Miller v. W. Carrollton

• Citation: 632 N.E.2d 582,91 Ohio App.3d 291
• Decision Date: 27 October 1993
• Docket Number: No. 13578,13578
• Court: United States Court of Appeals (Ohio)
• Parties: MILLER et al., Appellees, v. CITY OF WEST CARROLLTON et al., Appellants. *

Page 291

91 Ohio App.3d 291

632 N.E.2d 582

MILLER et al., Appellees, v. CITY OF WEST CARROLLTON et al., Appellants. ^*

No. 13578.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided Oct. 27, 1993.

John R. Koverman, Jr., Dayton, for appellees.

Robert F. Cowdrey, Dayton, for appellant city of West Carrollton.

G. Jack Davis, Jr., Dayton, for appellants Woody's Market, Inc. and Woodrow W. Bowman.

BROGAN, Judge.

This litigation began in May 1990 when the appellees, Mary Lois Miller and James Street, filed a complaint in the Common Pleas Court of Montgomery County seeking to enjoin the appellants, Woody's Market, Inc. and Woodrow Bowman, from building a car wash upon the right-of-way of Alexandersville Road and Alex Circle (a.k.a. Zapp Road) in the city of West Carrollton. The city was also joined as a defendant.

After the issues were joined, the trial court found that Alex Court (a.k.a. Alex Circle) was a private street and that Alexandersville Road had been properly vacated by West Carrollton. The trial court further found that the building permit issued by West Carrollton to Woody's Market for the construction of the car wash was proper and did not violate any zoning ordinances.

Miller and Street appealed the trial court's judgment and this court reversed the judgment of the trial court and found that West Carrollton had created a common-law dedication of Alex Circle to public use. This court also found that the vacation of Alexandersville Road was not proper, as Miller and Street were abutting landowners who were not notified of the vacation proceedings. Finally, we found that the building permit issued to Woody's Market permitted it to construct the car wash on the vacated portion of Alexandersville Road and to within two feet of Alex Circle. We found that "resolution of further issues concerning the building permit and zoning regulations will require findings by the trial court" and we remanded the matter for resolution of those issues. Miller v. W. Carrollton (Aug. 27, 1991), Montgomery App. No. CA 12606, unreported, 1991 WL 228711. No appeal was taken from our judgment.

On June 30, 1992, the trial court held that the building conditional use permits issued by the city to Woody's Market for the construction of the car wash were void. The court also ordered that those portions of the car wash constructed on and over the rights-of-way of Alex Circle and Alexandersville Road and those portions constructed within ten feet of the rights-of-way of said streets be removed immediately. The trial court also ordered that the defendants take such action as was necessary to bring Alex Circle into conformance with the city's street requirements and to restore the paved portions of Alexandersville Road which were removed to build the car wash. Both the city and Woody's Market appealed the trial court's judgment.

Both appellants assert that the trial court erred in determining the boundaries of the right-of-way of Zapp Avenue, a.k.a. Alex Circle.

" 'Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.' " Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 411-412, 461 N.E.2d 1273, 1276.

Meryl Neyman, a retired Service Director of West Carrollton, testified that the city maintained the paved portions of Alex Circle and a gravel berm and ditch area on each side as part of the right-of-way. He also testified that in 1971 the city required appellee James Street to improve the berm and ditch area south of the paved portion of Alex Circle and next to his property with curb, gutter, storm sewer, sidewalk and a tree lawn. The improved portion of the right-of-way that Street was required to improve was fifteen feet in width. Neyman also testified that the berm and ditch area on the north side of the paved portion of Alex Circle were the same as the south sides.

At the evidentiary hearing of January 7, 1992, George Stephenson, a licensed surveyor, testified concerning the dimensions of the Alex Circle right-of-way. Stephenson testified that his findings were based upon his visual observations, his field surveying, and a review of the testimony of Meryl Neyman.

Stephenson testified that he determined the location of the paved portion of Alex Circle before the work was done by Bowman by actual field location or observation. One frame of reference was the location of a stop sign on the right-of-way at the intersection of Alex Road and Alex Circle. He testified that the fifteen-foot rights-of-way from the edges of the paved portion of the road were consistent with the common fifty-foot rights-of-way.

