Florer v. Queen City Grain Co., Inc.
| Decision Date | 28 October 1981 |
| Docket Number | C-800907,81-LW-3295 |
| Parties | THORNTON B. FLORER, HIRAM BOLSINGER, PENDLETON CORPORATION, DAVID W. CAMPBELL and CHERYL N. CAMPBELL, Plaintiffs-Appellants, v. QUEEN CITY GRAIN CO., INC., and HAMILTON COUNTY BOARD OF ZONING APPEALS, et al., Defendants-Appellees. |
| Court | United States Court of Appeals (Ohio) |
Mr Robert E. Manley, 4500 Carew Tower, Cincinnati, Ohio 45202 for Plaintiffs-Appellants.
Messrs. Simon L. Leis, Jr. and James W. Harper, 420 Hamilton County Court House, Court and Main Streets, Cincinnati, Ohio 45202, for Defendants-Appellees, Hamilton County Board of Zoning Appeals.
Messrs. Charles M. Meyer and Peter Ulbrich, 1318 Central Trust Tower, Cincinnati, Ohio 45202, for Defendant-Appellee, Queen City Grain Co., Inc.
DECISION.
This cause came on to be heard upon the appeal, the transcript and the supplemental transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County, Ohio, the briefs and the argument of counsel.
Defendant Queen City Grain, Inc. (hereinafter Queen City) is the owner of a tract of real estate in Hamilton County, Ohio. The real estate has as its southern boundary the Ohio River. The real estate forms a part of a larger area which is zoned "H" Flood Plain District in the comprehensive zoning resolution (hereinafter zoning resolution) adopted for the unincorporated territory of Hamilton County by the Board of County Commissioners.
The "H" Flood Plain District regulations as established in Article XIII of the zoning resolution permit the use of property for 13 purposes. In addition to the use regulations the zoning resolution also establishes height and area regulations including those dealing with open space and intensity of use. However, before constructing any building on or commencing the use of flood plain property for any permitted purpose other than agriculture, application must be made to the Board of Zoning Appeals (hereinafter Board), created by the zoning resolution, for a Special Zoning Certificate.
Queen City obtained a special zoning certificate to construct and operate a river terminal and allied storage facilities on its property. Such uses are permitted in the "H" Flood Plain District. Zoning resolution Sec. 132.12. By resolution 20-78 adopted July 5, 1978 the Board granted the special zoning certificate and specified inter alia that construction should be completed within one year from the date of adoption of the resolution 20-78 or by July 5, 1979.
Plaintiffs are the owners of property adjacent or near to that of Queen City which, it is alleged, would be affected by the use made pursuant to the special zoning certificate of the property owned by Queen City. On July 3, 1979 plaintiffs filed a complaint for declaratory judgment and injunctive relief naming as defendants the Hamilton County Board of Zoning Appeals and the five individual members thereof and Queen City Grain Company, Inc. On August 3, 1979 plaintiffs filed an amended complaint containing 3 causes of action against the same defendants. The first cause of action sought a declaratory judgment that Resolution 20-78 adopted by the Board was void because it was adopted pursuant to an unconstitutional delegation of legislative authority by the Board of Commissioners of Hamilton County to the Hamilton County Board of Zoning Appeals. The second cause of action sought injunctive relief on the grounds of nuisance. The third cause of action sought an order to compel the Board to order that Queen City terminate all activity pursuant to the special zoning certificate because construction was not completed on time.
Defendants' motions to dismiss the action pursuant to Civ. R. 12(B)(6) were overruled. Defendants' motions for summary judgment in their favor were granted. Plaintiffs' motions for summary judgment in their favor on the first and third causes of action of the Amended Complaints were overruled. Plaintiffs assign three errors in this appeal.
The first error assigned by plaintiffs is the action of the trial court in granting the motions of the defendants for summary judgment in their favor. Each defendant filed a separate motion for summary judgment. The defendant Queen City filed its motion on June 3, 1980 supported by the affidavit of Thomas Bobb. The defendant Board filed its motion on June 13, 1980 unsupported by independent affidavit.
When a motion for summary judgment is filed the trial court is limited by the civil rules to a consideration of whether there is a genuine issue of material fact, whether the moving party is entitled to judgment as a matter of law, and whether reasonable minds can come to but one conclusion and that adverse to the party against whom the motion is made after viewing the evidence most strongly in favor of that party. Civ. R. 56(C). Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 364 N.E.2d 267. Among the matters which may be considered under the provisions of Civ. R. 56(C) in the determination of the foregoing, the case on review presents only the pleadings consisting of the Amended Complaint, the affidavit of Joseph R. Jordan, the affidavit of Timothy M. Burke, and two affidavits of Thomas Bobb. Attached to the Amended Complaint as Exhibit A and expressly incorporated in the Amended Complaint is the Resolution of the Board granting Appeal No. 20-78 by which a special zoning certificate was issued to Queen City to build and operate a river terminal in the zone district identified as H-Flood Plain. There is, in addition, an affidavit of Joseph R. Jordan with an attached copy of the Hamilton County Zoning Resolution. (Supp. T.d. 7). The Hamilton County Zoning Resolution is self-anthenticating. Evid. R. 902(5).
There are no genuine issues of material fact in this fundament. If there was error in the trial court granting the motions of the defendants for summary judgment in their favor it must be found in the application of the law to those facts. The trial court, in granting summary judgment in favor of defendants, stated that it considered central to its decision the failure of plaintiffs to appeal the granting of the special zoning certificate by the Board within the 20 day period provided by the zoning resolution. This is an apparent reference to Article XVIII, Section 183 of the Zoning resolution. Plaintiffs contend and defendants concede that the referenced matter is not applicable to plaintiffs in this case because plaintiffs were not seeking to appeal to the Board the refusal of the building commissioner to issue the necessary zoning certficate to the defendants.
The entry granting and overruling the several motions for summary judgment was expressed in general terms. Prior to the jounalization of that entry on November 10, 1980, the trial court filed a written decision on October 22, 1980. It...
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