[Cite as Campbell v. Smith, 2011-Ohio-3002.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
SCOTT CAMPBELL, ZONING INSPECTOR,
PLAINTIFF-APPELLEE, CASE NO. 1-10-79
v.
DAVID O. SMITH, ET AL., OPI NION
DEFENDANTS-APPELLANTS.
Appeal from Allen County Common Pleas Court Trial Court No. CV 2009 0510
Judgment Affirmed
Date of Decision: June 20, 2011
APPEARANCES:
Richard E. Siferd and Brian J. Vennekotter for Appellants
Michael A. Rumer for Appellee Case No. 1-10-79
PRESTON, J.
{¶1} Defendants-appellants, David and Marsha Smith (hereinafter “the
Smiths”), appeal the Allen County Court of Common Pleas’ judgment entry
permanently enjoining them from maintaining the nuisance at their property and
ordering them to remove junk vehicles and other debris from their property. For
the reasons that follow, we affirm.
{¶2} This case concerns several zoning violations at 1601 Reservoir Road
in Bath Township, Allen County, Ohio. (Sept. 13, 2010 Tr. at 7-8). Prior to 1986,
Dick and Marcia Mauk owned the property and used it as the location for The
Mauk Brothers, a business operated by Dick and Gene Mauk. (Sept. 13, 2010 Tr.
at 96-97, 100). The property was zoned R-1, residential district, until 1984, when
the Mauks made an application to have the property re-zoned to B-2, general
business district, so the property could be used for the business. (Id. at 98-99).
Sometime in 1983, bankruptcy proceedings were initiated, which involved the
subject property. (Id. at 98). On July 29, 1986, the Smiths obtained the property
from the bankruptcy trustee. (P’s Ex. 4); (Sept. 13, 2010 Tr. at 120).
{¶3} In May 2004, plaintiff-appellee, Scott Campbell, the Bath Township
Zoning Inspector, sent the Smiths a letter requesting that they clean up junk and
debris on their property. (Id. at 72). Some marginal improvements to the property
-2- Case No. 1-10-79
were made, so Campbell sent another letter to the Smiths in March 2006
requesting that they clean up junk and debris on their property. (Id.).
{¶4} On June 3, 2006, Campbell wrote another letter to the Smiths
indicating that “all debris, junk, vehicles, trailers, and general trash must be
removed from the property as viewed from the road right away around all
buildings and main residential structure” within thirty (30) days. (Ex. H); (Sept.
13, 2010 Tr. at 93). Later in June 2006, Campbell turned the matter over to Allen
County Sheriff’s Deputy Feldner for enforcement of the Zoning Resolution. (Sept.
13, 2010 Tr. at 59, 73). Deputy Feldner contacted Mr. Smith in August 2006 and
visited the property on August 16, 2006; however, Mr. Smith would not allow
Deputy Feldner entrance into the fenced-in portion of the property. (Id. at 60-63).
{¶5} On June 17, 2008, the Bath Township Trustees held a public hearing
relative to the Smiths’ zoning violations and the storing of junk motor vehicles on
their property. (Id. at 20). Mr. Smith was present at this hearing and asked the
trustees for an extension until December 16, 2008 to clean up the property. (Id.).
At the November 14, 2008 trustees’ meeting, Mr. Smith asked for and was granted
a further extension until April 1, 2009. (Id.).
{¶6} On April 21, 2009, the Bath Township Trustees passed resolution no.
4-21-09-2 declaring the property at 1601 Reservoir Road a public nuisance and
-3- Case No. 1-10-79
authorizing the Bath Township Zoning Inspector to proceed with legal action to
bring the property into compliance with the Zoning Resolution. (P’s Ex. 1).
{¶7} On May 22, 2009, Campbell filed a complaint pursuant to R.C. 519.24
seeking to permanently enjoin the Smiths from violating the Bath Township
Zoning Resolution and maintaining the nuisance on their property. (Doc. No. 1).
{¶8} On June 24, 2009, the Smiths filed a motion for an additional thirty
(30) days to plead or otherwise respond to the complaint, which the trial court
granted. (Doc. Nos. 5-6).
{¶9} On July 23, 2009, the Smiths filed an answer denying the substantive
allegations of the complaint and asserting, as an affirmative defense, that their
property is a duly licensed junk yard. (Doc. No. 7).
