JASON GORDON, et al., Appellees, - vs - MT. CARMEL FARMS, LLC, Defendant, -and- UNION TOWNSHIP, OHIO, et al., Appellants.
CASE NO. CA2020-09-054
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO CLERMONT COUNTY
4/12/2021
[Cite as Gordon v. Mt. Carmel Farms, L.L.C., 2021-Ohio-1233.]
John Woliver, 204 North Street, Batavia, Ohio 45103, for appellees
Santen & Hughes, Brian P. O‘Connor, 600 Vine Street, Suite 2700, Cincinnati, Ohio 45202-2409, for defendant
Schroeder, Maundrell Barbiere & Powers, Lawrence E. Barbiere, Katherine L. Barbiere, 5300 Socialville Foster Road, Suite 200, Mason, Ohio 45040, for appellants
{1} Appellants, Union Township, Ohio and Cory Wright, the Director of the Union Township Planning and Zoning Department, appeal the decision of the Clermont County Court of Common Pleas denying their
Facts and Procedural History
{2} Jason and Nicole Gordon are husband and wife. The Gordons own real property located at 4340 Mt. Carmel Road, Union Township, Clermont County, Ohio. The Gordons’ property is zoned R-1 for single family residential use under the Union Township Zoning Resolution (“UTZR“). The Gordons, as well as their two young children, reside on the property located at 4340 Mt. Carmel Road.
{3} Defendant, Mt. Carmel Farms, LLC, owns real property located at 4370 Mt. Carmel Road, Union Township, Clermont County, Ohio. Mt. Carmel Farms’ property is zoned ER for estate residential district under the UTZR. Mt. Carmel Farms’ property receives a reduced property tax liability based on its Current Agricultural Use Evaluation (“CAUV“) status.1 Mt. Carmel Farms nevertheless permits several businesses to operate on its property: two landscaping companies, an automotive repair business, a concrete sawing company, a steel fabricator, and an exercise equipment business.
{4} There is no dispute that Mt. Carmel Farms’ property neighbors the Gordons’ property. There is also no dispute that the two properties share a common ingress and egress easement that consists of a 30 foot wide gravel road/driveway that extends several hundred feet in length. There is further no dispute that part of this easement crosses over
The Gordons’ Complaint
{5} On February 19, 2020, the Gordons filed a complaint naming Union Township, Wright, and Mt. Carmel Farms as defendants. In their complaint, the Gordons requested the trial court grant them declaratory and injunctive relief, as well as damages in excess of $25,000, against all three named defendants. The Gordons raised four causes of action in their complaint: three against Mt. Carmel Farms and one against Union Township and Wright. The Gordons’ four causes of action are as follows.
First Cause of Action
{6} In their first cause of action, the Gordons allege the following:
The uses of Mt. Carmel Farms LLC, property described above are in direct violation of the Union Township Zoning Resolution and plaintiffs have been especially damaged by such zoning violations. As a result, pursuant to
R.C. 519.24 , plaintiffs are entitled to a declaratory judgment issued by this Court declaring that the use of the Mt. Carmel Farms LLC property is in violation of the Union Township Zoning Resolution, and plaintiffs are entitled to a permanent injunction enjoining defendant, Mt. Carmel Farms LLC, from continuing uses on the subject property in violation of the Zoning Resolution.
{7} The Gordons also allege that they are entitled damages in excess of $25,000 from Mt. Carmel Farms as a result of those purported violations of the UTZR.
Second Cause of Action
{8} In their second cause of action, the Gordons allege the following:
The uses of the Mt. Carmel Farms LLC, property constitutes a nuisance to plaintiffs. Plaintiffs are entitled to injunctive relief issued by this Court preventing all such nuisance activities on the property and judgment against Defendant Mt. Carmel Farms LLC, in an amount equal to plaintiffs’ damages which are in excess of Twenty Five Thousand Dollars ($25,000.00).
