Monus v. Day
| Decision Date | 13 June 2011 |
| Docket Number | CASE NO. 10 MA 35 |
| Parties | ROBERT MONUS, POLAND TOWNSHIP ZONING INSPECTOR, PLAINTIFF-APPELLEE, v. LEO C. DAY, Jr., et al. DEFENDANTS-APPELLANT. |
| Court | Ohio Court of Appeals |
For Plaintiff-Appellee:
Attorney David Shepherd
Turner, May & Shepherd
Attorney Paul Gains
Prosecutor
Attorney Karen Gaglione
Assistant Prosecutor
For Defendants-Appellant:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
{¶1} Pro-se Defendant-Appellant, Leo C. Day, Jr., appeals the January 22, 2010 judgment of the Mahoning County Court of Common Pleas overruling objections to a magistrate's decision and permanently enjoining Day, pursuant to R.C. 519.24, from using his property in violation of a Poland Township Zoning Resolution that prohibits the storage of abandoned, wrecked and dismantled vehicles and other equipment. On appeal, Day raises eleven assignments of error which include: the failure to join an indispensable party; violation of his Fourth and Fifth Amendment rights; improper admission of evidence at trial; failure to proceed with a case that had been consolidated with the instant case; finding a violation of the zoning ordinance without a finding of public nuisance or threat to public health and safety; failure to find that res judicata applied to this case; applying the zoning ordinance to the property despite earlier litigation establishing the right to continue a preexisting non-conforming use; and finally that the trial court erred in failing to find that judgments in other cases were void for lack of subject matter jurisdiction.
{¶2} Upon review, all of Day's assignments of error are meritless. Day waived the defense of failure to join necessary parties, and even if it was not waived, the president of Day's business was not a necessary party to this suit. R.C. 2315.02 permits a jury view, or in the case of a bench trial, a court view, of the premises and there is no indication that this violated Day's Fourth Amendment rights. The trial court did not commit plain error by admitting the photographs as exhibits as they were relevant and properly authenticated. The trial court did not abuse its discretion in its management of the consolidated cases. Day's Fifth Amendment rights were not violated by the trial court's order for him to produce documents since they were non-testimonial in nature. The 1978 Injunction, which established Day's nonconforming use, did not exempt the property from all zoning regulation. The Zoning Inspector was not required to find a public nuisance or a threat to public health and safety as a prerequisite to finding a zoning violation on the property. Finally, there is no indication that the trial court lacked subject matter jurisdiction and Day cannot attack the validityof decisions in completely separate cases via motions made or filed in this case. Accordingly, the judgment of the trial court is affirmed.
{¶3} Day owns real property located at 4301 Dobbins Road in Poland Township. There is a long history of zoning-related litigation regarding this property. In 1947, Day's grandfather, Ilie Day, started a truck hauling business on the property. In 1949, Poland Township passed a zoning ordinance classifying the property as agricultural for zoning purposes. This classification prohibited usage of the property for the truck hauling business and related activities.
{¶4} Thereafter, a dispute arose between Poland Township and Ilie Day's widow, Bertha Day and her son, Leo Day, Sr., (Day's father), regarding usage of the property. In 1978, Bertha Day and Leo Day, Sr. filed a declaratory judgment action in the Mahoning County Court of Common Pleas, seeking a restraining order against Poland Township (Case No. 78-CV-1876). The Days sought a determination of their right to continue the truck hauling business as a conforming use despite the passage of Poland Township's zoning ordinance. At that time, the business had grown to include the operation of five tractor-trailer trucks and two dump trucks.
{¶5} The trial court granted the Days a permanent injunction for a truck hauling business. In its order, the court stated, in pertinent part:
{¶6} "The evidence is clear to this Court * * * that although there have been at times trucks stored upon the property and on other occasions some loaded trucks were on the property, these were temporarily there and were connected to the hauling business. The general character of the business has not changed.
{¶7} "It is, also, clear to this Court that although there has been an increase in the traffic on and off the Day property, that this has resulted from an increase in the volume of business rather than an increase in the character and nature of the business.
{¶8} "The Court finds from the evidence that the Plaintiffs [Days] have a valid and existing nonconforming use of the property in question; that the character andnature of the business of the Days has not changed; that there has been no change in the property by way of expansion or by any other means which would destroy the existing right." (1978 Injunction, Case No. 78-CV-1876.)
