Preview
i¢QRT OF COMMON PLEAS
poe BUTLER COUNTY, OHIO
eo 1S AM IO: 1g
WILLIAM BALSINGER, Butler County
Case No. CV2008-05-2099
Zoning Inspéetbr] F COUNT be Oney, J.
Plaintiff | "OF COURTS
Judgment
FIRST FINANCIAL BANK, et al.
|
|
v. Plaintiff's Motion for Summary
Defendants |
Pursuant to Civil Rule 56, Plaintiff requests that he be granted Summary Judgment
finding that Defenants’ use of the property at 6561 Fairfield Rd., Oxford, OH 45056, for
business purposes violates the provisions of the Butler County Zoning Resolution, and ordering
that Defendants immediately abate such violation by ceasing the use of such property for
business purposes. Based upon the deposition of William Benz Halter and the attached affidavit
of James Fox, there are no genuine issues of any material fact, and Plaintiff is entitled to
judgment as a matter of law.
Robin N. Piper
Prosecuting Attorney of Butler County, Ohio
Assistant Prosecuting Attorney
P.O. Box 515
Hamilton, OH 45012-0515
(513) 887-3474
Fax: (513) 887-3748
gatesrs@butlercountyohio.org
MEMORANDUM
Civil Rule 56(C) provides that summary judgment may be rendered in favor of a moving
party:if the pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the action,
show that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.
Rule 56(C) further provides that
A summary judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds can come to
but one conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, that party being entitled to have the evidence or stipulation
construed most strongly in the party's favor.
Although the party against whom the motion 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 but rather must set forth specific facts showing that there is a genuine issue of fact for
trial. Civ. R. 56(E).
The facts in this matter are not materially in dispute. William Benz Halter (“Halter”) is
the sole proprietor of a plumbing business located in Oxford Township, Butler County, Ohio
(Depos. of William Benz Halter, 10/8/2008, p. 6). The real property located at 6561 Fairfield Rd.
in Oxford Township, is currently owned by Halter’s mother (/d. at 12).
Halter owns a backhoe, a dump truck, a loader/bulldozer, a trencher, a semi-tractor and a
flat bed trailer which he uses in his plumbing business (/d. at 11, 15-16). Halter moves this
equipment around to various locations as his work requires, and he stores said equipment! at his
mother’s property at 6561 Fairfield Road when it is convenient for him to do so (/d. at 13-18, 23-
24, 26, 37-38, 39-41). When the equipment is not stored at his mother’s property, Halter
typically stores his equipment either at a jobsite (when he has a multi-day job), or at his
residence located at 7295 Brookville Road in Oxford Township (/d.). Halter also sometimes has
' Halter also has different size buckets for his backhoe which he sometimes stores at this mother’s property (Id. at
37).
2material (such as pipe) left after he finishes a job, and he sometimes stores that left-over material
at his mother’s property (/d. at 27).
Although he does not have a written lease, Halter’s mother has given him permission to
use her property for the storage of his business equipment and materials (Id. at 29). The principal
use of Mrs. Halter’s property is as a residence; the property contains 9 acres (Affidavit of James
Fox).
The property located at 6561 Fairfield Road is subject to the terms of the Butler County
Zoning Resolution (Affidavit of James Fox, attached). The property is located in an A-1,
Agricultural District, on the Butler County Zoning Map (Id.).
RC. §303.02 provides that a board of county commissioners may, by resolution, regulate
the uses of land, buildings and other structures for trade, industry, residence, recreation or other
purposes in the unincorporated territory of the county. Pursuant to this authority, the Board of
County Commissioners of Butler County has adopted the Butler County Zoning Resolution; a
copy of the resolution has been filed with the Clerk in this matter. R.C. §303.23 provides:
No person shall locate, erect, construct, reconstruct, enlarge, change, maintain, or use any
building or use any land in violation of a resolution, or amendment or supplement to such
resolution, adopted by any board of county commissioners under sections 303.01 to 303.25,
inclusive, of the Revised Code. Each day's continuation of such violation is a separate
offense.
