814 N.E.2d 521 | Ohio Ct. App. | 2004
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{¶ 3} On May 20, 2002, Mr. Boron, as the agent of E.V.B., Inc., entered into a contract for the purchase of certain real property located on E. Liberty Street in Wooster, Ohio, in Wayne County. This real property is located in a zoning district labeled as "C-4," or the central business district in Wooster. Additionally, the real property is located within 1,000 feet of a church, and within 1,000 feet of a residential district as defined by Wooster's zoning ordinance. Mr. Boron asserts that his intention was to open an adult book and video store called "Erotica" on the premises.
{¶ 4} At a public hearing held on June 26, 2002, the Wooster City Council voted unanimously to recommend the adoption of Ordinance No. 2002-49, to amend Title Five, Zoning Code of the Wooster Codified Ordinances to include new sections regulating the establishment of sexually oriented businesses within Wooster. Specifically, the proposed sections assign such businesses to specific zoning districts and required that they be at least 1,000 feet from residential neighborhoods, churches, schools, public parks, libraries, and other sexually oriented businesses within Wooster. The zoning ordinance was placed on the agenda for the city council meeting to be held on August 19, 2002.
{¶ 5} On August 5, 2002, Mr. Boron, acting on behalf of E.V.B., Inc., applied for building and zoning permits to remodel the existing store area on the premises. Wooster granted the request for the zoning permit on August 9, 2002.
{¶ 6} On August 19, 2002, the city council enacted the zoning ordinance. The zoning ordinance became effective on September 19, 2002. The parties have stipulated to the fact that Erotica "was not open or operating as a sexually oriented business" as of September 19, 2002.
{¶ 7} On August 26, 2002, Wooster issued Mr. Boron a 30-day conditional commercial building permit and certificate, which did not authorize Mr. Boron to perform any electrical, plumbing, or HVAC work at the premises. Mr. Boron began to expend funds for the renovation and remodeling of the premises. Mr. Boron paid the purchase price for the property on September 3, 2002.
{¶ 8} In a letter dated October 4, 2002, Wooster's zoning and planning manager, acting upon the newly passed Ordinance, informed Mr. Boron that his zoning permit had been revoked. The manager stated, "[p]ursuant to said Ordinance, sexually oriented businesses are not a permitted use in a C-4 zoning district. Further, the Ordinance provides that no sexually oriented business may locate or operate within 1,000 feet of, among other uses, a church." The letter further explained that because Mr. Boron's premises is in a C-4 district and since it *167 was also within 1,000 feet of a church, his sexually oriented business would be in violation of Wooster's zoning code.1
{¶ 9} On October 4, 2002, Wooster filed a complaint against Entertainment One, Inc.,2 dba Erotica Books and News, seeking a declaratory judgment pursuant to R.C.
{¶ 10} On October 10, 2002, the building standards division of the development department issued an adjudication order, this time noting that various construction work performed did not conform to the approved plans and the rules of the Board of Building Standards. On October 24, 2002, Wooster's development department issued an adjudication order that disapproved the floor plans for the new building, noting violations of the Ohio Basic Building Code.
{¶ 11} On October 15, 2002, Mr. Boron was issued an exterior sign permit for the store. The same day, city officials inspected the premises, requiring Mr. Boron to alter some of the remodeling plans. On October 24, 2002, the officials again inspected the property and determined further reconfiguration was required. On October 29, 2002, Wooster issued Mr. Boron a Certificate of Occupancy for the building alteration.
{¶ 12} On October 31, 2002, Wooster filed a motion for a temporary restraining order, pursuant to Civ.R. 65 and R.C.
{¶ 13} On November 27, 2002, Erotica filed an answer and counterclaim. As an affirmative defense, Erotica asserted that the operation of the business was a valid, nonconforming use based upon substantial expenditures by Erotica, and that Wooster's issuance of building and zoning permits to Erotica estopped Wooster from asserting that Erotica was either not properly operating the business or that the business was not properly located. Erotica's counterclaim sought, inter alia, declaratory judgment that Wooster's revocation of Erotica's zoning permit constitutes a taking of private property without just compensation; that the operation of the store constitutes a valid nonconforming use not subject to the ordinance amendments; and that Wooster's actions constitute a violation of federal civil rights statutes. Erotica also asserted a breach of contract claim.
