The Ohio Supreme Court ruled today that an Ottawa Hills couple’s property purchased nearly 40 years ago as a lot on which a home could be built may now be sold as a buildable lot in spite of being slightly smaller than what the current village ordinances allow.

In today’s decision, the court concluded that the trial court’s decision to the contrary was unreasonable and arbitrary when it treated the Boices differently than other property owners in the village; found that the 2,000 square-foot difference between the Boices’ vacant lot and the village’s required size for building was significant; and did not grandfather-in the property as a buildable lot based on a 1978 village ordinance.

The 4-3 decision, authored by Justice William M. O’Neill, reverses the judgment of the Sixth District Court of Appeals.

In 1974, Willis and Annette Boice purchased two adjacent residential lots and lived in a house on the larger property for the next 30 years. They left their smaller, 33,000-square-foot parcel vacant. Under the zoning regulations at that time, the minimum-size lot on which a single-family home could be built in the couple’s subdivision was 15,000 square feet.

Four years later, in 1978, the village amended its zoning code, in part to increase the minimum size of a “buildable” residential lot in the area to 35,000 square feet. The ordinance included a grandfathering provision, which stated that “the lawful use of a building or structure or of any land or premises existing at the time of the effective date of this ordinance ... may be continued although such use does not conform to provisions (of the amended ordinance).”

After the 1978 change in the minimum buildable lot size, several property owners with lots smaller than 35,000 square feet received permission to build residences on their properties. In 2004, the Boices decided to move and sell both their lots. They asked the village manager for a variance to have their smaller, vacant lot declared buildable, so someone buying the land could construct a home on it. The manager denied the request, because the property was less than the 35,000 square-foot minimum set in the 1978 ordinance.

The Boices appealed to the village zoning commission, but their appeal and request for a variance were denied. They then filed an appeal in the Lucas County Court of Common Pleas, which found that the zoning amendment was not unconstitutional, there was no illegal regulatory taking of the Boices’ property, and the denial of the variance was supported by the record.

The Sixth District Court of Appeals, which considered the Boices’ appeal, determined that the trial court used the wrong standard in part of its analysis and returned the case to the lower court to be reconsidered. The trial court on remand then concluded that, because the Boices never built on the vacant land, they never acquired a vested right to use the land as a buildable lot. Following a subsequent appeal to the Sixth District, the court affirmed the lower court’s decision. 

The Boices asked the Supreme Court to review the Sixth District’s ruling, and the court agreed to hear the case.

In the court’s majority opinion, Justice O’Neill explained that the Boices had a vested right in the lot’s status as buildable that continued beyond the 1978 zoning amendment, and this is a grandfathering-in claim. He noted that it is irrelevant whether they intended to build on the lot because they purchased it as a buildable lot, paid for and received a buildable lot, and paid taxes on it for more than 30 years as a buildable lot.

“For the Sixth District Court of Appeals to conclude that it was not a buildable lot because plaintiffs never actually began construction on the lot between the 1974 purchase and the 1978 zoning amendment is contrary to law,” Justice O’Neill wrote. “It ignores well-settled land-ownership rights in this country.”

Applying factors spelled out in a 1986 Ohio Supreme Court decision (Duncan v. Middlefield), he determined that the unbuildable designation decreases the pool of potential buyers and reduces the property’s value, the variance for 2,000 square feet is not substantial, the neighborhood’s character would not be altered by allowing a home to be built on this property, other Ottawa Hills residents were given permission to build on lots less than 35,000 square feet subsequent to 1978, the variance would not affect the delivery of government services, the Boices bought the property as a lot that could be built on, and there is no other feasible method to deal with this matter.

He reasoned that “three pillars” support reversal of the Sixth District’s decision. First, given the “lawful use” language in the 1978 amendment to the village ordinance, the village should have grandfathered in the Boices’ second lot as buildable. “It was clearly arbitrary for the village to single this lot out for a denial of the grandfathering-in treatment enjoyed by similar lots in the same neighborhood!” he wrote.

Second, because there was only a 2,000-square-foot difference between the current zoning standard of 35,000 square feet and this 33,000 square-foot lot, “the situation involves a de minimus difference … and it is patently unreasonable to hold otherwise,” he stated.

Last, there was “disparate treatment” of the village residents on this issue. “In fact, the only residents who were denied this opportunity to have a smaller lot deemed buildable were plaintiffs,” he continued. “All other property owners who applied after the 1978 change in the ordinance were granted permission.”

The court’s majority opinion was joined by Justices Paul E. Pfeifer, Terrence O’Donnell, and Sharon L. Kennedy.

Justice Judith Ann Lanzinger dissented in an opinion joined by Chief Justice Maureen O’Connor and Justice Judith L. French.

In her dissent, Justice Lanzinger stated that the majority did not answer whether regulatory taking had occurred and when vested rights exist, the questions presented: “[I]nstead of analyzing the Boices’ taking claim, the majority cites Duncan v. Middlefield and redetermines whether a variance should have been granted. But the point of this appeal is not whether the variance should have been granted. The point is whether the denial of the variance effected a taking.”

She first noted that the Boices could not raise a “total” regulatory taking claim with this court because it was never raised with the Sixth District. However, even if the Supreme Court considered the issue, she would hold that there had not been a total taking because “the zoning amendment did not deny all economically beneficial use of the lot.” Although the Boices did not ask the court to review the matter as a “partial” taking claim, she would also hold that a partial taking had not occurred.

On the majority’s decision to grandfather the Boices’ lot based on the 1978 ordinance, she wrote: “Since 1957, R.C. 713.15 has specified that to establish a valid nonconforming use, the property must actually be used in that manner at the time of the enactment or amendment of the zoning ordinance …. The Boices never used this property as anything but a side yard to their home. Mere characterization of a piece of property as ‘buildable’ describes a potential use, not an existing or actual use.”

The majority’s ruling that the 2,000-square-foot difference between the village’s requirement to build and the Boices’ lot size was not raised in the lower courts or in their arguments to the Supreme Court, so “it should not form a basis for this court’s decision,” she contended. Nor was the disparate treatment issue brought up in their appeal, she added, so the Boices waived that argument. She would affirm the judgment of the appellate court on the issues that had been raised.

2012-0413. Boice v. Ottawa Hills, Slip Opinion No. 2013-Ohio-4769.

View oral argument video of this case.

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