Section 6.01 of the Butler County Zoning Resolution also provides that:
Except as hereinafter specified, no land, building, structure, or premises shall hereafter be
used, and no building or part thereof, or other Structure, shall be located, erected, moved,
reconstructed, extended, enlarged or altered except in conformity with the regulations
herein specified for the District in which it is located,
If any building or property subject to the zoning resolution is being used in violation of the terms
of the zoning resolution, R.C. §303.24 authorizes the county zoning inspector to “institute
3+injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent,
enjoin, abate, or remove” such violation.
The regulations specified for an A-1, Agricultural, District are contained in Article 7 of
the Zoning Resolution. Section 7.01 of the Resolution provides:
PURPOSE. The intent of the A-1 Agricultural District is to reserve land exclusively for
agricultural cultivation, very low density residential development and other activities that
are basically rural in character.
The permitted uses of land in an A-1 District are listed in Section 7.02 of the Zoning Resolution.
Mrs. Halter primarily uses her property for her residence. Nothing in Section 7.02 authorizes the
use of this property for commercial purposes. Since Halter uses the property to store his business
equipment, he is clearly in violation of the Zoning Resolution.
In conjunction with the specified principal permitted uses, Section 7.04 of the Zoning
Resolution authorizes certain, “[a]ecessory uses, buildings and structures customarily incidental
to any of the aforesaid permitted or conditional uses.” One of the authorized accessory uses is “a
private garage or off-street parking area.” The term “private garage” is defined in Section 4.61
as:
A detached accessory building or a portion of the principal building used only for the
storage of self- propelled passenger vehicles or trailers and incidental personal property by
the families resident upon the premises.
Section 4.98 defines a “private parking area” as “an open area for the same use as a private
garage. Because Halter does not reside at the subject property, his use of the property for parking
his business equipment on the property cannot qualify as either a private garage or off-street
parking area.
Nor is Halter’s use of the property for the storage of the heavy equipment used in his
plumbing business “customarily incidental” to the use of land for a single family residence. The
residents of this type of property would not customarily permit other persons, who do not resideat the property, to use the property for the storage of commercial heavy equipment. See, e.g.,
Samsa v. Heck (Summit Co. 1967), 13 Ohio App.2d 94, 102 (“The record here clearly precludes
this court from finding that the storage of an airplane, and the creation of an airport for flying in
and out of the zoned property, constitutes a use of the property customarily incident to a single
family residential use, or a use so necessary or commonly to be expected that it cannot be
thought that the zoning resolution was intended to prevent it.”); see, also, Knoxville v. Brown
(1953), 195 Tenn. 501, 512, 260 S.W.2d 264, 269 (“We of course can think of all kinds of
hobbies, many of which would customarily and ordinarily be considered as a proper use for a
one-family dwelling but when a hobby reaches the proportion of the destruction of the
neighborhood by the use of assembling and tearing down of numerous automobiles, in this case
nine, this goes far beyond any common sense idea of what a One-Family Dwelling might be used
for.”), quoted with approval, Parma Heights v, Jaros (1 990), 69 Ohio App.3d 623, 630.
For the foregoing reasons, Halter’s use of his mother’s residential property for his
business purposes is contrary to the terms of the Butler County Zoning Resolution. Therefore,
the Court should issue an order restraining the use of the subject property for that purpose, and
ordering Halter to immediately remove his business equipment from his mother’s property.