{¶ 14} On December 23, 2002, the trial court held a hearing on the injunction, at which the parties entered into a stipulation of facts. Thereafter, Erotica moved to amend its answer and counterclaim to add an affirmative defense that Wooster was barred from obtaining equitable remedies in court by the doctrines of laches and unclean hands. On April 15, 2003, the trial court granted Erotica leave to file an amended answer to include any affirmative defenses not included in the original answer, which included the unconstitutionality of the ordinances and the doctrine of unclean hands. The matter was scheduled for an evidentiary hearing, which was held on June 6, 2003.
{¶ 15} On June 27, 2003, the court issued an agreed order. This order specified, inter alia, that the remaining claims between the parties consisted of Wooster's declaratory judgment action regarding the zoning ordinance, Wooster's claim for a statutory injunction, and Erotica's counterclaims for a declaratory judgment, injunction, and attorney's fees relating to the zoning ordinance. The court also noted that it would decide these claims on the parties' briefs, as well as the stipulated facts and exhibits entered into the record at the December 23, 2002 hearing.
{¶ 16} On July 17, 2003, the trial court issued findings of fact and conclusions of law. The same day, the court issued a decision finding that the zoning ordinance was constitutional; that Erotica's nonconforming use argument failed because the use did not exist prior to the change in the zoning ordinance; that Erotica's affirmative defenses failed; and that Wooster was entitled to an injunction. On July 25, 2003, the trial court issued an order that granted Wooster's statutory injunction claim, enjoined Erotica from operating and maintaining *169 a sexually oriented business on the premises, and dismissed Erotica's counterclaims with prejudice. This appeal followed.
{¶ 17} Erotica timely appealed, asserting three assignment of error for review.
{¶ 18} In its first assignment of error, Erotica asserts that the trial court erred in upholding Zoning Ordinance No. 2002-49 as constitutional. We disagree.
{¶ 19} Initially, we note the appropriate standard of review. When an appellate court reviews constitutional challenges involving the
{¶ 20} Additionally, a party that challenges a legislative enactment bears the burden of demonstrating its unconstitutionality. Goldberg,
{¶ 21} In support of its first assignment of error, Erotica argues that the zoning ordinance constitutes a content-based restriction on speech, in violation of the
{¶ 22} The United States Supreme Court has declared that "[c]ontent-based regulations are presumptively invalid." R.A.V.v. St. Paul (1992),
{¶ 23} A city may regulate the location of adult businesses within a zoning scheme so long as the regulation is designed to serve a substantial *171
government interest, and leaves open reasonable alternative avenues of communication of that speech.Renton v. Playtime Theaters, Inc. (1986),
{¶ 24} The Supreme Court has also acknowledged that municipalities generally have a better understanding of and experience with the negative secondary effects that result from certain speech than do the courts, and that therefore, municipalities will only be required to "rely upon evidence that is `reasonably believed to be relevant' to the secondary effects that they seek to address." Almeda Books,
{¶ 25} Because the zoning ordinance in the instant case does not ban sexually oriented businesses altogether, but rather prescribes certain districts within which the businesses are to be located, the ordinance is properly reviewed as a form of content-neutral time, place, and manner regulation. See Renton,
{¶ 26} Prior to adoption of the zoning ordinance, Wooster's law director cautioned members of the city council that the intent in enacting the ordinance must be to reduce the negative secondary effects of sexually oriented businesses, and not to regulate speech. The preamble to the zoning ordinance unambiguously states that the ordinance was drafted to combat secondary effects of sexually oriented businesses: *172
"WHEREAS, there is convincing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, causingincreased crime and the downgrading of property values; and
"WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blightand downgrading the quality of life in the adjacent area; and
"WHEREAS, this City Council desires to minimize and controlthese adverse effects and thereby protect the health, safety, andwelfare of the citizenry; protect the citizens from increasedcrime; preserve the quality of life; preserve the property valuesand character of surrounding neighborhoods, and deter the spreadof urban blight; and
"WHEREAS, it is not the intent of this Ordinance to suppress any speech activities protected by the
{¶ 27} Likewise, Section 1 of the proposed zoning ordinance indicates the purpose of the ordinance and further renounces any intent on Wooster's part to restrict speech. It provides in part:
"It is the purpose of this Ordinance to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within [Wooster]. The provisions of this Ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this Ordinance to restrict or deny access by adults to sexually oriented materials protected by the
{¶ 28} In its decision dated July 17, 2003, the trial court concluded that the zoning ordinance is constitutional. The court reasoned as follows:
"There is sufficient evidence in the record before [Wooster City Council] to support [Wooster's] position that the ordinance was passed to address the secondary effects of sexually oriented businesses and not to restrict [Erotica's] exercise of
{¶ 29} In its findings of fact and conclusions of law, the trial court explicitly concluded that the evidence of "secondary effects" relied upon by the city council *173 was sufficient to meet the Renton standard. The court stated that the information presented to the city council regarding secondary effects was "`reasonably believed to be relevant to the problem' before it." The trial court specifically referenced the information presented at the public hearings by the public, the preamble to the zoning ordinance amendment itself, and council members' comments regarding case studies as well as an acknowledgement of such secondary effects.
