# Torok v. Jones

> Ohio Supreme Court · May 18, 1983 · 5 Ohio St. 3d 31

URL: https://www.frixlaw.com/law-library/cases/6757943

## Case

- **Full name:** Torok v. Jones
- **Court:** Ohio Supreme Court
- **Decided:** May 18, 1983
- **Citations:** 5 Ohio St. 3d 31; 5 Ohio B. 90; 448 N.E.2d 819; 1983 Ohio LEXIS 708
- **Precedential status:** Published
- **Opinion:** Dissent by Brown
- **Judges:** Brown, Celebrezze, Holmes, Locher, Only, Sweeney
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6757943

## Opinion text

Clifford F. Brown, J.,
dissenting. I dissent because the appellants have a right to complete the two buildings under the permits validly issued them. The six-month expiration provision contained in the zoning permits is invalid because the enabling law for township zoning, R.C. Chapter 519, and more particularly R.C. 519.19, 5 nowhere expressly authorizes the board of *35 township trustees to cancel zoning permits six months after their issuance. Zoning power in townships is that delegated by the General Assembly and is limited to that which is expressly delegated to townships. Yorkavitz v. Bd. of Twp. Trustees (1957), 166 Ohio St. 349 , 351 [ 2 O.O.2d 255 ], Section 10.6 of the Green Township zoning ordinance was amended April 23, 1980, to be effective May 24, 1980, and restricted the validity of zoning permits to six months. See footnote 2. The section was not effective until after the date of issuance of the two permits (April 23 and May 13, 1980) to the appellants. Section 10.6 is arbitrary, unreasonable, capricious and unconstitutionally burdensome on defendants’ vested property rights, in violation of their substantive due process rights, especially where construction had begun on the Melanie Drive property within the six-month period. Teegardin v. Foley (1957), . 166 Ohio St. 449 [ 2 O.O.2d 462 ]; Cincinnati v. Correll (1943), 141 Ohio St. 535 [ 26 O.O. 116 ]; and Akron v. Chapman (1953), 160 Ohio St. 382 [ 52 O.O. 242 ].
In addition, the courts below applied an incorrect standard to determine whether defendants had established a lawful nonconforming use by holding that the common-law standard required defendants to show a substantial nonconforming use of the property had been made. The common-law standard of substantial use was inapplicable, however, because Green Township had adopted a lesser standard of “actual construction” as expressly stated in Section 8.5 of the Green Township zoning ordinance. See footnote 4.
If Section 8.5 is construed to require actual construction by defendants before the effective date of the amendment of Section 10.6, May 24, 1980, which is no more than thirty-one days after the two permits were issued (eleven days for one permit), it is contrary to our holdings in Gibson v. Oberlin (1960), 171 Ohio St. 1 [ 12 O.O.2d 1 ], and Smith v. Juillerat (1954), 161 Ohio St. 424 [ 53 O.O. 340 ]. These two cases stand for the proposition that a permit holder must be afforded a reasonable .opportunity to establish a nonconforming use in order to safeguard his vested property rights as a permit holder. Neither thirty-one days nor eleven days constitute a “reasonable opportunity.” Section 10.6 authorizes retrospective “invalidation” of lawfully issued zoning permits through changes in the zoning regulations.
This case displays another instance among many in Ohio where zoning laws are enacted or changed to prohibit the development of property, motivated by spite and freezing the free use and alienability of property. We are now a far cry from the main purpose of zoning, namely, preserving the “character of the neighborhood,” as was so glowingly explained in that first landmark zoning case, Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 394 .
R.C. 519.19, nonconforming use of buildings and land not affected by zoning, 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 such resolution or amendment * * *. The *35 board of township trustees 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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6757943. Public record. Not legal advice.