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In The Zone
by Ron Davis
Plans for a new shopping center in Lorain, OH, can go forward now that the developers have cleared a legal barrier regarding a proposed tenant.
The shopping center would be part of a development named Lighthouse Village, and the proposed tenant is a Home Depot home-improvement store. Residential neighbors of the development oppose the Home Depot location there because of concerns that it would cause traffic problems and result in a decline of nearby home values.
For a while, the neighbors seemed to have held the strongest position. The Lighthouse Village property did not have the necessary zoning classification for a Home Depot store at that location. At that time, the property was zoned “Business Land Use.” The property would need a “Shopping Center” classification to allow a Home Depot store.
Local government supported the project, however. And the Lorain City Council approved the developers’ request to rezone the property to a Shopping Center classification.
That action may not have been needed, however. After the rezoning, the city’s law director issued an opinion that the proposed use of the property for a shopping center is permitted in the Business Land Use zone.
Subsequently, the Lorain City Council amended the zoning code to allow a home-improvement store in a Business Land Use zone.
But opponents of the shopping center refused to accept defeat. They appealed to the courts to declare the development illegal. They argued that the sale and storage of building materials, such as those that Home Depot offers to its customers, is prohibited in a Business Land Use zone.
And an Ohio court agreed with that argument and ruled that the proposed Home Depot store would not fully comply with zoning regulations. The developers and city officials appealed.
An Ohio appellate court reversed the lower court ruling, noting that the definition of the applicable zoning regulation “is intended and meant to clearly include stores like a Home Depot, Builder’s Square, Lowe’s and a D.I.Y.” (Asensio v. Lorain, Slip Copy WL 3478281 [Ohio App. 9 Dist])
Decision: December 2006
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