{¶10} On March 16, 2010, the Smiths filed a motion for summary
judgment. (Doc. No. 12). On April 6, 2010, Campbell filed a memo in opposition.
(Doc. No. 13). On April 13, 2010, the trial court denied the motion for summary
judgment. (Doc. No. 16).
{¶11} On September 13, 2010, the matter proceeded to a bench trial. On
November 4, 2010, the trial court: permanently enjoined the Smiths from violating
the Bath Township Zoning Resolution and resolution no. 4-21-09-2; permanently
enjoined the Smiths from keeping the nuisance (to wit: the junk vehicles and other
debris) on their property; ordered the Smiths to remove the junk vehicles and other
-4- Case No. 1-10-79
debris within sixty (60) days; and granted the township the authority to remove the
junk vehicles and other debris from the property in the event the Smiths failed to
comply with the court’s order. (Doc. No. 31).
{¶12} On December 3, 2010, the Smiths filed a notice of appeal. (Doc. No.
33). On December 7, 2010, the Smiths filed a motion to stay the trial court’s
judgment. (Doc. No. 36). On December 28, 2010, the trial court stayed its
judgment pending appeal. (Doc. No. 38).
{¶13} The Smiths now appeal raising two assignments of error for our
review.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ENFORCING THE ZONING RESOLUTION WHERE THE ZONING RESOLUTION IN QUESTION MUST BE STRICTLY CONSTRUED IN FAVOR OF THE LAND OWNER, AND IS PREEMPTED BY STATE LAW OR THERE WAS A PRIOR NON-CONFORMING USE OF THE PROPERTY.
{¶14} In their first assignment of error, the Smiths argue that the trial court
erred in its interpretation of the Bath Zoning Resolution. The Smiths further argue
that state law governs this issue through the doctrine of preemption. Finally, the
Smiths argue that the trial court erred by failing to find that their use of the land
was a prior non-conforming use. We will address each of these arguments below.
-5- Case No. 1-10-79
A. Junk Yards Are Not Allowed Under Bath Zoning Resolution, Section 6.18.
{¶15} With respect to their first argument, the Smiths specifically argue
that the Bath Township Zoning Resolution does not actually prohibit junk yards;
rather, Section 6.18 permits junk yards if they “conform to the provisions of R.C.
4737.05 to 4737.99 and 4738.01 to 4738.99.” They further argue that the Zoning
Resolution should be strictly construed since it limits land use, and as such, their
junk yard is permissible under Section 6.18 of the Zoning Resolution.
{¶16} The interpretation of a zoning resolution presents a question of law
reviewed de novo by an appellate court. See Berry v. Liberty Township Bd. of
Zoning Appeals (Dec. 28, 1993), 3d Dist. No. 8-93-16, at *1. “Zoning Resolutions
are in derogation of the common law and deprive a property owner of certain uses
of his land to which he would otherwise be lawfully entitled.” Saunders v. Clark
County Zoning Dept. (1981), 66 Ohio St.2d 259, 261, 421 N.E.2d 152, citing In re
University Circle Inc. (1978), 56 Ohio St.2d 180, 184, 383 N.E.2d 139; Pepper
Pike v. Landskroner (1977), 53 Ohio App.2d 63, 76, 371 N.E.2d 579. Therefore,
Zoning Resolutions must be strictly construed in favor of the property owner, and
the scope of the restrictions cannot be extended to include limitations not clearly
prescribed. Saunders, 66 Ohio St.2d at 261, citing Davis v. Miller (1955), 163
Ohio St. 91, 95, 126 N.E.2d 49; State ex rel. Ice & Fuel Co. v. Kreuzweiser
-6- Case No. 1-10-79
(1929), 120 Ohio St. 352, 166 N.E. 228; State ex rel. Moore Oil v. Dauben (1919),
99 Ohio St. 406, 124 N.E. 232, paragraph one of the syllabus. Nevertheless, “in
determining the legislative intent of an ordinance, the provision to be construed
should not be reviewed in isolation. Its meaning should be derived from a reading
of the provision taken in the context of the entire ordinance.” In re University
Circle Inc. (1978), 56 Ohio St.2d at 184, citations omitted.
