SCOTT CAMPBELL, ZONING INSPECTOR, PLAINTIFF-APPELLEE, v. DAVID O. SMITH, ET AL., DEFENDANTS-APPELLANTS.
CASE NO. 1-10-79
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
June 20, 2011
2011-Ohio-3002
Appeal from Allen County Common Pleas Court, Trial Court No. CV 2009 0510, Judgment Affirmed
Richard E. Siferd and Brian J. Vennekotter for Appellants
Michael A. Rumer for Appellee
{¶1} Defendants-appellants, David and Marsha Smith (hereinafter “the Smiths“), appeal the Allen County Court of Common Pleas’ judgment entry permanently enjoining them from maintaining the nuisance at their property and ordering them to remove junk vehicles and other debris from their property. For the reasons that follow, we affirm.
{¶2} This case concerns several zoning violations at 1601 Reservoir Road in Bath Township, Allen County, Ohio. (Sept. 13, 2010 Tr. at 7-8). Prior to 1986, Dick and Marcia Mauk owned the property and used it as the location for The Mauk Brothers, a business operated by Dick and Gene Mauk. (Sept. 13, 2010 Tr. at 96-97, 100). The property was zoned R-1, residential district, until 1984, when the Mauks made an application to have the property re-zoned to B-2, general business district, so the property could be used for the business. (Id. at 98-99). Sometime in 1983, bankruptcy proceedings were initiated, which involved the subject property. (Id. at 98). On July 29, 1986, the Smiths obtained the property from the bankruptcy trustee. (P‘s Ex. 4); (Sept. 13, 2010 Tr. at 120).
{¶3} In May 2004, plaintiff-appellee, Scott Campbell, the Bath Township Zoning Inspector, sent the Smiths a letter requesting that they clean up junk and debris on their property. (Id. at 72). Some marginal improvements to the property
{¶4} On June 3, 2006, Campbell wrote another letter to the Smiths indicating that “all debris, junk, vehicles, trailers, and general trash must be removed from the property as viewed from the road right away around all buildings and main residential structure” within thirty (30) days. (Ex. H); (Sept. 13, 2010 Tr. at 93). Later in June 2006, Campbell turned the matter over to Allen County Sheriff‘s Deputy Feldner for enforcement of the Zoning Resolution. (Sept. 13, 2010 Tr. at 59, 73). Deputy Feldner contacted Mr. Smith in August 2006 and visited the property on August 16, 2006; however, Mr. Smith would not allow Deputy Feldner entrance into the fenced-in portion of the property. (Id. at 60-63).
{¶5} On June 17, 2008, the Bath Township Trustees held a public hearing relative to the Smiths’ zoning violations and the storing of junk motor vehicles on their property. (Id. at 20). Mr. Smith was present at this hearing and asked the trustees for an extension until December 16, 2008 to clean up the property. (Id.). At the November 14, 2008 trustees’ meeting, Mr. Smith asked for and was granted a further extension until April 1, 2009. (Id.).
{¶6} On April 21, 2009, the Bath Township Trustees passed resolution no. 4-21-09-2 declaring the property at 1601 Reservoir Road a public nuisance and
{¶7} On May 22, 2009, Campbell filed a complaint pursuant to
{¶8} On June 24, 2009, the Smiths filed a motion for an additional thirty (30) days to plead or otherwise respond to the complaint, which the trial court granted. (Doc. Nos. 5-6).
{¶9} On July 23, 2009, the Smiths filed an answer denying the substantive allegations of the complaint and asserting, as an affirmative defense, that their property is a duly licensed junk yard. (Doc. No. 7).
{¶10} On March 16, 2010, the Smiths filed a motion for summary judgment. (Doc. No. 12). On April 6, 2010, Campbell filed a memo in opposition. (Doc. No. 13). On April 13, 2010, the trial court denied the motion for summary judgment. (Doc. No. 16).
{¶11} On September 13, 2010, the matter proceeded to a bench trial. On November 4, 2010, the trial court: permanently enjoined the Smiths from violating the Bath Township Zoning Resolution and resolution no. 4-21-09-2; permanently enjoined the Smiths from keeping the nuisance (to wit: the junk vehicles and other debris) on their property; ordered the Smiths to remove the junk vehicles and other
{¶12} On December 3, 2010, the Smiths filed a notice of appeal. (Doc. No. 33). On December 7, 2010, the Smiths filed a motion to stay the trial court‘s judgment. (Doc. No. 36). On December 28, 2010, the trial court stayed its judgment pending appeal. (Doc. No. 38).
{¶13} The Smiths now appeal raising two assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ENFORCING THE ZONING RESOLUTION WHERE THE ZONING RESOLUTION IN QUESTION MUST BE STRICTLY CONSTRUED IN FAVOR OF THE LAND OWNER, AND IS PREEMPTED BY STATE LAW OR THERE WAS A PRIOR NON-CONFORMING USE OF THE PROPERTY.
