Municipal Court of Franklin County
Enviromental Division
City of Columbus vs. John E. Rees and Carol A. Rees
Case 1999 EVH-075795
DEFENDANT'S POST-HEARING BRIEF
Statement of the Facts
On June 19, 1964 the defendants, John E. Rees and Carol A. Rees,
husband and wife, purchased the real property known as 613 E.
Whittier St., Columbus, Ohio, 43206 (hereafter "the property").
The property was vacant and consisted of a two story residence
and a one story concrete block, one bay garage building. The
property was then and is now zoned C-4.
In the same month the defendants applied for and received a commercial building permit (evidence exhibit 3) to add a second bay to the existing garage (evidence [photograph] exhibit 8).
On July 20, 1964, the defendants started a commercial garage repair shop business known as John's Ignition Service in the commercial garage building.
In March of 1983, the defendants ceased doing business at the property but within a month leased out the commercial garage, still for the purpose of operating a commercial garage repair shop.
Although there have been three different tenants at the property since March 1983, the property has been in continuous use as a commercial garage repair shop since July of 1964 excepting one month vacancies between tenants. The plaintiff stipulated during the trial that the garage has been in continuous use as a commercial garage repair shop since July of 1964.
The business operated continuously and uncontested for almost 34 years until February of 1998 when, with no forewarning or no indication of trouble, a representative of the plaintiff issued an order to the tenant of the garage repair shop to "cease use." The reason given on the order written (evidence - plaintiff's exhibit "B") was that the tenant did not have a "Certificate of Zoning Clearance."
The "Certificate of Zoning Clearance" was made law by City of Columbus Ordinance 1626-79 (copy attached herein and labeled "attachment B").
The plaintiffs filed this suit against the defendants on October 13, 1999 alleging they were in violation of City Columbus City Code (hereafter "CC") 3305.01 because they did not have a "Certificate of Zoning Clearance" for the garage repair shop.
Defendant John E. Rees is employed by the plaintiff in the Division of Fire as a assistant fire chief. From January 1994 until July 1999, defendant John E. Rees was the head of the City of Columbus, Division of Fire, Fire Prevention Bureau. As such, per CC 2501.02, it was his "duty and responsibility" to enforce the fire prevention code.
From July 1997 until October 1999, defendant John E. Rees was involved in a particular lengthy and contentious fire code violation involving property within the City of Columbus but owned and operated by the State of Ohio. Rees' involvement in the matter was a result of his employment by the plaintiff. This fire code violation differed from other fire code violation matters in that the plaintiff's mayor and the director of public safety involved themselves in the matter.
The defendants have alleged the plaintiff's prosecution of this matter is without merit and malicious and for that reason have submitted a counterclaim.
In the hearing of November 18, 1999, the judge determined that the plaintiff's issue would be decided before continuing with the defendant's counterclaim.
Plaintiff's Complaint was Made Definite by the Court
The plaintiff's complaint as filed on October 13, 1999 was unclear to the defendants in that it charged that "...the property does not comply with the City of Columbus' Zoning Codes." For this reason the defendants filed a motion with the court requesting that "...the plaintiff cite each and every code the defendants were alleged to be in violation of. After discussion at the November 18, 1999 hearing on the defendant's motion, the court granted the defendant's motion and the plaintiff's oral motion:
"... to amend paragraphs 20 and 22 (of the complaint) to make it definite that section 3305.01 of the Columbus City Code is the section that is being alleged in paragraphs 20 and 22 that the defendant has not complied with."
Plaintiff Did Not Amend the Complaint
During the plaintiff's presentation of their case they alleged
that the defendants were not in compliance with parts of the
zoning code other then that alleged in the complaint as made
definite by the court in the November 18, 1999 hearing. The
plaintiff did not amend their complaint after the November 18,
1999 hearing. The defendants objected to presentation of any
evidence that did not relate to the charge against them,
violation of section 3305.01 of the Columbus City Code.
Plaintiff Presented No Evidence that the Defendants
Were Required to Have a Certificate
of Zoning Clearance
The plaintiff did not present any evidence that the Certificate of Zoning Clearance code applied to the property or the defendants or that the defendants were required to have a Certificate of Zoning Clearance.
Defendants Presented Evidence that they were not
Required to have a Certificate of Zoning Clearance
The plaintiff stipulated during the trial that the property was
in fact used as a commercial garage repair shop continuously
since July 1964.
The criteria for the requirement to have the Certificate of
Zoning Clearance is stated in CC
3305.01:
"A certificate of zoning clearance is required . . . prior
to the construction or alteration of any building or structure;
the establishment, change, or modification in the use of any
building, structure or land. Further, no person shall maintain or
permit the continuation of any use unless and until a certificate
of zoning clearance has first been issued for said use."
Evidence was presented that the last change of the type described in the code took place in 1968.
The first Columbus City Code 3305.01 that made any reference to the Certificate of Zoning Clearance was published in "The City Bulletin" on August 4, 1979, on page 1005-1006. The city code 3305.01 became law by passage of Columbus Ordinance 1626-79 on July 30, 1979, when it was passed by the Columbus City Council and signed by Mayor Tom Moody (copy attached herein and labeled "attachment B"). The "The (Columbus) City Bulletin" dated January 29, 1977, page 118 and 128, (attached herein as "attachment C") shows that CC 3305.01 in 1977 did not include the Certificate of Zoning Clearance. The plaintiff did not rebut the defendant's statements.
