Skilwies v. City of Huber Heights
| Docket Number | 3:23-cv-146 |
| Decision Date | 31 August 2023 |
| Parties | Michael Skilwies, Plaintiff, v. City of Huber Heights, et al., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
ENTRY AND ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION. (DOC. 3)
Pending before the Court is Motion for Preliminary Injunction by Plaintiff Michael Skilwies. (Doc. 3). Plaintiff asks the Court to prohibit Defendants from enforcing a cease and desist order against Plaintiff pending the outcome of this litigation. Plaintiff asserts he will be continuously and irreparably harmed, that Plaintiff is likely to succeed on the merits of his claim, and that an injunction would serve the public interest. Having considered Plaintiff's Motion and all other arguments and evidence submitted by the parties, the Court will DENY Plaintiff's motion.
Plaintiff Michael Skilwies owns approximately five acres of land at 9416 Taylorsville Road, Huber Heights, Ohio 45424. (See Doc 18-1, Skilwies Aff., ¶ 2)[1] Plaintiff resides at this address with his wife and children. (See Id., ¶ 3). While Plaintiff's property is zoned for agricultural and low-density residential use, the surrounding area includes industrial facilities. (See Id., ¶ 4). For the past eleven years, Plaintiff has operated a diesel truck and heavy equipment repair business on his property. (See Id., ¶ 5). This is Plaintiff's sole employment. (See Id., ¶ 6). Also, some of Plaintiff's neighbors operate businesses on their properties. (See Id., ¶¶ 9-14). Some of Plaintiff's neighbors have received re-zoning or use-variances for businesses run on their property. (See Id., ¶ 15). However, it does not appear that any other of Plaintiff's neighbors have been required to obtain permits, use-variances, or re-zoning approval to operate their businesses on their respective properties. (See Id., ¶ 16). Rather, it is only Plaintiff's business that has been singled out and arbitrarily denied for rezoning or use-variance. (See Id., ¶ 17).
On September 9, 2020, the City of Huber Heights received a complaint that Plaintiff was operating a diesel truck repair business on his property. . Operation of such a business is not a permitted use of Plaintiff's property under City Zoning Code Section 1142 governing permitted uses on agriculturally zoned property.
(Id.). After receiving the complaint, Plaintiff was contacted by the City and denied that he was running a business on his property. (Id.). At that the time, the matter was closed.
Less than a year later, the City of Huber Heights again received a complaint on August 2, 2021, that Plaintiff was operating a diesel truck repair business on his agriculturally zoned property in violation of zoning code section 1142. (Doc. 14-2, Ex. B).
In 2021, Plaintiff was contacted by the City of Huber Heights and told that his business operation is a non-farm related business, and, thus, does not conform to City zoning regulations. (See Doc. 18-1, Skilwies Aff., ¶ 10). Thereafter, based on the recommendation of the City, in preparation for applying for a use-variance and re-zoning, Plaintiff spent approximately $27,000.00 to widen and repave his driveway. (See Id., ¶ 11). Plaintiff then applied for a use-variance. (See Id., ¶ 12). The City Board of Zoning Appeals denied the application on October 6, 2021. (See Id., ¶ 13).
Following the denial of the variance application, the City re-inspected Plaintiff's property in November of 2021 and discovered that Plaintiff was still operating his diesel truck repair business in violation of the City's zoning code. (Doc. 14-2, Ex. B). As a result, Plaintiff was sent a letter on November 12, 2021, notifying him that if he did not cease operation of the truck repair business within 24 hours, the City would file charges in court for violation of zoning code section 1142. (Doc. 14-4. Ex. D).
After receiving the November 12, 2021 letter, Plaintiff contacted the City, acknowledged receipt of the letter and indicated that his attorney was working on completing an application for a lot-split and rezoning of the property. (Doc. 14-2, Ex. B).
The attorney indicated the application would be filed in “early 2022” and the City agreed to suspend the violation during the appellate process. (Doc. 14-2, Ex. B).
On March 28, 2022, Plaintiff filed an application for a proposed lot split and rezoning. (See Doc. 18-1, Skilwies Aff., ¶ 14). This application proposed that approximately 3.55 acres of Plaintiff's property be re-zoned from “agricultural” to “planned industrial,” which would allow Plaintiff to maintain his diesel truck and heavy equipment repair business on his property. (See Id., ¶ 15). The remainder of the five acres would be zoned residential. (See Id., ¶ 16).
