Dunn v. Washington Twp.Dunn v. Washington Twp.
Bryan S. Hunt, Upper Arlington, Ohio, for appellants.
Jayme Hartley Fountain, Pickaway County Prosecutor, Robert A. Chamberlain, Assistant Pickaway County Prosecutor, Circleville, Ohio, for appellees.
Wilkin, J.
{¶1} This is an appeal by plaintiffs-appellants, Adam B. Dunn and Heather J. Dunn, (hereinafter collectively referred to as “Dunn“) from a September 20, 2024, judgment entry that determined Dunn‘s complaint for declaratory relief was not justiciable. Dunn asserts three assignments of error for our review: (1) The trial court erred by finding the March 21, 2012 Development Plan was the legally adopted comprehensive plan for Washington Township; (2) The trial court erred by failing to find Washington Township officials engaged in selective enforcement and acted in bad faith against him; and (3) The trial court erred by determining no case or controversy exists to justify relief due to his agricultural use of the property.
{¶2} After our review of the record, the applicable law, and the parties’ arguments, we conclude that the trial court did not abuse its discretion in finding that Dunn has no justiciable claim against defendants-appellees, Washington Township, its
FACTS AND PROCEDURAL BACKGROUND
{¶3} Dunn owns property in Washington Township, Pickaway County, Ohio. Dunn filed an application with the Township to rezone his property for commercial use but claimed he withdrew it because of “duress.” Subsequently, the Township notified Dunn of a zoning violation, claiming he was using his property for business purposes, even though it was zoned for rural residential use. Dunn appealed the enforcement action to the Township‘s Board of Zoning Appeals, but the Board denied Dunn‘s appeal. Dunn then filed an administrative appeal of the Board‘s decision in the Washington County Court of Common Pleas in Case No. 2021-CI-0161.
{¶4} While that administrative appeal was pending, Dunn filed a four-count complaint against the Township seeking declaratory relief under
{¶5} In Count One of his complaint, Dunn alleged that
{¶6} In Count Two, Dunn claimed that the Township‘s “restriction” of his intended property use was “not reasonably related to the public health, safety, morals, or the general welfare” of the Township. Therefore, the Township‘s enforcement of its zoning against him was clearly arbitrary, capricious, and unreasonable, making it unconstitutional and beyond the Township‘s authority under
{¶7} In Counts Three and Four, Dunn sought a restraining order and a permanent injunction. Dunn alleged that the Township had proposed amendments to the zoning resolution and zoning map. Dunn claimed that these amendments would adversely affect the use of his property. Because of the immediacy of the threat, the Dunns would have no adequate remedy at law. Therefore, Dunn sought a restraining order and permanent injunction preventing the Township from altering the zoning resolution or zoning map during this action. Dunn also sought costs, attorney fees, and other legal or equitable relief the court deemed warranted.
{¶8} The Township filed an answer seeking dismissal of Dunn‘s complaint, which the court denied.
{¶9} As stated above, Count One of Dunn‘s complaint alleged that the Township‘s zoning was not in accordance with its plan. When Dunn requested a copy
{¶10} Nine witnesses testified at the hearing, including Dunn, Township officials, and an employee from the firm that helped create the five versions of the plan. After considering the evidence and testimony presented, the court issued a decision and entry finding that the Township adopted the March Plan.
{¶11} After the trial court determined that the March Plan was the legally adopted plan by the Township, it proceeded to address the remaining issues in Dunn‘s complaint. These issues included: (1) “declaratory judgment under
{¶12} In his brief, Dunn set out three reasons why the Township‘s zoning was invalid: (1) inconsistencies among the township‘s zoning resolution, zoning map, and land use map, resulting in non-compliance with the plan, (2) zoning classifications like “Campus Village District” violated the Establishment Clause of the First Amendment,
{¶13} Dunn also alleged that the evidence “suggest[ed] that the selective zoning against Dunn resulted from intentional discrimination and bad faith” by the Township. Dunn cited testimony by Trustee Dennis Shaw, who agreed that he had animosity toward Dunn, and an e-mail from Austin Wood (son of Trustee Rick Wood) to Dunn that revealed Rick Wood “held a great deal of loathing” toward Dunn.
{¶14} Therefore, Dunn argued he was entitled to a declaratory judgment that the Township‘s zoning resolution and map are invalid and/or unconstitutional.
{¶15} The Township responded by stating that the zoning resolution and plan do not need to mirror each other. The plan served as a “guiding tool” for the zoning resolution. Additionally, the Township asserted that its zoning resolution did not violate the Establishment Clause because the Campus Village District has a secular purpose, did not advance or inhibit religion, and does not excessively entangle government with religion.