{¶17} The Bath Township Zoning Resolution was enacted in 1966 after
voter approval on May 3, 1966, but the Zoning Resolution has since been
amended several times, including on March 6, 1986 (eff. April 1986) and on
August 15, 2006 (eff. September 2006). (Tr. at 70); (Exs. 2-3); (Campbell Aff. at
¶2). Both the 1986 and 2006 versions of the Zoning Resolution divide the
township into eleven (11) districts. (Exs. 2-3, Art. 6.0). Both versions of the
Zoning Resolution then provide separate Articles governing each district setting
forth specific permissible uses for land in those districts. (Exs. 2-3). Section 6.3 in
both versions of the Zoning Resolution provides, in pertinent part, that “[n]o
building shall be erected, converted, or altered, nor shall any * * * land be used
except for a purpose permitted in the district in which the * * * land is located,
except as hereinafter provided.” (Id.). Both versions of the Zoning Resolution also
provide: “[a]ny use which is not specifically provided for nor specifically
authorized by this Zoning Resolution shall be expressly prohibited unless such use
-7- Case No. 1-10-79
shall otherwise be authorized or permitted by the Board of Zoning Appeals,
pursuant to the procedures contained herein.” (P’s Ex. 3, Section 7.5); (P’s Ex. 2,
Section 7.6). Junk yards are not listed as permitted uses for any of the eleven
districts in either version of the Zoning Resolution. (P’s Exs. 2-3). Nevertheless,
Section 6.18 in both versions of the Zoning Resolution provides: “Junk Yards
(Automotive Graveyards), Motor Vehicle Salvage: Junk yards shall conform to
the provisions of Chapter 4737.01 to 4738.01 to 4738.99 of the Ohio Revised
Code (license-fence-buffer).” (Id.) (emphasis in original).
{¶18} The Smith’s interpretation of Section 6.18 is only tenable if it is
inappropriately read in isolation. In re University Circle Inc., 56 Ohio St.2d at 184,
citations omitted. The Zoning Resolution was drafted in such a way as to
expressly provide for those uses that were permissible in each district, and the
Zoning Resolution further provides that land shall not be used except as
specifically provided therein. Interpreting Section 6.18 as the Smiths interpret it is
not only contrary to the Zoning Resolution’s overall scheme but would lead to the
absurd result that junk yards were permissible in all districts, including residential
districts. “It is a cardinal rule of statutory construction that a statute should not be
interpreted to yield an absurd result.” Mishr v. Poland Bd. of Zoning
Appeals (1996), 76 Ohio St.3d 238, 240, 667 N.E.2d 365, citing State ex rel.
Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 384, 439, 481 N.E.2d
-8- Case No. 1-10-79
632; Slater v. Cave (1853), 3 Ohio St. 80, 83-84. The Bath Township Zoning
Inspector offered a reasonable interpretation of Section 6.18 when he averred that
Section 6.18 exists to govern junk yards that were in operation prior to the passage
of the original Zoning Resolution. (See Campbell Aff. at ¶9). Section 6.18 also
applies to those junk yards that were established under prior versions of the
Zoning Resolution that permitted junk yards in specific districts. For example,
Campbell testified that junk yards were a permissible use of land in manufacturing
districts in 1977. (May 17-18, 2010 Tr. at 91). Therefore, we do not interpret
Section 6.18 as an authorization of junk yards in all districts in perpetuity, as the
Smiths interpret it; but rather, as a requirement for the continued operation of junk
yards that were already in existence prior to 1966, when the original Zoning
Resolution was enacted, and junk yards that were established as permissible uses
of land under prior versions of the Zoning Resolution.
B. Bath Zoning Resolution Does Not Conflict With R.C. 4737.07.
{¶19} The Smiths next argue that townships may not prohibit junk yards
since R.C. 4737.07 allows municipalities, but not townships, to prohibit junk
yards. Since Allen County issued them a license to operate a junk yard pursuant to
R.C. 4737.07, the Smiths argue that junk yards are a matter of state law, which
preempts Bath’s Zoning Resolution.
