The purpose of this subchapter is to prohibit the existence, creation and continuation of negative use restrictions on property zoned as business districts under the zoning ordinance, in order to encourage commercial competition, promote the alienability of real property, reduce the probability of blight, decrease the likelihood of unoccupied commercial space, ensure the reasonable access to goods and services; all of which promote the public health, safety and welfare. The purpose is not to prohibit commercial lease noncompetition clauses.

(Ord. 08-049, passed 3-25-2008)

"NEGATIVE USE RESTRICTION" means any private agreement, including a deed, contract or other document, regardless of whether recorded, that purports to impose any restriction prohibiting, limiting or that has the economic or practical effect of prohibiting or limiting a permitted or special use identified in the village zoning ordinance for real property located in the business districts. Negative use restrictions do not include commercial lease noncompetition clauses.

(Ord. 08-049, passed 3-25-2008)

Any negative use restriction shall be void, unenforceable, and be subject to an enforcement action and penalties, unless any one of the following exists:

(A)

The negative use restriction possesses a duration of one (1) calendar year or less; or

(B)

The director of community development in his discretion determines that the negative use restriction does not violate public policy as provided in this subchapter.

(Ord. 08-049, passed 3-25-2008; Am. Ord. 18-014, passed 1-23-2018)

The director of community development may grant a request to impose a negative use restriction that would otherwise violate subsection 154.202(A) of this chapter if in the director's discretion the negative use restriction would not violate the public policy purposes furthered by this subchapter. In exercising such discretion, the director of community development shall consider the negative use restriction's effect on the purposes of this subchapter or any other relevant consideration or evidence, including, but not limited to, the number of similar uses in the geographical area within the village, the need for the goods or services provided by the uses and the relative importance of the uses. The director of community development may permit a negative use restriction to exist longer than one (1) year but no longer than two (2) calendar years.

(Ord. 08-049, passed 3-25-2008; Am. Ord. 18-014, passed 1-23-2018)

If the director of community development denies an owner's request to impose a negative use restriction greater than that allowed by subsection 154.202(A) of this chapter, the owner may appeal the decision to the zoning board of appeals pursuant to section 31.037 of this Code and section 154.49 of this chapter.

(Ord. 08-049, passed 3-25-2008; Am. Ord. 18-014, passed 1-23-2018)

The village or an owner of the real property affected by a negative use restriction may seek an injunction or other equitable relief to prevent violations of this subchapter. If an owner of the real property affected by a negative use restriction seeks an injunction or equitable relief, the owner must notify the village, via certified mail addressed to the village clerk, of the legal action, identifying the case name and number. The village may seek leave to intervene in any action brought by an owner challenging a negative use restriction.

(Ord. 08-049, passed 3-25-2008)

In addition to injunctive and equitable relief, the village may also seek any other remedy allowable by law and civil penalties for violations of this subchapter. Any violation of this subchapter is punishable by a civil penalty of not less than five hundred dollars ($500.00) and not more than seven hundred fifty dollars ($750.00) per day for each day the violation exists. A violation begins on the day the agreement, deed, contract or other document creates the negative use restriction and exists every day thereafter until a written document is executed terminating the negative use restriction, and in the case of a recorded negative use restriction, until that written document is recorded.

(Ord. 08-049, passed 3-25-2008)