Municipal Court of Franklin County
Enviromental Division
City of Columbus vs. John E. Rees and Carol A. Rees
Case 1999 EVH-075795
DEFENDANT'S REPLY BRIEF TO THE POST-HEARING BRIEF OF THE PLAINTIFF
The plaintiff, in their Post Hearing Brief, attempt to expand the case. The plaintiff states as fact, matters that were not offered as evidence and/or matters that are otherwise not part of the record. In addition, the plaintiff takes great liberties with the facts of the matter as well as well as with their interpretation of just what the codes do and do not say.
A very significant part of the plaintiff's Post Hearing Brief is what it does not say. The plaintiff's Post Hearing Brief is totally silent on the matter alleged in the complaint, violation of Columbus City Code 3305.01. The cited code is not mentioned or referred to.
On October 18, 1999, the defendants filed "Motion 1" (copy attached as "A") stating in part that:
"The Columbus Zoning Codes are very lengthy and it is only reasonable that the defendants be advised of the specific codes. We request that the plaintiff be required to cite the number of each and every code the plaintiff alleges the defendants to be in violation of. "
On November 18, 1999 the court held a record hearing on the defendant's "Motion 1" and other matters. After discussion the court expanded on and approved Motion 1 (copy attached as "B"). The court stated in part that:
"Motion 1 amended to acknowledge that paragraph 20 of the complaint also be made more definite. Motion GRANTED, and plaintiff's oral motion to amend paragraphs 20 and 22 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. "
This response is being made in the order that the items were presented and with the plaintiff's statement written verbatim in italics. Sequential numbers have been added for the sake of clarity.
1. "This history is recorded on the building card kept by the Department of Trade and Development's Building Division and was admitted into evidence in the hearing held on this matter as Exhibit C ... From the history presented, it is evident that the main building, the dwelling unit was built in 1919."
Fact: Nothing on the building card makes it evident that the dwelling was built in 1919. (Although not admitted into evidence, and probably not material to the case, the property abstract indicates that the dwelling was constructed in 1905).
Secondly, although the code makes reference to a "main building," there is no evidence to indicate what building is the "main building."
2. "The concrete block garage was built in 1955. The concrete block garage is considered an accessory building to the main structure."
The evidence does indicate that a concrete block garage was built in 1955. The second sentence is an opinion stated as a fact. There was no evidence presented to indicate that the concrete block garage meets the code definition of, or in fact was, an "accessory building."
3. The plaintiff opines that, "A garage repair shop is not an accessory building based upon the definition of accessory building..."
We agree that garage repair shop it is not an accessory building to the house.
4. "The main building's use was as a dwelling house and as the residence and the use of the main building dictated the use of the premises to also be residential."
This is an opinion stated as a fact. The plaintiff, not the code, has determined that the house is the "main building." If it is even necessary to determine what is the "main building," the evidence is to the contrary. The plaintiff concedes that both the house is a nonconforming use and that the garage repair shop is a conforming use of the zoning code.
Once established, the code does not prohibit a "main building" designation change.
Second, even if the main building were determined to be residential, no part of the code supports the statement that, "the main building dictated the use of the premises to also be residential."
5. "The types of uses allowable in the 1954 Zoning Code for a C-4 Commercial District did not include the property being used for a residential use. (See Exhibit A, 47.05.6, par. 1, page 725.) However, because the residential use of the property was established prior to the establishment of the new zoning district, the residential use was considered a non-conforming use."
This is an important point and is true. The house is a non-conforming use.
6. "The building permits granted to the Defendants for the changes to the garage in 1964 and 1968 and which were admitted into evidence as Defendant's Exhibit 1 and 2, state that the garage was being used as a commercial garage and an auto repair shop respectively. This was the first indication in the records of the Department of Trade and Development that the garage was being used for anything other than residential purposes. (See Exhibits C, D and E.) A garage repair shop was an allowable use in a C-4 Commercial District pursuant to the Columbus City Code in-effect in 1964 and is still an allowable use in the current code. (See Exhibits A, 47.05.6, par. 1, page 725 and F, 3355.02, par. (A), page 849.)
The first sentence and the last sentence are true. There was no evidence presented to address the second sentence.
7. "The Defendants changed the residential use of the accessory building to a conforming use."