Plaintiff attended a public hearing on July 11, 2022, where the City Council reviewed his application for re-zoning. Plaintiff made statements at this hearing. (See Id., ¶ 17). A staff member from the City Planning Commission presented at this hearing and noted that the City Planning Commission recommended that Plaintiff's re-zoning application be denied due to the following: (1) no public water or sewer available on the site, which may lead to well-water pollution; (2) the proposed lot split is not consistent with the comprehensive plan that the area should remain agricultural and low density residential; (3) the business is a nuisance due to excessive noise, fumes, odors, etc.; and, (4) additional concerns about the potential contamination of drinking water wells due to fluid leaks or spills. (See Id., ¶ 18). The staff member from the City Planning Commission did not present any evidence that Plaintiff's business had or would cause the stated concerns to manifest. (See Id., ¶ 19).
During this hearing, the City Planning Commission staff member noted that City's Board of Zoning Appeals has approved variance requests that do not conform to the City's zoning ordinance. (See Id., ¶ 20). Plaintiff's re-zoning application was voted down by the City Council. (See Id., ¶ 21).
After Plaintiff's re-zoning application was voted down, a proposal to the City Council was submitted, by the City Planner, to amend the current zoning ordinance to allow for automotive and vehicle repair on properties zoned agricultural. (See Id., ¶ 22). Approval of this ordinance amendment by the City Council would have allowed Plaintiff to apply for a special use-variance for his property. That would have allowed Plaintiff to continue operation of his business. (See Id., ¶ 24). The proposed amendment was voted down by the City Council on February 13, 2023. (See Id., ¶ 25).
Plaintiff was not in attendance at the City Council meeting on February 13, 2023, because Plaintiff was initially told that the City Council vote on the proposed ordinance amendment would take place in March of 2023. (See Id., ¶ 26). Furthermore, Plaintiff was never personally notified of the date and time of the final City Council vote. (See Id., ¶ 27). The City did not provide Plaintiff with an explanation as to why his requests for rezoning and use-variance were denied. (See Id., ¶ 28).
Plaintiff asserts that his business does not pose a risk of ground water contamination or any other environmental hazards. (See Id., ¶ 29). He claims the only work performed on diesel trucks and heavy equipment at his property is major engine or transmission repair work. (See Id. 30). Plaintiff does not perform oil changes or regular truck maintenance work on his property. (See Id., ¶ 31). Plaintiff adds that, all the work he performs on diesel trucks and heavy equipment at his property is done indoors on a concrete slab, which he believes ensures that pollutants or fluids do not seep into the ground. (See Id., ¶ 32). The City points out that the building in which Plaintiff performs the diesel repairs does not meet the fire code with respect to such operations, as it does not have any fire hydrants. (Doc. 14-11, Ex. K)
According to Plaintiff, all fluids are caught in sealed drain pans and then pumped into a tank. (See Doc. 18-1, Skilwies Aff., ¶ 33). A waste oil company then periodically comes to drain the tank and haul away the waste. (See Id., ¶ 34). Plaintiff believes this mitigates any concerns of ground or well water contamination. (See Id., ¶ 35). Until recently, Plaintiff had never received any complaints from neighbors or the City concerning the operation of his business. (See Id., ¶ 36). Plaintiff asserts that any noise or annoyance of which a neighbor has complained do not emanate from the diesel trucks or heavy equipment from Plaintiff's business. (See Id., ¶ 37). Plaintiff believes his business fits within the general scheme of the area because Plaintiff's business is similarly situated to other businesses, industrial or otherwise, within the immediate area. (See Id., ¶ 38).
On February 16, 2023, the City of Huber Heights sent Plaintiff a letter that ordered Plaintiff to cease and desist operation of his business. (Id. ¶ 39). The letter notes that Plaintiff has exhausted all available administrative remedies. (See Id., ¶ 40). The letter gave Plaintiff 120 days, commencing March 1, 2023, to wind down his business. (See Id., ¶ 41). Plaintiff has filed a Complaint seeking redress for alleged violations of Plaintiff's Fifth and Fourteenth Amendment rights, and injunctive relief. (See Doc. 1, Complaint, ¶¶ 78-104). The parties have agreed to maintain the status quo, pending resolution of this motion. (Doc. 10)
As noted by the Sixth Circuit:
[P]reliminary injunctions are extraordinary and drastic remedies never awarded as of right. And that is why the plaintiff bears the burden...
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