Third Cause of Action
The greatly expanded use of the ingress and egress easement held by plaintiffs and Defendant Mt. Carmel Farms LLC, constitutes an unlawful and impermissible expansion of such easement. Defendant Mt. Carmel Farms LLC is not entitled to expand the easement for the commercial purposes described above.
{10} The Gordons, therefore, requested the trial court grant them a permanent injunction enjoining Mt. Carmel Farms from “unlawful use of the easement” and a declaratory judgment “declaring the easement not (sic) longer necessary” for Mt. Carmel Farm‘s property.
Fourth Cause of Action
{11} In their fourth cause of action, the only cause of action against Union Township and Wright, the Gordons allege the following:
Plaintiffs are citizens of the United States and property owners in Union Township. The failure of defendants, Cory Wright and Union Township, to enforce the Union Township Zoning Resolution has caused plaintiffs damages as described above and violated their rights guaranteed by the Fourteenth Amendment to the United States Constitution. Plaintiffs have a right to have Defendants Wright and Union Township, who are acting under color of state law, to carry out their mandated official duties to enforce the Zoning Resolution.
{12} Continuing, the Gordons allege:
Defendant Cory Wright‘s refusal to enforce the Union Township Zoning Resolution as described above violates plaintiffs’ rights guaranteed by the Fourteenth Amendment to the United States Constitution and, pursuant to
42 § U.S.C.A. 1983 , plaintiffs are entitled to declaratory and injunctive relief and damages against defendants, Cory Wright and Union Township, declaring Wrights actions in violation of plaintiffs’ constitutional rights.
Union Township‘s and Wright‘s Civ.R. 12(B)(6) Motion to Dismiss
{13} On March 23, 2020, Union Township and Wright filed a
{14} Union Township and Wright now appeal the trial court‘s decision denying their
Appeal
{15} Assignment of Error No. 1:
{16} WHETHER THE TRIAL COURT ERRED IN DENYING CORY WRIGHT QUALIFIED IMMUNITY.
{17} In the first assignment of error, Wright argues the trial court erred by denying his
{18}
{19} “Section 1983, Title 42, U.S.Code, provides a remedy to persons whose federal rights have been violated by government officials.” Curry v. Blanchester, 12th Dist. Clinton Nos. CA2009-08-010 and CA2009-08-012, 2010-Ohio-3368, at ¶ 79; Ehemann Real Estate, Ltd. v. Anderson Twp. Zoning Comm., 1st Dist. Hamilton Nos. C-190002 and C-190038, 2020-Ohio-1091, at ¶ 52 (”
{20} “To establish a claim under Section 1983, the party asserting such a claim must prove: (1) the violation of a right secured by the United States Constitution or federal law; and (2) that the alleged violation was committed by a person acting under color of state law.” W. Chester Twp. Bd. of Trustees v. Speedway Superamerica, L.L.C., 12th Dist. Butler No. CA2006-05-104, 2007-Ohio-2844, at ¶ 62. “Both physical and emotional injuries caused
{21} Public officials, like Wright, possess a qualified immunity defense when they are sued under
{22} Qualified immunity gives ample room for mistaken judgments and protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092 (1986). This could happen under circumstances where the public official is confronted with particularly egregious facts indicating a clear constitutional violation had occurred. See, e.g., Taylor v. Riojas, ___ U.S. ___, 141 S.Ct. 52, 54 (2020) (officers were not entitled to qualified immunity where any reasonable officer should have realized petitioner‘s conditions of confinement offended the constitution given their “particularly egregious” nature). But, even then, “the ultimate burden is on the plaintiff to show that a defendant is not entitled to qualified immunity.” Pisoni v. McCord, 5th Dist. Stark No. 2017CA00111, 2018-Ohio-64, at ¶ 45. Therefore, if the plaintiff fails to demonstrate that either (1) a constitutional right was violated or (2) that the right was clearly established,
{23} “The question of whether a defendant is entitled to an absolute or qualified immunity from liability under