-9- Case No. 1-10-79
{¶20} A township’s authority to enact zoning ordinances is not inherent,
nor does it derive from a constitutional provision like municipalities; rather, the
zoning power of a township is a police power delegated to the township by the
General Assembly. Torok v. Jones (1983), 5 Ohio St.3d 31, 32, 91, 448 N.E.2d
819; Yorkavitz v. Columbia Twp. Bd. of Trustees (1957), 166 Ohio St. 349, 142
N.E.2d 655, paragraph one of the syllabus. See, also, Dsuban v. Union Twp. Bd. of
Zoning Appeals (2000), 140 Ohio App.3d 602, 608, 748 N.E.2d 597. As such,
“[t]he zoning authority possessed by townships in the state of Ohio is limited to
that which is specifically conferred by the General Assembly.” Bd. of Bainbridge
Twp. Trustees v. Funtime, Inc. (1990), 55 Ohio St.3d 106, 563 N.E.2d 717,
paragraph one of the syllabus.
{¶21} “[T]he General Assembly cannot be held to have delegated to
township officials the authority to adopt zoning resolutions which are in
contravention of general laws previously enacted by the General Assembly.”
Yorkavitz, 166 Ohio St. at 351. Consequently, “[a] zoning ordinance, rule or
resolution which violates an explicit statutory command of the General Assembly
is clearly preempted and is therefore invalid and unenforceable.” Newbury Twp.
Bd. of Trustees v. Lomak Petroleum (1992), 62 Ohio St.3d 387, 583 N.E.2d 302,
paragraph one of the syllabus. “The test to determine whether a conflict exists
between a township’s zoning resolution and a general law of the state is ‘whether
-10- Case No. 1-10-79
the ordinance permits or licenses that which the statute forbids or prohibits, and
vice versa.”’1 Am. Outdoor Advertising Co., L.L.C. v. Franklin Twp. Bd. of Zoning
Appeals, 177 Ohio App.3d 131, 2008-Ohio-3063, 894 N.E.2d 78, ¶16, quoting
Fondessy Ents., Inc. v. Oregon (1986), 23 Ohio St.3d 213, 492 N.E.2d 797,
paragraph two of the syllabus. Whether a local zoning resolution conflicts with
the general laws of Ohio is a question of law we review de novo. See Smith
Family Trust v. Hudson Bd. of Zoning and Building Appeals, 9th Dist. No. 24471,
2009-Ohio-2557, ¶10; State ex rel. O’Connor v. Davis (2000), 139 Ohio App.3d
701, 704, 745 N.E.2d 494.
{¶22} R.C. 4737.07 provides, in pertinent part:
No person shall operate and maintain a junk yard outside of a municipality * * * without first obtaining a license to do so from the county auditor of the county in which such junk yard is located or in which such junk yard is to be established. * * * If, after January 1, 1964, a junk yard is established within one thousand feet of the nearest edge of the right of way of a state or county highway or within three hundred feet of the nearest edge of the right of way of a township road, it shall be so located that the view thereof from such road is obscured by natural objects or a fence. If the yard is so obscured, the person operating or maintaining it shall be issued a license. * * *
* * * If a junk yard is established after November 18, 1969, within one thousand feet of the nearest edge of the right of way 1 We note that this conflict test was developed by the Ohio Supreme Court in its jurisprudence relating to potential conflicts between a municipality’s ordinance and state law, not a township Zoning Resolution and state law; nevertheless, this same test has been applied by The Court of Appeals in cases dealing with the latter as well. See, e.g., Osnaburg Twp. Zoning Inspector v. Eslich Environmental, Inc., 5th Dist. No. 2008CA00026, 2008-Ohio-6671, ¶55; Center Twp. Bd. of Twp. Trustees v. Valentine (Nov. 9, 2000), 6th Dist. No. WD-99-065, at *2; Am. Outdoor Advertising Co., L.L.C., 2008-Ohio-3063, at ¶16.
-11- Case No. 1-10-79
of an interstate or primary highway, it shall be so located that the view thereof from such highway is obscured by natural objects or a fence. If the yard is so obscured, the person operating or maintaining it shall be issued a license under this section. Nothing contained in this section shall be construed to relieve any person of his duty to comply with the provisions of ordinances enacted by municipal corporations regulating or prohibiting junk yards, including requirements to obtain a license under municipal ordinances. The requirement to obtain a license from the municipality under this section shall be in addition to regulations imposed and licenses required under municipal ordinances. No license shall be issued unless such yard accords with the provisions of this section. * * *
{¶23} R.C. 519.02, on the other hand, “gives a local board of township
trustees the authority to regulate land use within the township confines, and the
power to divide the area into such districts or zones as the board determines are
proper.” Lomak Petroleum, 62 Ohio St.3d at 390; Funtime, 55 Ohio St.3d at 107.
