[Cite as Artz v. Elizabeth Twp., 2014-Ohio-854.]




                IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

MICHAEL D. ARTZ, et al.                                  :

        Plaintiffs-Appellants                            :            C.A. CASE NO.   2013 CA 36

v.                                                       :            T.C. NO.   2012 CV 191

ELIZABETH TOWNSHIP                                       :            (Civil appeal from
                                                                       Common Pleas Court)
        Defendant-Appellee                               :

                                                         :

                                              ..........

                                             OPINION

                         Rendered on the           7th       day of        March       , 2014.

                                              ..........

BRIAN D. HUELSMAN, Atty. Reg. No. 0055444 and JOSEPH P. MOORE, Atty. Reg. No.
0014362, 262 James E. Bohanan Memorial Drive, Vandalia, Ohio 45377
      Attorneys for Plaintiffs-Appellants

JOHN E. FULKER, Atty. Reg. No. 0003295, P. O. Box 8, 12 S. Cherry Street, Troy, Ohio
45373
      Attorney for Defendant-Appellee

                                              ..........

DONOVAN, J.

        {¶ 1}     This matter is before the Court on the Notice of Appeal of Michael and Janet
                                                                                             2

Artz, filed October 9, 2013. The Artzs appeal from the trial court’s September 19, 2013

amended decision that dismissed count one of their complaint against Elizabeth Township,

in which the Artzs sought declaratory judgment that they are “entitled to erect and operate an

animal crematorium without having to seek the permission of Defendants and further

whether [they] would be in violation therein of the Elizabeth Township Zoning Code.”

       {¶ 2}    In their March 23, 2012 Complaint, the Artzs asserted that they own

property at 3089 Benham Road, as well as adjoining property at 5760 E. Tipp Elizabeth

Road, which is in an A-1 Agricultural District in Tipp City. According to the Complaint,

the Artzs sought a conditional use permit to operate a dog kennel on their property in

November, 2006. The Complaint provides that hearings were held on January 11, 2007 and

February 7, 2007, and that the Artzs were granted the conditional use permit.              The

Complaint provides that the kennel is operational and that the Artzs “have also invested in

equipment to operate an animal crematorium at the kennel facility.” They asserted that they

filed “this declaratory judgment action to have the Court determine if Plaintiff is required to

obtain a conditional use permit or a zoning certificate to erect and operate an animal

crematorium.” They asserted that their “prospective use of the property to operate an

animal crematorium is agricultural and is considered animal husbandry * * *.”            They

asserted that they “have no other remedy of law in this matter as the Elizabeth Township

Zoning Code is devoid of any reference to an animal crematorium.” They asked the court to

“review the Elizabeth Township Zoning Code and determine whether Plaintiff is entitled to

erect and operate an animal crematorium without having to seek the permission of

Defendants and further whether he (sic) would be in violation therein of the Elizabeth
                                                                                              3

Township Zoning Code.”

       {¶ 3}     In a second count, the Artzs sought compensatory and punitive damages, in

a third count they sought attorney fees, and in a fourth count they sought a writ of mandamus

to order the Township to “commence condemnation proceedings and compensate [them] for

the unlawful taking of their property.”

       {¶ 4}     On March 23, 2012, Michael Artz filed a motion to bifurcate the action.

On June 5, 2012, the trial court issued an Order setting the matter for trial as to count one

only. A trial was held on October 26, 2012, at which Ted F. McDowell, the Zoning

Inspector for Elizabeth Township, and Michael Artz testified. McDowell identified as

Exhibit 1-A a blue binder containing documentation and correspondence demonstrating the

Artzs’ efforts to construct the kennel and crematorium. The binder contains Michael Artz’s

application for a conditional use permit to operate a “kennel facility,” dated December 13,

2006, which was approved on February 8, 2007 and signed by Jay Benham, Chairman of the

Board of Zoning Appeals. The application indicates that “the following conditions and

safeguards were prescribed: Kennel 20 head maximum/ Note: attached notarize (sic)

statement.”    Attached to the application is the notarized statement of Michael Artz, dated

February 7, 2007, that provides as follows: “I Michael Artz of 3090 Benham Rd. do hereby

give written assurance that I will not install or attempt to install a crematory on any property

I own or control in Elizabeth Township, Miami County, Ohio either now or in the future.”

