
    Zumberge v. Odebrecht et al.
    [Cite as Zumberge v. Odebrecht (1973), 37 Ohio Misc. 71.]
    (No. 16846
    Decided September 12, 1973.)
    Court of Common Pleas of Mercer County.
    
      Mr. William Meikle, assistant prosecuting attorney, for plaintiff.
    
      Mr. Lee B. Dabbelt, for defendants.
   Dull, J.

This action was instituted by the plaintiff, the county zoning inspector, acting under the provisions of Section 303.24 of the Ohio Revised Code, requesting injunctive relief for a continuing violation of the 1971 Zoning Resolution of Mercer County, Ohio.

The defendants are the owners of two adjoining lots located in 1138 and 1140 East Market Street in Jefferson Township, Mercer County, Ohio, purchased by the defendants in 1966. On the west lot, located on 1138 East Market Street, there is a residence located at the south end of the lot and a mobile home at the north end. On the east lot located at 1140 East Market Street there is also a residence located at the south end of the lot. The mobile home now located at the north end of this lot is the one concerning which injunctive relief is sought.

Both of these lots were originally located in a zone designated as “S-l” Special, which provides for: “Parks, Public Uses, Essential Services, Accessory Uses, Conservation and Highway Interchange Areas, Non-commercial Recreational Facilities, Agriculture and Forestry, Plant Cultivation.”

On May 12, 1972, this zone was changed to one designated as “B-2” Highway and General Business, which provides for: “Public Uses, Semipublic Uses, Social Activities, Retail Business, Personal Services, Business Services, Professional Activities, Offices and Banks, Gasoline Service Stations, Restaurants, Drive-in Commercial Uses, Motels, Automotive Sales and Repair, Building Trades and Services, Transportation Equipment Sales and Repairs, Farm Implement Sales and Service, Essential Services, Accessory Uses, Mortuaries, Commercial School, Taverns, Commercial Entertainment Facilities, Public Service Facilities.”

After that date mobile homes or trailers were permitted to be placed in a zone designated as “R-3” Mobile Home Parks, which provides for: “Mobile Homes, Management Office, Public Uses, Essential Services, Accessory Uses.”

According to the testimony of the defendant Evelyn Ruth Odebrecht there were mobile homes or trailers located on both lots in 1968. The defendants did not, and do not, own the mobile homes, only the mobile home sites. The owners of the mobile homes rent the sites from the defendants.

The one on the west lot is still there, but the west lot and its mobile home is not concerned in this controversy. The mobile home on the east lot remained until sometime in November of 1971, at which time it was sold by its owner and removed. Although disconnected, all the connections for electricity, gas, water and sewer were left on the site. The mobile home presently on the east lot was placed there on or about July 31,1972. The defendants were notified by the plaintiff on or about August 4, 1972, that they were in violation of the zoning resolution and were requested to remove the mobile home on the east lot. The defendants failed to apply for a zoning certificate, give notice of a non-conforming use or make any attempt to comply with the zoning resolution.

The question before the court is did the defendants have an existing lawful non-conforming use for a mobile home being placed at the east lot on July 31,1972, after the amended zoning resolution went into effect on May 12, 1972, and within the purview of Section 303.19 of the Ohio Revised Code?

Section 303.19 of the Ohio Revised Code provides: “The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enactment of a zoning resolution or amendment thereto, may be continued although such use does not conform with the provisions of such resolution or amendment, but if any such nonconforming use is voluntarily discontinued for two years or more, any future use of such land shall be in conformity with Sections 303.01 to 303.25, inclusive, of the Revised Code. The board of county commissioners shall provide in any zoning resolution for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning resolution.”

Section 1000.5 of the zoning resolution provides: “Nonconforming trailer or mobile homes located on a lot in any district other than in an established mobile home park in an “R-3” District, once removed shall not be located on such lot unless the unit was “traded-in” for another unit. In this instance, the replacement shall be on-site within one week of the removal of the previous unit.”

Clearly the defendants are in violation of this section unless there was an existing, lawful non-conforming use prior to the effective date of the amended zoning resolution on May 12,1972.

The rule as established in Smith v. Juillerat (1954), 161 Ohio St. 424, is: “Where no substantial nonconforming use is made of property, even though such use is contemplated and money is expended in preliminary work to that end, a property owner acquires no vested right to such use and is deprived of none by the operation of a valid zoning ordinance denying the right to proceed with his intended use of the property.”

