State ex rel. Perrine v. Alborn ( 2012 )


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  • [Cite as State ex rel. Perrine v. Alborn, 
    2012-Ohio-3051
    .]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO, EX REL.                                       JUDGES:
    SHARON PERRINE, ZONING                                       Hon. Patricia A. Delaney, P.J.
    INSPECTOR, PIKE TOWNSHIP,                                    Hon. William B. Hoffman, J.
    STARK COUNTY, OHIO, ET. AL.                                  Hon. Sheila G. Farmer, J.
    Plaintiffs-Appellees                                 Case No. 2011CA00263
    -vs-
    OPINION
    EDWARD CHARLES ALBORN, ET AL.
    Defendants-Appellants
    CHARACTER OF PROCEEDING:                                 Appeal from the Stark County Court of
    Common Pleas, Case No. 2009CV01110
    JUDGMENT:                                                Affirmed
    DATE OF JUDGMENT ENTRY:                                  June 29, 2012
    APPEARANCES:
    For Plaintiffs-Appellees                                 For Defendants-Appellants
    CHARLES D. HALL III                                      ROBERT H. CYPERSKI
    Hall Law Firm                                            1201 30th St. N.W., Suite 102-B
    610 Market Ave. North                                    Canton, Ohio 44709
    Canton, Ohio 44702
    Stark County, Case No. 2011CA00263                                                  2
    Hoffman, J.
    {¶1}    Defendants-appellants Edward Alborn and Edna Elliot appeal the
    November 3, 2011 Judgment Entry entered by the Stark County Court of Common
    Pleas in favor of the State of Ohio ex rel. Sharon Perrine, Zoning Inspector, Pike
    Township, Stark County, Ohio.
    STATEMENT OF THE FACTS AND CASE
    {¶2}    Appellant Edna Elliott owns real property located at 2090 Riceford Road
    S.W., Pike Township, Stark County, Ohio, consisting of 42.48 acres. The property is
    zoned R-1, one and two family residential, under the Pike Township zoning regulations.
    Appellant Edward Alborn resides on the property.       In the past, Appellant Alborn
    operated a number of businesses on the property, and claims he remains self-employed
    at seventy-eight years of age. Alborn operated businesses of stripping coal, clay and
    shale, trucking and performing fabrication and mechanical work.      He continues to
    perform some fabrication and mechanical repairs and some livestock farming to
    supplement his Social Security income. He has not had an Ohio Vendor’s License, has
    not held a business checking account, has not filed any Ohio or Federal Income Tax
    returns, has not issued any 1099’s to suppliers or independent contractors, has not
    issued any W-2’s to any employee, and has not held a Commercial Driver’s License for
    more than four years. Appellants have never lawfully operated a junk yard or salvage
    yard from the property.
    {¶3}    Appellee State of Ohio, ex rel. Sharon Perrine, Zoning Inspector, Pike
    Township, Stark County filed a complaint against Appellants on March 19, 2009
    asserting Appellants had discontinued their nonconforming use and were in violation of
    Stark County, Case No. 2011CA00263                                                   3
    the zoning laws of Pike Township. Appellee filed a motion for summary judgment,
    which the trial court denied.
    {¶4}   On September 13, 2010, the matter proceeded to a non-jury trial. On April
    27, 2011, the Magistrate issued a decision finding Appellants were in violation of the
    Pike Township Zoning Regulations, and ordered Appellant remove all items not
    compatible with an agricultural or residential use within thirty days. Appellants filed
    objections to the Magistrate’s decision.
    {¶5}   Via Judgment Entry of November 3, 2011, the trial court issued an order
    modifying and adopting the Magistrate’s decision.
    {¶6}   Appellants now appeal, assigning as error:
    {¶7}   “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
    THAT THE APPELLANTS ARE IN VIOLATION OF THE PIKE TOWNSHIP ZONING
    RESOLUTIONS, AS THIS DECISION WAS AGAINST THE MANIFEST WEIGHT OF
    THE EVIDENCE.
    {¶8}   “II. THE TRIAL COURT COMMITTED AN ERROR IN DETERMINING
    THAT MANY OF THE ITEMS ON THE PROPERTY COULD NOT BE USED FOR
    AGRICULTURAL OR RESIDENTIAL USE AND THEREFORE ARE JUNK VEHICLES
    AND MUST BE REMOVED FROM THE PROPERTY.
    {¶9}   “III. THE TRIAL COURT COMMITTED AN ERROR IN FAILING TO
    DETERMINE THAT ENFORCING ZONING REGULATIONS OF PIKE TOWNSHIP
    WILL SO INTEREFERE [SIC] WITH THE USE OF THE PROPERY [SIC] AS TO
    CONSTITUTE A TAKING OF THE PROPERTY.”
    Stark County, Case No. 2011CA00263                                                      4
    I., II, and III.
    {¶10} Appellants’ assigned errors raise common and interrelated arguments;
    therefore, we will address the assignments of error together.
    {¶11} Upon review of an administrative appeal, a court of common pleas
    considers whether the enforcement of a zoning resolution is supported by a
    "preponderance of substantial, reliable, and probative evidence on the whole record."
    R.C. 2506.04. An appellate court's review of the trial court's judgment is limited to
    affirming the decision of the trial court unless the appellate court finds, as a matter of
    law, the trial court's decision is not supported by a preponderance of reliable, probative
