Carstensen v. Allen Twp. Bd. of TrusteesCarstensen v. Allen Twp. Bd. of Trustees
James J. VanEerten, Ottawa County Prosecuting Attorney, for appellee.
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OSOWIK, J.
{¶ 1} Appellant, William J. Carstensen, pro se, appeals from the judgment of the Ottawa County Court of Common Pleas dismissing his appeal from a demolition order issued by appellee, Board of Trustees of Allen Township (“the Board“). For the reasons that follow, the trial court‘s judgment is affirmed.
{¶ 2} Carstensen is the owner of real property located at 22631 Toledo Street, Curtice, Ottawa County, Ohio. The property is the site of two structures, namely an old church and an accessory building. On April 12, 2022, the Allen Township Trustees issued a resolution declaring the property to be “insecure, unsafe and/or structurally defective.” The resolution further provided that the proper way to render the property safe was to: (1) properly disconnect any and all utilities on the premises; (2) properly cap any well that may be on the premises; (3) crush and fill any cistern or portions of a septic system on the premises; (4) tear down the structure, remove all materials and debris and properly dispose of same; and (5) remove the foundation, fill, grade, and seed pursuant to local ordinance.
{¶ 3} Carstensen timely appealed the resolution order to the Board. A hearing on the matter was held on August 23, 2022. At the hearing, the Board heard testimony from three witnesses, including Carstensen, Allen-Clay Joint Fire District Chief Michael Musolf, and Allen Township Zoning Inspector Nancy Sabin. The Board also admitted into evidence several exhibits in the form of photos and reports.
{¶ 4} After the appellate hearing, the Board issued a document entitled “Findings of Fact and Order,” which described the hearing proceedings and named the hearing participants. The document also contained a finding by the Board that the recommendations that were included in the Allen Township Fire Chief‘s initial report from August 2019 remained appropriate, “in as much [sic] as the matters which created
{¶ 5} On November 18, 2022, appellant filed in the trial court a Complaint to Appeal Trustee‘s Order and for Injunctive Relief. In the complaint, appellant requested that the Board be enjoined from trespassing on the subject property or from taking any further action to demolish or damage that property.
{¶ 6} On December 12, 2022, the Board filed a motion to dismiss on the grounds that: (1) the administrative appeal was not timely filed; and (2) that Carstensen had failed to request the issuance of a praecipe for preparation of the record. Carstensen filed a memorandum in opposition to the Board‘s motion, wherein he argued that if the court were to allow the Board to go forward with the demolition of the subject buildings before Carstensen had a reasonable opportunity to make additional repairs, “it would be unjust, unfair, and against the Rules of Equity this Court should apply.”
Assignment of Error
{¶ 8} Appellant asserts the following assignment of error on appeal:
I. The trial court erred in granting Defendant‘s Motion to Dismiss.
Analysis
{¶ 9} It is undisputed in this case that the decision from which Carstensen appealed was issued pursuant to
{¶ 10} The necessity for a correct filing of an
{¶ 11} Failure of an appellant to comply with
{¶ 12} There is no question that Carstensen failed to request the issuance of a praecipe for preparation of the record in this case. As a result of this failure, no record of proceedings was ever transmitted to the trial court and, therefore, there was no basis on which to review the decision of the Board. Accordingly, the trial court properly granted the Board‘s motion to dismiss.
{¶ 13} In this appeal, Carstensen makes no argument relating to the foregoing analysis. Instead, he argues that principles of equity should control to excuse his delays in
{¶ 14} To the extent that Carstensen‘s action can be construed as asserting a claim for trespass, we find that it still must fail. To make a claim for injunctive relief to prohibit a trespass by the Board onto his property, Carstensen must demonstrate a lack of authority on the part of the Board to enter upon his land. See Kramer v. Angel‘s Path, L.L.C., 174 Ohio App.3d 359, 2007-Ohio-7099, 882 N.E.2d 46 (6th Dist.) (“The elements of trespass include ‘(1) an unauthorized intentional act and (2) entry upon the land in the possession of another.‘“). Carstensen makes no claim -- and there is nothing in the record to suggest -- that the Board did not follow
{¶ 15} Because Carstensen‘s complaint fails to state a cause of action, either for trespass or for injunctive relief, and, further, because Carstensen failed to request the issuance of a praecipe for preparation of the record in this case pursuant to
Conclusion
{¶ 16} The judgment of the Ottawa County Court of Common Pleas is affirmed. Appellant is to pay the costs of appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Thomas J. Osowik, J. ____________________________
JUDGE
Gene A. Zmuda, J. ____________________________
Myron C. Duhart , J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.