In this case the court refused to permit the operation of strip coal mine under a license executed approximately one week before the effective date of a zoning ordinance forbidding strip coal mining in the zone. Test holes had been drilled on the property but no coal had been removed when the action in equity was brought.

The rule of this case is recognized as controlling in State, ex rel. Howland Township Trustees, v. Bailes (1961), 87 Ohio Law Abs. 321, wherein the court stated: “Where on the effective date of a zoning resolution a property owner had not only installed all the necessary equipment for a trailer park for a certain number of trailers but also had two trailers in place, a nonconforming use was established to the extent of the facilities already provided.”

■ In this case the property owners having established a non-conforming use for two trailer parking spaces with connections for electricity, water and a septic tank installed to serve five trailer spaces were not required to remove two additional trailers placed without a permit from the zoning board, in parking spaces after the passage of the zoning resolution. Further, the property owners were permitted to place a trailer in the one remaining parking space.

In Kessler v. Smith (1957), 104 Ohio App. 213, the court held: “Where, subsequent to the purchase of land in a village for the sole purpose of establishing and developing a trailer park thereon, there being no restrictions by deed and no requirement for a building permit, and the expenditure of an amount of money in excess of $20,000 for the preparation of plans, digging of a well, building of a roadway, purchase of a well digger, pipe and a bulldozer, laying of pipe, and the partial construction of a utility building and septic tank, a zoning ordinance is enacted restricting such property to residential uses only and prohibiting trailer camps and house trailers from occupying any land in any part of the village, there is such a substantial establishment and development of the property prior to the enactment of the ordinance as to come within the protection of the due process clauses of the federal and state Constitutions.” .

The testimony of the defendants in the instant case indicated that approximately $5,000 had been expended in the improvement of both of the mobile home sites on the east and west lots. However, in all fairness, part of this money was spent to improve the parking facilities and approach to the two residences located on the south end of the two lots.

In Davis v. Miller (1955), 163 Ohio St. 91, the court held: “Where it is found that land owned by a person and bisected by a public highway comprises two separate and distinct parcels, one of which was used for the quarrying and crushing of stone before the enactment of a county zoning resolution prohibiting such activity, a determination that the other parcel, after the enactment of such zoning resolution, may not be devoted to such prohibited use is justified and proper.”

However, in the instant case the east lot adjoins the west lot where a mobile home is located with an established' non-conforming use at the time of the passage of the zoning resolution. And the testimony showed that money was-expended to improve the two lots by way of hauling in fill dirt and the installation of connections for electricity, gas, water and sewer to serve both the residences and three mobile home locations. Further, the testimony revealed that the mobile home locations were later reduced to two for lack of parking space.

In Lima v. Hempker (1962), 118 Ohio App. 321, the court held: “Where a zoning ordinance provides for termination of a non-conforming use by abandonment, followed by removal of equipment or alteration of fittings and change in the essential purpose of such nonconforming use, and that mere cessation of such use for 12 consecutive months shall be deemed to be prima facie abandonment, evidence of a cessation of such use for more than 12 months and the removal of a part of the equipment necessary to such use, but without a showing of any change in the essential purpose of such use, is insufficient to establish termination of the right to continue the nonconforming use.”

Again, however, in the instant case there was no removal of the connections for the utilities to serve the mobile home spaces on the east lot and the space was vacant only from November, 1972 to July, 1973. This is much less a period of time than the 2 years discontinuance of a nonconforming use required by Section 303.19 of the Ohio Be-vised Code before such use become unlawful. There was no other evidence of any abandonment by the defendants of the space for a mobile home on the east lot.

Finally, although Ohio courts have been extremely cautious about basing any ruling on the factor of aestheticism, could the causal or regular passer-by of the site in question containing mobile homes or house trailers with its intervening parking spaces find such, a use less pleasing to the senses than the possible uses for zone “B-2” Highway and General Business as set out supra or for the following conditional uses requiring board approval: “Billboards and advertising Signs, Agriculture, Wholesale Business, Printing and Publishing, Animal Hospitals and Clinics, Bakeries and Dairies, Commercial Entertainment Facilities, Commercial recreational Facilities, Building Materials Sales and Storage”?

For the foregoing line of reasoning relating the facts to the case law of Ohio, the demand of the plaintiff for a permanent injunction enjoining the defendant from the violation of the 1971 Zoning Resolution of Mercer County, Ohio, is denied.

Counsel for the defendant shall prepare a judgment entry accordingly.  