{¶9} The trial court's decision to grant the permanent injunction was affirmed by this court on appeal. Day v. Poland Twp. Trustees (Sept. 15, 1983), 7th Dist. No. 82 C.A. 76.
{¶10} In 1991, cement trucks and cement making supplies began to appear on the property, which Poland Township viewed as an unlawful extension of the nonconforming use of the property. Poland Township's zoning inspector issued a minor misdemeanor citation to Leo Day, Sr., in Struthers Municipal Court, for violating the zoning laws based on the alleged operation of a cement mixing business on the property. Ultimately, the trial court found Day Sr. not guilty based upon his legal argument that Poland Township's zoning laws at that time did not contain language restricting the extension of pre-existing nonconforming uses as required by R.C. 519.19. However, the court opined "that the present use of the cement trucks on the premises of plaintiff could be prohibited by the Township of Poland if their zoning ordinance was crafted properly so as to prohibit such an extension of a nonconforming use." Poland Township later amended its zoning laws, adding this language indicated by R.C. 519.19.
{¶11} Then, in March 2004, Poland Township filed criminal charges against Day in Struthers Municipal Court for violating a Poland Township Zoning Resolution, then Article 300.4(O)(1), now known as Article 7, Section 7.21, which prohibits the storage of abandoned, wrecked and dismantled vehicles and other equipment on the property. Day was also charged with violating an ordinance regarding a driveway setback requirement. Day moved to dismiss those charges, arguing that the property was exempt from Poland Township's zoning laws as a pre-existing nonconforming use. Appellant also argued that res judicata applied because of prior court rulings declaring the truck hauling business and cement batch plant a pre-existing nonconforming use. Following a bench trial, the trial court denied Day's motion todismiss, found Day guilty of the zoning violations and fined him accordingly. This judgment was affirmed by this court on appeal. Poland Twp. v. Day, 7th Dist. No. 05-MA-220, 2006-Ohio-7070.
{¶12} According to Robert Monus the Poland Township Zoning Inspector, Day failed to bring his property into compliance with the Zoning Resolution, inasmuch as he continued to store abandoned, wrecked, and dismantled trucks, vehicles and other debris and equipment on the property. In 2007, Day was notified in writing of his continued violations of the Zoning Resolution, specifically Article 7, Section 7.21 which states:
{¶13} "None of the following, which have been abandoned, wrecked, or dismantled, shall be permitted to remain on the premises in any zoning district: automobiles, buses, motorcycles, trucks, tractors, boat, trailer, operating equipment, aircraft, furniture or other miscellaneous material."
{¶14} Day failed to come into compliance with the Zoning Resolution, failed to appeal the Zoning Inspector's determination, and was cited criminally in Struthers Municipal Court for violating the Resolution.
{¶15} On June 4, 2007, the Zoning Inspector commenced the instant suit in the Mahoning County Court of Common Pleas for a preliminary and permanent injunction against Day and his mother Bertha,1 pursuant to R.C. 519.24. The Zoning Inspector sought to enjoin Day from using his property in violation of the Zoning Resolution, which would include: "the removal of tires, batteries, construction debris and equipment, and other miscellaneous debris on the Property; that the vehicles and trailers on the Property without current registrations either be updated, removed or properly stored; and for such other relief the Plaintiff may be entitled to by law." Upon joint motion of the parties, the trial court ordered that the preliminary and permanent injunction hearings be heard at the same time.
{¶16} On September 5, 2007, Day filed, through counsel, an answer and counterclaim for declaratory judgment and injunctive relief. Therein, Day challengedthe constitutionality of the Poland Township Zoning Resolution, and of the Township's actions with regard to his property. He sought a declaration that the items on his property are incidental to his pre-existing non-conforming use. He also sought a permanent injunction preventing the Township from enforcing the Zoning Resolution with respect to his property. However, Day failed to join Poland Township as a party.
{¶17} On November 21, 2007, Day filed a separate pro-se action in the Mahoning County Court of Common Pleas: Leo C. Day, Jr. v. Poland Township, Ohio, Case No. 07 CV 4404. Therein, Day sought, inter...
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