Ameigh v. Baycliffs Corp.

• Decision Date: 17 April 1998
• Docket Number: No. OT-95-049.,OT-95-049.
• Citation: 127 Ohio App.3d 254,712 NE 2d 7841
• Parties: AMEIGH et al., Appellees, v. BAYCLIFFS CORPORATION et al., Appellants.
• Court: Ohio Court of Appeals

127 Ohio App.3d 254

712 NE 2d 7841

AMEIGH et al., Appellees, v. BAYCLIFFS CORPORATION et al., Appellants.

No. OT-95-049.

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided April 17, 1998.

Steven R. Smith, Janine T. Avila and George C. Wilber, for appellees.

John D. Brown, Robert A. Brindza and John A. Kocher, for appellants. MELVIN L. RESNICK, Judge.

This case is before the court on remand from the Supreme Court of Ohio. See Ameigh v. Baycliffs Corp. (1998), 81 Ohio St.3d 247, 251, 690 N.E.2d 872, 875-876.

In Ameigh v. Baycliffs Corp. (Apr. 12, 1996), Ottawa App. No. OT-95-049, unreported, 1996 WL 168627, this court determined that appellees' declaratory judgment action and request for an injunction were barred by the doctrine of res judicata and the terms of R.C. 519.24. We therefore found the first assignment of error asserted by appellants, J.I. Development Corporation, Inc. and its successor in interest, Baycliffs Corporation, Inc. ("Baycliffs"), well taken. Because of our disposition of this assignment of error, we concluded that we need not reach the merits of the second assignment of error.

Appellees, Ronald and Luz Ameigh, Richard and Marlene Holkovic, Ronald and Julia Doll, Kenneth Szostek, and Johnson's Island Property Owners Association ("property owners"), appealed that judgment to the Ohio Supreme Court. A majority of the Justices of the Supreme Court reversed our judgment with regard to appellants' first assignment of error and remanded the case to this court for a consideration of the second assigned error, which reads:

"The trial court erred by concluding that the use authorized by Danbury Township Zoning Permit No. 213-89 violated the Danbury Township Zoning Resolution as a matter of law."

In 1989, J.I. Development, Inc., predecessor in interest to Baycliffs, applied for a zoning certificate in order to construct one hundred boat slips or berths to be subleased, on a ratio of one boat slip per residential unit, to the owners of private lots in a subdivision on Johnson's Island. The boat slips were to be constructed on submerged lands in Sandusky Bay leased by Baycliffs from the United States of America. In the application, J.I. Development, Inc. asserted that it owned the land contiguous to the leasehold. The record reveals that the proposed slips would be grouped on the so-called "finger area" of Johnson's Island, consisting of three promontories and formerly used by the state of Ohio for quarrying dockage. While the finger area may be contiguous with the leasehold, it is not contiguous with the individual private lots.

Under the Danbury Township Zoning Resolution, no structure can be erected except for a purpose permitted in the district in which it is located. Article II, Section 200.1, Danbury Township Zoning Resolution. The record discloses that the district in which the docks were to be constructed is zoned R-3, Multi-Family Residential. Under the Danbury Township Zoning Resolution, marinas, docking facilities, and "boat launching" are permitted uses in the Recreational-Commercial District. Article V, Section 507.1(f), Danbury Township Zoning Resolution. They are not permitted uses in the R-3 district. Article V, Section 503, Danbury Township Zoning Resolution. Nonetheless, on November 22, 1989, the Danbury Township Zoning Inspector issued the requested zoning certificate, finding the dock slips to be a permitted use in an R-3 zoning district.

In December 1989, the Danbury Township Board of Trustees ("board") revoked the zoning permit, finding that the boat docks would constitute a commercial use. Baycliffs appealed the revocation, pursuant to R.C. Chapter 2506, to the Ottawa County Court of Common Pleas. The common pleas court found that the board lacked the authority to revoke Baycliffs' zoning certificate. The board appealed this judgment to this court, but later dismissed its appeal.