       {¶ 5}     The binder contains correspondence, dated December 16, 2008, from

counsel for Artz to Mark Altier, the Chief Civil Assistant in the Miami County Prosecutor’s

Office, that provides as follows:
                                                                                          4

               ***

               At this time, Mr. Artz would like to operate a crematorium for pets on

       the premises. The operation of such appears to meet the Ohio EPA and

       Miami County Board of Health standards prior to commencement of

       operation. In reviewing the zoning code for Elizabeth Township, it does not

       appear that there is any zoning provision which would prohibit Mr. Artz from

       starting operation of the crematorium at this time. Mr. Artz is ready to begin

       to operate, but I wanted to contact you first.

               I would ask that you please respond on behalf of Elizabeth Township

       and inform me as to whether you agree with my opinion or disagree. * * *

       {¶ 6}   The binder contains correspondence, dated December 19, 2008, from

McDowell to Altier “in reference to Moore and Associates correspondence dated December

16, 2008,” which provides, “* * * As defined ‘Animal Husbandry’ is the agricultural

practice of breeding and raising livestock. Disposing of deceased animals or humans would

fall under the title of Cemetery.” The correspondence provides that the Elizabeth Township

Zoning Resolution (“Resolution”) requires that any “‘new cemetery shall be located on a site

containing not less than forty (40) acres.[’”] The correspondence concludes that the Artzs’

11 acre property does not comply with the Resolution’s minimum requirement of 40 acres

for a cemetery, and that Artz “would not be allowed to build his Pet Crematory in Elizabeth

Township.”     The correspondence provides that McDowell attached pages from the

Resolution as well as a copy of Michael Artz’s notarized statement.

       {¶ 7}   The binder contains correspondence, dated December 31, 2008 from Altier
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to counsel for Artz which provides that pursuant to McDowell’s above correspondence,

“the proposed use by Mr. Artz of his property * * * as the situs of an animal crematory is

prohibited under relevant provisions of the Elizabeth Township zoning regulations.”

       {¶ 8}    The binder contains correspondence, dated February 1, 2011 from counsel

for Artz to the Elizabeth Township Board of Trustees, again asserting Artz’s desire to

operate a crematorium, as well as McDowell’s response, dated February 8, 2011, which

makes reference to Artz’s sworn statement of February 7, 2007 and provides that “Elizabeth

Township [] has not changed its position on this request for an Animal Crematorium and

will not allow this operation.” Finally, the binder contains correspondence from McDowell

to Artz, dated June 26, 2012, which refers to “our phone conversation of June 25, 2012,” and

provides that Artz’s property “did not meet the minimum acreage requirements under

Elizabeth Township Zoning Resolution 512.03.”

       {¶ 9}    Michael Artz testified that he owns a home on three and half acres in

Elizabeth Township, and that he       owns 11 acres across the street which is “only for

agricultural use.” He stated that his kennel is on the eleven acre property. Artz identified a

depiction of an animal crematorium, and he stated that “[t]his particular unit will cremate up

to seven hundred (700) pounds in five hours.” He stated that he bought the crematorium

from the Montgomery County Animal Shelter “when they built a new facility,” and that he

has “all the permits and everything and that testing that had been done on it is all

documented.”     He stated that it has three heating chambers, reduces the carcasses to dust,

and that it does not expel any ash from its “stack.” Artz stated that he does not plan to bury

anything on his property as a result of operating the crematorium, and that he “can return
                                                                                               6

[the remains] to the owners, or I can double bag them and take them to the landfill.” Artz

stated that a permit from “Regional Air Pollution Control” is required to install and operate

the crematorium, and “they monitor * * * what comes out of the stack and everything, and

they had all the records when I asked them about it.”

