Prairie Township Board of Trustees v. Tad A. Hay

• Decision Date: 12 September 2002
• Docket Number: 01AP-1198,02-LW-3813
• Citation: 2002 Ohio 4765
• Parties: Prairie Township Board of Trustees et al., Plaintiffs-Appellees, v. Tad A. Hay et al., Defendants-Appellants.
• Court: Ohio Court of Appeals

2002-Ohio-4765

Prairie Township Board of Trustees et al Plaintiffs-Appellees, v. Tad A. Hay et al., Defendants-Appellants.

No. 01AP-1198

02-LW-3813 (10th)

Court of Appeals of Ohio, Tenth District, Franklin County.

September 12, 2002

Loveland & Brosius, and William L. Loveland, for appellees.

Blaugrund Herbert & Martin, Inc., Christopher T. Cline and StevenE. Hillman, for appellants.

APPEAL from the Franklin County Municipal Court, Environmental Division.

BRYANT J.

{¶1} Defendants-appellants, Tad A. Hay (individually, "Hay"), Rene D. Hay, Kenneth A. Hay Jr., and Mary Ann Hay (collectively, "defendants"), appeal from a judgment of the Franklin County Municipal Court, Environmental Division, granting the request for permanent injunctive relief of plaintiffs-appellees, Prairie Township Board of Trustees and Office of the Prairie Township Zoning Inspector (collectively, "Prairie Township").

{¶2} According to Prairie Township, defendants are record owners of three parcels of real estate in Prairie Township, Franklin County, Ohio. Two of the parcels are located in an agricultural zoning district, and one parcel is located in a general business zoning district. An improved county drainage ditch, known as the Reese County Ditch, traverses the parcel located in the general business zoning district. A previous owner, not the defendants, tiled the ditch at the point where it traverses the parcel.

{¶3} Around November 12, 1998, the Prairie Township zoning inspector notified Hay about violations concerning Hay's operation of a trucking business in an agricultural zoning district without a permit, and ordered Hay to take corrective action. Although Hay was informed of an appeal process, Hay did not appeal the zoning violation. Later, through a zoning violation notice dated January 4, 1999, the Prairie Township zoning inspector notified Hay about violations arising from excavation of a drainage pond and fill activities without a permit. The January 4 notice ordered Hay to immediately discontinue all excavation and fill activities, to file an application for a certificate of zoning compliance, and to obtain drainage approval from the township's designated engineer. Although Hay again was informed of an appeal process, Hay did not appeal the zoning violation.

{¶4} Approximately one week later, in a zoning violation notice dated January13, 1999, the Prairie Township zoning inspector again notified Hay about violations concerning the excavation of the drainage pond and fill activities without a zoning compliance certificate. The township zoning inspector ordered Hay to immediately discontinue all fill and excavation activities at the site. Hay was also advised of the need to obtain a conditional use certificate if Hay intended to construct a self-storage or mini-storage facility on the property. As with the other zoning violations, Hay was notified of the opportunity to appeal, but did not appeal.

{¶5} According to Prairie Township, in April 1999, Hay applied for a conditional use permit seeking approval for the establishment, construction and operation of self-storage units on the parcel located in the general business zoning district. A hearing to consider the matter was scheduled for May 11, 1999. Because Hay's conditional use permit application was insufficient and incomplete, Hay was granted a continuance. Later Hay also requested a variance to permit the proposed self-storage units to have a greater height than allowed by township zoning resolution and to permit the self-storage facilities to have outdoor storage areas.

{¶6} After voluntarily withdrawing the conditional use permit application and variance request, Hay filed new applications for a conditional use permit and a variance. In August 1999, the applications came before the township board of zoning appeals, and were found to be incomplete; Hay again voluntarily withdrew the applications.

{¶7} In a zoning violation notice dated March 29, 2000, the township zoning inspector again advised Hay about zoning violations on his property. In the notice, the township zoning inspector alleged Hay had (1) commenced site work without a required zoning permit and had engaged in truck storage, truck maintenance and a trucking business without a required zoning permit, (2) impermissibly operated a truck storage, truck maintenance, materials storage or transfer and trucking business on property located in an agricultural district, (3) performed site work and operated a trucking business that did not comply with location and setback requirements, (4) failed to install required screening, (5) unlawfully parked and stored trucks and earthmoving equipment, oversized and overweight vehicles, and (6) failed to screen the outdoor storage. Hay was ordered to immediately restore the ditch excavation site, fill the pond he had constructed, and discontinue all commercial activities. Although Hay was notified of an appeal process, Hay did not appeal the notice of zoning violations.

