VILLAGE OF NEW HOLLAND v. MICHAEL J. MURPHY, et al.
Case No. 18CA6
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
June 3, 2019
2019-Ohio-2423
Jack D’Aurora and John M. Gonzales, The Behal Law Group LLC, Columbus, Ohio, for Appellant.
James R. Kingsley, Circleville, Ohio, for Appellees.
Smith, P.J.
{¶1} This is an appeal from a Pickaway County Court of Common Pleas judgment entry denying Appellant, Village of New Holland’s, motion for a permanent injunction seeking to enjoin Appellees, Michael Murphy, et al., from operating a business from his residence in violation of the village’s zoning ordinances. On appeal, Appellant contends that 1) in deciding whether to grant a permanent injunction, the trial court used the wrong
{¶2} Because we find merit to both of the assignments of error raised by Appellant, they are both sustained. As a result, the judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion, in order to determine the matter in light of the correct standard of review, while applying the correct burden of proof.
FACTS
{¶3} The facts pertinent to this appeal are as follows. On August 30, 2017, Appellant, Village of New Holland, filed a complaint for injunction against Appellee, Michael Murphy. Appellee‘s wife was later joined as a pаrty to the lawsuit. The complaint alleged Appellant was entitled to a permanent injunction pursuant to
{¶4} Appellees filed an answer asserting multiple defenses and a general denial of the allegations of the complaint. During the course of the litigation, Appellees filed an exhibit, which was a document entitled “Conditional Use Permit On Property Of Michael Murphy And Ruth Murphy.” The document specifiеd it applied to Appellees’ residential address, which was zoned “R1 & R2[.]” single family homes and two family homes, respectively. The document was signed by four members of the zoning board and was dated January 30, 2002.
{¶6} Clair Betzco, Jr., mayor of the village, testified on behalf of Appellant. He testified that despite a thorough search, the only document he could find regarding the CUP at issue was the document filed by Appellees, as referenced above. He stated he found it in the village administrator‘s filing cabinet in an unmarked folder in 2017, but that it should have been in the clerk‘s office in a filing cabinet marked “Permit Uses.” Incidentally, there was testimony introduced at trial indicating Mr. Murphy may have actually served as Village Administrator in 2002. Mavis Yourchuck, Village Clerk, also testified for Appellant. She testified that she physically handed Mr. Murphy the document purporting to be a conditional use permit. She also testified, however, that council meeting minutes from February 11, 2002, just twelve days after the CUP was purportedly issued, indicated the CUP was stopped.
{¶7} After hearing the trial testimony and considering post-trial arguments submitted by the parties, the trial court ultimately issued a decision denying Appellant‘s request for a permanent injunction. It is from that judgment that Appellant now brings its timely appeal, setting forth two assignments of error for our review.
“I. IN DECIDING WHETHER TO GRANT A PERMANENT INJUNCTION, THE TRIAL COURT USED THE WRONG BURDEN OF PROOF.
II. IN REVIEWING THE VILLAGE’S ZONING ORDINANCES, THE TRIAL COURT USED THE WRONG STANDARD OF REVIEW.”
ASSIGNMENT OF ERROR II
{¶8} For ease of analysis, we address Appellant’s assignments of error out of order. In its first assignment of error, Appellant contends that in reviewing the village’s zoning ordinances, the trial court used the wrong standard of review. Appellant raises three questions under this assignment of error. First, Appellant questions whether the conditional use permit (CUP) at issue in this case was a final order. Second, Appellant questions whether, in reviewing the CUP, the trial court employed the correct standard of review. Third, Appellant questions whether this Court should review the CUP de novo. Appellees respond by arguing that the trial court used the proper standard of review when reviewing the CUP, which was the “presumption of regularity” standard. However, Appellees concede the trial
{¶9} Appellant essentially contends the trial court made a legal error by applying an incorrect standard of review below. In Wray v. Wessell, 4th Dist. Scioto Nos. 15CA3724, 15CA3725, 2016-Ohio-8584, ¶11-13, we considered an argument alleging the trial court had abused its discretion in the admission of evidence. In reaching our decision we observed that when an appellant alleges a trial court‘s evidentiary ruling was based on a misconstruction of the law or an erroneous standard, the appellate court must review the trial court‘s evidentiary ruling using a de novo standard of review. Citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶16; in turn citing Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2nd Dist. 1992); see also Shaffer v. Ohio Health Corp, 10th Dist. Franklin No. 03AP-102, 2004-Ohio-63, ¶6 (“however, where a trial court has misstated thе law or applied the incorrect law, giving rise to a purely legal question, our review is de novo.“)
{¶10} Similarly, we conclude Appellant‘s argument that the trial court applied an incorrect standard of review in considering the proceedings below involves a legal question, which we review de novo. Further, in Matter of Name Change of Davis, 4th Dist. Ross. No. 1774, 1992 WL 208905, *4, we concluded that an appellant must affirmatively show prejudice resulted from a trial court‘s utilization of an improper legal standard. With these principles in mind, we now turn to the merits of Appellant‘s second assignment of error.
