by Amy Zimmerman
Visitor Question: Hi. Can I sue my city for disregarding their own ordinance about gas stations too close to homes and in view of an historical landmark?
Editors Reply: Amy, sometimes it seems as though anyone can sue anyone, if they can find an attorney to pursue the case.
We think better advice, from our perspective at a distance, is to pursue a political and community organizing route. Much depends on the actions that have been taken already, and we don't have nearly enough information on that. However, we will just offer some general observations about this situation, based on our experience as urban planners.
You placed this question under our invitation to ask zoning questions, so we will assume for a moment that your city or town has a zoning ordinance, and that the zoning district in which the proposed gas station is located does not permit gas stations.
Find out if a rezoning occurred when you and your neighbors weren't looking. If so, that would be the action that you and others could sue about or complain loudly about in the city council meeting.
If there was no rezoning to a district classification that permits gas stations, and the city has issued a building permit and any other permissions that would be needed for the gas station to be constructed, that is indeed a gross and serious violation of the way in which city governments should proceed.
Make sure you have exhausted all of the possible appeals up the chain of command within the city staff. Talk to the person issuing the permit, if indeed it already has been issued. Then talk to that person's supervisor, and so on, until you have reached the city manager, if any, and the mayor.
In this process, you undoubtedly will learn more about the situation, but don't give up your major talking point about how inappropriate it is for a city to undermine its own zoning by allowing a flagrant violation of one of the most important aspects of zoning, which is control over land use.
Point out that they might as well give up on zoning if they are going to act like this.
Let's turn now to the historical landmark aspect of this. Did the city make a formal designation of this property as a landmark? Is it a state or federal designated historical property?
If there is no formal designation of this property, the aspect of your argument about the historical property nearby is still part of the zoning argument. This is only relevant to the situation if you find out that the city actually rezoned the property and you want to contest that rezoning in court or in the court of public opinion.
If it is only informally called a landmark around your community, but there is no governmental action to recognize that, you would need to stick to the approach of questioning the zoning appropriateness or the incorrect issuing of a permit that contradicted the zoning ordinance.
In short, make sure you are clear on what exactly has happened to date, what the relevant provisions of the zoning ordinance are, and whether there is any formal recognition of landmark status of the historic property. Then your options are (1) to organize your neighbors and others who agree with you into a team to protest what has happened or is about to happen, or (2) to talk with an attorney licensed to practice law in Ohio.
If you decide to explore the legal route, one issue that will arise early is who has the legal standing to bring this lawsuit. At a minimum, this might entail being a property owner in the city, and perhaps in the immediate area. Only your attorney can give concrete advice about this; just be alert to that possible discussion.
A city that refuses to follow its own zoning ordinance is truly outrageous.
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