{¶8} On November 22, 2000, Prairie Township filed a complaint that included requests for a declaratory judgment and injunctive relief. Prairie Township asserted Hay violated multiple township zoning provisions, including (1) excavating the Reese Ditch without township approval, and inadequately or incorrectly installing new pipe or tile that did not comply with county engineer specifications, (2) constructing a pond on the parcel located in the general business district without township approval, (3)impermissibly parking large dump trucks, a bulldozer, and other items of commercial and business equipment, (4) impermissibly storing rock and gravel on the property, and (5)impermissibly maintaining a trucking or hauling business from the property.

{¶9} On December 27, 2000, "with the concurrence of other defendants," Hay filed a counterclaim alleging defendants Kenneth Hay, Jr., Mary Ann Hay, and he owned the two parcels located in the agricultural zoning district, while all four defendants owned the parcel located in the general business zoning district.

{¶10} Hay further alleged that the Reese Ditch appeared obstructed at the time the property was purchased and did not properly function. According to Hay, while he was in the process of seeking a solution to the drainage problem, he met with representatives from the county engineer's office, the soil and water conservation service, and county commissioners, as well as his own engineer and architect. To improve drainage, Hay admitted to installing a modern plastic drain tile. Hay also admitted to (1) constructing a pond stocked with fish, that served as an amenity for his family, (2) purchasing stone and gravel for placement along the banks of the pond to prevent erosion, (3) filling and grading his property with topsoil to improve the quality of his land, and (4) parking and storing dump trucks on his agriculturally zoned property. Hay, however, denied having a business office on his property related to his hauling business. Because the land is located in an agricultural zoning district, Hay alleged nothing prohibited him from parking or storing his trucks on that land.

{¶11} On July 23, 2001, the trial court heard Prairie Township's request for permanent injunctive relief. Following an on-site view of the property at issue, the trial court conducted a hearing on the record in the courtroom. On September 27, 2001, the trial court granted Prairie Township's request for permanent injunctive relief. Without ruling on the merits, the trial court concluded that "[t]he failure to contest those determinations through the administrative appeal process that was available to them, an appeal process that would have included an administrative hearing subject to judicial review, now deprives defendants of the opportunity to contest those determinations in this subsequent judicial proceeding." (Decision, 6.)

{¶12} Defendants timely appeal, assigning the following errors:

{¶13} "FIRST ASSIGNMENT OF ERROR

{¶14} "The Trial Court Erred In Finding That a Failure To Appeal The 'Determinations' of The Zoning Inspector to The Township Board of Zoning Appeals Resulted In Res Judicata of All Allegations Contained In The Notices of Zoning Violation Included With Said 'Determinations.'

{¶15} "SECOND ASSIGNMENT OF ERROR

{¶16} "The Permanent Injunction and Order Issued By The Trial Court Herein Does Not Comply With Civil Rule 65(D) In That It Does Not Specify The Terms Of The Injunction In Reasonable Detail But Rather Refers To Other Documents For Such Details.

{¶17} "THIRD ASSIGNMENT OF ERROR

{¶18} "The Trial Court Erred In Overruling Defendants' Request for Declaratory and Injunctive Relief And In Granting The Relief Requested By The Township. The Trial Court Should Instead Have Found That The Subjects Addressed In This Action Exceeded The Scope Of Regulation Permitted A Township Under Revised Code Chapter 519."

{¶19} Defendants' first assignment of error asserts the trial court erred in finding res judicata barred defendants from contesting the factual and legal basis for Prairie Township's request for permanent injunctive relief. Initially, defendants' first assignment of error questions Prairie Township's authority to issue a notice, and adjudge the merits, of a zoning violation. If Prairie Township does not have such authority, then Prairie Township's current practice is invalid, Hay was under no duty to contest the zoning violations he received, and the failure to contest the violations would not bar Hay's litigating the issues in this action.

{¶20} Townships have no inherent or constitutional police power; consequently townships have only the zoning power delegated to them by the General Assembly. Ketchel v. Bainbridge Twp. (1990), 52...