Certificate of Zoning Compliance Law is not
Retroactive
Ohio Revised Code 713.15 (attachment "E") states that:
"The lawful use of any dwelling, building, structure ...
lawful at the time of enacting a zoning ordinance or an amendment
to the ordinance, may be continued, although such use does not
conform with the provisions of such ordinance..."
In the City of Akron v. Chapman (116 N.E. 2d 697)
the city sought to enforce a zoning
ordinance by injunction. The Ohio Supreme Court found that:
"The right to continue to use one's property in a lawful
business...which was lawful at the time such business was
established is within the protection of Section 1, Article XIV,
Amendments, United States Constitution and Section 16, Article I
of the Ohio Constitution..."
In the City of Dublin v. Finkes (83 Ohio App.3d
687), the city issued complaints against the property owner for
zoning violations. The Franklin County Court of Appeals found
that:
"The owner has the right to continue a given use of real
property if that use is
already in existence at the time of enactment of land use
regulation..."
The Property has Two Uses
The property, at least since July of 1964, has had two uses,
residential and commercial. This is not unique, as residential
over commercial is common. In this case, according to the code in
effect in 1964, the commercial use is in compliance with the CC
46.05.6 and the residential use is a nonconforming use, as
residential is not a use permitted in a C-4 district.
Other Issues
The plaintiff has alleged that the defendants are in violation of
section 47.05.6(2) of the Columbus City Code. The defendants
believe that the plaintiff's arguments go beyond the scope of
their complaint and for this reason placed an objection. However,
we believe we are in compliance with the code and address the
plaintiff's arguments here:
The plaintiff cited the code section 47.05.6(1) and section 47.05.6(2) of Ordinance 966-54 published in "The (Columbus) City Bulletin" on September 18, 1954. This is NOT the ordinance that was is effect in June of 1964. Section 47.05.6 of ordinance 966-54 was repealed in its entirety by Ordinance 1540-58 as published in "The (Columbus) City Bulletin" on January 3, 1959 on page 3 (attachment "A").
However the question is moot if only section 47.05.6(1) and section 47.05.6(2) are considered as they were reinstated without change in Ordinance 1540-58 as published in "The (Columbus) City Bulletin" on January 3, 1959 on page 6 and 7 (attachment "A"). However, other parts of section 47.05.6 were changed.
The plaintiff cites Columbus City Code section 47.05.6(1) as applicable to the property. We agree. Citing the section in part:
"47.05.6(1) C-4 Commercial District. Within a C-4 Commercial District no buildings or premises shall be used...for other than a use permitted in a C-1, C-2 or C-3 Commercial District, or one or more of the following uses: ... Garage repair shop ..."
The above clearly makes the garage repair shop a legal use of
the property. It also makes the use of the property for a
residence a nonconforming use. The plaintiff cites Columbus City
Code section 47.05.6(2) as applicable to the property. It reads
in it's entirety:
"47.05.6(2) A use specified in this section within one
hundred fifty feet (150) of a residence or apartment residence
may be permitted by the Board of Zoning Adjustment."
The plaintiff attempts to construe this authority granted to the
Board of Zoning Adjustment as a prohibition against a use
specified in the section. This is simply not true. There are no
prohibitions. The statement is irrelevant as the code already
permits the uses specified in the section. There are no
prohibitions in the zoning code for garage repair shop use. The
1954 and 1958 codes permitted the garage repair shop use without
qualification other than C-4 zoning. No evidence was presented
that disqualified the garage repair shop use in a C-4 district.
There is a basis for the statement that the Board of Appeals may permit a use within 150 feet of a residence. The statement is a remnant from the original 1923 Columbus City Code, Ordinance 34,010, as published in the August 9, 1923 "The (Columbus) City Bulletin". The ordinance created a total of five zoning districts: dwelling, apartment, business, first industrial and second industrial. Among the uses listed for a business district is "garage repair shop." The code permitted some first industrial uses in the business district provided they were not closer than 150 feet to a house or apartment. But the code made an exception to the prohibition of first industrial uses in the business district within 150 feet of a residential district with the following wording:
"[Ord. 34,010 Section 5(C)] A use specified in paragraph B (a limited number of less objectionable first industrial uses) may be located in a business district within 150 feet of a dwelling house or apartment house district on special permit (by the Board of Adjustment)."
The business district and first industrial districts are long gone but permission for the Board of Adjustment to grant the approval remained for many years. The meaningless 150 foot statement is not in the current code.
Other Applicable Codes
The current Columbus City Code 3391.01 (attachment "D")
is relevant to this case:
"...a use of a building...existing at the time of the
enactment of this Zoning Code, may be continued even though such
use does not conform with the provisions of these regulations..."
The Countersuit
The defendants will vigorously pursue their countersuit against the plaintiff for the following reasons:
____________________
John E. Rees, Pro Se
Defendant
Your comments are invited. E-mail to John Rees at: jerees@att.net