{¶16} The Township also argued that its zoning resolution did not violate Dunn‘s Equal Protection rights. The Township noted that equal protection does not forbid all classifications. Rather, it prevents the government from treating persons differently “who are in all relevant respects alike.” The Township maintained Dunn presented no evidence that he had been treated differently than any other person in a similar situation.
{¶17} The Township also addressed Dunn‘s claim that selective enforcement of zoning was driven by discrimination and bad faith. The Township noted that Shaw was
{¶18} Thus, the Township concluded that the case does not involve selective enforcement or spot zoning and reiterated that the Dunns have not shown the zoning provisions were arbitrary, unreasonable, or unrelated to public health, safety, morals, or general welfare. Accordingly, the Township moved the court to deny Dunn‘s requested declaratory relief.
{¶19} On October 30, 2023, the Township filed a counterclaim seeking: (1) a declaration that Dunn was violating sections 17.01, 17.03, 17.04, and 26.04 of the township‘s zoning resolution, (2) a permanent injunction ordering Dunn to terminate all operations, remove all inventory, structures and items used for commercial business and terminate all activities that violate the resolution, and (3) an assessment of civil sanctions ($100 per day Sec. 4.11.03 of the resolution) plus costs of this action.
{¶20} On March 25, 2024, Dunn‘s complaint and the Township‘s counterclaim were presented to a magistrate for a bench trial. Seventeen witnesses, including Dunn and Township employees, testified, and numerous exhibits were submitted by both parties. The magistrate concluded that no case or controversy existed, stating there was no need for a declaratory judgment or permanent injunction. Additionally, in Case No. 2021-CI-0161, concerning Dunn‘s administrative appeal of the Township‘s “Notice of Zoning Violation,” the magistrate found the notice to be invalid.
{¶22} The trial court‘s findings of fact were as follows. Dunn purchased a 9.5-acre property at 9889 U.S. Route 22 East, Stoutsville, Ohio, in June 2019. Dunn believed the land was zoned rural residential when he bought it. Dunn attempted to rezone the land but withdrew his application, asserting he was not properly notified of meetings.
{¶23} Township Trustee Rick Stevens described the rezoning process as submitting an application to the zoning inspector, who forwards it to the Zoning Commission. The Zoning Commission then forwards it to the Planning and Development Commission (PDC), which makes a recommendation to the Township Trustees, who grant or deny the application. Stevens testified that the meeting Dunn complained about not receiving notification was a PDC meeting that was rescheduled, but the Trustees never received an opinion from the PDC because Dunn withdrew his application.
{¶24} Relations between Dunn and township representatives became acrimonious, affecting interactions with zoning personnel. Trustee Rick Stevens testified Dunn was confrontational at meetings, and trustees sometimes responded similarly.
{¶25} On April 13, 2021, Dunn wrote a letter to the Trustees informing them “As I have told you many times before, we have been using, we currently are using and will continue to use the said property for business and the US22 400’ Business Corridor that
{¶26} The Trustees removed the U.S. Rt. 22 400-foot Business Corridor on January 27, 2014, and “grandfathered some existing businesses into the new zoning map.” Dunn‘s lot was not grandfathered in. On September 1, 2021, the Township issued a Notice of Zoning Violation to Dunn.
{¶27} Dunn was using his property to process and sell topsoil mixed with Com-Til at a 90% to 10% ratio. Com-Til is an organic biosolids compost sold by the city of Columbus and designated an agricultural product by the Ohio Environmental Protection Agency (EPA). A hoop barn was built to store equipment and topsoil used in harvesting and processing. Expert agronomist Mark Wilson opined that the property use is agricultural in nature. Dunn testified he always intended to operate an agricultural business on the property.
{¶28} The trial court accepted the magistrate‘s recognition that the evidence showed that Dunn used his property for an agricultural purpose, making it exempt from the Township‘s zoning. The court noted that Dunn testified he had consistently intended to use his property for agricultural purposes, both now and in the future. Therefore, the trial court affirmed the magistrate‘s decision that concluded no case or controversy existed because Dunn‘s current and intended use is agricultural and exempt from zoning. The court found Dunn withdrew his rezoning application before any final township decision thereby failing to exhaust administrative remedies, which
{¶29} It is this judgment that Dunn appeals.