{24} In Town of Castle Rock v. Gonzalez, 545 U.S. 748, 125 S.Ct. 2796 (2005), the United States Supreme Court determined that “a person possesses no constitutionally-protected property right in the enforcement of a restraining order” where the decision to enforce the order is discretionary rather than a mandate on the police to act. Calvey v. Vill. of Walton Hills, 6th Cir. No. 20-3139, 2021 U.S. App. LEXIS 1366, *9 (Jan. 19, 2021), citing id. at 768. As the United States Supreme Court explained, this is because “a benefit is not a protected entitlement if government officials may grant or deny it in their discretion.” Castle Rock at 756, citing Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462-463, 109 S.Ct. 1904 (1989). The United States Sixth Circuit Court of Appeals has similarly held that “‘a party cannot possess a property interest in the receipt of a benefit when the
{25} Despite the Gordons’ claims, there is nothing in the UTZR that mandates Wright, as the Director of the Union Township Planning and Zoning Department, to cite Mt. Carmel Farms with a violation of the UTZR simply because the Gordons asked him to do so.2 The Gordons, therefore, have no constitutionally protected property interest in the “benefit” of Wright citing Mt. Carmel Farms with a violation of the UTZR for how Mt. Carmel Farms uses its own property. See, e.g., Nemeth v. Hancock, N.D.NY No. 3:10-CV-1161, 2011 U.S. Dist. LEXIS 1563, *13 (Jan. 7, 2011) (“Plaintiffs have no constitutionally protected property interest in the ‘benefit’ of a Zoning Code violation being issued by the [Village of Hancock] against the Kuehns’ use of their property“). Such a decision is instead discretionary on the part of Wright. The UTZR in fact specifically states that it is Wright, not the Gordons, who enforces, interprets, and determines the existence of any violations of the UTZR.
{26} In light of the foregoing, because the Gordons have no constitutionally protected property interest in the enforcement of the UTZR against Mt. Carmel Farms, we find merit to Wright‘s arguments advanced herein. That is to say, we find merit to Wright‘s
{¶ 27} Assignment of Error No. 2:
{¶ 28} WHETHER THE TRIAL COURT ERRED IN DENYING UNION TOWNSHIP‘S MOTION TO DISMISS.
{¶ 29} In the second assignment of error, Union Township argues the trial court also erred by denying its
{¶ 30} “A municipality can be found liable under section 1983 only where the municipality itself causes the constitutional violation at issue, as respondeat superior or vicarious liability will not attach under section 1983.” Bachtel v. Jackson, 10th Dist. Franklin No. 08AP-714, 2009-Ohio-1554, at ¶ 17, citing Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694-695, 98 S.Ct. 2018 (1978). That is to say, [s]uch liability will attach to a municipality only if the municipality itself has inflicted a constitutionally significant injury by executing a policy or custom.” Bellecourt v. Cleveland, 104 Ohio St.3d 439, 2004-Ohio-6551, at ¶ 4. Therefore, in an action brought against a township under
{¶ 31} To that end, in order to hold Union Township liable under
{¶ 32} In this case, the Gordons did not identify any Union Township policy or custom within their complaint attributable to a constitutional deprivation for which they may have suffered. The Gordons also did not allege any direct causal link between any policy or custom of Union Township and the purported constitutional deprivation for which they seek relief. The Gordons instead alleged one single incident where they claimed Wright did not “carry out [his] mandated official duties to enforce the [UTZR]” against Mt. Carmel Farms. These conclusory allegations are insufficient to state a viable claim against Union Township. To hold otherwise would result in Union Township being held liable under a respondeat superior standard, a theory of liability that is not actionable in claims brought under
{33} Simply stated, where a claim brought against a township pursuant to
{34} Judgment reversed and judgment is hereby entered in favor of appellants on their
PIPER, P.J., and BYRNE, J., concur.