I respectfully dissent. The common pleas court improperly substituted its judgment for that of the board of zoning appeals by granting OSWGI an unconditional use variance in this case.
As noted by the majority, OSWGI made longstanding use of the road at the center of this dispute for access to its radio towers. This use became nonconforming after passage of zoning ordinances that limited use of the road to residential purposes. Following defeat of a zoning amendment by the electorate, the board granted OSWGI a conditional variance to permit its existing nonconforming use of the road for access to the radio towers.
This conditional variance permitted OSWGI to use the entire road and parcel of land according to its established use as it always had. OSWGI wants to accept the variance, but complains that the accompanying condition, limiting its use of the access road for existing radio tower purposes, interferes with the use of its land. However, this argument, as well as the majority opinion, ignores the fact that the limitation arose because the road is a nonconforming use. Nonconforming uses are disfavored by the law, and OSWGI has no right to the unrestricted use of the road for other purposes. See Beck v. Springfield Twp. Bd. ofZoning Appeals (1993), 88 Ohio App.3d 443, 446-447,624 N.E.2d 286, 287-288.
It is well established that decisions of boards concerning use variances are presumed valid and should not be disturbed when supported by the evidence. *Page 274 Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St.3d 260, 263-264, 31 OBR 463, 465-466,510 N.E.2d 373, 376-378; Consol. Mgmt., Inc. v. Cleveland (1983),6 Ohio St.3d 238, 240, 6 OBR 307, 309, 452 N.E.2d 1287, 1289-1290. As noted in Beck, zoning authorities are required to permit an existing uninterrupted use of real property to continue after changes in zoning ordinances that no longer permit the use. However, the ordinances have prospective effect and may impose limitations on the future use, modification, change, expansion or extension of such nonconforming uses. Id.; see, also, R.C.713.15, 303.19, and 519.19.
Consistent with these principles, the board of zoning appeals granted OSWGI the minimum variance necessary to relieve the hardship proven by OSWGI in this case. OSWGI was permitted to use the road for access to its existing radio towers. The record unambiguously shows that OSWGI did not present any evidence to satisfy its burden of proving that it was entitled to a variance for any general business use of the road other than this specific purpose. Determinations concerning variances involve specific proposed uses of property and cannot be made without supporting evidence.
Finally, the trial court's expansion of the permissible uses of the road beyond the condition imposed on the variance ignores safety concerns considered by the board. The trial court's opinion refers only to attendant traffic congestion. However, the opinion ignores general background testimony concerning the proximity of the road to a grade school and concerns about smoke and fumes by adjacent residential neighbors. Any expansion in the use of the road increases these hazards, no matter how slight. The board's decision was supported by the evidence and can be reversed only by ignoring this uncontradicted evidence.
Because the majority fails to address these issues, I respectfully dissent.