       {¶ 10} Artz stated that the unit is currently outside, and that when installed, one

third of it will be inside the kennel, namely the “face of it and controls, and then the other

part, two-thirds * * * is outside of the building, and it’s got a wire cage around it, and it has

a stack which, like I said does not emit any type of smoke or anything. It’s just heat. And

because of it going to eighteen hundred degrees (1800), that’s the reason it sets outside.”

Artz stated the dimensions of the device are “[S]ix by seven by ten by eight * * * foot high.”

Artz stated that he intends to “take the dogs at a full life cycle from puppies all the way to

cremation, and to operate a kennel, I thought that was the best way to give my customers a

full range of things that they could use.”

       {¶ 11}    On cross-examination, Artz stated that he acquired the equipment for his

kennel and the crematorium at the same time. When asked why his conditional use permit

for the kennel was accompanied by his sworn statement regarding the crematorium, Artz

stated that a local woman “sent two hundred (200) flyers out in Elizabeth Township, in mail

boxes, stating that I was going to spew dead animal ash over the township. And in response

to that, we had a packed capacity at the hearing for my zoning appeals meeting. Because of

that, they had to table it and then come back a month later because of the crowd that had

come in and had been stirred up.” Artz stated that the President of the Zoning Board, Jay

Benham, whom Artz has known for 40 years, “asked me if I would have time to go out to the
                                                                                               7

Fifth Third Bank to sign a notarized statement that I would not do the crematorium because

if you don’t do this, you probably won’t get your kennel.” Artz stated that he filed his

sworn statement “in between the meetings. We had my first appeals meeting, which was

tabled, and then Jay presented this option for me, before the second meeting, so that we

could quiet the crowd, because they knew it was going to be filled to capacity over this

issue.” Artz stated that at the time he “had already started, I already had the building up,

and I was working on the inside of it.” Artz stated that he completed the sworn statement

“under coercion.”

       {¶ 12} When asked if he intended to use the crematorium only for dogs who die in

his kennel, Artz responded as follows: “* * * I want to offer a service for a full rounded

kennel operation. I - my dream was to take it from puppy stage to the death because you get

a relationship with your customers and that is a very hard thing to do and I wanted to have

that option there that I could help these people to get rid of - because the only place they had

was in New Lebanon.” Artz further testified, “* * * I had a dog park going in for the dogs

to run. I had trails through the woods and stuff for people to walk dogs. * * * I have a pond

and a beach for them to swim their dogs, and this was just another piece of the puzzle to

make it work. To make the whole thing a facility that could serve the community.” Artz

denied that the crematorium is a commercial enterprise.

       {¶ 13} The court allowed the parties to file post-trial briefs.          In its amended

decision, the trial court noted that “[a]gricultural uses are exempt from township zoning

regulations,” and that “R.C. 519.21 limits the trustees’ authority to regulate agricultural uses

to lots of less than five acres. Since the Artzs’ property is over ten acres, the trustees do not
                                                                                               8

have the power to prohibit agricultural uses under Revised Code Chapter 519.” The court

further determined that “‘the breeding, raising and care of dogs constitutes animal

husbandry, as that term is used in R.C. 519.01,’” in reliance upon Harris v. Rootstown

Township Zoning Board of Appeals, 44 Ohio St.2d 144, 338 N.E.2d 763 (1975). The court

noted that counsel “for the Elizabeth Township concedes that the operation of a kennel by

plaintiffs constitutes animal husbandry.”

       {¶ 14} The court noted that the Artzs’ reliance upon Angels for Animals, Inc. v.

Beaver Township Board of Zoning Appeals, 7th Dist. Mahoning No. 04 MA 80,

2004-Ohio-7209, “for the conclusion that an animal crematorium is a component of an

agricultural use,” is misplaced. The court noted that the applicant in Angels had “received

a conditional use permit to operate an animal rescue shelter on the site of an abandoned

slaughterhouse in a district that was zoned for industrial use,” and then the applicant “sought

a second conditional use permit to operate a crematory for dogs which it euthanized as part

of its rescue operation.”   According to the trial court, “ * * * the court’s decision only

addressed the use as appropriate to an industrial district,” and it did not “discuss the use of a

crematory as a component of animal husbandry in the context of an agricultural use.” The

court further determined that a “crematory is no more ancillary to the operation of a kennel

than it would be to the operation of a hospital, or even a motel.” The court concluded that

the Artzs “failed to demonstrate that the operation of a crematory for animals is an

agricultural use exempt from the zoning authority of Elizabeth Township.”