“A township’s power to regulate may include the power to exclude a use.”
Machnics v. Sloe, 11th Dist. No. 2004-G-2554, 2005-Ohio-935, ¶51, appeal not
allowed by Machnics v. Sloe, 106 Ohio St.3d 1484, 2005-Ohio-3978, 832 N.E.2d
737, citing E. Fairfield Coal Co. v. Booth (1957), 166 Ohio St. 379, 382, 143
N.E.2d 309.
{¶24} As an initial matter, we note that Bath Township’s Zoning
Resolution does not forbid or prohibit what R.C. 4737.07 permits or licenses on its
face. Section 6.18 of the Bath Township Zoning Resolution provides that “[j]unk
yards shall conform to the provisions of Chapter 4737.01 to 4738.01 to 4738.99 of
-12- Case No. 1-10-79
the Ohio Revised Code (license-fence-buffer).” (P’s Exs. 2-3). Nevertheless, the
Smiths assert that the conflict results because the Zoning Resolution no longer
permits the establishment of new junk yards even though R.C. 4737.07 permits the
licensure of junk yards. This argument lacks merit.
{¶25} The Ohio Attorney General has previously concluded that the duties
of the county auditor to license junk yards in Chapter 4737 does not conflict with a
township’s ability to prohibit junk yards by adopting zoning resolutions under
Chapter 519. 1969 Ohio Atty.Gen.Ops. No. 69-136. The opinion provides, in
pertinent part:
There is nothing in Chapter 4737, Revised Code, which expressly refers to or conflicts with the provisions of Chapter 519, Revised Code. Considering the duties of the county auditor, it becomes apparent that the licensing power of the county auditor is designed basically as a revenue measure. In effect, the county auditor’s licensing power presents an independent condition precedent to the establishment of a junk yard, which is in no way affected by a township’s capacity to prohibit junk yards in certain areas by adopting Zoning Resolutions. It consequently becomes clear that the county auditor is authorized to issue a license for a junk yard under Chapter 4737, supra, if the application is proper, regardless of the existence of a township Zoning Resolution forbidding junk yards in the area described in the application. The responsibility lies with the applicant to ensure that there are no other restrictions which might prevent the establishment of the junk yard. * * * [A] township’s zoning regulation of junk yards does not conflict with a county auditor’s power to license junk yards. Therefore, it is clear that the township’s power to control junk yards through their Zoning Resolution is not affected by the
-13- Case No. 1-10-79
licensing power granted to county auditors in Chapter 4737, supra. * * * [A] township’s zoning authority under Chapter 519, Revised Code, is not inconsistent with the requirement under Section 4737.07, Revised Code, of a license issued by the county auditor prior to the establishment of a junk yard. The county auditor’s licensing power, with respect to junk yards, and the township’s zoning authority are mutually independent and separately enforceable.
{¶26} We agree with the Ohio Attorney General’s conclusion that a county
auditor’s duty to license operators of junk yards found under R.C. 4737.07 is not
in conflict with a township’s authority to prohibit junk yards through local zoning
resolutions enacted pursuant to Chapter 519. Rather, the landowner’s compliance
with local zoning regulations and state licensing present two independent criteria
for the establishment of a junk yard. See Set Products, Inc. v. Bainbridge Twp. Bd.
of Zoning Appeals (1987), 31 Ohio St.3d 260, 265, 510 N.E.2d 373, citing
Hulligan v. Bd. of Zoning Appeals (1978), 59 Ohio App.2d 105, 392 N.E.2d 1272.
See, also, Machnics, 2005-Ohio-935, at ¶55 (“* * * although the state of Ohio has
preempted the field of licensure regarding the regulation of motor vehicle dealers,
no legal authority exists which suggests that a township is precluded from
prohibiting commercial motor vehicle sales as part of its land use plan.”).