{¶ 30} At the June 26, 2002 meeting of the Wooster Planning Commission, staff member Val Jesionek cautioned that sexually oriented businesses were protected by the
{¶ 31} The minutes of the August 19, 2002 meeting of the city council indicate that a public hearing regarding the zoning ordinance was held at that meeting. The minutes reflect that council member O'Planick discussed the detrimental secondary effects of sexually oriented businesses. Specifically, the minutes report O'Planick's statement as follows:
"It had been proven that the secondary effects of [sexually oriented businesses] are extremely detrimental to a community such as increased crime, decreased property values of businesses near them, poor tax revenues, spread of sexually transmitted diseases, sexual harassment, littering of pornographic materials, etc."
{¶ 32} Additionally, council member Robison referred to case studies of sexually oriented businesses in Newport, Kentucky, and Covington, Kentucky that described the devastating effect that those businesses had on these communities. The minutes from the August 19, 2002 meeting also indicate that a pastor who had returned from a national pro-family legislative conference on the effect of pornography on families and children reported to city council on the statistics he gathered from the conference. He referenced statistics regarding an increased incidence of molestation, rape, and the number of adult sex offenders.
{¶ 33} In addition, these minutes reveal that during the meeting council member Mitten had in her possession a document entitled "Protecting Communities from Sexual Oriented Businesses," and that the document noted the fact that these businesses may create public nuisances, and that some may essentially become houses of prostitution or meeting places for public sexual contact. The Wooster law director followed up this discussion with the statement that cases *174
where such establishments have been found to be public nuisances, the businesses generally have a track record of illegal activity documented by the police. Additionally, the record indicates that the Wooster law director informed the council members of the
{¶ 34} At a hearing held before the trial court on June 6, 2003, Wooster's attorney requested the court to consider the fact that the city council took "legislative notice" of the negative secondary effects of adult entertainment businesses on other communities. Based on the abundance of literature describing the deleterious effects of these establishments, Wooster's attorney argued that it was unnecessary that the city council read and study the materials prior to their vote.
{¶ 35} A municipality may rely on studies and evidence from other cities regarding negative secondary effects of adult uses in support of its own ordinance, so long as the evidence relied upon is "reasonably believed to be relevant to the problem the city addresses." Union Twp. Bd. of Trustees v. Old 74 Corp.
(2000),
"Our cases have never required that municipalities make such a showing, certainly not without actual and convincing evidence from [the opposing party] to the contrary. Such a requirement would go too far in undermining our settled position that municipalities must be given a `reasonable opportunity to experiment with solutions' to address the secondary effects of protected speech." (Citations omitted.) Id., quoting in part,Renton,
{¶ 36} Furthermore, the Court declared that if the party challenging the ordinance's constitutionality does not meet its burden to substantively refute a municipality's evidence in support of the ordinance, then the party's attempt to invalidate the legislation on constitutional grounds essentially fails:
"If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance." Id. at 438-39.