Stephenson prepared a legal description of the Alex Circle right-of-way and a map which demonstrated that the car wash bay was well inside the right-of-way and beyond the building setback line established by the city ordinance. The map also clearly indicates the car wash equipment room was built on Alexandersville Road beyond the building setback line. The evidence presented was sufficient to establish the location of the Alex Circle right-of-way. The appellants' first assignment is overruled.

In their second assignment, the appellants contend the trial court erred in ordering the removal of the car wash from the rights-of-way of Alex Circle and Alexandersville Road in circumstances where there was no evidence of special damage.

The appellants contend the trial court erred in ordering the removal of the portions of the car wash intruding on the rights-of-way because the appellees failed to demonstrate to the trial court how they would be "especially" damaged by the presence of the car wash on the rights-of-way as is required by R.C. 713.13 and Section 154.14(C) of the West Carrollton zoning regulations.

The appellants argue that before the trial court could issue an injunction to tear down parts of the car wash building it was required to balance the equities and determine whether the injury involved in ordering the partial destruction of the building far exceeds any injury to the appellees by the continued presence of the car wash in the rights-of-way.

The appellants argue that the evidence demonstrates that the portion of Alexandersville Road north of Alex Circle was not extensively used by anyone after that road was barricaded in the 1970s and that Alex Circle is wider after completion of the car wash project than before and it has not created any impediment to the ingress to and egress from Miller's property. Appellants also argue that the evidence demonstrated that the only inconvenience to Street's property occasioned by the presence of the car wash was when semitrailers parked along Alex Circle interfered with trucks which were pulling out of his business. Appellants also point out that Street acknowledged that if traffic were regulated along Alex Circle there probably would be no problem with congestion.

The appellees argue, on the other hand, that they were not required to demonstrate "special" damage in order to obtain injunctive relief because Section 154.14(C) provides that any neighboring property owner "damaged" by a zoning violation may institute an injunctive action.

Appellees argue that they both demonstrated that their property values had been diminished by the presence of the car wash on the rights-of-way. Appellee Street points out that he testified that on four or five occasions during the summer of 1991 truck activity at the wash facility blocked Alex Circle.

Last, appellees argue that even if they must demonstrate special damage, a neighboring property owner would be especially damaged by the construction of a car wash and there is no authority to apply a balancing of injuries test in a statutory injunction action to enforce regulatory laws.

While a private nuisance action is maintainable by a private citizen, the general rule is that a private individual lacks standing to maintain a private action for a public nuisance. Prosser, Private Action for Public Nuisance (1966), 52 Va.L.Rev. 997, 999.

A private plaintiff may fall within the exception to the general rule by proving that he has suffered some special injury or particular damage not incurred by the public generally. While authorities are in disagreement as to what constitutes a special injury, the majority view regards the special injury as an injury suffered by the plaintiff which is different in kind rather than degree from that suffered by other members of the public exercising the same public right. Prosser, supra, fn. 6, Section 88 at 587. See, also, 72 Ohio Jurisprudence 3d (1987), at 441, 442; and Clabaugh v. Harris (1971), 27 Ohio Misc. 153, 56 O.O.2d 407, 273 N.E.2d 923.

R.C. 713.13 provides that a neighboring property owner who is "especially damaged" by a building erected in violation of a zoning regulation may institute a suit for injunction to prevent or terminate the violation. A plaintiff who exercises a public right extraordinarily more than the general public has a special reason for doing so and that reason invariably amounts to a different kind of interest in the public right, the injury of which satisfies the special injury rule. When a public nuisance interferes with the use and enjoyment of a plaintiff's land, he has sustained a special injury and he may proceed under a private nuisance action. Environmental Law--The Nuances of Nuisance in a Private Action to Control Air Pollution (1978), 80 W.Va.L.Rev. 48, at 54, 55.

The determination that the appellees have been especially damaged by the appellants' zoning violation determines the appellees' "standing" to bring an injunction action; it does not resolve the question of whether an injunction should actually be issued by the trial court to remove the offending part of the car wash.

All states hold that a mandatory injunction is a proper remedy for an adjoining landowner to...