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r FILE D g COURT OF COMMON PLEAS
mint BUTLER COUNTY, OHIO
prs ANS
WILLIAM BALSIN NG Sha County Case No. CV2008-05-2099
Zoninigiinepeetgr ay Oney, J.
PignhBY ©
v. | Plaintiff's Reply Memorandum in
i Support of Motion for Summary
| Judgment
FIRST FINANCIAL BANK, et al.
Defendants
In their Memorandum, Defendants William B. Halter and Pamela S. Halter (“Halter”)
contend that genuine issues of material fact exist in this matter. However, said defendants have
failed to file any depositions, affidavits or other evidence in support of their position. The only
evidence before the Court is the uncontradicted affidavit of James Fox and the deposition of
William B. Halter. Although the party against whom a motion for summary judgment is made is
entitled to have the evidence construed most strongly in that party’s favor, the nonmoving party
may not rest solely on the party’s pleadings. Rather, the nonmoving party’s response, by affidavit or
other form of admissible evidence, must set forth specific facts showing that there is a genuine issue
of fact for trial. Civ. R. 56(E). In absence of such a showing, the Court must determine whether the
evidence before the Court establishes that the moving party is entitled to judgment as a matter of
law.
In the instant matter, the evidence is undisputed that the defendant William B. Halter
regularly uses his mother’s residential property for storage of equipment which he uses in his
plumbing business. Although Halter primarily relies upon a decision by the Lorain County Court of
Appeals in Roth v. Cunningham (Lorain Co. App. 8/23/95), No. 95CA006043, 1995 WL 500134
(unreported) to support his position, that decision is distinguishable from the instant action. In the
Roth decision, the Court of Appeals stated:Further, there is no dispute that Cunningham does not use the equipment in question to operate a
business, but performs excavation work on his own property and for neighbors without
compensation, in the spirit of being “neighborly.” The only issue left for appeal is a determination of
whether it was error for the trial court to find that Cunningham’s storage of the vehicles on his
property is incident to the property’s permitted residential/agricultural use.
To the contrary, in the instant action, the evidence clearly establishes that Halter regularly uses the
equipment which he stores on his mother’s property for business purposes.
Section 7.04 of the County Zoning Resolution! limits “accessory uses” to uses which are
“customarily incidental” to any of the uses permitted in an A-1 zoning district. As a matter of law,
the storage of excavation equipment regularly used in a business belonging to a nonresident of the
subject property is not “customarily incidental” to the permitted residential use of the property.
Further, the Court in the Rorh decision stated that,
Incident to the agricultural use of property, a landowner may store farm equipment as a use incident
to the agricultural use of the property. In fact, Roth” himself stores two small tractors and a large
tractor/bulldozer at his residence which he uses in the operation of a tree farm.’
Since R.C. §303.21 prohibits a county from regulating the use of land for agricultural purposes, a
county has no authority to prohibit the storage of farm equipment on property which is actually
being used for agriculture. However, in the instant matter, the evidence establishes that the principal
use of the subject property is residential; there is no evidence of any agricultural activity being
conducted on the property. Therefore, the Court’s decision in Roth that the storage of farm
equipment is incidental to the agricultural use of property is of no relevance in the instant matter.
For the foregoing reasons, Plaintiff respectfully submits that Halter’s use of his mother’s
property for the storage of heavy equipment he uses in his plumbing business is a violation of the
' See, http://development, butlercountyohio.org/content/txtcontent/plan/pdf/RuralZ oningResolutionupdatedMay 162007.pdf.
? Roth was the neighbor who had originally filed the zoning violation complaint with the township zoning inspector and
who ultimately commenced the zoning violation action in the Court of Common Pleas after the township board of
zoning appeals had concluded that the defendant’s storage of excavation equipment on his property was NOT in
violation of the zoning resolution.
* The operation of a tree farm is clearly the use of land for agriculture as defined in R.C. §303.01.
-2-County Zoning Resolution because such use is neither a permitted use, nor an accessory use, on the
subject property.* Plaintiff requests that the Court order that such zoning violation be abated and
that Halter be permanently enjoined from storing his business equipment on the subject property in
violation of the County Zoning Resolution.
Robin N. Piper
Prosecuting Attorney of Butler County, Ohio
Mage aD. ——_
RogerS. Gates, 0001726
Assistant Prosecuting Attorney
P.O. Box 515
Hamilton, OH 45012-0515
(513) 887-3474
Fax: (513) 887-3748
gatesrs@butlercountyohio.org
CERTIFICATE OF SERVICE
This is to certify that on January 15, 2009, a copy of the foregoing Plaintiff's Reply
Memorandum in Support of Motion for Summary Judgment was served by Regular U.S. Mail upon
Richard A. Hyde, Attorney for Defendants, Holcomb, Hyde & Gmoser, 6 South Second St., Suite
311, Hamilton, OH 45011.
Robin N. Piper
Prosecuting Attorney of Butler County, Ohio
vO Cogn. S do
Rogor'S. Gates, 0001726
Assistant Prosecuting Attorney
4 Ina scheduling hearing, the Court queried whether the storage of Halter’s business equipment would be permitted on
the subject property if the equipment was stored inside of the large pole barn on the property. However, the limitations
as to permitted and accessory uses set forth in Article 7 of the County Zoning Resolution apply to both the use of the
land and to the use of buildings or structures located on the land. For this reason, Plaintiff's position is that the storage
of business equipment on the subject property is prohibited regardless of whether the storage is inside, or outside, of a
building or structure.
