Scioto Twp. Zoning Inspector v. PuckettScioto Twp. Zoning Inspector v. Puckett
APPEARANCES:
James R. Kingsley, Circleville, Ohio, for Appellants.
William L. Archer, Jr., Circleville, Ohio, for Appellee.
McFarland, A.J.
{¶1} Appellants Robert and Berna Puckett appeal the decision of the Pickaway County Court of Common Pleas, granting summary judgment in favor of Appellee, Scioto Township Zoning Inspector, on the issue of whether the operation of Puckett’s Pay Pond constitutes aquaculture. They also appeal the trial court’s final decision, which issued a permanent
{¶2} Because the question of whether Appellants’ operation of a commercial pay lake qualifies as an agricultural use of the property is a question of law that we have resolved in favor of Appellees, we find no merit to Appellant’s first assignment of error and it is overruled. Further, because we conclude that the trial court properly determined the operation of the pay lake to be a nuisance and, in its discretion, properly granted an injunction enjoining further operation of the pay lake, Appellants’ second assignment of error is overruled. Having found no merit in either assignment of error raised by Appellants, the decision of the trial court is affirmed.
FACTS
{¶3} The operation of Puckett’s Pay Lake is now before this Court for a third time. The first time we considered this matter was in 2005, when Appellants appealed from a decision issued by the Scioto Township Board of Zoning Appeals denying Appellants’ request for a conditional use permit
{¶4} Nonetheless, Appellants continued with the expansion and operations of their pay lake, which is now known as Puckett’s Pay Lake where, according to the fishing permit that must be signed prior to fishing, individuals come “for unforgettable fishing fun.” A review of the record reveals that subsequent to the initial litigation, which ended with our decision issued in 2005, Appellants attempted ballot initiatives in 2006 and again in 2008, requesting that the conditional uses for the area in which their property was located be amended to include the operation of a pay lake. Neither of these attempts was successful. Thereafter, on August 4, 2009,
{¶5} At that hearing, counsel for both parties agreed that the issue needed to be decided by the trial court, rather than the zoning board. As such, on October 27, 2009, Appellee, Office of the Scioto Township Zoning Inspector, filed a complaint which included a claim for declaratory and injunctive relief against Appellants, Robert and Berna Puckett, in connection with Appellants’ operation of a pay lake, or pay pond. Specifically, the complaint alleged that the operation of the pay lake was an unlawful home occupation being conducted in violation of the terms and provisions of the Scioto Township Zoning Resolution. The complaint alleged that the area in which Appellants’ pay lake was located is an AG district, or Agriculture
{¶6} The matter proceeded along, and at one point was consolidated with another case filed by Appellants’ neighbors, James David Fisher et al., v. Robert Puckett, et al., Case no. 2010-CI-0030, which also contained as the primary issue, the operation of Appellants’ pay lake. On March 1, 2011, Appellee filed a motion for summary judgment on the issue of Appellants’ “pay pond qualifying as aquaculture.” On April 8, 2011, Appellants filed their memo contra to Appellee‘s motion for summary judgment, and also filed their own motion for summary judgment, addressing only the issue of aquaculture. Appellee responded to Appellants’ motion for summary
{¶7} Subsequently, on January 17, 2012, Appellants filed a motion for reconsideration, requesting the trial court to reconsider its decision on the issue of aquaculture, which motion was denied by the trial court on February 28, 2012. Finally, on March 19, 2012, the trial court issued a “Final Judgment Entry Containing Permanent Injunction,” in which it granted Appellee‘s request for a permanent injunction, determined Appellants’ use of their property for a pay pond constituted the establishment and maintenance of abatable nuisances at common law, and ordered Appellants to “permanently cease any activity related to and associated with the operation of a pay pond[.]”
{¶8} Appellants appealed from both the denial of their motion for reconsideration as well as the trial court’s March 19, 2012, decision on
ASSIGNMENTS OF ERROR
“I. DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT FOUND DEFENDANTS WERE NOT ENGAGED IN AQUACULTURE?
II. DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT ENJOINED APPELLANT FROM COMMITTING A NUISANCE?”
ASSIGNMENT OF ERROR I
{¶9} In their first assignment of error, Appellants contend that the trial court committed prejudicial error when it found Appellants were not
{¶10} The burden of showing that no genuine issue of material fact exists falls upon the party who moves for summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264 (1996). To meet its burden, the moving party must specifically refer to “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,”
{¶11} Additionally, the question of whether Appellants are using their land for agricultural purposes pursuant to
{¶12}
“Except as otherwise provided in division (B) of this section, sections 519.02 to 519.25 of the Revised Code confer no power on any township zoning commission, board of township trustees, or board of zoning appeals to prohibit the use of any land for agricultural purposes or the construction or use of buildings or structures incident to the use of agricultural purposes of the land on which such buildings or structures are located, including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture, and no zoning certificate shall be required for any such building or structure.”