Respectfully Submitted
Robin N. Piper
Prosecuting Attorney of Butler County, Ohio
A Ss. Kom
Rogér S. Gates, 0001726
Assistant Prosecuting AttorneyCERTIFICATE OF SERVICE
This is to certify that on December 15, 2008, a copy of the foregoing Plaintiff's Motion
for Summary Judgment was served by Regular U.S. Mail upon the following:
Richard A. Hyde, Holcomb, Hyde & Gmoser, 6 South Second St., Suite 311, Hamilton, OH
45011
Robin N. Piper
Prosecuting Attorney of Butler County, Ohio
By
Rogef S. Gates, 0001726
Assistant Prosecuting Attorney
-6-
Preview
i¢QRT OF COMMON PLEAS poe BUTLER COUNTY, OHIO eo 1S AM IO: 1g WILLIAM BALSINGER, Butler County Case No. CV2008-05-2099 Zoning Inspéetbr] F COUNT be Oney, J. Plaintiff | "OF COURTS Judgment FIRST FINANCIAL BANK, et al. | | v. Plaintiff's Motion for Summary Defendants | Pursuant to Civil Rule 56, Plaintiff requests that he be granted Summary Judgment finding that Defenants’ use of the property at 6561 Fairfield Rd., Oxford, OH 45056, for business purposes violates the provisions of the Butler County Zoning Resolution, and ordering that Defendants immediately abate such violation by ceasing the use of such property for business purposes. Based upon the deposition of William Benz Halter and the attached affidavit of James Fox, there are no genuine issues of any material fact, and Plaintiff is entitled to judgment as a matter of law. Robin N. Piper Prosecuting Attorney of Butler County, Ohio Assistant Prosecuting Attorney P.O. Box 515 Hamilton, OH 45012-0515 (513) 887-3474 Fax: (513) 887-3748 gatesrs@butlercountyohio.org MEMORANDUM Civil Rule 56(C) provides that summary judgment may be rendered in favor of a moving party:if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(C) further provides that A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor. Although the party against whom the motion 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 but rather must set forth specific facts showing that there is a genuine issue of fact for trial. Civ. R. 56(E). The facts in this matter are not materially in dispute. William Benz Halter (“Halter”) is the sole proprietor of a plumbing business located in Oxford Township, Butler County, Ohio (Depos. of William Benz Halter, 10/8/2008, p. 6). The real property located at 6561 Fairfield Rd. in Oxford Township, is currently owned by Halter’s mother (/d. at 12). Halter owns a backhoe, a dump truck, a loader/bulldozer, a trencher, a semi-tractor and a flat bed trailer which he uses in his plumbing business (/d. at 11, 15-16). Halter moves this equipment around to various locations as his work requires, and he stores said equipment! at his mother’s property at 6561 Fairfield Road when it is convenient for him to do so (/d. at 13-18, 23- 24, 26, 37-38, 39-41). When the equipment is not stored at his mother’s property, Halter typically stores his equipment either at a jobsite (when he has a multi-day job), or at his residence located at 7295 Brookville Road in Oxford Township (/d.). Halter also sometimes has ' Halter also has different size buckets for his backhoe which he sometimes stores at this mother’s property (Id. at 37). 2material (such as pipe) left after he finishes a job, and he sometimes stores that left-over material at his mother’s property (/d. at 27). Although he does not have a written lease, Halter’s mother has given him permission to use her property for the storage of his business equipment and materials (Id. at 29). The principal use of Mrs. Halter’s property is as a residence; the property contains 9 acres (Affidavit of James Fox). The property located at 6561 Fairfield Road is subject to the terms of the Butler County Zoning Resolution (Affidavit of James Fox, attached). The property is located in an A-1, Agricultural District, on the Butler County Zoning Map (Id.). RC. §303.02 provides that a board of county commissioners may, by resolution, regulate the uses of land, buildings and other structures for trade, industry, residence, recreation or other purposes in the unincorporated territory of the county. Pursuant to this authority, the Board of County Commissioners of Butler County has adopted the Butler County Zoning Resolution; a copy of the resolution has been filed with the Clerk in this matter. R.C. §303.23 provides: No person shall locate, erect, construct, reconstruct, enlarge, change, maintain, or use any building or use any land in violation of a resolution, or amendment or supplement to such resolution, adopted by any board of county commissioners under sections 303.01 to 303.25, inclusive, of the Revised Code. Each day's continuation of such violation is a