-3-
Preview
r FILE D g COURT OF COMMON PLEAS mint BUTLER COUNTY, OHIO prs ANS WILLIAM BALSIN NG Sha County Case No. CV2008-05-2099 Zoninigiinepeetgr ay Oney, J. PignhBY © v. | Plaintiff's Reply Memorandum in i Support of Motion for Summary | Judgment FIRST FINANCIAL BANK, et al. Defendants In their Memorandum, Defendants William B. Halter and Pamela S. Halter (“Halter”) contend that genuine issues of material fact exist in this matter. However, said defendants have failed to file any depositions, affidavits or other evidence in support of their position. The only evidence before the Court is the uncontradicted affidavit of James Fox and the deposition of William B. Halter. Although the party against whom a motion for summary judgment is made is entitled to have the evidence construed most strongly in that party’s favor, the nonmoving party may not rest solely on the party’s pleadings. Rather, the nonmoving party’s response, by affidavit or other form of admissible evidence, must set forth specific facts showing that there is a genuine issue of fact for trial. Civ. R. 56(E). In absence of such a showing, the Court must determine whether the evidence before the Court establishes that the moving party is entitled to judgment as a matter of law. In the instant matter, the evidence is undisputed that the defendant William B. Halter regularly uses his mother’s residential property for storage of equipment which he uses in his plumbing business. Although Halter primarily relies upon a decision by the Lorain County Court of Appeals in Roth v. Cunningham (Lorain Co. App. 8/23/95), No. 95CA006043, 1995 WL 500134 (unreported) to support his position, that decision is distinguishable from the instant action. In the Roth decision, the Court of Appeals stated:Further, there is no dispute that Cunningham does not use the equipment in question to operate a business, but performs excavation work on his own property and for neighbors without compensation, in the spirit of being “neighborly.” The only issue left for appeal is a determination of whether it was error for the trial court to find that Cunningham’s storage of the vehicles on his property is incident to the property’s permitted residential/agricultural use. To the contrary, in the instant action, the evidence clearly establishes that Halter regularly uses the equipment which he stores on his mother’s property for business purposes. Section 7.04 of the County Zoning Resolution! limits “accessory uses” to uses which are “customarily incidental” to any of the uses permitted in an A-1 zoning district. As a matter of law, the storage of excavation equipment regularly used in a business belonging to a nonresident of the subject property is not “customarily incidental” to the permitted residential use of the property. Further, the Court in the Rorh decision stated that, Incident to the agricultural use of property, a landowner may store farm equipment as a use incident to the agricultural use of the property. In fact, Roth” himself stores two small tractors and a large tractor/bulldozer at his residence which he uses in the operation of a tree farm.’ Since R.C. §303.21 prohibits a county from regulating the use of land for agricultural purposes, a county has no authority to prohibit the storage of farm equipment on property which is actually being used for agriculture. However, in the instant matter, the evidence establishes that the principal use of the subject property is residential; there is no evidence of any agricultural activity being conducted on the property. Therefore, the Court’s decision in Roth that the storage of farm equipment is incidental to the agricultural use of property is of no relevance in the instant matter. For the foregoing reasons, Plaintiff respectfully submits that Halter’s use of his mother’s property for the storage of heavy equipment he uses in his plumbing business is a violation of the ' See, http://development, butlercountyohio.org/content/txtcontent/plan/pdf/RuralZ oningResolutionupdatedMay 162007.pdf. ? Roth was the neighbor who had originally filed the zoning violation complaint with the township zoning inspector and who ultimately commenced the zoning violation action in the Court of Common Pleas after the township board of zoning appeals had concluded that the defendant’s storage of excavation equipment on his property was NOT in violation of the zoning resolution. * The operation of a tree farm is clearly the use of land for agriculture as defined in R.C. §303.01. -2-County Zoning Resolution because such use is neither a permitted use, nor an accessory use, on the subject property.* Plaintiff requests that the Court order that such zoning violation be abated and that Halter be permanently enjoined from storing his business equipment on the subject property in violation of the County Zoning Resolution. Robin N. Piper Prosecuting Attorney of Butler County, Ohio Mage aD. ——_ RogerS. Gates, 0001726 Assistant Prosecuting Attorney P.O. Box 515 Hamilton, OH 45012-0515 (513) 887-3474 Fax: (513) 887-3748 gatesrs@butlercountyohio.org CERTIFICATE OF SERVICE This is to certify that on January 15, 2009, a copy of the foregoing Plaintiff's Reply Memorandum in Support of Motion for Summary Judgment was served by Regular U.S. Mail upon Richard A. Hyde, Attorney for Defendants, Holcomb, Hyde & Gmoser, 6 South Second St., Suite 311, Hamilton, OH 45011. Robin N. Piper Prosecuting Attorney of Butler County, Ohio vO Cogn. S do Rogor'S. Gates, 0001726 Assistant Prosecuting Attorney 4 Ina scheduling hearing, the Court queried whether the storage of Halter’s business equipment would be permitted on the subject property if the equipment was stored inside of the large pole barn on the property. However, the limitations as to permitted and accessory uses set forth in Article 7 of the County Zoning Resolution apply to both the use of the land and to the use of buildings or structures located on the land. For this reason, Plaintiff's position is that the storage of business equipment on the subject property is prohibited regardless of whether the storage is inside, or outside, of a building or structure. -3-