Summary
The Ohio Third District Court of Appeals affirmed a judgment permanently enjoining David and Marsha Smith from maintaining a nuisance and violating Bath Township's zoning resolution by storing junk vehicles and debris on their property. The court held that the zoning resolution did not authorize junk yards in all zoning districts, was not preempted by Ohio Revised Code Chapter 4737, and did not establish a prior nonconforming use on the property.
Topics
Practice areas
Questions Presented
- Whether the Bath Township Zoning Resolution permitted junk yards under Section 6.18.
- Whether R.C. 4737.07 preempted Bath Township's authority to prohibit junk yards through its zoning resolution.
- Whether the Smiths established a lawful pre-existing nonconforming use under R.C. 519.19.
- Whether the trial court improperly granted relief beyond the relief requested by ordering removal of all junk vehicles and other debris.
- Whether the nuisance issue was tried by express or implied consent under Civ.R. 15(B).
Holdings
- Section 6.18 did not authorize junk yards in every zoning district. Read in the context of the entire zoning resolution, it governed the continued operation of junk yards that existed before the original resolution or were established under an earlier version that permitted them in a particular district.
- R.C. 4737.07 does not preempt or conflict with the Bath Township Zoning Resolution. A county auditor's license to operate a junk yard is an independent requirement and does not authorize the land use where township zoning prohibits it.
- The Smiths did not establish that the property was being used as a junk yard as a lawful pre-existing nonconforming use.
- The trial court did not improperly grant relief beyond the pleadings or issues tried because the nuisance and debris issues were raised throughout the litigation and tried by the parties' express or implied consent.
Key quotations
“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.” (¶16)
“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 a junk yard under R.C. 4737.07.” (¶31)
“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 raised in the pleadings.” (¶38)
Factual background
The Smiths owned property in Bath Township that was zoned B-2 general business district and contained junk vehicles, scrap metal, debris, and other materials. Bath Township officials repeatedly requested cleanup, granted extensions, and ultimately declared the property a public nuisance. The zoning inspector sought injunctive relief, and the trial court ordered removal of the junk vehicles and other debris. The Smiths argued that the zoning resolution permitted junk yards, that state licensing law preempted township zoning, and that the use was a lawful pre-existing nonconforming use.
Procedural history
Campbell filed an action under R.C. 519.24 seeking to enjoin zoning violations and maintenance of a nuisance on the Smiths' property. The trial court denied the Smiths' summary-judgment motion, conducted a bench trial, and entered judgment for Campbell on November 4, 2010. The Smiths appealed, and the appellate court affirmed.