{¶ 37} This statement is consistent with the principle that the party challenging the constitutionality of a legislative enactment retains the burden to demonstrate the unconstitutionality of the enactment. See Goldberg,
{¶ 38} Erotica surmises that Wooster "relied upon its officials' own hunches or prejudices, rather than upon concrete and reliable evidence, in passing the [zoning] [o]rdinance," and that the record does not establish that the city council actually relied on existent studies concerning the secondary effects of sexually oriented businesses on communities. However, upon a thorough review of the record, we find that the evidence indicates otherwise. The minutes of the public hearing on August 19, 2002 reveal that the Wooster city council members were aware of studies and other evidence discussing negative secondary effects, and that they considered this information prior to passing the ordinance amendment. We conclude that the record does support a finding that the council relied on information regarding the negative secondary effects of sexually oriented businesses.
{¶ 39} The information in the record suggests that it remains unclear exactly which materials or studies the city council had before it when discussing the zoning ordinance. However, this fact is not necessarily fatal. See Triplett Grille, Inc. v.Akron (C.A. 6, 1994),
{¶ 40} Moreover, "it is apparent that adverse secondary effects may and do occur around these adult businesses."Brookpark News Books, Inc. v. Cleveland (1990),
{¶ 41} Additionally, we observe that a number of courts have sustained adult business ordinances and statutes without pre-enactment evidence of negative secondary effects. See Barnesv. Glen Theatre, Inc. (1991),
{¶ 42} We find these cases persuasive, and apply their reasoning to the instant case to conclude that the trial court could properly find that the evidence referenced by Wooster in support of the zoning ordinance is reasonably believed to be relevant to Wooster's desire to eliminate and prevent the negative secondary effects of sexually oriented businesses. As noted above, the zoning ordinance in the instant case is designed to regulate the location of sexually oriented businesses, and not to suppress or greatly hinder access to the speech. Therefore, we find that the trial court correctly concluded that the zoning ordinance governing the location of *177 sexually oriented businesses does not seek to control the content of the materials sold by sexually oriented businesses. Furthermore, as the zoning ordinance is designed to regulate the location of sexually oriented businesses, we find that the zoning ordinance serves the firmly established substantial government interest in combating negative secondary effects.7
{¶ 43} In sum, we find that Erotica did not meet its burden to establish that the zoning ordinance is unconstitutional. Additionally, we find that Wooster satisfied the Renton standard in enacting this zoning ordinance. Thus, this Court finds that the trial court did not err in determining that the zoning ordinance is constitutional. Accordingly, Erotica's first assignment of error is overruled.
{¶ 44} In its second assignment of error, Erotica contends that the trial court erred in finding that Erotica did not qualify as a nonconforming use. We disagree.
{¶ 45} A nonconforming use of land is a use that was lawful before the enactment of a zoning amendment, but one which, although no longer valid under the current zoning rules, may be lawfully continued. C.D.S., Inc. v. Gates Mills (1986),
{¶ 46} In the instant case, Wooster sought statutory injunctive relief pursuant to R.C.
"No person shall erect, construct, alter, repair, or maintain any building or structure or use any land in violation of any zoning ordinance or regulation enacted pursuant to sections
{¶ 47} The zoning ordinance in this case provides that "[a]ny sexually oriented business lawfully operating on the effectivedate of Section 1122.16 of this code that is in violation of Section 1122.16 of this code shall be deemed a nonconforming use."8 (Emphasis added.) Wooster Codified Ordinance 1122.16(j). See, also, R.C.
