Osborne v. Leroy Twp., 2017 Ohio 1506

Background

Osborne owns vacant land in Leroy Township containing an oil and gas well operated by Great Plains Exploration; a roadway to Vrooman Road requires frequent repairs.
Osborne/Great Plains stored piles of concrete and asphalt debris on the property and erected a roadside sign reading “WE TAKE CONCCRETE & ASPHALT.”
Township zoning inspector informed them the sign and on-site storage of debris violated the township zoning resolution, but allowed immediate application of debris to the roadway and suggested permits/variance options.
Appellants filed for declaratory and injunctive relief and the township prosecuted a municipal criminal action; the parties settled the criminal case (sign removed) while the civil case proceeded.
On first appeal this court affirmed the trial court on debris-storage preemption issues but reversed as to the sign because the wrong zoning section had been applied; case remanded for consideration under section 23 governing signs.
On remand the trial court granted summary judgment for the township, holding section 23.05 permits only on-premises signs that advertise the business (company, brand, goods sold, or services rendered), so the concrete/asphalt sign was impermissible; appellants’ constitutional challenge was not preserved and did not constitute plain error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the township zoning resolution (§23.05) allows an on-premises sign that states the property will accept concrete/asphalt	Osborne: acceptance of debris is a service related to the oil/gas business and benefits the public, so it fits “goods sold or services rendered”	Leroy Twp.: §23.05 limits on-premises permanent signs to advertising the proprietor/company, brand, goods sold or services rendered; the sign does not advertise the oil/gas business	Court: §23.05 is unambiguous and requires advertisement of the business/company/brand or goods/services; the sign is not permitted under §23.05; summary judgment for township affirmed
Whether §23.05 should be construed broadly to include ancillary services not directly tied to the primary business	Osborne: court’s narrow reading improperly imports limits not in text	Leroy Twp.: plain text restricts permissible content to company/brand/goods/services	Court: plain meaning controls; no construction required; restriction applied as written
Whether the zoning regulation is preempted by state oil-and-gas law (R.C. Ch. 1509) as to sign regulation	Osborne: regulation of sign and debris is preempted by state law (earlier contention)	Leroy Twp.: zoning regulation does not conflict with state scheme; township may regulate storage and signs	Court: earlier appeal already upheld township authority over debris storage; here, sign regulation enforced under §23.05
Whether §23.05 violates the First Amendment/Ohio Constitution	Osborne: the provision unconstitutionally restricts speech	Leroy Twp.: constitutional challenge was not raised below; courts should not address on appeal	Court: claim not raised in trial court; reviewed for plain error and rejected — no exceptional circumstances to consider the constitutional claim

Key Cases Cited

Saunders v. Clark Cty. Zoning Dept., 66 Ohio St.2d 259 (1981) (zoning ordinances are in derogation of common law and must be strictly construed in favor of landowner)
Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142 (2000) (zoning restrictions are not to be extended by implication)
Roxane Laboratories, Inc. v. Tracy, 75 Ohio St.3d 125 (1996) (if ordinance language is unambiguous, apply plain meaning)
4522 Kenny Rd., L.L.C. v. Columbus Bd. of Zoning Adjustment, 152 Ohio App.3d 526 (2003) (unambiguous ordinance language requires courts to follow the words of the ordinance)
Paulus v. Paulus, 95 Ohio App.3d 612 (1994) (statutes should be construed to accord with common sense and avoid absurd results)
Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997) (plain error doctrine in civil appeals applies only in exceptional circumstances)