St.2d 202, 207, 389 N.E.2d 1113 (1979). Furthermore, the trial court
must presume that the agency decision is “ ‘reasonable and valid.’ ” Id., quoting Community
Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 66 Ohio St.3d 452, 456, 613
N.E.2d 580 (1993). “[I]n an administrative appeal pursuant to R.C. Chapter 2506, the
common pleas court considers the whole record, including any new or additional evidence
admitted under R.C. 2506.03, and determines whether the administrative order is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence.” Durell v. Spring Valley
Twp. Bd. of Zoning Appeals, 2d Dist. Greene No. 2012 CA 23, 2012-Ohio-5098, ¶21.
{¶ 14} In contrast, when an appellate court reviews a trial court’s decision regarding
an agency order, the appellate court uses two distinct standards of review. Lamar Outdoor
Advertising v. Dayton Bd. of Zoning Appeals, 2d Dist. Montgomery No. 18902,
2002-Ohio-3159, at ¶ 12. On a question of fact, an appellate court’s review is limited to an
abuse of discretion. Id. However, on a question of law, an appellate court’s review is de
novo. Ohio Dept. of Commerce, Div. of Real Estate v. DePugh, 129 Ohio App.3d 255, 261,
717 N.E.2d 763 (4th Dist.1998). Thus, we apply the same standards as the trial court
without deference to the trial court’s decision. Brinkman v. Doughty, 140 Ohio App.3d
494, 497, 748 N.E.2d 116 (2d Dist.2000).
[Cite as QRP Dayton Properties, L.L.C. v. Jefferson Twp. Bd. of Zoning Appeals, 2014-Ohio-2209.]
{¶ 15} The MCZR defined “junk yard” as follows:
JUNK YARD
Any area where waste, discarded or salvaged materials are bought,
sold, exchanged, baled, packed, disassembled or handled, including auto
wrecking yards, house wrecking yards, used lumber yards or yards for storage
of salvaged house wrecking and structural steel materials and equipment; but
*** not including *** establishments for the sale, purchase or storage of ***
used cars in operable condition, salvaged machinery, and the processing of
used, discarded or salvaged materials as part of manufacturing operations.
{¶ 16} The JTZR defines “junk,” and also provides a slightly modified version of
“junk yard:”
JUNK
Old or scrap copper, brass, rope, rags, batteries, paper, rubber, junked,
dismantled, or wrecked motor vehicles or parts thereof; iron, steel, and other
old or scrap ferrous or nonferrous materials which are not held for sale or
remelting purposes by an establishment having facilities for processing such
materials.
JUNK YARD
An establishment or place of business *** which is maintained or
operated for the purpose of storing, keeping, buying, or selling junk; or for
the maintenance or operation of any automobile graveyard.
{¶ 17} We note that to the extent that “scrap” appears in the JTZR’s definition of
“junk,” the JTZR does not permit “junk yards” in I-1 districts, where Cohen is located.
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Admin. R. 15, Art. 23, Admin. R. 10, ¶ 2; Admin. R. 12 at 3-4; see Admin. R. 15, Art. 25, §
2502(B)(1) (“junk yard” is a conditional use in an “I-3,” heavy industrial zone). We also
note the JTZR prohibits a nonconforming use from being “extended, enlarged or increased in
intensity.” Art. 36, § 3604.04(E); see Art. 36 § 3601 (extension of nonconforming use must
conform to zoning district’s regulations).
{¶ 18} A nonconforming use is a term “employed to designate a use of property
which was lawful prior to the enactment of a zoning ordinance and which use may be
continued after the effective date of the ordinance even though it does not comply with the
applicable use restrictions.” C.D.S Inc. v. Village of Gates Mills, 26 Ohio St.3d 166, 168,
497 N.E.2d 295 (1986), citing State v. Pierce, 164 Ohio St. 482, 132 N.E.2d 102 (1956).
The fact that a use is conditional does not also mean that it fails to conform to an applicable
zoning restriction; in essence, the use is permitted in the particular zoning district, although
conditions apply. Jennings v. Xenia Twp. Board of Zoning Appeals, 2d Dist. Greene No.
07-CA-16, 2007-Ohio-2355.
