Legal Memorandum: Validity of Zoning Ordinances in OH

Issue: Whether a zoning ordinance specifically permitting certain land uses with a provision categorically prohibiting all unenumerated land uses is unconstitutional in Ohio.

It appears that such ordinances are constitutional.  The cases that follow show that not only is such an ordinance constitutional, but a clause specifically prohibiting all uses other than those designated as permitted is required to legally prohibit undesignated uses.  Without such a clause, provisions establishing permissible uses are not construed as excluding other uses.

Campbell v. Smith, Case No. 1-10-79, 2011 Ohio 3002, 2011 Ohio App. LEXIS 2546 (Ct. App. 3d Dist. Jun. 20, 2011) (enforcing a substantially identical zoning resolution that “was drafted in such a way as to expressly provide for those uses that were permissible . . ., and . . . further provides that land shall not be used except as specifically provided therein.”);

Samsa v. Heck, 13 Ohio App. 2d 94, 234 N.E.2d 312 (Ct. App. 9^th Dist. 1967) (“It is obvious, from the wording of the resolution, that we are not confronted with a restriction on the use of land, which sets forth prohibited uses, thus, possibly, making uses permissible which are not specifically prohibited, but that we do have a resolution worded in the affirmative as to uses permitted and, as a consequence, uses not expressly permitted are prohibited.  In respect to resolutions of this character, we find no legal barrier and find them generally proper under the police power of the state and, in turn, under the authority of local subdivisions of the state granted zoning powers by the General Assembly of the state.”); and

McKnight v. Esz, Case […]