separate offense. Section 6.01 of the Butler County Zoning Resolution also provides that: Except as hereinafter specified, no land, building, structure, or premises shall hereafter be used, and no building or part thereof, or other Structure, shall be located, erected, moved, reconstructed, extended, enlarged or altered except in conformity with the regulations herein specified for the District in which it is located, If any building or property subject to the zoning resolution is being used in violation of the terms of the zoning resolution, R.C. §303.24 authorizes the county zoning inspector to “institute 3+injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent, enjoin, abate, or remove” such violation. The regulations specified for an A-1, Agricultural, District are contained in Article 7 of the Zoning Resolution. Section 7.01 of the Resolution provides: PURPOSE. The intent of the A-1 Agricultural District is to reserve land exclusively for agricultural cultivation, very low density residential development and other activities that are basically rural in character. The permitted uses of land in an A-1 District are listed in Section 7.02 of the Zoning Resolution. Mrs. Halter primarily uses her property for her residence. Nothing in Section 7.02 authorizes the use of this property for commercial purposes. Since Halter uses the property to store his business equipment, he is clearly in violation of the Zoning Resolution. In conjunction with the specified principal permitted uses, Section 7.04 of the Zoning Resolution authorizes certain, “[a]ecessory uses, buildings and structures customarily incidental to any of the aforesaid permitted or conditional uses.” One of the authorized accessory uses is “a private garage or off-street parking area.” The term “private garage” is defined in Section 4.61 as: A detached accessory building or a portion of the principal building used only for the storage of self- propelled passenger vehicles or trailers and incidental personal property by the families resident upon the premises. Section 4.98 defines a “private parking area” as “an open area for the same use as a private garage. Because Halter does not reside at the subject property, his use of the property for parking his business equipment on the property cannot qualify as either a private garage or off-street parking area. Nor is Halter’s use of the property for the storage of the heavy equipment used in his plumbing business “customarily incidental” to the use of land for a single family residence. The residents of this type of property would not customarily permit other persons, who do not resideat the property, to use the property for the storage of commercial heavy equipment. See, e.g., Samsa v. Heck (Summit Co. 1967), 13 Ohio App.2d 94, 102 (“The record here clearly precludes this court from finding that the storage of an airplane, and the creation of an airport for flying in and out of the zoned property, constitutes a use of the property customarily incident to a single family residential use, or a use so necessary or commonly to be expected that it cannot be thought that the zoning resolution was intended to prevent it.”); see, also, Knoxville v. Brown (1953), 195 Tenn. 501, 512, 260 S.W.2d 264, 269 (“We of course can think of all kinds of hobbies, many of which would customarily and ordinarily be considered as a proper use for a one-family dwelling but when a hobby reaches the proportion of the destruction of the neighborhood by the use of assembling and tearing down of numerous automobiles, in this case nine, this goes far beyond any common sense idea of what a One-Family Dwelling might be used for.”), quoted with approval, Parma Heights v, Jaros (1 990), 69 Ohio App.3d 623, 630. For the foregoing reasons, Halter’s use of his mother’s residential property for his business purposes is contrary to the terms of the Butler County Zoning Resolution. Therefore, the Court should issue an order restraining the use of the subject property for that purpose, and ordering Halter to immediately remove his business equipment from his mother’s property. Respectfully Submitted Robin N. Piper Prosecuting Attorney of Butler County, Ohio A Ss. Kom Rogér S. Gates, 0001726 Assistant Prosecuting AttorneyCERTIFICATE OF SERVICE This is to certify that on December 15, 2008, a copy of the foregoing Plaintiff's Motion for Summary Judgment was served by Regular U.S. Mail upon the following: Richard A. Hyde, Holcomb, Hyde & Gmoser, 6 South Second St., Suite 311, Hamilton, OH 45011 Robin N. Piper Prosecuting Attorney of Butler County, Ohio By Rogef S. Gates, 0001726 Assistant Prosecuting Attorney -6-