ASSIGNMENTS OF ERROR
- THE TRIAL COURT ERRED WHEN IT FOUND THAT THE MARCH 21, 2012 DEVELOPMENT PLAN WAS THE CORRECT COMPREHENSIVE PLAN FOR WASHINGTON TOWNSHIP, OHIO
- THE TRIAL COURT ERRED WHEN IT FAILED TO FIND THAT WASHINGTON TOWNSHIP, OHIO OFFICIALS HAD WRONGFULLY ENGAGED IN SELECTIVE ENFORCEMENT AGAINST APPELLANTS AND HAD ACTED IN BAD FAITH
- THE TRIAL COURT ERRED WHEN IT DETERMINED THAT NO CASE OR CONTROVERSY EXISTS WHICH TO JUSTIFY RELIEF SOUGHT BY APPELLANTS AS A RESULT OF APPELLANTS’ AGRICULTURAL USE OF THEIR PROPERTY
Third Assignments of Error
{¶30} Because Dunn‘s third assignment of error is dispositive of his appeal, we address it first. In his third assignment of error, Dunn argues that the trial court erred in determining no case or controversy exists, despite the court‘s finding that the current agricultural use of his property made it exempt from Township zoning under
{¶31} In response, the Township argues that the general rule is that no justiciable case or controversy exists because declaratory challenges to zoning require a final decision applying regulations to the specific property. The State acknowledges there are two exceptions to this rule where the exhaustion of administrative remedies is not necessary, which include where no administrative remedy is available or it is onerous. However, the State claims that neither exception applies in this case.
{¶32} The Township asserts appellants withdrew their rezoning application without duress, as duress requires unlawful threats, and the record shows notice issues were addressed by rescheduling a county meeting that Dunn attended. The Township contends that Austin Wood‘s email cannot establish duress because it post-dated the withdrawal by more than a year, and its author admitted most statements were untrue.
{¶33} The Township highlights Dunn‘s testimony that he intended to continue to use his property for agricultural purposes, which conflicts with his prior letter to the Township and supports the absence of a live controversy.
{¶34} Therefore, the Township concludes the trial court correctly determined no case or controversy existed. Accordingly, the Township prays for this court to overrule Dunn‘s third assignment of error.
A. Law
1. Standard of Review
2. Declaratory Judgments and Zoning Justiciability
{¶36} Declaratory judgment actions are governed by
{¶37} “The Ohio Supreme Court has held that a party may use a declaratory judgment action to challenge the overall constitutionality of a zoning ordinance as it applies to a specific parcel of property to proscribe the owner‘s proposed use of the property.” Dwelly v. Lyle, 1997 WL 467001, *2 (4th Dist. Aug. 11, 1997), citing Karches v. Cincinnati, 38 Ohio St.3d 12, 16 (1988). However, ” ’ [a] prerequisite to a determination that an actual controversy exists in a declaratory judgment action is a final decision concerning the application of the zoning regulation to the specific property in question.’ ” (Bracketed text original.) Id. quoting Karches at paragraph two of the syllabus.
{¶38} Land that is used for agricultural purposes is exempt from township zoning under
B. Analysis
{¶39} Although Dunn applied to rezone his property, he withdrew the application before it was considered by the PDC, let alone the Township Trustees. Furthermore, Dunn testified that he was excavating topsoil from his property, mixing it with the Com-Til and selling it. He also stated he was intending to move forward with an aquaculture project by excavating a five-pond system to raise and sell fish. Both are agricultural uses that exempt his property from Township zoning. See Armentrout [and] Puckett, respectively. Dunn opined that aquaculture was “low investment, high return.” Consequently, the trial court issued a judgment in Dunn‘s administrative appeal that invalidated the Township‘s zoning violation issued against him. There is no evidence in
{¶40} Nevertheless, Dunn argues that because his property is located in the Township, he is subject to the unlawful zoning resolution and he must comply with the procedures and terms of the zoning, so there is a case or controversy. Dunn posits: “For instance, if [Dunn] sought to rezone their property they would be required to follow the procedure in Article VI of the Zoning Resolution.” (Emphasis added.) Dunn‘s example is contingent upon the happening of a hypothetical event, such as him filing an application for a variance or to rezone his property. As the Supreme Court has recognized that in the context of seeking declaratory relief, “[f]or a justiciable question to exist, ’ “[t]he danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events.” ’ ” Heasley, 2007-Ohio-1248, ¶ 9. Dunn‘s example is based on the contingent act and hypothetical outcome, precisely what Heasley identifies as not being justiciable. Even assuming Dunn‘s allegations have merit, issuing him declaratory relief under these circumstances would merely be nothing more than an advisory opinion. Therefore, we reject Dunn‘s argument.
{¶41} Under the facts recited supra, we find that the trial court‘s determination that Dunn had no justiciable claim against the Township was the result of a sound reasoning process. The Court‘s decision was not unreasonable, arbitrary or unconscionable. Accordingly, the trial court did not abuse its discretion in holding that Dunn‘s declaratory complaint was not justiciable.
CONCLUSION
JUDGMENT AFFIRMED AND REMANDED TO ISSUE FORMAL DISMISSAL ENTRY.
It is ordered that the trial court‘s decision is hereby AFFIRMED on the merits. However, the case is REMANDED to the trial court with instructions to issue a formal dismissal entry. The appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pickaway County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 22, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.