       {¶ 15} Finally, the court noted that the Artzs “seem to make an additional argument

that an animal crematorium should be permitted in the A-1 agricultural district because there
                                                                                            9

is nothing in the zoning resolution which expressly prohibits it.” The court noted that a

cemetery is listed in section 302.04 of the Resolution, which sets forth conditional uses that

require prior approval from the Board of Zoning Appeals.           The court noted that the

Resolution defines a cemetery, in section 1102.03(A), as “‘Land used or intended to be used

for the burial of animal or human dead and dedicated for cemetery purposes, including

crematories, mausoleums, and mortuaries if operated in connection with and within the

boundaries of such cemetery.’”

       {¶ 16} The court reasoned as follows:

               Plaintiff seems to argue that the operation of an animal crematorium

       does not fall within the definition of a cemetery, and therefore they do not

       have to apply for a conditional use permit. If an animal crematory is not

       listed as a potential conditional use, then it could only be operated if it falls

       within a “Permitted Principal Uses” for an A-1 district as listed in Section

       302.02 of the Zoning Resolution. “Only a use designated as a permitted

       principal use shall be allowed as a matter of right in a zoning district.” None

       of the permitted principal uses for an A-1 district describe an activity that

       would include the operation of a crematory for animals. If, as plaintiffs

       argue, an animal crematory does not fall within the operation of a cemetery as

       defined under the resolution, then plaintiffs would not qualify for a

       conditional use permit and cannot operate the animal crematory.             The

       suggestion that the absence of a prohibition requires the defendant to permit

       the use is a non sequitor, unsupported by the terms of the Zoning Resolution
                                                                                              10

       or any case authority cited by plaintiffs.

                The court therefore finds that plaintiffs have failed to demonstrate that

       they are entitled to a declaration from this court that they are entitled to erect

       and operate an animal crematorium without permission from the Elizabeth

       Township zoning authorities or that such use would not be in violation of the

       Elizabeth Township Zoning Resolution.          Count One of the complaint is

       dismissed, with prejudice.

       {¶ 17}     The Artzs assert two assignments of error herein which we will consider

together. They are as follows:

       “THE TRIAL COURT ERRED AS A MATTER OF LAW BY FINDING THAT

APPELLANTS ARE REQUIRED TO OBTAIN A PERMIT FROM APPELLEE’S

ZONING AUTHORITIES IN ORDER TO OPERATE AN ANIMAL CREMATORIUM ON

PROPERTY THAT IS ZONED AGRICULTURAL,”

       And,

       “THE TRIAL COURT ERRED AS A MATTER OF LAW BY HOLDING THAT

APPELLANTS’         PROSPECTIVE        USE     OF    AN    ANIMAL CREMATORIUM                 IS

CONSIDERED TO BE A CEMETERY.”

       {¶ 18}     The Artzs assert that the “use of the property as a kennel is clearly within

the Ohio courts’ definition of an agricultural use. Taking this a step further, it is logical and

acceptable that the erection and use of an animal crematorium in conjunction with the kennel

is an agricultural use and categorized under animal husbandry.” The Artzs assert that an

“animal crematorium is an appropriate component of an animal shelter or a kennel.” The
                                                                                           11

Artzs again rely upon Angels for Animals and assert that “it is very similar to this matter

regarding the intended prospective use by Appellants.” The Artzs assert that “the erection

and operation of the animal crematorium is incidental to the kennel, which has clearly been

established as an agricultural use.” According to the Artzs, the “definition or the term

animal crematorium is not addressed in the Elizabeth Township Zoning Resolution. * * *

Zoning regulations deprive the owners of real property certain uses of it, and are in

derogation of the common law. Such regulations must, therefore, be strictly construed and

not extended by implication”

       {¶ 19} In their Reply brief, the Artzs assert that there “is a logical connection

between the operation of a kennel and an animal crematorium. The operation of both ‘goes

hand in hand.’” They assert that the trial court “misses the point that the animal crematorium

is incidental to the kennel as there is both life and death in the care of an animal. The two

areas are connected and should not be fragmented in any manner.            The kennel is an

unquestionable agricultural use and the animal crematorium is a logical use that follows.”