    and substantial evidence. 
    Id.
     Further, the appellate court is limited to reviewing the
    judgment of the trial court strictly on questions of law. 
    Id.
    {¶12} O.R.C. 519.02(A) governs non-conforming uses, providing:
    {¶13} "The lawful use of any dwelling, building, or structure and of any land or
    premises, as existing and lawful at the time of enactment of a zoning resolution or
    amendment thereto, may be continued, although such use does not conform with such
    resolution or amendment, but if any such nonconforming use is voluntarily discontinued
    for two years or more, any future use of said land shall be in conformity with sections
    519.02 to 519.25, inclusive, of the Revised Code. The board of township trustees shall
    provide in any zoning resolution for the completion, restoration, reconstruction,
    extension, or substitution of nonconforming uses upon such reasonable terms as are
    set forth in the zoning resolution"
    {¶14} The Pike Township Zoning Resolution complies with the requirements and
    provides, "[w]henever a nonconforming use has been discontinued for a period of two
    Stark County, Case No. 2011CA00263                                                     5
    years or more, any further use shall be in conformity with the provisions of this
    Resolution." Pike Township Resolution, SECTION TEN, TITLE II(F).
    {¶15} Here, Appellant Alborn testified at trial it has been more than two years
    since he engaged in any strip mining of clay, shale or other materials from the property.
    Further, the equipment at issue has been sitting idle, in the same position, in the open,
    for two years.   He testified at trial he has not engaged in sandblasting or painting
    railroad stock for at least three years. He has not run a stone crushing operation for at
    least four years. The truck driving business has been discontinued for over two years,
    and two of the three semi-tractors have been sitting on the property unlicensed for
    several years, unmoved. In addition, the evidence and testimony introduced at trial
    support the trial court's finding numerous items and vehicles on the property are
    damaged and inoperable. Based upon the above, we find the trial court’s decision was
    supported by a preponderance of substantial reliable, and probative evidence.
    {¶16} Appellant argues the ordinance so interferes with the use of his property it,
    in effect, constitutes a taking. Jaylin Investments, Inc. v. Moreland Hills (2006), 
    107 Ohio St.3d 339
    . However, the application of a general zoning regulation to a particular
    property is not a taking if it does not deny an owner all economically viable use of his
    land, does not render the land valueless, or does not force only uses which, under the
    circumstances, are highly improbable, practically impossible, or not economically
    feasible. 
    Id.
     The landowner bears the burden to prove there is no economically viable
    use of his land. Valley Auto Leases of Chagrin Falls, Inc v. Auburn Twp. Bd. Of Zoning
    Appeals (1988), 
    36 Ohio St.3d 184
    .    A mere deprivation of some economic rights does
    Stark County, Case No. 2011CA00263                                                   6
    not amount to a denial of all use of one's property, including the rights of possession
    and use of the property. McKee v. Akron (1964), 
    176 Ohio St. 282
    .
    {¶17} Here, Appellants have not demonstrated he has been deprived of any
    economic right as a result of the zoning enforcement. Rather, the evidence introduced
    at trial demonstrates Appellant Alborn has not had a business checking account for
    several years, and has not operated a profitable business on the property for several
    years prior to the action taken herein. Furthermore, Appellants have not shown the
    zoning regulation denies them all economically viable use of the land. Accordingly, we
    find Appellants have not met the necessary burden to demonstrate a taking.
    {¶18} Appellants’ assignments of error are overruled, and the judgment of the
    Stark County Court of Common Pleas is affirmed.
    By: Hoffman, J.
    Delaney, P.J. and
    Farmer, J. concur
    s/ William B. Hoffman _________________
    HON. WILLIAM B. HOFFMAN
    s/ Patricia A. Delaney _________________
    HON. PATRICIA A. DELANEY
    s/ Sheila G. Farmer __________________
    HON. SHEILA G. FARMER
    Stark County, Case No. 2011CA00263                                               7
    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO, EX REL.
    SHARON PERRINE, ZONING
    INSPECTOR, PIKE TOWNSHIP,
    STARK COUNTY, OHIO, ET. AL.               :
    :
    Plaintiffs-Appellees               :
    :
    -vs-                                      :         JUDGMENT ENTRY
    :
    EDWARD CHARLES ALBORN, ET AL.             :
    :
    Defendants-Appellants              :         Case No. 2011CA00263
    For the reasons stated in our accompanying Opinion, and the judgment of the
    Stark County Court of Common Pleas is affirmed. Costs to Appellants.
    s/ William B. Hoffman _________________
    HON. WILLIAM B. HOFFMAN
    s/ Patricia A. Delaney _________________
    HON. PATRICIA A. DELANEY
    s/ Sheila G. Farmer___________________
    HON. SHEILA G. FARMER
    

Document Info

Docket Number: 2011CA00263

Judges: Hoffman

Filed Date: 6/29/2012

Precedential Status: Precedential

Modified Date: 10/30/2014