{¶13} According to
” ‘Aquaculture’ means a form of agriculture that involves the propagation and rearing of aquatic species in controlled environments under private control, including, but not limited to, for the purpose of sale for consumption as food.”
{¶14} Here, Appellants sought permission for a conditional use of their property in 2005 that would allow them to operate a commercial pay
{¶15} The record indicates that Appellants began construction of their ponds and began stocking them with fish as far back as 2003. The record further indicates that Appellants listed their pay pond business on their
{¶16} Although it appears that Appellants might engage in some limited aquaculture, by virtue of the fact they do have a valid permit and because some reproduction does take place, the primary use of their land is for the operation of a commercial pay lake. Thus, the record indicates that Appellants’ land is not primarily used for agricultural purposes, as required by {¶17} As noted above, {¶18} Here, although the chief of the division of wildlife may have determined, as evidenced by issuance of the aquaculture permit, that Appellants had suitable infrastructure and equipment, their pay lake is by no means “solely dedicated to the propagation and rearing of an aquaculture species.” Rather, it is clear that their property is primarily dedicated to the operation of a commercial pay lake. Thus, even if some aquaculture does occur, it is not the primary use, which is a requirement not only under {¶19} Noting that although some production occurred at the nursery in the form of propagation and division, the court found important the fact that “everything” at the nursery originated from other nurseries. Id. at ¶ 16. Based upon those facts, the court was “reluctant” to conclude that the primary purpose of the nursery was to engage in agriculture. Id. We find the reasoning of Blue Heron to be very persuasive when applied to the facts sub judice, which indicate that, like the Blue Heron nursery stock, the fish in Appellants’ lake are purchased elsewhere and brought to Appellants’ lake for commercial fishing. The fact that they reproduce in the natural course of things does not constitute propagation and rearing. {¶20} Our decision is bolstered by the affidavit of Laura Tiu, who has been employed by the Ohio Center for Aquaculture Research and Development at The Ohio State University South Center since 1998. Ms. Tiu holds a Ph.D. in Extension Education (Aquaculture) from The Ohio State University. In her affidavit, which was filed in support of Appellee’s motion for summary judgment, Tiu averred that “[p]ropagation in aquaculture involves spawning or rearing fish during various stages of development (spawn, fry and fingerling) for sale or use in {¶21} Appellants contend that the trial court erred in relying upon the affidavit of Ms. Tiu. Appellee responds that the terms used in the statute, which include “propagation” and “rearing” are not defined in the Revised or Administrative Codes and that Ms. Tiu‘s knowledge, as an aquaculture expert, assisted the trial court in its interpretation of the undefined terms. “For evidentiary material attached to a summary judgment motion to be considered, the evidence must be admissible at trial.” See {¶22} In general, courts should admit expert testimony whenever it is relevant and satisfies {¶23} Although we conduct a de novo review of the trial court‘s decision to grant summary judgment, we review the court‘s rulings on the admissibility of evidence for an abuse of discretion. Lawson v. Y.D. Song, M.D., Inc., 4th Dist. Scioto No. 97CA2480, 1997 WL 596293, *3 (Sept. 23, 1997); See also, State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph two of the syllabus (1987). The term “abuse of discretion” implies that the court‘s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). When applying the abuse-of-discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990). {¶24} In performing its gatekeeping function, the trial court should begin with {¶26} In light of the foregoing, and reviewing this matter de novo, we conclude that Appellee is entitled to judgment as a matter of law with respect to the question of whether Appellants’ commercial pay lake constitutes an aquaculture operation. Based upon the evidence in the record, and construing that evidence in a light most favorable to Appellants, there exists no genuine issue of material fact with respect to the question of whether Appellants’ pay lake is actually an aquaculture operation. It was not aquaculture in 2005 during the initial litigation. It was not aquaculture in 2006 or 2008 during the attempted ballot initiatives, nor was it aquaculture {¶27} In their second assignment of error, Appellants contend that the trial court committed prejudicial error when it enjoined Appellants from committing a nuisance. As set forth above, Appellee sought a permanent injunction enjoining Appellants from operating their commercial pay lake in an area zoned for agricultural use, arguing that the operation of the pay lake was in violation of Scioto Township‘s comprehensive zoning resolution, as well as Chapter 519 of the Ohio Revised Code, and constituted the establishment and maintenance of an abatable nuisance. The trial court found that “the use of the Puckett Property for pay pond uses created uses to be in violation of the above cited provisions of the Scioto Township Zoning Resolution and {¶28} To obtain a permanent injunction, the plaintiff must demonstrate a right to relief under any applicable substantive law. See Island Express Boat Lines, Ltd. v. Put-in-Bay Boat Line Co., 6th Dist. Erie No. E-06-002, 2007-Ohio-1041, ¶ 93. In addition, 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. See Id. at ¶ 93. 