{¶14} In their first assignment of error, the Smiths argue that the trial court erred in its interpretation of the Bath Zoning Resolution. The Smiths further argue that state law governs this issue through the doctrine of preemption. Finally, the Smiths argue that the trial court erred by failing to find that their use of the land was a prior non-conforming use. We will address each of these arguments below.
{¶15} With respect to their first argument, the Smiths specifically argue that the Bath Township Zoning Resolution does not actually prohibit junk yards; rather, Section 6.18 permits junk yards if they “conform to the provisions of
{¶16} The interpretation of a zoning resolution presents a question of law reviewed de novo by an appellate court. See Berry v. Liberty Township Bd. of Zoning Appeals (Dec. 28, 1993), 3d Dist. No. 8-93-16, at *1. “Zoning Resolutions are in derogation of the common law and deprive a property owner of certain uses of his land to which he would otherwise be lawfully entitled.” Saunders v. Clark County Zoning Dept. (1981), 66 Ohio St.2d 259, 261, 421 N.E.2d 152, citing In re University Circle Inc. (1978), 56 Ohio St.2d 180, 184, 383 N.E.2d 139; Pepper Pike v. Landskroner (1977), 53 Ohio App.2d 63, 76, 371 N.E.2d 579. Therefore, Zoning Resolutions must be strictly construed in favor of the property owner, and the scope of the restrictions cannot be extended to include limitations not clearly prescribed. Saunders, 66 Ohio St.2d at 261, citing Davis v. Miller (1955), 163 Ohio St. 91, 95, 126 N.E.2d 49; State ex rel. Ice & Fuel Co. v. Kreuzweiser
{¶17} The Bath Township Zoning Resolution was enacted in 1966 after voter approval on May 3, 1966, but the Zoning Resolution has since been amended several times, including on March 6, 1986 (eff. April 1986) and on August 15, 2006 (eff. September 2006). (Tr. at 70); (Exs. 2-3); (Campbell Aff. at ¶2). Both the 1986 and 2006 versions of the Zoning Resolution divide the township into eleven (11) districts. (Exs. 2-3, Art. 6.0). Both versions of the Zoning Resolution then provide separate Articles governing each district setting forth specific permissible uses for land in those districts. (Exs. 2-3). Section 6.3 in both versions of the Zoning Resolution provides, in pertinent part, that “[n]o building shall be erected, converted, or altered, nor shall any * * * land be used except for a purpose permitted in the district in which the * * * land is located, except as hereinafter provided.” (Id.). Both versions of the Zoning Resolution also provide: “[a]ny use which is not specifically provided for nor specifically authorized by this Zoning Resolution shall be expressly prohibited unless such use
{¶18} The Smith‘s interpretation of Section 6.18 is only tenable if it is inappropriately read in isolation. In re University Circle Inc., 56 Ohio St.2d at 184, citations omitted. The Zoning Resolution was drafted in such a way as to expressly provide for those uses that were permissible in each district, and the Zoning Resolution further provides that land shall not be used except as specifically provided therein. Interpreting Section 6.18 as the Smiths interpret it is not only contrary to the Zoning Resolution‘s overall scheme but would lead to the absurd result that junk yards were permissible in all districts, including residential districts. “It is a cardinal rule of statutory construction that a statute should not be interpreted to yield an absurd result.” Mishr v. Poland Bd. of Zoning Appeals (1996), 76 Ohio St.3d 238, 240, 667 N.E.2d 365, citing State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 384, 439, 481 N.E.2d
B. Bath Zoning Resolution Does Not Conflict With R.C. 4737.07.
{¶19} The Smiths next argue that townships may not prohibit junk yards since
{¶21} “[T]he General Assembly cannot be held to have delegated to township officials the authority to adopt zoning resolutions which are in contravention of general laws previously enacted by the General Assembly.” Yorkavitz, 166 Ohio St. at 351. Consequently, “[a] zoning ordinance, rule or resolution which violates an explicit statutory command of the General Assembly is clearly preempted and is therefore invalid and unenforceable.” Newbury Twp. Bd. of Trustees v. Lomak Petroleum (1992), 62 Ohio St.3d 387, 583 N.E.2d 302, paragraph one of the syllabus. “The test to determine whether a conflict exists between a township‘s zoning resolution and a general law of the state is ‘whether
{¶22}
No person shall operate and maintain a junk yard outside of a municipality * * * without first obtaining a license to do so from the county auditor of the county in which such junk yard is located or in which such junk yard is to be established. * * * If, after January 1, 1964, a junk yard is established within one thousand feet of the nearest edge of the right of way of a state or county highway or within three hundred feet of the nearest edge of the right of way of a township road, it shall be so located that the view thereof from such road is obscured by natural objects or a fence. If the yard is so obscured, the person operating or maintaining it shall be issued a license. * * *
* * * If a junk yard is established after November 18, 1969, within one thousand feet of the nearest edge of the right of way
of an interstate or primary highway, it shall be so located that the view thereof from such highway is obscured by natural objects or a fence. If the yard is so obscured, the person operating or maintaining it shall be issued a license under this section. Nothing contained in this section shall be construed to relieve any person of his duty to comply with the provisions of ordinances enacted by municipal corporations regulating or prohibiting junk yards, including requirements to obtain a license under municipal ordinances. The requirement to obtain a license from the municipality under this section shall be in addition to regulations imposed and licenses required under municipal ordinances. No license shall be issued unless such yard accords with the provisions of this section. * * *
{¶23}
{¶24} As an initial matter, we note that Bath Township‘s Zoning Resolution does not forbid or prohibit what
{¶25} The Ohio Attorney General has previously concluded that the duties of the county auditor to license junk yards in Chapter 4737 does not conflict with a township‘s ability to prohibit junk yards by adopting zoning resolutions under Chapter 519.