{¶11} In order to address the proper standard of review that should have been employed by the trial court, we must first determine the type of action and procedural posture of the case that was before the trial court. A review of the record reveals that the trial court appears to have characterized the matter as an appeal from an administrative decision approving a CUP in favor of Appellees, as opposed to the filing of an initial complaint for an injunction by Appellant, based upon Appellees’ alleged violation of zoning ordinances. As such, the trial court approached its review of the matter by stating as follows:
“Because Plaintiff is challenging the validity of the CUP, this Court will review the original issuance of the CUP, an administrative action by the Board of Zoning Appeals (“BZA”). Pursuant to
R.C. 2506.04 , in an administrative appeal, the common pleas court considers the whole record, including any new or additional evidence, and determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. In reviewing an appeal of an administrative decision, a court of common pleas begins with the presumption the board’s determination is valid,and the appealing party bears the burden of showing otherwise.”1
The trial court made several statements regarding its standard of review throughout its decision, explaining that, in light of its standard of review, it was presuming the validity of the “board‘s determination[.]” It appears implicit from the language employed by the trial court that the court was assuming the CUP at issue was, in fact, actually granted, and was, therefore, final and appealable.
{¶12} For instance, under the “Conclusions of Law” pоrtion of the decision the trial court made several additional statements regarding the standard of review it was employing, as well as presumptions of validity it was making, as follows:
- “This Court reviews an administrative action for abuse of discretion, presuming that the administrative body‘s action is valid. Plaintiff carries the burden of proving otherwise.”
- “As a reminder, this Court must start from the position of presuming that the board‘s determination is valid* * *.”
- “The fact that records pertinent to this matter are missing, * * * does not inure to the benefit of the Village.”
{¶13} Importantly, as set forth above, Appellees concede on appeal that the trial court employed the wrong standard of review. As succinctly stated by Appellees in their brief: “The trial court improperly found that the standard of review in
{¶14} A review of the record before us reveals that Appellees’ position throughout the litigation below was that Mr. Murphy received a valid and final CUP from the Village of New Holland in January of 2002 for the operation of a home business that included repair of garden equipment and tractors, and which included the building of an additional garage in which to cоnduct the repairs, on his residential property, which was located in an R-1/R-2 (residential) district. Appellees’ arguments are based upon the premise that the CUP at issue is valid, and that the village had no right to
{¶15} A review of the Village of New Holland Zoning Ordinance demonstrates that a process does, in fact, exist for property owners to request and obtain both conditional use permits and variances. Article 61 of the zoning ordinance provides the mannеr in which the Board of Zoning Appeals may act, and states as follows in section 61.02:
“The Board shall act by resolution; and the concurring vote of three (3) members of the Board shall be necessary to reverse any order or determination of the Zoning Inspector, or to decide in favor of an applicant in any matter on which the Board has original jurisdiction under this Ordinance, or to grant any variance from the requirements stipulated in this Ordinance.” (Emphasis added).
{¶16} Here, Appellees claim they were granted a valid CUP, asserting as evidence a document entitled “Conditional Use Permit On Property Of Michael Murphy and Ruth Murphy,” which contains the signatures of four members of the zoning board.2 However, Appellee Michael Murphy testified in the proceedings below that he had no information indicating a resolution was passed authorizing him to repair equipment on his property. Further, there was no evidence introduced below indicating a resolution granting a CUP to Michael Murphy for any purpose was ever passed, as required by Ordinance No. 61.02.