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 irreparable injury is about to be done for which he has no adequate remedy at law * * *.’ ” Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio St.2d 51, 56, 378 N.E.2d 145 (1978); quoting Stephan v. Daniels, 27 Ohio St. 527, 536 (1875). “Therefore, statutory injunctions should issue if the statutory requirements are fulfilled.” Columbus Steel Castings Co. v. King Tool Co., 10th Dist. Franklin Nos. 11AP-351 & 11AP-355, 2011-Ohio-6826, ¶ 66; citing {¶29} Here, Appellee alleged violations of the township zoning resolution and “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 sections 519.01 to 519.99, inclusive, of the Revised Code, or of any regulation or provision adopted by any board of township trustees under such sections, such board, the prosecuting attorney of the county, the township zoning inspector, or any adjacent or neighboring property owner who would be especially damaged by such violation, in addition to other {¶30} We already determined under Appellants’ first assignment of error that Appellants’ use of their property as a commercial pay pond is not aquaculture and therefore does not constitute agriculture. We further upheld the trial court’s grant of summary judgment in favor of the township, reasoning that because Appellants’ use of their property did not constitute agriculture, the use was a violation of the Scioto Township Zoning Resolutions as set forth in the complaint filed in Puckett II and III. Further, Appellants concede in their appellate brief that “[i]t was proper for the court to issue an injunction to cease and desist zoning violations in this case.” However, Appellants contend that a nuisance was not pled in the complaint filed by Appellee, and the evidence as to nuisance was not part of this case, but rather was part of the case involving the neighbors, which was consolidated with this case for a time, but was de-consolidated prior to the {¶31} First, Appellee’s complaint alleged the establishment and maintenance of a nuisance in three out of the four claims contained in its complaint. Second, with respect to the evidence related to nuisance, insofar as Appellants contend that the only evidence of nuisance exists as part of the case involving the neighbors, which was de-consolidated from this case, all of the deposition transcripts of the neighbors were filed in this case and contain the underlying case number for this case. Further, all of those deposition transcripts were transmitted with the record of this case and are before this Court on appeal. {¶32} However, we find there is no need to resort to the evidence of nuisance as it pertains to the neighbor’s case. According to Garcia v. Gillette, 11th Dist. Ashtabula No. 2013-A-0015, 2014-Ohio-1868, ¶ 2, “violations of zoning ordinances are public nuisances.” Although the Garcia case addressed the violation of a municipal zoning ordinance, we find the reasoning applicable to violations of township zoning resolutions. Further, “[a]n unreasonable interference with a right common to the general public, such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property. * * * Such a nuisance may lead to a civil injunction or a criminal prosecution.” Black‘s Law Dictionary, 9th Ed. 2009). Here, the trial court described Appellants’ commercial pay lake as an “abatable nuisance.” An “abatable nuisance” is defined as follows: “a nuisance so easily removable that the aggrieved party may lawfully cure the problem without notice to the liable party, such as overhanging tree branches. * * * A nuisance that reasonable persons would regard as being removable by reasonable means.” Id. {¶33} This Court recently reasoned as follows with regard to the various types of nuisances and the language employed by courts in describing nuisances, when presented with an argument that the trial court mislabeled the nuisance at issue: “[E]ven if we were to assume that the trial court mislabeled the nuisance, that error was harmless. Regardless of the label placed on the nuisance, the trial court retained broad discretion ” ‘There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word “nuisance.” It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.’ ” Black‘s Law Dictionary, 9th Ed. 2009; quoting Prosser and Keeton on the Law of Torts section 86, at 616 (W. Page Keeton Ed., 5th Ed. 1984). {¶34} Further, it has been stated that ” ‘[a] nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.’ ” Id.; quoting Village of Euclid v. Amber Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114 (1926). We conclude that is precisely what Appellants’ commercial pay lake is, a right thing in the wrong place, according to the Scioto Township Zoning Resolution, and thus, it is a nuisance and a violation of the zoning resolutions, which the trial court properly abated by issuance of a permanent injunction pursuant to JUDGMENT AFFIRMED. It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellants any costs herein. 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. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pursuant to Abele, J. & *Delaney, J.: Concur in Judgment and Opinion. For the Court, BY: ______________________________ Matthew W. McFarland, Administrative Judge 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. *Judge Patricia A. Delaney, from the Fifth Appellate District, sitting by assignment of The Supreme Court of Ohio in the Fourth Appellate District.ASSIGNMENT OF ERROR II
NOTICE TO COUNSEL