Buechner Haffer Meyers & Koenig is heavily involved in one of the most thorny and controversial land use and zoning lawsuits currently pending in Hamilton County - State ex rel. Phillips Supply Co., et al. v. City of Cincinnati, et al., Hamilton County Court of Common Pleas Case No. A1104905, First District Court of Appeals Case No. C120168.
BHMK represents two Queensgate businesses in the lawsuit, which are family-owned enterprises located in the industrial area west of downtown, near the Museum Center, main post office, and railroad yards. The businesses are challenging the City of Cincinnati's approval of a "notwithstanding ordinance" that would allow City Gospel Mission, a homeless shelter, to relocate to a new, larger facility in Queensgate. City Gospel Mission is currently located near Music Hall and Washington Park in Over-the-Rhine.
Queensgate has long been considered the prime inner-city industrial and manufacturing area in the City. It is zoned for manufacturing and industrial uses, and virtually all residential uses - including homeless shelters like City Gospel Mission - are expressly prohibited. Therefore, in order for City Gospel Mission to operate the proposed 125-bed shelter in Queensgate, it needed special zoning approval.
Rather than proceed through normal zoning channels to obtain a use variance, zoning change, or text or map amendment, however, City Gospel Mission, with the aid and support of 3CDC, took the highly unusual step of asking City Council to approve a "notwithstanding ordinance." This type of ordinance is often used by the City to provide minor and usually temporary relief from the zoning code for festivals, farmer's markets, and the like. With this particular notwithstanding ordinance, though, City Gospel Mission sought permanent permission to operate a homeless shelter in Queensgate "notwithstanding" the Zoning Code's prohibition of such use. In effect, the ordinance re-zones the property for residential use by City Gospel Mission. City Council approved the ordinance in June 2011 and the dispute has been in litigation since then.
The Queensgate businesses are challenging the ordinance on multiple grounds. They maintain that the ordinance effectively re-zones a single parcel of land in a way that is inconsistent with all of the surrounding uses and is thus unconstitutional "spot zoning." They also argue that the ordinance is unconstitutional because it is entirely arbitrary and unreasonable. In support, they point out that City Gospel Mission's relocation to an industrial area outside of the urban core would be adverse to the interests of the homeless patrons, who would have difficulty accessing the shelter, would not be near important community amenities, and would be socially isolated in an area that is dedicated to industrial uses. They also argue that it would be adverse to the Queensgate businesses which benefit substantially from the exclusion of essentially all residential uses in the area. Plaintiffs also have challenged the use of a "notwithstanding ordinance" mechanism to grant City Gospel Mission permanent permission to use the property for the proposed shelter.
Many of the issues in the case are novel and the outcome of the matter could have far-reaching ramifications on zoning in Cincinnati and Hamilton County. The case is currently on appeal to the First District Court of Appeals. Stay tuned.
Other land use and zoning happenings:
- BHMK recently prevailed in a zoning dispute in Northside, successfully arguing that a business had not discontinued a prior nonconforming use. The victory led to the re-opening of a much-needed neighborhood market.
- BHMK recently prevailed in a zoning dispute in Hyde Park, successfully challenging an area variance that was requested in connection with a large residential addition.
- BHMK handled the zoning work necessary to obtain permission to operate a scrap metal recycling center in the East End near Lunken Airport on Eastern Avenue, facilitating the construction and operation of a new state-of-the-art facility.
- BHMK also was involved in several zoning cases involving views from existing homes in Mt. Adams over sites slated for re-development. In one case, after eight years of litigation, BHMK's clients prevailed in preserving city and river views along Celestial Street over Oregon Street. In the other case, BHMK helped its client ameliorate some negative effects of neighboring construction, even though BHMK was not contacted until past the time during which the construction project itself could be challenged. (The lesson here is to contact an attorney sooner in the zoning and construction process, rather than later.)
BHMK regularly handles cases in all facets of land use, planning, and zoning at the legislative, administrative, and litigation stages. If you wish to consult with an experienced attorney on a land use and zoning matter, please contact Peter E. Koenig, chair of the BHMK Land Use and Zoning practice group, at 513-357-4333 (direct).