{¶27} The Ohio Attorney General’s position is further supported by the fact
that Title 47 governs licensure or certification of occupations and professions—not
land use. R.C. 4701 to 4709. In fact, R.C. 4737.07 begins with “[n]o person shall
-14- Case No. 1-10-79
operate or maintain a junk yard * * *”. R.C. 4737.07’s plain language read in the
context of Title 47 as a whole leads us to conclude that the license issued under
that section is a junk yard operator’s license, which enables the person to operate a
junk yard, not a license for the use of the land as a junk yard. Accepting the
Smiths’ argument leads to the absurd result that any person issued a license under
Title 47, whether it be an accountant or a pawn broker, would likewise be able to
open up a place of business to practice their occupation or profession
notwithstanding local zoning. Nothing would prevent the establishment of such
places of business, including junk yards, from being located in residential areas.
As previously observed, “[i]t is a cardinal rule of statutory construction that a
statute should not be interpreted to yield an absurd result.” Poland Bd. of Zoning
Appeals, 76 Ohio St.3d at 240, citing Wells, 18 Ohio St.3d at 384; Slater v. Cave
(1853), 3 Ohio St. at 83-84. Stated in simple terms, the fact that one has a license
to practice a profession or occupation is a separate requirement distinct from
zoning regulations governing the location of the place wherein one may practice
that profession or occupation.
{¶28} The logical result of the Smiths’ argument is also antithetical to the
General Assembly’s delegation of its power to townships under Chapter 519 to
manage the use of land within their unincorporated territory. Nevertheless, the
Smiths argue that the General Assembly did not provide townships the ability to
-15- Case No. 1-10-79
prohibit junk yards in R.C. 4737.07, like it did for municipalities. While it is true
that the General Assembly provided that a person who obtains a junk yard license
under R.C. 4737.07 must still comply with ordinances enacted by municipal
corporations regulating or prohibiting junk yards, we are not persuaded that the
General Assembly intended junk yards to be exempt from township zoning by
virtue of its silence in R.C. 4737.07 alone. Had the General Assembly intended to
limit a township’s authority to prohibit junk yards, it could have done so in
Chapter 519, as it has done with other items of public concern, such as: outdoor
advertising, agriculture, public utilities, railroads, liquor sales, oil and gas
production, telecommunication towers, permanently sited manufactured homes,
and small wind farms. R.C. 519.20-213. Furthermore, the fact that the General
Assembly allowed municipalities to regulate and prohibit junk yards through
zoning ordinances indicates the General Assembly’s intent to permit local control
over the location of junk yards.
{¶29} The Smiths rely heavily upon Sheffield v. Rowland (1999), 87 Ohio
St.3d 9, 716 N.E.2d 1121 to support their preemption argument. We, however,
find this case distinguishable from Sheffield. Sheffield involved the establishment
of a construction and demolition debris facility licensed and regulated pursuant to
Revised Code Chapter 3714. Id. at 9-12. Chapter 3714 appears in Title 37, which
governs Health, Safety, and Morals, not the licensure of professions and
-16- Case No. 1-10-79
occupations, like Title 47 wherein Chapter 4737 appears. The regulations in
Chapter 3714 are much more comprehensive than that found in Chapter 4737,
manifesting the General Assembly’s concern for state-wide uniformity. Eastlake v.
Ohio Bd. of Bldg. Standards (1981), 66 Ohio St.2d 363, 369, 422 N.E.2d 598. For
example, R.C. 3714.051 requires a permit to install new construction and
demolition debris facilities, and R.C. 3714.06(A) requires that the facility annually
renew an operation license, which is issued by the board of health or the Director
of Environmental Protection. Sheffield, 87 Ohio St.3d at 11. The license
application is site-specific and must include accompanying plans, specifications,
and information regarding the facility and its operations. Id., citing R.C.
3714.06(A). Chapter 3714 also has various provisions concerning the inspection
of such facilities, enforcement orders, suspension and revocation of the license,
and makes violations of Chapter 3714 second degree misdemeanors. See R.C.
3714.08, .10, .12, .13, .99. Chapter 4737, on the other hand, contains no similar
application process for the installation of new junk yards—evidence that the
installation of junk yards was to be in accordance with local regulation. Although
Chapter 4737 does provide for semi-annual inspections of junk yards and
revocation of the license upon various violations (R.C. 4737.10), the regulations
found in Chapter 4737 are far less comprehensive than in Chapter 3714.