{¶ 19} It is well established that “the right to continue a nonconforming use is based
upon the concept that one should not be deprived of a substantial investment which existed
prior to the enactment of the zoning ordinance.” Kettering v. Lamar Outdoor Advertising,
Inc., 38 Ohio App.3d 16, 18, 525 N.E.2d 836 (2d Dist.1987). However, nonconforming
uses are not favorites of the law. Id. Thus, “the rights of a nonconforming user are limited,
and the clear intent and purpose is to eliminate such nonconforming uses as rapidly as
possible.” Id.{¶ 20} On appeal, we must determine whether the decision of the BZA affirming
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the LNV to Cohen for operating a scrap metal business outside the scope of its valid
nonconforming use as an auto parts business on the property was supported by a
preponderance of reliable, probative, and substantial evidence. In Ledford v. Board of
Zoning Appeals, 171 Ohio App.3d 24, 2007-Ohio-1673, 869 N.E.2d 113 (2d Dist.), we held
that adding an automobile repair garage as a permitted use of property to the property
owner’s preexisting nonconforming use of the property for a towing and automobile parts
retail business constituted a substantial alteration to the preexisting nonconforming use. In
the instant case, as in Ledford, there is no dispute that Al’s and Affordable’s retail auto parts
business constitutes a pre-existing and continuous nonconforming use of their property.
Sufficient evidence was adduced at the hearings before the BZA that the property had been
utilized as an automobile salvage yard and automobile parts retail business for
approximately sixty years before Cohen purchased the property in 2011.
{¶ 21} In support of his argument that the scrap metal business is merely an
extension of the existing nonconforming use of the property, Cohen relies upon the
definition of “junk” in the JTZR. Specifically, Cohen asserts that his scrap metal business
is simply another form of junk, and pursuant to the property’s prior nonconforming use for
the sale of auto parts, it has not substantially altered that use. Rather, Cohen contends that
he has merely “complement[ed]” the “same use” and “same business” without changing the
nature of the property.
{¶ 22} Cohen further relies on two cases in support of his position, State ex rel.
Zoning Inspector v. Honious, 20 Ohio App.2d 210, 253 N.E.2d 301 (2d Dist.1969), and
Conrad v. Babcock, 124 Ohio App.3d 667, 707 N.E.2d 44 (11th Dist.1997). Cohen’s
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reliance on both cases, however, is misplaced. In Honious, we held that a junk operator’s
increase in business, with an increase in the number of junk automobiles on his lot, was not
an unlawful extension of his prior nonconforming use, where it did not appear that the area
of use had been enlarged. Id. In Conrad, the Eleventh District Court of Appeals held that
the addition of a crematorium to the rear of an existing nonconforming funeral home was
permitted because it was an accessory use to a funeral home as broadly defined by the Ohio
legislature in R.C. 4717.01(C). 124 Ohio App.3d 667, at 674.
{¶ 23} It is undisputed that no part of the preexisting nonconforming use of the
property in question was related to the scrap metal business. To maintain legal
nonconforming status, Cohen’s use of the property must comport with the MCZR’s
regulations and the JTZR’s prohibition against the extension of nonconforming uses. We
note that the JTZR’s definition of “junk” encompasses scrap metals and other scrap
materials. Additionally, the JTZR’s definition of “junk yard” contemplates an
establishment that sells “junk.” However, because the original nonconforming use of the
property was only for the sale of parts of junked automobiles, to extend the nonconforming
use to include the purchase of scrap metal is prohibited under the JTZR. Moreover,
although Cohen argues that there has been no change to the nature and character of the
property from the newly implemented scrap metal business, credible testimony was adduced
from nearby property owners and residents regarding the negative impact that Cohen’s scrap
metal business had on the surrounding area. Specifically, an increase in the theft of scrap
metal and scrap materials was reported.
{¶ 24} Therefore, we find that the Jefferson Township BZA’s decision upholding
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the LNV against Cohen for extending the property’s prior nonconforming use into a scrap
metal business was reasonable and was supported by a preponderance of substantial,
reliable, and probative evidence. Accordingly, the trial court did not err when it affirmed
the BZA’s decision upholding the LNV against Cohen.
{¶ 25} Cohen’s sole assignment of error is overruled.
{¶ 26} Cohen’s sole assignment of error having been overruled, the judgment of the
trial court is affirmed.
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FAIN, J. and HALL, J. concur.
Copies mailed to:
Marty Beyer
Jeffrey C. Turner
Dawn M. Frick
Kevin A. Lantz
Hon. Dennis J. Langer