Billboard attorney Michael Galasso of Robbins, Kelly, Patterson & Tucker tells Billboard Insider that amortization conflicts with Ohio state law:

I read with interest the Billboard Insider article on Bloomington’s amortization ordinance and reader comments regarding the application of Indiana’s just compensation statute.  I would also point out that, in Ohio, the state code prohibits retroactive zoning ordinances – unless there is a declaration of a public nuisance.  Ohio Revised Code 713.15 provides:

The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enacting a zoning ordinance or an amendment to the ordinance, may be continued, although such use does not conform with the provisions of such ordinance or amendment, but if any such nonconforming use is voluntarily discontinued for two years or more, or for a period of not less than six months but not more than two years that a municipal corporation otherwise provides by ordinance, any future use of such land shall be in conformity with sections 713.01 to 713.15 of the Revised Code. The legislative authority of a municipal corporation shall provide in any zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning ordinance.

There are a number of cases in Ohio on point.  Northern Ohio Sign Contractors Assoc. v. City of Lakewood, 32 Ohio St.3d 316, 328 (1987), (“[N]either zoning nor building ordinances may be enforced against preexisting, otherwise lawful, nonconforming structures absent a declaration of nuisance.”); Sun Oil Co. of Penn. v. City of Upper Arlington, 55 Ohio App.2d 27, 35-36 (10th Dist. 1977) (holding that where there was no determination or declaration that signs in question constituted a nuisance, an “ordinance for amortization of nonconforming uses is in conflict with R.C. 713.15, which specifically allows preexisting non-conforming uses to be continued”).

In addition to just compensation, these laws should be reviewed under retroactivity and constitutional principles.  In my neck of the woods, amortization attempts have fallen out of favor recently and the more common issue has been new construction bans.

Michael Galasso will be attending the IBOUSA show October 3-5, 2023.  You can arrange to meet Michael by emailing him at mgalasso@rkpt.com.

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