The Artzes direct our attention to 1994 Ohio Atty.Gen.Ops. No.94-018 which, in response

to a request for an opinion regarding the operation of a pet cemetery, provides in part as

follows:

               Your letter states that the humane society has constructed the

       crematorium as a means of disposing of the remains of dogs that have been

       lawfully destroyed. The construction and use of the crematorium for such

       purpose is plainly contemplated to fall within the statutory authority of the

       humane society. See R.C. 955.15. Again, as long as the county humane
                                                                                         12

       society determines in a reasonable exercise of its discretion that making its

       crematorium available to the public for such purpose furthers the society’s

       statutory objectives, it may make the use of its crematorium available to the

       public as a means of disposing of their deceased pets.

       {¶ 20}    We initially note that we apply a de novo standard in reviewing the legal

issue raised in the Artzs’ action for declaratory judgment. Arnott v. Arnott, 132 Ohio St.3d

401, 2012-Ohio-3208, 972 N.E.2d 586.

       {¶ 21}    As noted by the Supreme Court of Ohio:

                Ohio townships have no inherent or constitutionally granted police or

       zoning power. Yorkavitz v. Bd. of Columbia Twp. Trustees (1957) 166 Ohio

       St. 349, 351, 2 O.O.2d 255, 142 N.E.2d 655. “Accordingly, the zoning

       authority possessed by townships in the state of Ohio is limited to that which

       is specifically conferred by the General Assembly.” Bd. of Bainbridge Twp.

       Trustees v. Funtime, Inc. (1990), 55 Ohio St.3d 106, 108, 563 N.E.2d 717.

                In addition, “[a]ll zoning decisions, whether on an administrative or

       judicial level, should be based on the following elementary principles which

       underlie real property law.     Zoning resolutions are in derogation of the

       common law and deprive a property owner of certain uses of his land to

       which he would otherwise be lawfully entitled. Therefore, such resolutions

       are ordinarily construed in favor of the property owner. Restrictions on the

       use of real property by ordinance, resolution or statute must be strictly

       construed, and the scope of the restrictions cannot be extended to include
                                                                                            13

       limitations not clearly prescribed.” (Citations omitted.) Saunders v. Clark

       Cty. Zoning Dept. (1981), 66 Ohio St.2d 259, 261, 20 O.O.3d 244, 421

       N.E.2d 152. Furthermore, exemptions from restrictive zoning provisions are

       to be liberally construed. State ex rel Moore Oil Co. v. Dauben (1919), 99

       Ohio St. 406, 124 N.E. 232, paragraph one of the syllabus. Terry v. Sperry,

       130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276, ¶ 18-19.

       {¶ 22} “R.C. 519.02 authorizes township trustees, in the interest of the public health

and safety, to adopt resolutions limiting the size and location of buildings and other

structures and the uses of land for trade, industry, residence, recreation or other purposes.”

Id., ¶ 20. R.C. 519.21, however, “in general, prevents townships from prohibiting the use of

land for agricultural purposes * * * .” Id. R.C. 519.21(A) provides:

               * * * 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, * * * and no zoning certificate shall be required for any such building

       or structure.