In January 1991, the board again revoked Baycliffs' zoning certificate. In doing so, the board stated that Baycliffs provided false information when it applied for the certificate. Specifically, the board noted that Baycliffs admitted, during a hearing, that the state of Ohio owned the submerged land upon which the docks were to be built and that Baycliffs had not received permission from the state to build these docks. According to the board, Baycliffs previously made representations that it owned the submerged lands.

Baycliffs filed an appeal from the second revocation. In December 1993, the Ottawa County Court of Common Pleas reversed the board's order. The board never appealed this judgment. Instead, on February 4, 1994, it reissued the zoning certificate to Baycliffs.

On April 29, 1994, the property owners filed a complaint against Baycliffs pursuant to R.C. 519.24.

The complaint alleged that appellees owned property adjoining the property where Baycliffs intended to construct the boat slips. While acknowledging that Baycliffs had a zoning certificate that allowed the construction of the slips in an R-3 zone, appellees argued that the planned construction was a "marina/dockage facility," as defined by state and local law, and therefore could not, pursuant to the local zoning resolution, be placed in an R-3 zoning district. Appellees requested a declaratory judgment finding that application # 213-89 was an application for development of a marina and/or dockage facility, an improper use on Johnson's Island under the Danbury Township Zoning Resolution, and that "the zoning permit issued to Defendant Baycliffs under application # 213-89 is void and of no effect." The property owners further demanded that, pursuant to R.C. 519.24, a preliminary and permanent injunction be issued prohibiting Baycliffs from "performing any construction activity in furtherance of application # 213-89 and/or in violation of the Danbury Township Zoning Resolution * * *."

Baycliffs answered and subsequently filed a motion for summary judgment. In that portion of the summary judgment motion relevant to this appeal, Baycliffs claimed that appellees failed to offer any evidence to create a question of fact on the issue of whether they would be especially damaged by the construction of the boat slips; therefore, they were not entitled to injunctive relief under R.C. 519.24.

Appellees filed their own motion for summary judgment, supported by affidavits, depositions, and exhibits, in which they asserted that no question of fact existed on the issues of whether the proposed use (construction of one hundred boat slips) violated the relevant portions of the Danbury Township Zoning Resolution and whether they were especially damaged. In its reply, Baycliffs contended that the boat slips were permitted under the resolution as an accessory use.

On June 21, 1995, the trial court denied Baycliffs' motion for summary judgment. The court granted the property owners' motion for summary judgment. It declared that "application # 213-89" was an application for the development of a marina and/or dockage facility and that such a use was not permitted on Johnson's Island under the Danbury Township Zoning Resolution. The court further determined that the docks were not an "accessory use" within the meaning of the zoning resolution. Therefore, the common pleas court held that the "zoning permit issued to Defendant, Baycliffs, under application # 213-89" was "void and of no effect." Finally, the court concluded that appellees would be especially damaged because "the boat slips would be noisome, interfere with scenery and reduce property value." As a result, the court issued a permanent injunction prohibiting Baycliffs from constructing the proposed docks.

As stated by the Ohio Supreme Court, the central issue in Baycliffs' second assignment of error is "the question of whether the proposed docks are a proper use of land pursuant to the township zoning resolution." Id., 81 Ohio St.3d at 251, 690 N.E.2d at 876. The Supreme Court also held:

"The issue of whether Baycliffs' proposed use of the property would violate the township zoning regulations was properly before the court of appeals. The trial court ruled that Baycliffs' proposed use of the property would violate the township zoning ordinance and granted summary judgment for the property owners, expressly observing that the `zoning code's definition of a marina specifically excludes "docks or moorings appurtenant to a private residence and used only by the occupant of that residence and his paying guests."` The trial court further stated the `defendant's slips are launching and docking facilities in the most fundamental sense' and that `docking facilities are not permitted in an R-3 district.' Finally, the trial court analyzed whether the boat slips would be permitted as an accessory use in the R-3 district, and addressed the issue of whether property owners would be especially damaged by the proposed use of the property. This decision by the trial court must be reviewed by the court of appeals upon our remand." Id. at 252, 690 N.E.2d at 876. In compliance with the Ohio Supreme Court's mandate, we shall now consider the listed issues.

The standard employed by this court in determining this appeal is found in Civ.R. 56(C), which provides, in part:

"(C) Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * * A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation...