Property owner fights restrictive covenant

By Sam Wildow -

PIQUA — The for-sale signs at the corner of North Looney Road and U.S. State Route 36 have been a part of the landscape on that side of Piqua for approximately the last three years. There is one particular stipulation tied to those properties that is preventing owner Robert Stephan from seeing movement there: a restrictive covenant on the properties’ deeds stating they can only be used for “residential purposes.”

“I’m stuck in a puddle of mud, and I can’t get anybody to tow me out,” said Stephan, owner of the properties located at 1035 U.S. State Route 36 and 8030 N. Looney Road. They are a part of the southern end of the Recker Heights Subdivision, which is located on the northwest quadrant of the North Looney Road and U.S. State Route 36.

The restriction was placed on the properties in the subdivision in 1946. Stephan is currently in appeals court attempting to get that restrictive covenant removed in order to move forward with selling his properties for commercial use. The properties in question have already been annexed into the city of Piqua and rezoned for general business in 1986.

“This would actually be the third (time) the case has been heard,” said Jerri Barlage, the real estate agent for the property. Stephan’s struggle with this restriction extends farther back than these last three years, though.

Stephan has been through this before — approximately 20 years ago, when Bob Evans wanted to obtain his property. During that trial in the 1990s, residents in the subdivision testified that they relied on the restriction to keep businesses out of the neighborhood. They argued that businesses would diminish the market value of the homes in the area and negatively impact their ability to resell their properties.

Bob Evans was also reportedly not willing to put up a privacy wall between the subdivision and the business. Stephan explained that there is currently an interested business that would like to move in there and is already willing to put up a barrier between the business and the subdivision.

“We’ve already agreed to put up a nice buffer,” Stephan said.

Three businesses have already moved into the subdivision a few lots down from Stephan’s property. They include Journey Salon, a Winans coffee shop, and an optometrist’s office, all of which took over the spot where the Hunt Beverage Facility once existed.

The Hunt Beverage Facility existed prior to the development of the subdivision and needed to be grandfathered into the neighborhood. According to Stephan and Barlage, the same restrictive covenant was still attached to the property when the three new businesses moved in there. Stephan and Barlage stated that the subdivision did not object to those businesses coming into the neighborhood.

According to Stephan, he feels he is being discriminated against due to the businesses being allowed to take over the old Hunt Beverage Facility. Stephan’s properties have become isolated, and according to him, the resale value for his property has been “ruined.” Barlage also stated that his property is not an ideal residential location.

One of the ideas behind the keeping the restrictive covenant in place is to keep a buffer zone between the businesses and the Recker Heights Subdivision to keep business-related traffic and crime away from the residential homes, the brunt of which Stephan feels he and other residents on the southern section of the subdivision are already facing.

In addition to being isolated, Stephan stated he has also dealt with a number of thefts, loiterers, and trash due to the surrounding business area. Stephan claimed that he has had three saws, tools, and a battery for his pontoon stolen from his properties there. Stephan stated that he also gets a number of people who loiter on his property and sit on his porch.

“We get a lot of interference out there, and I don’t see how it’s ever going to get any better,” Stephan said.

Stephan also hired a professional appraiser to evaluate the property and provide a third party opinion. In a letter submitted by David Hartt, president of D. B. Hartt, Inc. of Cleveland, Hartt explained that the changing conditions of the area can justify releasing the restriction on the property.

Examples of the changes in area include the Piqua East Mall Shopping Center that includes anchor stores like Walmart and Home Depot along with other restaurants and gas stations in the area. Hartt noted a “commercial concentration” in this area as well as extending over Interstate 75 to the Miami Valley Centre Mall and Riverside Place.

Hartt also cited that on the south side of U.S. State Route 36 are the Upper Valley Women’s Center and Buckeye State Mutual Insurance buildings. According to Hartt, that location had a similar “residential only” restriction that was released in 1972.

Hartt also noted that “most of the Recker Subdivision remaining in Springcreek Township was also rezoned in 1957 to permit commercial uses.” Hartt stated that the city and township have shown that the changing conditions of the area for commercial development “is now in the public interest” due to the township and the city rezoning much of that area for commercial purposes.

Stephan also agreed that it would be beneficial to all of Piqua to have his property taken over by a business as it would provide more tax dollars and jobs.

Hartt also concluded in his letter that lifting the restriction on Stephan’s property would not create a “snowball effect” in the subdivision, where more businesses may attempt to get in that area, as “each site must be evaluated on its own merit based on the prevailing location characteristics, facts and impacts.”

Stephan has an upcoming hearing in appeals court set for Oct. 13 in Dayton.

Stephan’s attorney did not comment on the case. The disputing side’s attorney did not respond to a request for comment.

By Sam Wildow

Reach reporter Sam Wildow at (937) 451-3336 or on Twitter @TheDailyCall

Reach reporter Sam Wildow at (937) 451-3336 or on Twitter @TheDailyCall