{¶17} Further, the explanation for why a resolution was never passed actually appears in the Village of New Holland Regular Council meeting minutes dated February 11, 2002, which are part of our record on appeal. A Planning Commission and Zoning report contained in the meeting minutes states as follows:
“Faye reported that they are still going through the present zoning ordinance. They approved a Conditional Use Permit to Mike Murphy to build a garage at his residence on Oak Street.
Phil made a motion to stop the Conditional Use Pеrmit with Mike Murphy until it was checked out to see if it was done correctly. This is due to a variance for Mrs. Osborne not being permitted in 1997. 2nd by Jim. 6 yea’s, motion carried.”
Thus, although four members of the Board of Zoning Appeals apparently voted to approve the CUP on January 30, 2002, and issued a document to Mr. Murphy purporting to be a CUP, on February 11, 2002, it was reported to Village Council that the board subsequently passed a motion to stop the CUP. According to the village ordinance, voting to approve a CUP was only step one of a two-step process for granting a CUP. Issuing a resolution was step two. Hоwever, there is nothing in the record to indicate further action was ever taken, that the CUP process was reinstated or that a resolution was ever passed, which, importantly, is the only manner in which the board may act. Therefore, no valid CUP was ever issued.3
{¶18} Further, we are troubled by the trial court‘s suggestion of wrongdoing on the part of the village in its judgment entry. This suggestion further indicates Appellant was, in fact, prejudiced by the incorrect standard of review employed by the trial court. For instance, the trial court stated as follows:
What is troubling here is that the Village attempts to use its own mistakes to its benеfit. The Village of New Holland is responsible for maintaining the records of the BZA activities and meetings as well as its Council meetings. The fact that records pertinent to this matter are missing, * * * does not inure to the benefit of the Village.
Because the trial court was conducting its review of the proceedings from the standpoint that the board‘s determination, which implicitly included an assumption a CUP had, in fact, been granted and was valid, it made several “presumptions” that in effect favored Appellees. However, viewing this matter anew, without making presumptions regarding the validity of the CUP, it could be equally рresumed that the records were not missing, but instead that the records did not exist because they were never, in fact, created.
{¶19} There is simply no evidence in the record that a resolution was passed officially granting Mr. Murphy a CUP, as required by Village Ordinance section 62.01. Further, considering Mr. Murphy was actually a member of the Board of Zoning Appeals at the time his application for a CUP was being considered, we believe it could fairly be inferred that Mr. Murphy knew the CUP was stopped and that the required resolution was never passed.
{¶20} In light of the foregoing, we conclude a valid CUP was never finalized according to the process required by the village ordinance.
{¶21} Thus, the arguments raised under Appellant’s second assignment have merit and are sustained. Accordingly, the decision of the trial court is reversed and this matter is remanded for further proceedings to employ the correct standard of review, which we will discuss in more detail under Appellant’s first assignment of error.
ASSIGNMENT OF ERROR I
{¶22} In his first assignment of error, Appellant contends that the trial court used the wrong burden of proof in deciding whether to grant a
{¶23} This case began with the filing of a complaint by a village, requesting a permanent injunction against a property owner based upon a violation of a zoning ordinance. More specifically, Appellant, the villagе, sought an injunction pursuant to
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 * * *. In the event of any such violation, * * * the municipal corporation * * * may institute a suit for injunction to prevеnt or terminate such violation.
In case any building is or is proposed to be located, erected, constructed, reconstructed, enlarged, changed, maintained, or used, or any land is or is proposed to be used in violation of this Ordinance or any amendment or supplement thereto, the Village Council, the Village Solicitor, the Zoning Inspector, or any adjacent or neighboring property owner who would be specially damaged by such violation, in addition to other remedies provided by law, may institute injunction, mandamus, abatement, or any other appropriate action, actions, proceeding or proceedings to prevent, enjoin, abate or remove such unlawful location, erection, construction, reconstruction, enlargement, change, maintenance, or use.
