[Cite as Shalersville Twp. Bd. of Trustees v. Hawkins, 2016-Ohio-2801.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


SHALERSVILLE TOWNSHIP                                   :           OPINION
BOARD OF TRUSTEES,

                 Plaintiff-Appellee,                    :
                                                                    CASE NO. 2015-P-0071
        - vs -                                          :

KEVIN W. HAWKINS,                                       :

                 Defendant,                             :

TERESA J. HAWKINS,                                      :

                 Defendant-Appellant.                   :



Civil Appeal from the Portage County Court of Common Pleas, Case No. 2014 CV
00427.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Timothy J. Hart, 4030 State Route 43, Suite 105, Kent, OH 44240 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Appellants, Kevin W. and Teresa J. Hawkins, appeal the trial court’s final

judgment granting a permanent injunction against them, under which they are required

to remove a mobile home/trailer from their property. They contend that the trial court
erred in adopting the magistrate’s findings concerning their present use of the trailer

because those findings are against the manifest weight of the evidence.            For the

following reasons, the record supports both the magistrate’s and trial court’s decision.

       {¶2}   Appellants reside on approximately six acres on Frost Road in

Shalersville, Ohio. Since acquiring title from Kevin’s parents in 1998, the couple has

built at least three permanent structures. The first structure is their residence. The

remaining two are chicken coops. The larger of the two coops houses adult chickens,

and the smaller coop is used to protect and nurture the baby chicks.

       {¶3}   Appellants have raised chickens for almost the entire period they have

resided there. Although they collected an average of a dozen eggs a day, they do not

typically sell the eggs for profit; instead, they gift excess eggs to family or friends. The

only other animals appellants have kept on their land are dogs. During the majority of

the years, the dogs were simply family pets. However, after the underlying action was

filed, appellants bred and raised a litter of Jack Russell terriers for sale.

       {¶4}   At some point in 2011, Teresa’s grandfather died. Since Teresa was very

close to her grandmother, appellants added a mobile home to their property for her to

live. The mobile home was placed on a concrete slab that Kevin poured near the main

residence, and it was connected to electricity, water, and propane gas. In addition, the

majority of their grandmother’s personal property was moved to the mobile home.

       {¶5}   After Teresa’s grandmother was residing in the mobile home, the zoning

inspector for Shalersville Township, Jason Garey, was informed of the situation. During

a meeting with Kevin, Garey told him that, pursuant to the township zoning code, only

one residential structure can be maintained on a parcel of land, and that the mobile




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home is a second residence. As a result, Garey instructed Kevin that he would address

the issue with the township board of zoning appeals.

       {¶6}   During a hearing before the zoning board in October 2011, Kevin asserted

that the mobile home was only meant to be a temporary residence for the grandmother,

and that he intended to construct a “grandmother” suite as an attachment to his existing

residence.    In light of this assertion, the zoning board invoked a provision of the

township zoning code and granted appellants a conditional use variance for the mobile

home. Under the variance, the grandmother was allowed to reside in the mobile home

during the suite’s construction. However, the board imposed three conditions on the

effectiveness of the variance: (1) appellants had to obtain a building permit within six

months; (2) construction of the suite had to begin within one year; and (3) the suite had

to be finished within two years.

       {¶7}   Appellants did not comply with any of the three conditions. Approximately

seventeen months after issuing the variance, the zoning board received notice that,

even though the mobile home was still on appellants’ property, no progress had been

made on the suite’s construction. As a result, Kevin was required to appear before the

board in April 2013. First, Kevin informed the board that construction of the suite was

no longer necessary because their grandmother was living in the main residence since

one of appellants’ daughters went away for college. Second, Kevin stated that only

some of their grandmother’s belongings were moved into the existing residence, and

that the remainder are still in the mobile home. Third, he informed the board that he

was considering taking a new job in another state, and that he would remove the mobile

home from the property before moving his entire family away.         Based upon these




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statements, the board agreed to grant appellants a six-month extension for removing

the mobile home from their property.

      {¶8}   One year later, appellants had not moved and the mobile home remained.

Consequently, the Shalersville Township Board of Trustees, appellee, sought and

obtained an injunction requiring removal of the mobile home. The complaint asserts

that the mobile home on the property violates both the township zoning code and the

prior decisions of the board of zoning appeals.