{¶ 48} In an action for a zoning violation, a city has the initial burden of proving a violation. See Schmidt v. Barton
(Jan. 12, 1977), 9th Dist. No. 8184. The landowner claiming the defense of a valid, nonconforming use must then prove, by a preponderance of the evidence, that the use existed on the effective date of the zoning change, and furthermore, that the use was legal at that time. Bd. of Trustees of Columbia Twp. v.Albertson (Oct. 17, 2001), 9th Dist. No. 01CA007785, citingBooghier v. Wolfe (1990),
{¶ 49} Whether a civil or criminal case, judging the credibility of the witnesses and the weight to be given to the evidence are primarily for the trier of fact. State v. DeHass
(1967),
{¶ 50} In Smith v. Juillerat (1954),
"[W]here no substantial nonconforming use is made of property, even though such use is contemplated, and money is expended in preliminary work to that end, a property owner acquires no vested right to such use and is deprived of none by the operation of a valid zoning ordinance denying the right to proceed with his intended use of the property." Id. at 431. See, also, Torok v.Jones (1983),
{¶ 51} Ohio courts have held that the failure to establish that a permitted use occurred prior to a change in the zoning law renders this use nonconforming, and eliminates the property owner's right to the use. Smith v. Wadsworth (Oct. 23, 1996), 9th Dist. No. 2550-M, citing Schreiner v. Russell Twp. Bd. ofTrustees (1990),
{¶ 52} In Juillerat, the Supreme Court had occasion to assess whether a landowner wishing to strip-mine his land had established a nonconforming use prior to the adoption of a local zoning ordinance that prohibited strip mining. The landowner had applied for and obtained a license for use in connection with the land, had entered into leases with nearby property owners, and had drilled a hole on the land for testing purposes. Nevertheless, the Court stated that, because no coal had actually been mined and the landowner was not prepared to mine at the time the ordinance took effect, a nonconforming use was not established. Id. at 431. See Booghier,
{¶ 53} Additionally, the use must be lawful at the time the use was established to qualify as a nonconforming use. Pschesangv. Terrace Park (1983),
{¶ 54} The zoning ordinance in the instant case provides that a sexually oriented business that was "lawfully operating" at the time that the ordinance became effective will be deemed a nonconforming use. Wooster Codified Ordinance *180 1122.16(j). As noted above, the parties stipulated to the fact that Erotica was not open and operating as of September 19, 2002, the effective date of the zoning ordinance. Prior to this date, Erotica had purchased the premises, obtained zoning and building permits, and made certain improvements that had not yet been deemed in compliance with all zoning and building code regulations.
{¶ 55} In its findings of fact and conclusions of law, the trial court made the following findings:
"17. As of September 19, 2002, the effective date of the Zoning Ordinance, [Erotica] was not lawfully operating a sexually oriented business at the Premises.
"18. As of September 19, 2002, [Erotica] had not commenced work on the plumbing or the HVAC at the Premises.
"19. On September 19, 2002, an electrician hired by [Erotica] was illegally working at the Premises without a permit for electrical work and without having applied for a permit. [Mr. Boron] did not begin lawful electrical work until October 2, 2002.
"20. As of October 10, 2002, [Erotica] had not remodeled the Premises as specified in the plans he submitted to [Wooster], and was required to modify construction * * *.
"21. As of October 24, 2002, [Erotica's] building plans for the Premises had not been approved by [Wooster].
"22. [Erotica] had not completed construction sufficient to allow a Certificate of Occupancy to be issued until October 29, 2002.
"23. As of October 31, 2002, when the Court issued a Temporary Restraining Order enjoining [Erotica] from using the Premises as a sexually oriented business, [Mr. Boron] had not opened for business." (Record citations omitted.)
{¶ 56} In its final order, the trial court noted that the parties did not contest that Erotica's location does not comply with the zoning ordinance in this case. The court then concluded that Erotica's use did not exist prior to the change in the zoning ordinance, and that the nonconforming use defense failed as a result.
{¶ 57} The trial court relied on Harris,
{¶ 58} Additionally, the court in Harris rejected the plaintiffs' claim, that they had a vested right to the use of their property as a cabaret prior to the effective date, since they had applied for and received a permit and had begun construction before the regulations were passed, and because 95 percent of the building was completed before the regulations' effective date. The plaintiffs based their argument on Gibson v.Oberlin (1960),
"Where * * * a property owner has complied with all the legislative requirements for the procurement of a building permit, and his proposed structure falls within the use classification of the area in which he proposes to build it, he has a right to such permit * * *. Subsequent legislation enacted pending applicant's attempted enforcement of such right * * * cannot deprive him of the right. The right became vested, under the law applicable thereto, upon the filing of the application for the permit." Id. at 5-6.
{¶ 59} However, the court found that the application of this principle to the plaintiffs' case was misplaced, because the standard for the issuance of a building permit is to be distinguished from the one governing the establishment of a specific use as articulated in Juillerat. Harris,
{¶ 60} We find the court's analysis in Harris persuasive, as well. This Court cannot find that this set of circumstances alone is sufficient to establish a substantial nonconforming use as set forth in Juillerat.