-17- Case No. 1-10-79
{¶30} Most significantly, Chapter 3714 also provides several limitations on
the location of construction and demolition debris facilities akin to those
limitations that otherwise would have been provided for through local zoning. For
example, a license may not be issued for a construction and demolition debris
facility that is located within the boundaries of a one-hundred-year flood plain or
within the boundaries of a sole source aquifer. R.C. 3714.03(B)(1)-(2). Licenses
may also not be issued when the “horizontal limits of construction demolition
debris placement at the new facility are proposed to be located”: (1) within 100
feet of a perennial stream or a category 3 wetland; (2) within 100 feet of the
facility’s property line; (3) within 500 feet of a residential or public water supply
well, subject to a few exceptions; (4) within 500 feet of a state or federal park,
national recreation area, or land purchased for those purposes but not designated
as such; (5) within 500 feet of any natural area, state wildlife area, nature preserve,
or national wildlife refuse; (6) within 500 feet of a lake or reservoir of one acre or
more that is connected to ground water; (7) within 500 feet of a state forest; (8)
within 500 feet of a state historic landmark; and (9) within 500 feet of an occupied
dwelling unless written consent is provided by the dwelling owner. R.C.
3714.03(C)(1)-(9). The only marginally similar requirement found in R.C.
4737.07 is the requirement of a fence or natural boundary around the perimeter of
the junk yard to obscure its view. The absence of statutory limitations on the
-18- Case No. 1-10-79
location of junk yards, like those enacted in Chapter 3714 with respect to
construction and demolition debris facilities, is further indication that the General
Assembly intended to allow the location of junk yards to be determined by local
regulation.
{¶31} For all these reasons, we conclude that R.C. 4737.07 and the Bath
Township Zoning Resolution do not conflict with one another; and therefore, R.C.
4737.07 does not preempt the local Zoning Resolution. The license issued
pursuant to R.C. 4737.07 is a separate requirement for the operation of a junk yard
apart from local zoning. A landowner who owns land in a township and who
wishes to establish a junk yard must: (1) determine that a junk yard is an
acceptable use of his/her property under the township’s zoning resolution (or
secure a variance or conditional use permit for the junk yard if provided by the
zoning resolution); and (2) obtain a license to operate the junk yard under R.C.
4737.07. See 1969 Ohio Atty.Gen.Ops. No. 69-136.
C. The Smiths’ Use of their Property is not a Pre-existing Non- conforming Use
{¶32} Finally, the Smiths argue that the use of their property is a prior non-
conforming use and should be allowed under R.C. 713.15 and Article 7 of the
Zoning Resolution. R.C. 519.19 provides, in pertinent part: “[t]he lawful use of *
* * any land * * *, as existing and lawful at the time of enactment of a Zoning
-19- Case No. 1-10-79
Resolution or amendment thereto, may be continued, although such use does not
conform with such resolution or amendment * * *.” In order to qualify as a pre-
existing, nonconforming use under R.C. 519.19, the landowner must demonstrate
by a preponderance of the evidence that the use of the property existed at the time
of the effective date of the zoning change, and that the use was lawful at the time it
was established. Loy v. Liberty Twp. Bd. of Trustees, 3d Dist. No. 5-02-60, 2004-
Ohio-1391, quoting Castella v. Stepak (May 14, 1997), 9th Dist. No. 96CA0057,
at *1, citing Pschesang v. Terrace Park (1983), 5 Ohio St.3d 47, 448 N.E.2d 1164,
syllabus.
{¶33} The Smiths argue that the junk yard is a prior non-conforming use
since the property had junk on it before he purchased it in 1986. That argument
lacks merit. The previous owner, Janet Mauk, denied leaving scrap metal on the
property and testified that she had never seen the scrap metal on the property as
photographed in defense exhibits A and B. (Id. at 104, 106). Mauk testified that
all of the business materials were taken from the property by a partner that bought
out their share of the business. (Id. at 102). Smith, on the other hand, testified that
the scrap metal photographed in defense exhibits A and B was on the property
when he purchased it. (Id. at 118-20). He further testified that his brother
purchased a junk bulldozer from the Mauks on this same property in 1980, but
Mrs. Mauk denied ever having any equipment on the property. (Id. at 118-19);
-20- Case No. 1-10-79
(101). The testimony at trial also demonstrated that the property in question was
zoned R-1, residential district, until 1984, when the township granted the Mauks’
application to the have the property re-zoned to B-2, general business district, so
their construction business could be established on the property. (Sept. 13, 2010
Tr. at 85-86, 97-99). The Smiths’ property is currently classified as B-2, general
business district, and junk yards were not permitted uses in B-2 general business
districts under the 1986 Zoning Resolution or the 2006 Zoning Resolution,
currently in effect. (Id. at 77); (P’s Exs. 2-3, Art. 15).