      {¶9}   An evidentiary hearing before a magistrate was scheduled for June 4,

2015. A few days before the hearing, Zoning Inspector Garey and a township trustee

viewed the inside of the mobile home. In his ensuing testimony, Garey stated that the

living room and the kitchen were still fully furnished and contain many personal items

belonging to the grandmother.      He testified that the kitchen had all of the usual

appliances, and that the living room is furnished with a couch, lamp, table, chairs, and

that there are dishes in the china cabinet. Garey also testified that the furniture had

been removed from one of the bedrooms, and replaced with two chicken cages.

According to him, each cage had one adult chicken and a number of baby chicks.

      {¶10} In response, Kevin testified that the mobile home was no longer serving as

their grandmother’s residence and was now used as a structure for raising chickens and

dogs. As to the chickens, Kevin stated that the stable environment inside the mobile

home would increase the survival rate of the baby chicks. Regarding the dogs, he

testified that, even though he had only bred one litter of puppies in the preceding year,

he intended to acquire other dogs so he could breed both Jack Russell terriers and

German shepherds. Kevin further testified that the second bedroom in the mobile home




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would be used for raising puppies.      Based upon this testimony, Kevin and Teresa

argued that the mobile home was exempt from township zoning under R.C. 519.21

because it was now being used for agricultural purposes.

       {¶11} In her written decision, the court magistrate first noted that the raising of

chickens and dogs constitutes “animal husbandry” that is an agricultural use.

Therefore, the magistrate concluded that the application of the agricultural zoning

exemption turned upon the resolution of the following factual issues: (1) did appellants

primarily use their property for agricultural purposes; and (2) was appellants’ use of the

mobile home incident to their agricultural use of the land? The magistrate found against

appellants on both issues. As to the second issue, the magistrate found that appellants’

primary use of the mobile home was not agricultural, and that their use of the trailer was

not directly and immediately related to any agricultural use of the property.         The

magistrate ultimately held the township was entitled to a permanent injunction barring

appellants from maintaining it on their property.

       {¶12} Appellants objected, primarily arguing that the magistrate misinterpreted

the extent of the agricultural exemption, as delineated in R.C. 519.21(A). First, they

asserted that agriculture did not have to be the primary use of the subject property in

order for the exemption to apply.        Second, they contended that the agricultural

exemption covered the mobile home even if their use of that structure was not directly

and immediately related to agriculture. In addition, they challenged the magistrate’s

factual findings concerning the present use of the mobile home.

       {¶13} Before appellants filed the objections, the trial court issued a judgment

adopting the magistrate’s decision in all respects and granting a permanent injunction in




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favor of the township. As part of that judgment, appellants were ordered to remove the

mobile home from their property within 30 days.         After appellants submitted their

objections, the court issued a second judgment expressly overruling appellants’

arguments.

       {¶14} In appealing the permanent injunction determination, appellants assert two

assignments of error for review:

       {¶15} “[1.] The trial court committed prejudicial error in overruling appellants’

objections to the magistrate’s decision journalized on June 9, 2015; wherein the

magistrate concluded that in order to constitute an exempt agricultural use, appellants’

primary use of their property must be agricultural.

       {¶16} “[2.] The magistrate’s decision, affirmed by the trial court, contained

findings of fact which are contrary to the manifest weight of the evidence.”

       {¶17} As noted above, the magistrate’s decision focused on two issues: whether

appellants primarily used the property for agricultural purposes, and whether their use of

the mobile home was incident to the agricultural use of the land.              In their first

assignment, appellants contend that the magistrate employed the wrong legal standard

for determining if the agricultural exemption applies. In their second assignment, they

assert that the evidence does not support the magistrate’s findings as to whether the

mobile home was being used in a manner that was incident to the agricultural use of

their land.   Since the resolution of the second assignment is dispositive, it will be

addressed first.

       {¶18} R.C. Chapter 519 governs zoning on unincorporated territory of an Ohio

township. R.C. 519.02(A) provides that a board of township trustees may generally




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regulate, inter alia, the use of land and the size of buildings through the passage of a

zoning resolution. However, the statutory scheme recognizes certain exceptions to this

basic authority. As relevant here, R.C. 519.21(A) states:

          {¶19} “Except as otherwise provided in division (B) of this section, sections

519.02 to 519.25 of the Revised Code confer no power on any township zoning

commission, board of township trustees, or board of zoning appeals to prohibit the use

of any land for agricultural purposes or the construction or use of buildings or structures

incident to the use for agricultural purposes of the land on which such buildings or

structures are located, including buildings or structures that are used primarily for vinting

and selling wine and that are located on land any part of which is used for viticulture,

* * *.”