There was no evidence presented about the use of the garage before 1964. There was no evidence presented to indicate that the concrete block garage meets the code definition of or was in fact an "accessory building." There was evidence presented that the garage building use as a garage repair shop is a conforming use.
8. "...the residential use applies to the entire lot and as well as any buildings on the lot."
This is an opinion stated as a fact and not supported by any code.
9. "Because the entire lot had a residential use and the accessory building's use was based upon the main building's use, the Defendants needed to also change the main building's use to a conforming use."
This is an opinion stated as a fact and not supported by any code.
10. "By not changing the main building's use to a commercial use, the Defendants had in fact established another main building out of the garage, which would have required compliance with additional code sections."
This is an opinion stated as a fact and not supported by any code.
11. "A residential use and a commercial use could not co-exist on a piece of property without one of the uses being in violation of the zoning code...In the case at bar, the dwelling unit and the garage repair shop could not both be on the property because either the dwelling unit would be out of compliance...or the garage repair shop would be out of compliance..."
This is an opinion stated as a fact and not supported by any code that leads to a flawed conclusion. The house is a "non-conforming" use, meaning it does not meet the current code but is legal because it predates the code. The garage repair shop is a conforming use.
12. "Further, parking space requirements for a residential use were different than for a commercial use...for a garage repair shop the minimum number of off street parking spaces were not specifically stated... "
No evidence was presented by either side about parking space conditions or requirements as this issue was not raised at he hearing.
13. "...based on the 1961 code in effect in 1964, there were different requirements for yards in a residential area and a commercial area. (See Exhibit G, §3365.01 Front Yards Established: §3365.03 Building Lines in Residential Districts and §3365.04 Building Lines in Commercial and Manufacturing Districts, pages 53 - 54A.) "
No evidence was presented by either side about yards or building lines or requirements as this issue was not raised at he hearing.
14. "...however, the code did state that for: 'any uses not specified herein,' the minimum parking spaces were 'to be established by Council.' (See Exhibit H, Table No. 47-A, class 21, page 62.) In order for the garage repair shop to have the appropriate number of off street parking spaces, the Defendants had to apply to council for the number of parking spaces to be established. "
This is an unsupported conclusion. The code says nothing about "apply(ing) to council" as the plaintiff alleges. No evidence was presented about the existing parking space conditions or requirements.
15. "Further, the history of the property establishes that in 1968 the Defendants made alterations to the garage. (See Exhibit C.) The Columbus City Code in effect at that time, the 1966 C.C.C., §3305.04 provides that: "* * * The Division of Building Regulation shall in no case grant any permit for the construction alteration or use... without first receiving from the Division of Zoning, a certificate of zoning clearance stating that the said building and/or premises as proposed to be constructed, altered or used would not be in violation of any regulation established by this Zoning Code or any rule or regulation duly adopted by the Director of Development."
The §3305.04 reference to a certificate of zoning clearance is significantly different in content, application and meaning, than §3305.01 code violation alleged in the complaint. One significant difference applicable to the this action is that §3305.04 requires no action by the permit applicant.
Second, the defendants property use was established in 1964. The plaintiff stipulated this.
Third, no evidence was presented by either side about whether or not the Division of Building Regulation received from the Division of Zoning, a certificate of zoning clearance for the 1968 permit. This issue was not brought up by either side during the hearing.
16. "The Supreme Court of Ohio has held that zoning legislation must be construed liberally in favor of the owner's proposed use of the property. Saunders v. Zoning Dept. (1981). 66 Ohio St. 2d 259. 421 N.E.2d 152."
We concur. The same decision made reference to State, Ex Rel. Moore Oil vs. Dauben, Building Inspector (1919), 99 Ohio St. 406; 124 N.E. 232 which said that: Statutes or ordinances of a penal nature...which impose restrictions on the use, management, control or alienation of private property, will be strictly construed and their scope cannot be extended to include limitations not clearly prescribed...
Reference was also made to City of Pepper Pike, Appellee vs. Landskroner, Appellant (1977), 53 Ohio App.2d 63, 76; 371 N.E.2d 579 which said that: Statutes and ordinances of a penal nature restricting the use of private property must be strictly construed against the government and in favor of the accused.
Respectfully submitted,
John E. Rees, Pro Se Defendant
Your comments are invited. E-mail to John Rees at: jerees@att.net