{¶ 61} Erotica argues that by undertaking actions to improve the existing building, applying for required building and construction permits, and representing an intention to use the property as an adult bookstore prior to the effective date of the zoning ordinance, that such actions were sufficient to establish a non-conforming use under the Juillerat standard. See, e.g.,Harris,
{¶ 62} We do not necessarily disagree with the trial court's notation of the fact that the nonconforming use issue in this particular case is a "closer question." However, the current state of the law compels this Court to conclude that actual operation, and not a mere intention, or a claim of intention to operate, must be shown to establish a nonconforming use pursuant to the Juillerat standard.
{¶ 63} Based upon the foregoing, we find that Erotica was not in lawful operation on September 19, 2002, and that Erotica has failed to establish, by a preponderance of the evidence, that a substantial nonconforming use existed on the effective date of the zoning change. Thus, this Court concludes that the trial court did not err when it found that Erotica failed to establish a nonconforming use immune from the zoning ordinance. Accordingly, Erotica's second assignment of error is overruled.
{¶ 64} In its third assignment of error, Erotica attests that the trial court erred in granting Wooster equitable injunctive relief because Wooster came to court with unclean hands. Specifically, Erotica contends that the trial court failed to properly consider their unclean hands defense, and improperly construed this defense as an estoppel argument. Erotica's contentions lack merit.
{¶ 65} The decision to grant or deny an injunction is solely within the discretion of the trial court. Danis Clarkco LandfillCo. v. Clark Cty. Solid Waste Mgt. Dist. (1995),
{¶ 66} The doctrine of "clean hands" is an equitable doctrine. See, generally, Basil v. Vincello (1990),
{¶ 67} In the instant case, Wooster brought this action pursuant to R.C.
"It is established law in Ohio that, when a statute grants a specific injunctive remedy to an individual or to the [S]tate, the party requesting the injunction `need not aver and show, as under ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law.'"Ackerman,
{¶ 68} Furthermore, the Supreme Court acknowledged the position that the traditional balancing of equities is unnecessary in a situation in which an injunctive remedy is sought pursuant to a statute that serves the purpose of providing a governmental agent with the means to enforce public policy.Ackerman,
{¶ 69} Moreover, Ohio courts have expressed the clear position that equitable defenses generally do not apply to bar a claim made by a governmental unit. See, generally, Halluer v.Emigh (1992),
{¶ 70} Furthermore, we observe that the trial court, in its findings of fact and conclusions of law, determined that "[Wooster's] issuance of various permits to [Erotica] does not estop [Wooster] from pursuing its claims in the lawsuit. [Wooster] was simply following the law and cannot be penalized for such conduct. [Wooster's] hands are clean." Thus, contrary to Erotica's claim on appeal, the trial court did substantively address its defense of unclean hands, and ultimately we do not find merit in their argument that the court confused this defense with that of estoppel.
{¶ 71} We are not required, due to our determination above, to discuss substantively whether Wooster initiated this injunction action with unclean hands. However, we find it important to acknowledge Wooster's argument, that those activities that Erotica claims to have been "inequitable" are the actions taken by Wooster to enforce its building code and zoning ordinance, and that such actions necessarily cannot and should not be considered "reprehensible conduct." See Marinaro,
{¶ 72} In this case, Wooster did not seek to enjoin Erotica from constructing a building on the premises, making improvements to the existing building, or using the building in general. Indeed, Erotica can employ its current construction for *185 any lawful purpose. If Erotica refuses to employ the premises for such uses, then that is Erotica's free choice and perogative. Nothing in the record indicates to this Court that Wooster took actions to enjoin any type of use of the building; rather, it simply sought to enforce its zoning ordinance, which requires that sexually oriented businesses be located in certain parts of the municipality. We cannot find sufficient basis in the record for a conclusion that Wooster had unclean hands in its administration of the zoning ordinances and building codes.
{¶ 73} Thus, we find that the trial court did not err in its handling of Erotica's unclean hands defense in this case, and therefore conclude that the trial court did not abuse its discretion in granting the injunction. See Pons,
{¶ 74} As we have already noted above, Erotica's location violates the provisions of the zoning ordinance. Since we have determined that the zoning ordinance is constitutional and that Erotica did not establish a nonconforming use, Wooster is entitled to enforce the ordinance, and Erotica must comply with the zoning ordinance's mandates.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
Exceptions.
Whitmore, P.J., Slaby, J., concur.