Conflicts in Cincinnati (OH) code concerning designation of historic landmarks construed in favor of property owner

by Kaitlin Heinen

Greenacres Foundation vs. Board of Building Appeals & Zoning Board of Appeals, City of Cincinnati
(Ohio Court of Appeals, October 17, 2012)

Greenacres Foundation is a charity that owns a 22-acre site in Cincinnati. One of the structures on the site (the “Gamble House”) used to be the home of James Gamble, a son of one of the founders of the Proctor & Gamble Company. Greenacres determined that renovation of the house was not economically possible, so it decided to tear it down. On February 18, 2010, Greenacres applied to the City’s director of buildings and inspections for a demolition permit. At the time, the Gamble House property was zoned “SF-10,” single family, without any historic designation. Amit Gosh, the City’s chief building official, found out that there had been prior attempts to save the Gamble House on historic preservation grounds. So Gosh contacted Larry Harris, the City’s urban conservator, for more information. Harris believed that the Gamble House was a “historic structure” with “historic significance” within the meaning of Cincinnati Municipal Code Chapter 1435 and thus could not be demolished without Greenacres obtaining a “Certificate of Appropriateness.” Because Greenacres did not obtain a certificate, the City denied them the demolition permit. Greenacres appealed to the Board of Building Appeals (BBA) and to the Zoning Board of Appeals (ZBA), collectively “the City.” The BBA dismissed the case for lack of jurisdiction, and the ZBA denied Greenacres’ appeal and upheld Harris’ determination of “historic significance.” On appeal, the trial court affirmed the common pleas court’s decision that vacated both the BBA’s and the ZBA’s decisions and remanded the permit application to the City’s director of buildings and inspections, which the City then appealed to the Ohio Court of Appeals.

Cincinnati Municipal Code Chapter 1435, entitled “Historic Landmarks and Districts,” was in effect when Greenacres applied for the demolition permit. Greenacres argued that Chapter 1435 required the city council to pass an ordinance designating a structure as an “historic landmark” before the Chapter could take effect to regulate a structure, and because council had not done so at the time of the application, Greenacres argued it was not required to obtain a certificate. However, the City argued that the zoning code gave the urban conservator authority to determine a structure to be of “historic significance” without any action by the city council, thus requiring the owner to obtain a “Certificate of Appropriateness” prior to demolition. The City claimed that amendments made to the zoning code in 2004 did not require a city council designation before being subject to the zoning code. Before 2004, 1435 provided that a historic structure was “[a]ny improvement to real property which has historic significance and which has been designated as an historic structure pursuant to the provisions of this chapter.” After 2004, a historic structure was defined as “[a]n improvement to real property that has historic significance.” The City argued that since the designation requirement was removed by the 2004 amendments, the urban conservator had the authority to determine the Gamble House to be of “historic significance” and to thus require a “Certificate of Appropriateness.”

The Ohio Court of Appeals did not agree and acknowledged that zoning regulations must be construed in favor of the property owner. Even though the designation requirement was removed in 2004, the code failed to delineate who or what body may determine if a structure is of “historic significance.” The powers of the urban conservator listed in Chapter 1435 prior to 2004 did not include the authority to deem a structure “historic.” When the designation requirement was removed in 2004 it left the code without any delineation of who or what body was empowered to make an historic designation.  Additionally, the 2004 amendment created other conflicts within the code.  The code still requires that a proposed demolition of property must conform to property guidelines before a “Certificate of Appropriateness” be issued, and those “guidelines” were to adopted at the time the city council legislatively designated a historic landmark or district. (1435-11).  Since the court must construe conflicting provisions in favor of the landowner, the Ohio Court of Appeals held that the city council was required to legislatively designate the structure as a “historic landmark” or to be within a “historic  district.” Because the city council had not done so, Greenacres was not required to obtain a “Certificate of Appropriateness” before a demolition permit could be issued.

The City also argued that the common pleas court failed to give enough deference to the decisions of the ZBA and the BBA, which meant that the trial court thus abused its discretion in affirming the common pleas court’s decision. The Ohio Court of Appeals held that this is correct in evidentiary conflicts, but that this case is a question of law, so the argument had no merit.  In addition, the City argued that the trial court incorrectly reversed the ZBA’s decision when it found that the ZBA was without jurisdiction to review a recommendation by the Historic Conservation Board. Amendments to the Cincinnati Municipal Code effective July 20, 2012, address this issue, so the Ohio Court of Appeals held this argument to be moot. In sum, the Ohio Court of Appeals concluded that Greenacres’ application for a demolition permit must be processed according to the law that was in effect at the time it applied for the permit. The trial court’s decision was affirmed.

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