“In other words, R.C. 519.21(A) provides two circumstances under which the use of a

property is exempt from township zoning regulations: (1) the property is used for

agricultural purposes or (2) the construction or use of buildings or structures on the property

is incident to an agricultural use of the land.” Terry, ¶ 21.
                                                                                          14

       {¶ 23} R.C. 519.01 provides:

               As used in sections 519.02 to 519.25 of the Revised Code,

       “agriculture” includes farming; ranching; algaculture meaning the farming of

       algae; aquaculture; apiculture; horticulture; viticulture; animal husbandry,

       including but not limited to, the care and raising of livestock, equine, and

       fur-bearing animals; poultry husbandry and the production of poultry and

       poultry products; dairy production; the production of field crops, tobacco,

       fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees,

       flowers, sod or mushrooms; timber; pasturage, any combination of the

       foregoing; and the processing, drying, storage, and marketing of agricultural

       products when those activities are conducted in conjunction with, but are

       secondary to, such husbandry or production.

       {¶ 24} Consistent with R.C. 519.21(A), Section 105.02 of the Resolution provides:

               Agriculture.     Nothing within this zoning resolution shall be

       construed 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, * * * and no zoning certificate shall be required for any such building

       or structure. * * *

       {¶ 25} Section 302 of the Resolution sets forth “A-1 Agricultural District

Regulations,” and Section 302.01 of the Resolution provides as follows:

               Purpose of District. The purpose of the A-1 Agricultural District is
                                                                                  15

to recognize and accommodate the physical, social, and economic needs of

the agricultural community within Elizabeth Township, Miami County, Ohio.

 Since agricultural pursuits provide a substantial economic base for Elizabeth

Township, and a majority of its area still possesses an existing agricultural

character and prime soils, it is the intent of this district to maintain and

protect such areas. Only those land uses which perform necessary functions

within the agricultural community will be encouraged to locate within the

A-1 Agricultural District. Owners, residents, and other users of property

within this district may be subjected to inconvenience, discomfort, and the

possibility of injury to property and health arising from normal and accepted

agricultural practices and operations. Including but not limited to: noise,

odors, dust, the operation of machinery of any kind, including aircraft, the

storage and disposal of manure, the application of fertilizers, herbicides, and

pesticides.   Owners, residents, and users of property within this district

should, therefore, be prepared to accept these conditions, and are hereby

placed on official notice that “right to farm” provisions within the Ohio

Revised [C]od[e] may bar them from obtaining a legal judgment against such

normal agricultural operations.

{¶ 26} Section 301.02 of the Resolution provides:

 Permitted Principal Uses. Only a use designated as a permitted principal

use shall be allowed as a matter of right in a zoning district. A use which is

not specifically mentioned as a permitted principal use within the zoning
                                                                                             16

       district shall not be permitted as a principal use upon any property by the

       Zoning Inspector until such use is added to the list of permitted principal uses

       through amendment of this zoning resolution.

       {¶ 27}    Section 301.03 of the Resolution provides: “Accessory Uses. Only uses

designated as accessory uses shall be allowed as a matter of right in a zoning district. Any

accessory use not designated shall be allowed only upon appeal and after determination by

the Board of Zoning Appeals that such use is customarily incidental and subordinate to the

principal permitted use of the property.”

       {¶ 28} Section 301.04 of the Resolution provides: “Conditional Uses.               Uses

designated as conditional uses shall be permitted within a zoning district only upon issuance

of a conditional use permit by the Board of Zoning Appeals in accordance with the

provisions of Article 10, section 1002.”

       {¶ 29}    Section 302.02 sets forth permitted principal uses in the A-1 Agricultural

District, including agriculture, a single-family dwelling, public building or use such as parks,

playgrounds, libraries, schools, fire stations and community centers, and wireless

telecommunication facilities. Section 1102.01 of the Resolution provides:

                As used in this Resolution, Agriculture shall be interpreted the same

       as defined and used in Chapter 519 of the Ohio Revised Code; provided

       however, that as used in this Resolution, agriculture shall not include: (1) the

       keeping, caring, and harboring of household pets, not exceeding a total of six

       (6) such pets; * * * .

       {¶ 30} Section 302.03 of the Resolution provides as follows:
                                                                                              17

               Permitted Accessory Uses. The following uses shall be permitted as

       uses accessory to a principal permitted use existing upon the property,

       provided they meet the development standards set forth for this district and

       any supplementary regulations to such use in this zoning resolution.