{¶24} The alleged zoning violation involved the fact that Appellees were operating a business from their home, which was located in a district zoned for residential use. As fully discussed above, Appellees claimed they were in possession of a valid conditional use permit, or CUP, which permitted them to build a garage on their residential property and to also operate a business on that property. The trial court denied Appellant‘s request for an injunction based upon its finding that Appellees had a valid CUP permitting operation of their business. However, as set forth above, we have determined a CUP was never actually issued, as the Board of Zoning Appeals never passed the required resolution that was necessary to grant a CUP.
{¶25} At issue in this assignment of error, however, is whether the trial court utilized and applied the correct burden of proof in denying
{¶26} “To obtain a permanent injunction, the plaintiff must demonstrate a right to relief under any applicable substantive law.” Office of Scioto Township Zoning Inspector, v. Puckett, 2015-Ohio-1444, 31 N.E.3d 1254, ¶28; citing Island Express Boat Lines, Ltd. v. Put–in–Bay Boat Line Co., 6th Dist. Erie No. E–06–002, 2007-Ohio-1041, ¶93. “Additionally, the plaintiff must ordinarily prove, by clear and convincing evidence, that the injunction is necessary to prevent irreparable harm and that the plaintiff does not have an adequate remedy at law.” Id. (Emphasis added). However, “[i]t is established law in Ohio that, when a statute grants a specific injunctive remedy to an individual or to the state, the party requesting the injunction ‘need not aver and show, as under ordinary rules in equity, that great or
{¶27} Further, although not directly discussed and not directly at issue in Puckett, in State ex rel. Dewine v. Ashworth, et al., 4th Dist. Lawrence No. 11CA16, 2012-Ohio-5632, ¶64, this Court held that in a civil case involving a request for a statutory injunction, the burden of proof is preponderance of evidence, rather than clear and convincing evidence. In reaching this holding, we reasoned as follows:
Because this is a civil case and these provisions are silent as to the applicable burden of proof, we conclude that the State only had tо prove the violations by a preponderance of the evidence, not by clear and convincing evidence as the Appellants suggest. See Wilson v. Ward, 183 Ohio App.3d 494, 2009–Ohio–2078, 917 N.E.2d 821, ¶11 (9th Dist.).
Just like in Ashworth, the relevant statutory provisions here are silent as to the burden of proof that must be met in order to demonstrate a statutory violation. Thus, consistent with our prior precedent on this issue, we hold
{¶28} Appellees argue Ashworth was either wrongly decided or factually distinguishable from the present case. Appellees further argue that its holding was since “disavowed” in State ex rel. Dewine v. 333 Joseph, LLC, 2014-Ohio-5090, 21 N.E.3d 1142. However, we reject Appellees’ arguments. The 333 Joseph court did not disavow our prior holding in Ashworth. Rather, it noted that on the issue of the applicable burden of proof in statutory injunction cases, there was no consensus among Ohio courts. 333 Joseph at ¶17 (“A further review of Ohio cases does not show consensus among Ohio courts.“); citing Ashworth at ¶64 and State v. Dann, 2nd Dist. Montgomery No. 22162, 2007-Ohio-7165. Further, we find no distinguishing factors between the present facts and those of Ashworth, nor do we see a compelling reason to depart from our prior precedent on this issue. The holding in 333 Joseph is not binding authority upon this Court. Our prior holding and preсedent set forth in Ashworth, however, is. Thus, we reject Appellees’ arguments.
{¶29} We also reject Appellees’ argument that the trial court‘s decision was not based upon the standard of review and burden of proof it
{¶30} Thus, we cannot agree with Appellees’ argument that the recitation of this incorrect standard of review, as well as burden of proof, did not affect the trial court‘s ultimate denial of Appellant‘s request for a permanent injunction based upon a statutory violation. If fact, we believe the framework within which the trial court reviewed this matter directly affected its decision. As a result, Appellant‘s first assignment of error is
JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS REMANDED. Appellees 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.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supremе Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy оf this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J.: Concur in Judgment and Opinion; Abele, J: Dissents.
For the Court,
BY: ___________________________
Jason P. Smith, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.