710 Fed.Appx. 688 (6th Cir. 2017), 16-4112, Basista Holdings, LLC v. Ellsworth Township

Docket Nº:16-4112
Citation:710 Fed.Appx. 688
Opinion Judge:ALAN E. NORRIS, Circuit Judge.
Party Name:BASISTA HOLDINGS, LLC; David J. Lewis, Plaintiffs-Appellants, v. ELLSWORTH TOWNSHIP; Michael P. Kurilla, Jr.; Diane Dudek; Kurt Morrison; Fred Houston; Fred Schrock; Ishraq Hafiz; Mary Ann Stack; Wayne Sarna; William Spellman; Rick Durkin, Defendants-Appellees.
Attorney:Frank R. Bodor, Law Offices, Warren, OH, for Plaintiffs-Appellants. James F. Mathews, Tonya J. Rogers, Baker Dublikar Beck Wiley & Mathews, North Canton, OH, for Defendants-Appellees.
Judge Panel:BEFORE: NORRIS, SUHRHEINRICH, and GRIFFIN, Circuit Judges.
Case Date:October 11, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 688

710 Fed.Appx. 688 (6th Cir. 2017)

BASISTA HOLDINGS, LLC; David J. Lewis, Plaintiffs-Appellants,

v.

ELLSWORTH TOWNSHIP; Michael P. Kurilla, Jr.; Diane Dudek; Kurt Morrison; Fred Houston; Fred Schrock; Ishraq Hafiz; Mary Ann Stack; Wayne Sarna; William Spellman; Rick Durkin, Defendants-Appellees.

No. 16-4112

United States Court of Appeals, Sixth Circuit

October 11, 2017

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 6th Cir. Rule 32.1.

Page 689

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Frank R. Bodor, Law Offices, Warren, OH, for Plaintiffs-Appellants.

James F. Mathews, Tonya J. Rogers, Baker Dublikar Beck Wiley & Mathews, North Canton, OH, for Defendants-Appellees.

BEFORE: NORRIS, SUHRHEINRICH, and GRIFFIN, Circuit Judges.

OPINION

ALAN E. NORRIS, Circuit Judge.

Page 690

This appeal arises from a zoning dispute involving an 18-acre property located on State Route 45 in Ellsworth Township, Mahoning County, Ohio ("the Property" ). Plaintiff Basista Holdings, LLC is a limited liability company whose owner and sole member is plaintiff David J. Lewis. In 2007, Basista Holdings sought a zoning certificate for a permit to use the Property as a cement batch plant and rental storage facility, which requires an industrial zoning designation. Although defendant Diane Dudek, formerly the Ellsworth Township Zoning Inspector, initially granted the application, she later disavowed it, explaining that she had issued it in error. This litigation ensued.

I.

The parties have stipulated that in 1969, Ellsworth Township adopted a zoning resolution that included a zoning map. This map reflected the existence of an industrial district on State Route 45. The district had a frontage of 871 feet and a depth of 500 feet.

The Property consists of 17.998 acres. Basista Holdings purchased it on May 20, 2003. At the time of purchase, the Property consisted of two parcels. The first parcel had a frontage of 900 feet on State Route 45, and a depth of 435.6 feet east of State Route 45; the second parcel had the same measurements and was located directly behind the first. They were consolidated into a single parcel in 2007.

On July 24, 2007, approximately four years after purchase of the Property, Basista Holdings submitted an application for a zoning certificate to defendant Dudek to allow for industrial use of the entire parcel, which after consolidation had a frontage of 900 feet and a depth of approximately 871 feet. Ms. Dudek approved the application by letter dated September 14, 2007. She reported the approval to the Ellsworth Township trustees at a meeting held on October 8, 2007. The minutes of the meeting state, "The Lewis industrial site plan was approved."

On April 7, 2008, attorney Charles Dunlap wrote to Ms. Dudek. He indicated that he represented Paul and Laura Lyden, who owned property adjacent to the parcel owned by Basista Holdings. According to Dunlap, the prior industrial designation approved by Dudek was issued in error.

Receiving no response, Dunlap filed suit in the Mahoning County Court of Common Pleas on behalf of the Lydens, naming as defendants Basista Holdings, David Lewis, the Ellsworth Township Zoning Inspector and its trustees, as well as the Ohio Department of Natural Resources. The complaint alleged that the Lydens owned land that shared a common boundary with the Property. The Property’s prior owner, the East Fairfield Coal Company, had operated the site as a coal tipple until 1970. That use left the Property polluted and subject to reclamation under Ohio and federal environmental laws. According to the complaint, if the proposed use of the land by Basista Holdings were to occur, the polluted soil would be excavated (much of it was buried during reclamation) and a stream common to both properties would be degraded. The complaint also alleged that the 1969 zoning ordinance designated the Property as agricultural but allowed for a non-conforming use by its then-owners, the East Fairfield Coal Company.

In the course of this litigation, defendant Dudek was deposed. Among other things, she stated that she believed at the time of the Basista Holdings application in July 2007 that the Property had always been zoned as industrial but realized that she had made a mistake when she received the

Page 691

letter from Mr. Dunlap. She also conceded that she did not know the proper procedure for revoking a permit once it had been issued. Nor did she send Basista Holdings a letter revoking the permit.

Although the Lyden lawsuit was dismissed by plaintiffs on September 16, 2009, from 2007 to 2012, Paul and Laura Lyden submitted several complaints to Ellsworth Township stating that Basista was maintaining the SR 45 Property in violation of the Ellsworth Township Zoning Ordinance."

Laura Lewis, who was not only David Lewis’s wife but also an authorized representative of Basista Holdings, served on the Ellsworth Township Board of Trustees in 2011. At the suggestion of Ellsworth Township’s legal counsel, Michael Kurilla was retained as deputy zoning inspector to investigate the zoning complaints against Basista and David and Laura Lewis because of Laura Lewis’s service on the board of trustees.

On September 1, 2011, Kurilla issued two notices of zoning violations to Basista with regard to its use of the SR 45 Property and the Gault Road Property. The latter property was transferred to Laura Lewis in 2015 and is not at issue in this appeal. Basista Holdings appealed Kurilla’s finding of zoning violations and also, in 2012, submitted a revised site plan, which was denied on October 10, 2012. This denial was also appealed. These appeals were later dismissed by Basista Holdings.

On October 31, 2012, Kurilla, in his capacity as Ellsworth Township Deputy...

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