               A. Accessory buildings and structures in accordance with Article 5,

       Section 502.

               ***

       {¶ 31} Section 1102.01 of the Resolution defines an “accessory use or structure” as

“[a] use or structure incidental and subordinate to the principal use and/or structure on the lot

and serving a purpose customarily incidental and subordinate to the use of the principal

building.”

       {¶ 32} Section 302.04 of the Resolution lists 19 conditional uses that “shall be

permitted only after approval by the Board of Zoning Appeals in accordance with Article 10,

Section 1002,” including, “K. Private cemetery as regulated in Article 5, Section 522.”

Section 1102.03(A) defines a cemetery as “Land used or intended to be used for the burial of

animal or human dead and dedicated for cemetery purposes, including crematories,

mausoleums and mortuaries if operated in connection with and within the boundaries of such

cemetery.” Section 512.03 of the Resolution provides that “[a]ny new cemetery shall be

located on a site containing not less than forty (40) acres.”

       {¶ 33} It is undisputed that the “breeding, raising, and care of dogs constitutes [sic]

animal husbandry, as that term is used in R.C. 519.01.” Board of Brimfield Township

Trustees v. Bush, 11th Dist. Portage No. 2005-P-0022, 2007-Ohio-4960, ¶ 30, quoting
                                                                                          18

Harris v. Rootstown Twp. Zoning Bd. Appeals, 44 Ohio St.2d 144, 338 N.E. 2d 763 (1975),

paragraph one of the syllabus.      We conclude, however, that the broad definition of

agriculture set forth above does not include the operation of an animal crematorium such that

it is a permitted principal use as the Artzs contend.      We agree with the trial court’s

determination that Angels for Animals only addressed the use of a crematorium in an

industrial district, and that since the Seventh District did not address whether or not the

cremation of dead dogs was an agricultural use, the Artzs’ reliance upon Angels for Animals

is misplaced. We further note that Angels for Animals involved the operation of a non-profit

animal shelter that “had to euthanize animals in the course of its business,” such that “four

to six hundred pounds of dead animals were taken from the shelter to a dump every week.”

Id., ¶ 3 (emphasis added). The Artzs operate a kennel to provide board and care for dogs in

their owners’ absence, not a rescue shelter or humane society, and the euthanasia of dogs is

not performed in the course of the Artzs’ business. We further conclude that operation of an

animal crematory is not a necessary function or normal operation within the agricultural

community consistent with the purpose of the district as set forth in Section 302.01 of the

Resolution.

       {¶ 34} We also cannot conclude that the operation of the crematory is a permitted

accessory use “incidental” to the kennel as the Artzs assert. As noted above, the operation

of a crematory is not “customarily incidental and subordinate to the use of the principal

building,” which is devoted to the temporary boarding of dogs.

       {¶ 35} Finally, regarding conditional uses, we agree with the Artzs that their

proposed animal crematorium does not fall within the meaning of a private cemetery as that
                                                                                             19

term is used in the Resolution; the definition of cemetery is focused on the intended use of

land “for the burial of animal * * * dead,” and Artz’s testimony was clear that he did not

intend to use his land for the burial of animal remains. We agree with Elizabeth Township,

however, that the trial court did not find that the prospective use of the property is governed

by Section 302.04(K), such that a conditional use permit is required. The trial court merely

indicated that if “an animal crematory does not fall within the operation of a cemetery as

defined under the resolution, then plaintiffs would not qualify for a conditional use permit

and cannot operate the animal crematory.” In other words, since the operation of an animal

crematorium is not a permitted principal or accessory use, and it is not listed as a conditional

use requiring approval from the Board of Zoning Appeals, the Artzs are not entitled to

operate the crematorium.

       {¶ 36} Since the trial court correctly dismissed count one of the Artzs’ complaint,

the Artzs’ assigned errors are overruled, and the judgment of the trial court is affirmed

                                         ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Brian D. Huelsman
Joseph P. Moore
John E. Fulker
Hon. Christopher Gee