There is nothing in Chapter 4737, Revised Code, which expressly refers to or conflicts with the provisions of Chapter 519, Revised Code. Considering the duties of the county auditor, it becomes apparent that the licensing power of the county auditor is designed basically as a revenue measure. In effect, the county auditor‘s licensing power presents an independent condition precedent to the establishment of a junk yard, which is in no way affected by a township‘s capacity to prohibit junk yards in certain areas by adopting Zoning Resolutions.
It consequently becomes clear that the county auditor is authorized to issue a license for a junk yard under Chapter 4737, supra, if the application is proper, regardless of the existence of a township Zoning Resolution forbidding junk yards in the area described in the application. The responsibility lies with the applicant to ensure that there are no other restrictions which might prevent the establishment of the junk yard.
* * * [A] township‘s zoning regulation of junk yards does not conflict with a county auditor‘s power to license junk yards. Therefore, it is clear that the township‘s power to control junk yards through their Zoning Resolution is not affected by the
licensing power granted to county auditors in Chapter 4737, supra.
* * * [A] township‘s zoning authority under Chapter 519, Revised Code, is not inconsistent with the requirement under Section 4737.07, Revised Code, of a license issued by the county auditor prior to the establishment of a junk yard. The county auditor‘s licensing power, with respect to junk yards, and the township‘s zoning authority are mutually independent and separately enforceable.
{¶26} We agree with the Ohio Attorney General‘s conclusion that a county auditor‘s duty to license operators of junk yards found under
{¶27} The Ohio Attorney General‘s position is further supported by the fact that Title 47 governs licensure or certification of occupations and professions—not land use.
{¶28} The logical result of the Smiths’ argument is also antithetical to the General Assembly‘s delegation of its power to townships under Chapter 519 to manage the use of land within their unincorporated territory. Nevertheless, the Smiths argue that the General Assembly did not provide townships the ability to
{¶29} The Smiths rely heavily upon Sheffield v. Rowland (1999), 87 Ohio St.3d 9, 716 N.E.2d 1121 to support their preemption argument. We, however, find this case distinguishable from Sheffield. Sheffield involved the establishment of a construction and demolition debris facility licensed and regulated pursuant to
{¶31} For all these reasons, we conclude that
C. The Smiths’ Use of their Property is not a Pre-existing Nonconforming Use
{¶32} Finally, the Smiths argue that the use of their property is a prior nonconforming use and should be allowed under
{¶33} The Smiths argue that the junk yard is a prior non-conforming use since the property had junk on it before he purchased it in 1986. That argument lacks merit. The previous owner, Janet Mauk, denied leaving scrap metal on the property and testified that she had never seen the scrap metal on the property as photographed in defense exhibits A and B. (Id. at 104, 106). Mauk testified that all of the business materials were taken from the property by a partner that bought out their share of the business. (Id. at 102). Smith, on the other hand, testified that the scrap metal photographed in defense exhibits A and B was on the property when he purchased it. (Id. at 118-20). He further testified that his brother purchased a junk bulldozer from the Mauks on this same property in 1980, but Mrs. Mauk denied ever having any equipment on the property. (Id. at 118-19);
{¶34} Even if the trial court found that the Mauks had left scrap metal on the property from their construction business and previously had an inoperable bulldozer as Smith testified, that does not mean their property was used as a “junk yard” or “scrap metal processing facility” as those terms are defined in
{¶35} For all these reasons, the Smiths’ first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING RELIEF BEYOND THE RELIEF REQUESTED BY A PARTY AND EXPRESSLY TRIED TO THE COURT.
{¶36} In their second assignment of error, the Smiths argue that the trial court erred by ordering that he remove all debris from their property since the Township Zoning Inspector brought the action under
{¶37}
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. * * * Failure to amend as provided herein does not affect the result of the trial of these issues.
Throughout the course of this litigation, the zoning inspector sought more than merely the removal of the junk cars stored on the Smiths’ property pursuant to
{¶38} Since the zoning inspector raised the issue of common law nuisance throughout the proceedings and at trial, it is treated as if it had been specifically
{¶39} The Smiths’ second assignment of error is, therefore, overruled.
{¶40} Having found no error prejudicial to the appellants herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and WILLAMOWSKI, J., concur.
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