{¶34} Even if the trial court found that the Mauks had left scrap metal on
the property from their construction business and previously had an inoperable
bulldozer as Smith testified, that does not mean their property was used as a “junk
yard” or “scrap metal processing facility” as those terms are defined in R.C.
4737.05(B) and (D). Furthermore, even if these acts transformed the Mauks’ use
of the property into a junk yard, the Smiths failed to demonstrate that the Mauks’
use of the property as a junk yard was lawful under the then-existing Zoning
Resolution. At least since March 6, 1986, and prior to the Smiths’ ownership, the
property has been zoned B-2 general business district, where junk yards are not
permitted uses. (P’s Exs. 3-4); (Sept. 13, 2010 Tr. at 120). Therefore, the Smiths
also cannot demonstrate that their use of the property as a junkyard was lawful,
and as such, it is not a pre-existing non-conforming use as a matter of law. R.C.
-21- Case No. 1-10-79
519.19; Loy, 2004-Ohio-1391, quoting Stepak 9th Dist. No. 96CA0057, at *1,
citing Pschesang, 5 Ohio St.3d 47, syllabus.
{¶35} For all these reasons, the Smiths’ first assignment of error is
overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING RELIEF BEYOND THE RELIEF REQUESTED BY A PARTY AND EXPRESSLY TRIED TO THE COURT.
{¶36} In their second assignment of error, the Smiths argue that the trial
court erred by ordering that he remove all debris from their property since the
Township Zoning Inspector brought the action under R.C. 505.173(A) and (C) to
remove junk motor vehicles alone from the property. The Smiths argue that the
trial court erroneously granted a remedy beyond that provided in R.C. 505.173(B).
We disagree.
{¶37} Civ.R. 15(B) provides, in pertinent part:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. * * * Failure to amend as provided herein does not affect the result of the trial of these issues.
Throughout the course of this litigation, the zoning inspector sought more than
merely the removal of the junk cars stored on the Smiths’ property pursuant to
-22- Case No. 1-10-79
R.C. 505.173(B). In his June 3, 2006 letter, the zoning inspector indicated that the
Smiths must remove “all debris, junk, vehicles, trailers, and general trash” from
their property. (D’s Ex. H). Furthermore, the zoning inspector’s complaint sought
a permanent injunction enjoining the Smiths “from violating the Zoning
Resolution of Bath Township, Ohio and/or maintaining a nuisance on the
premises at 1601 Reservoir Road * * *.” (Doc. No. 1) (Emphasis added). In his
memorandum contra to the Smiths’ motion for summary judgment, the zoning
inspector asserted that he initiated this action “to compel the removal of junk or
inoperable motor vehicles.” (Doc. No. 13) (Emphasis added). In both opening and
closing arguments, the zoning inspector stated that the case was about junk
vehicles and common law nuisance, generally, and sought an order enjoining the
Smiths from storing “junk motor vehicles, junk, construction debris, or any other
materials prohibited by the Bath Township Zoning Resolution.” (Sept. 13, 2010
Tr. at 2); (Doc. No. 29). Aside from the zoning inspector’s filings and his letter, it
is also clear that the Smiths were aware that the zoning inspector was alleging that
their use of the property constituted a nuisance for purposes of trial. (See
Campbell Depo. at 21) (Q: “Now, in your complaint you indicate that the property
is a nuisance. Can you explain that, why it’s a nuisance?”).
{¶38} Since the zoning inspector raised the issue of common law nuisance
throughout the proceedings and at trial, it is treated as if it had been specifically
-23- Case No. 1-10-79
raised in the pleadings. Civ.R. 15(B). Furthermore, we find that the Smiths have
waived this issue for purposes of appeal by litigating this matter in the trial court.
As such, we cannot conclude that the trial court erred by enjoining the Smiths
from keeping “other debris” on their property as the Smiths argue.
{¶39} The Smiths’ second assignment of error is, therefore, overruled.
{¶40} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS, P.J. and WILLAMOWSKI, J., concur.
/jlr
-24-