Petti v. City of Richmond Heights

Clifford F. Brown, J.,

dissenting. Although I agree with the first sentence of today’s syllabus, I believe the facts of this case do not support the conclusions reached in the second sentence of the syllabus. I therefore dissent.

The majority laments that “[bjecause the zoning in 1967 was not in evidence, we are unable to conclude whether the use was lawful when it was commenced.” This quandary, however, could have been easily remedied by the most cursory review of the record. Indeed, it is specifically stipulated between the parties that “[a]t the time that the property was owned by the Richmond Heights School Board, it was operated lawfully within an R-l district as a public school administration building * * (Emphasis added.)

It is not for this court or the court of appeals to speculate as to what zoning existed in 1967 or whether the school board’s use of the building in question was, in fact, lawful. The fact remains, as stipulated by the parties, that the use of the building as an office building was legal from its inception. Accordingly, even under the majority’s reasoning, continuation of this use in the hands of another owner qualifies as a nonconforming use and should be allowed.

Moreover, the mere fact that a dentist instead .of a school board proposes to operate the building should have no effect on determining whether this nonconforming use should be continued. Instead, we should focus on whether such continuation would alter the character of the community in which the property is located. In the present case, no such change would occur. Not only has the structure in question existed as an office building since 1967, it *133is adjacent to a parking area for thirty automobiles and is located on property abutting a public school and near a public airport.

As it did in Pschesang v. Terrace Park (1983), 5 Ohio St. 3d 47, the court today twists and tortures the meaning of nonconforming use to deprive a dentist of the reasonable use of his property as a dental office. By misconstruing the zoning provisions in question, the court endorses actions taken by zoning authorities which were designed to freeze the free use of the landowner’s property. The decision here is a far cry from the main purpose of zoning, as first heralded in the landmark decision of Euclid v. Ambler Realty Co. (1926), 272 U.S. 365: the preservation of the “character of the neighborhood.” Id. at page 394. This court has obviously lost sight of such laudable goals by continuing to approve those legal precedents which empower municipal zoning bureaucrats to utilize a labyrinth of zoning laws and regulations which merely harass, annoy and impede landowners in the reasonable use of their property. See, e.g., Torok v. Jones (1983), 5 Ohio St. 3d 31; Brown v. Cleveland (1981), 66 Ohio St. 2d 93 [20 O.O. 3d 88]; Leslie v. Toledo (1981), 66 Ohio St. 2d 488 [20 O.O.3d 406].

I would reverse the judgment of the court of appeals.