          {¶20} In light of the unambiguous statutory language, the agricultural exception

prohibits the regulation of land use when the land is used for agricultural purposes, and

it prohibits the regulation of buildings when the use of the building is incidental to the

use of the land for agricultural purposes. In relation to the buildings, any question as to

whether the underlying land is being used for agricultural purposes becomes moot if it is

determined that the use of the building is not incidental to that purpose.

          {¶21} In applying the agricultural exemption under R.C. 519.21(A), the primary

use of a building must be agricultural before its use can be deemed incidental to the

agricultural use of the land. Concord Twp. Trustees v. Hazelwood Builders, Inc., 11th

Dist. Lake No. 2004-L-012, 2005-Ohio-1791.           In Hazelwood, the property owner

contended that additions to a residence were not subject to township zoning because

they would be used in breeding and raising dogs. In holding the agricultural exception




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inapplicable, the trial court concluded that the building’s use was not incidental to

agriculture because “the primary purpose of the residence was residential living, and

breeding and raising dogs was an ancillary use.” Id. at ¶42. On appeal, this court

affirmed noting that the structure in question was primarily designed for residential living

and that only a small portion of it would be used for the dogs. Id. at ¶43.

       {¶22} In this case, the magistrate specifically found that, at the present time, the

primary use of the mobile home was not agricultural. The magistrate further found that

appellants’ present use of the structure was not directly and immediately related to their

agricultural use of the property. In claiming that these findings are against the manifest

weight of the evidence, appellants simply argue that Kevin’s trial testimony is sufficient

to show the mobile home’s primary use is now agricultural.             However, appellee

presented considerable evidence to the contrary.

       {¶23} There is no dispute that the mobile home was originally designed for

residential living. Moreover, there is no dispute that when the mobile home was initially

placed on appellants’ property, the grandmother used it for that express purpose. After

the grandmother moved into the main residence on the property, appellants removed

some of the furniture from the mobile home’s two bedrooms and two chicken cages

were placed in one bedroom.

       {¶24} However, although some of the grandmother’s personal belongings were

moved into the main residence, a considerable amount of those belongings remained in

the mobile home. In fact, two entire rooms, the living room and kitchen, have basically

stayed in the same condition they were when she resided there. Furthermore, as part

of his trial testimony, Kevin readily admitted that their grandmother was very sentimental




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and still enjoyed going back to the mobile home and looking at her many keepsakes.

This point was reiterated during the testimony of Frank Ruehr, a former member of the

township board of zoning appeals. According to him, Kevin told the zoning board during

the April 2013 proceeding that the grandmother might pass away if she lost the ability to

look at her keepsakes in the mobile home.

       {¶25} Moreover, the evidence indisputably shows that appellants did not begin

to put the chicken cages and the baby chicks into the mobile home until after appellee

brought the underlying case to have the structure removed from the property.

Testimony shows that, during the April 2013 proceeding before the zoning board, Kevin

asserted that their grandmother had already moved from the mobile home to his

residence on the property.       Yet, during the evidentiary hearing before the court

magistrate, Kevin testified that he did not begin to put the chickens inside the mobile

home until the spring of 2015, more than two years after their grandmother moved out

and nine months after appellee filed its complaint for the permanent injunction.

       {¶26} Taken as a whole, the evidence supports the finding that appellants kept

the mobile home as a place to store their grandmother’s remaining personal items so

that she would be able to see them whenever she wanted, and that the placement of

the chickens in the structure was only done as a means of keeping the mobile home on

the property. Given this, the magistrate justifiably concluded that the primary use of the

mobile home is to store their grandmother’s belongings, and that the chicken/dog use is

only ancillary, at best. Therefore, since the mobile home’s use is not incidental to

agricultural use of the land, the agricultural exception is inapplicable.

       {¶27} In the context of a permanent injunction proceeding, an appellate court will




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not reverse the trial court’s decision as against the manifest weight of the evidence

when the factual findings are supported by competent, credible evidence. Swan Creek

Twp. v. Wylie & Son Landscaping, 168 Ohio App.3d 206, 2006-Ohio-584, 859 N.E.2d

566, ¶33. In this case, appellee’s evidence supports a finding that: (1) the mobile home

is subject to zoning and is prohibited. Thus, the preliminary injunction was warranted.

      {¶28} Appellants’ second assignment of error is without merit. Moreover, given

our disposition of the second assignment, the first assignment is moot and need not be

addressed. App.R. 12(A)(1)(c). The judgment of the trial court is affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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