Published 2/15/13 in Streetvibes- Volume 17, Issue 4, No. 245.
The Court of Appeals has issued their decisions regarding Cincinnati Union Bethel’s (owner and operator of the Anna Louise Inn) appeal of the decisions of the Hamilton County Trial Court. I strongly urge you to read this document for yourself – so you may have a better understanding than what this write-up may offer. The document can be here: Court of Appeals decision
In order to have any understanding of what the Court of Appeals has said, you must understand some of the history surrounding this issue. First of all, we know that the Anna Louise Inn has been providing safe, affordable housing to women at its current location for more than 100 years. Cincinnati Union Bethel (CUB), in order to make the Anna Louise Inn sustainable and better able to serve women, raised the necessary funds to renovate the building. In April 2010 CUB applied for a building permit to do so. Before this building permit was granted, Western and Southern; one of CUB’s neighbors, sued Cincinnati Union Bethel and the City of Cincinnati in the Hamilton County Court of Common Pleas. Whereas CUB had argued that the Anna Louise Inn (ALI) would be used for offices and residential purposes, Western and Southern (W&S) argued that the Anna Louise Inn was a “special assistance shelter;” which is not allowed per zoning in that part of the city other than by the granting of a “conditional use” by the city. W&S also argued that ALI was currently a non-conforming use and that renovations would further expand this non-conforming use.
According to the Court of Appeals stated opinion:
“As relief in part, Western Southern asked the trial court to declare that the actions of CUB and the city violated the zoning code, specifically Cincinnati Municipal Code 1447.09, which governs the expansion of nonconforming uses. In conjunction with the request for declaratory relief, Western and Southern also sought a writ of mandamus. Western Southern sought to compel the city and its officials, including Wurstle and defendant-respondent-appellant Amit B. Gosh, the “Chief Building Official” for the city, ‘to perform their legal duty to not issue any permits for the property in contravention of the Zoning Code…and to perform their clear and legal duty to cause any applications for permits for the subject property to be reviewed and approved in accordance with the provisions of the Zoning Code…prior to the issuance thereof.’
Western Southern also presented a second claim for declaratory relief, a claim for monetary damages, and claims for both permanen-t and temporary-injunctive relief.” (pages 7,8, paragraphs 10, 11)
The city issued the building permit, including a certificate of appropriateness from the Historic Conservation Board on July 1, 2011. W&S appealed both of these to the city’s Zoning Board of Appeals (ZBA). Before this permit was issued CUB and the City asked the Trial Court to dismiss the suit by W&S. This dismissal was denied.
Judge Norbert Nadel made several decisions at the Trial Court level. He did not dismiss the suit. He granted the writ of mandamus and declaratory judgment. Cincinnati Union Bethel argued that there would be three separate uses in the Anna Louise Inn and they should be considered separate per zoning: permanent supportive house- residential; Off the Streets program- transitional housing and offices. Western and Southern argued that these should all be considered one “integrated use” and that that use should be as a “special assistance shelter.” Judge Nadel decided that the Anna Louise Inn was an “integrated use” and that it was a “special assistance shelter.” He then sent it to the city for the city to decided if it would grant the Anna Louise Inn a conditional use as a “special assistance shelter.”
Cincinnati Union Bethel and the City appealed these decisions. The Appeals Court issued several decision, here are some summaries of some of them:
- “The city and CUB have failed to demonstrate that the trial court erred when it denied the motions to dismiss…” (p.13, paragraph 28)
- According to the findings a “’Mandamus is a writ…commanding the performance of an act which the law specifically enjoins as a duty resulting from an office.’ R.C. 2731.01.” (p. 14, paragraph 30). Whereas Western and Southern could appeal the decision through normal means, it was not necessary for the court to issue a writ of mandamus.
- “The city and CUB also argue[d] that the trial court erred by granting judgment to Western Southern on its third claim for relief, in which Western Southern sought a declaration that the uses at the Anna Louise Inn involved the expansion of a nonconforming use and violated Cincinnati’s zoning code.” (p. 16, paragraph 37). Whereas “Western Southern had an available remedy to challenge the ZBA’s determinations regarding the zoning classification of the 85 apartment units, the offices and the “Off the Streets” program…” (p. 17, paragraph 41) the appeals court found that issuance of declaratory relief by the trial court was not proper.
- “In their second assignments of error, the city and CUB argue that the trial court erred by considering additional evidence in the administrative appeals.” (p. 17, paragraph 42) The appeals court concluded “…that the trial court did not abuse its discretion by allowing additional evidence at the December 2011 hearing.” (p. 19, paragraph 47)
- “In its third and four assignments of error, the city argues that the trial court erred by failing to apply the correct standard of review in an administrative appeal and that it misapplied the zoning code. CUB raises a similar argument in its third assignment of error. The crux of the appellants’ argument is that the trial court erred by rejecting the ZBA’s determination that the 85 apartments, the offices and the “Off the Streets” program were three separate uses, each of which was permitted as of right in the zoning district.” (p. 20, paragraph 48). From the decision: “But the trial court’s reasonable determination that ‘the uses of the Anna Louise Inn… cannot be separated and must be considered as an integrated land use’ is supported by the law and by the preponderance of the evidence in the record. Therefore, we cannot disturb it.” (p. 27, Paragraph 69)
- “We affirm the trial courts’ judgment reversing the [ZBA’s} decisions that affirmed the issuance of the building permit and the certificate of appropriateness, and we affirm the trial court’s finding that the Anna Louise Inn must be viewed as a whole for purposes of zoning review. But we vacate the part of the trial court’s decision applying the zoning analysis to the 85 apartment units, the offices, and the “Off the Streets” program, and the trial court’s grant of the writ of mandamus and declaratory relief.
Accordingly, we remand the case to the trial court with instructions to remand the case to the relevant city officials to review the building permit in light of the trial court’s finding on the “integrated use.” (p. 28, paragraphs 73 and 74).
First of all, I recommend that everyone should read the full decision for themselves. But do consider that since the trial court made its decision the Anna Louise Inn has in fact gone through the city permitting process a second time- already carrying out the courts orders.
In all of this there are several other items to consider: Cincinnati Union Bethel applied for the original building permit in April, 2010 that was nearly three years ago. The planning for this needed renovation started over three years ago. That means that we, as a community, have been waiting for this to be accomplished for at least three years now. We must ask ourselves several questions. Among them; why is Western and Southern doing this? Is it because they believe that somehow zoning law was not followed and they care deeply enough about zoning law to spend year’s worth of lawyers fees and several social black-eyes to defend it? Or is it something else? Could it be that Western and Southern desires to own the land to do with it what they want to do and that they don’t want women with low-incomes, some of whom are escaping the sex-trade to be near them? What do you think?
I am confident that most Cincinnatians would agree that it is well passed time for Western and Southern to stop this attack on the Women of the Anna Louise Inn. Collectively we demand that they do the right thing and end the attack. The system must also stand by doing the right thing. Stay tuned as more happens and we take further action to support the Women of the Anna Louise Inn.
Josh Spring, LSW
Greater Cincinnati Homeless Coalition