[Cite as Campbell v. Smith, 2011-Ohio-3002.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




SCOTT CAMPBELL,
ZONING INSPECTOR,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-10-79

        v.

DAVID O. SMITH, ET AL.,                                  OPI NION

        DEFENDANTS-APPELLANTS.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2009 0510

                                     Judgment Affirmed

                             Date of Decision: June 20, 2011




APPEARANCES:

        Richard E. Siferd and Brian J. Vennekotter for Appellants

        Michael A. Rumer for Appellee
Case No. 1-10-79



PRESTON, J.

       {¶1} Defendants-appellants, David and Marsha Smith (hereinafter “the

Smiths”), appeal the Allen County Court of Common Pleas’ judgment entry

permanently enjoining them from maintaining the nuisance at their property and

ordering them to remove junk vehicles and other debris from their property. For

the reasons that follow, we affirm.

       {¶2} This case concerns several zoning violations at 1601 Reservoir Road

in Bath Township, Allen County, Ohio. (Sept. 13, 2010 Tr. at 7-8). Prior to 1986,

Dick and Marcia Mauk owned the property and used it as the location for The

Mauk Brothers, a business operated by Dick and Gene Mauk. (Sept. 13, 2010 Tr.

at 96-97, 100). The property was zoned R-1, residential district, until 1984, when

the Mauks made an application to have the property re-zoned to B-2, general

business district, so the property could be used for the business. (Id. at 98-99).

Sometime in 1983, bankruptcy proceedings were initiated, which involved the

subject property. (Id. at 98). On July 29, 1986, the Smiths obtained the property

from the bankruptcy trustee. (P’s Ex. 4); (Sept. 13, 2010 Tr. at 120).

       {¶3} In May 2004, plaintiff-appellee, Scott Campbell, the Bath Township

Zoning Inspector, sent the Smiths a letter requesting that they clean up junk and

debris on their property. (Id. at 72). Some marginal improvements to the property



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were made, so Campbell sent another letter to the Smiths in March 2006

requesting that they clean up junk and debris on their property. (Id.).

       {¶4} On June 3, 2006, Campbell wrote another letter to the Smiths

indicating that “all debris, junk, vehicles, trailers, and general trash must be

removed from the property as viewed from the road right away around all

buildings and main residential structure” within thirty (30) days. (Ex. H); (Sept.

13, 2010 Tr. at 93). Later in June 2006, Campbell turned the matter over to Allen

County Sheriff’s Deputy Feldner for enforcement of the Zoning Resolution. (Sept.

13, 2010 Tr. at 59, 73). Deputy Feldner contacted Mr. Smith in August 2006 and

visited the property on August 16, 2006; however, Mr. Smith would not allow

Deputy Feldner entrance into the fenced-in portion of the property. (Id. at 60-63).

       {¶5} On June 17, 2008, the Bath Township Trustees held a public hearing

relative to the Smiths’ zoning violations and the storing of junk motor vehicles on

their property. (Id. at 20). Mr. Smith was present at this hearing and asked the

trustees for an extension until December 16, 2008 to clean up the property. (Id.).

At the November 14, 2008 trustees’ meeting, Mr. Smith asked for and was granted

a further extension until April 1, 2009. (Id.).

       {¶6} On April 21, 2009, the Bath Township Trustees passed resolution no.

4-21-09-2 declaring the property at 1601 Reservoir Road a public nuisance and



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authorizing the Bath Township Zoning Inspector to proceed with legal action to

bring the property into compliance with the Zoning Resolution. (P’s Ex. 1).

       {¶7} On May 22, 2009, Campbell filed a complaint pursuant to R.C. 519.24

seeking to permanently enjoin the Smiths from violating the Bath Township

Zoning Resolution and maintaining the nuisance on their property. (Doc. No. 1).

       {¶8} On June 24, 2009, the Smiths filed a motion for an additional thirty

(30) days to plead or otherwise respond to the complaint, which the trial court

granted. (Doc. Nos. 5-6).

       {¶9} On July 23, 2009, the Smiths filed an answer denying the substantive

allegations of the complaint and asserting, as an affirmative defense, that their

property is a duly licensed junk yard. (Doc. No. 7).

       {¶10} On March 16, 2010, the Smiths filed a motion for summary

judgment. (Doc. No. 12). On April 6, 2010, Campbell filed a memo in opposition.

(Doc. No. 13). On April 13, 2010, the trial court denied the motion for summary

judgment. (Doc. No. 16).

       {¶11} On September 13, 2010, the matter proceeded to a bench trial. On

November 4, 2010, the trial court: permanently enjoined the Smiths from violating

the Bath Township Zoning Resolution and resolution no. 4-21-09-2; permanently

enjoined the Smiths from keeping the nuisance (to wit: the junk vehicles and other

debris) on their property; ordered the Smiths to remove the junk vehicles and other

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debris within sixty (60) days; and granted the township the authority to remove the

junk vehicles and other debris from the property in the event the Smiths failed to

comply with the court’s order. (Doc. No. 31).

       {¶12} On December 3, 2010, the Smiths filed a notice of appeal. (Doc. No.

33). On December 7, 2010, the Smiths filed a motion to stay the trial court’s

judgment. (Doc. No. 36).      On December 28, 2010, the trial court stayed its

judgment pending appeal. (Doc. No. 38).

       {¶13} The Smiths now appeal raising two assignments of error for our

review.

                       ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR
       BY ENFORCING THE ZONING RESOLUTION WHERE
       THE ZONING RESOLUTION IN QUESTION MUST BE
       STRICTLY CONSTRUED IN FAVOR OF THE LAND
       OWNER, AND IS PREEMPTED BY STATE LAW OR THERE
       WAS A PRIOR NON-CONFORMING USE OF THE
       PROPERTY.

       {¶14} In their first assignment of error, the Smiths argue that the trial court

erred in its interpretation of the Bath Zoning Resolution. The Smiths further argue

that state law governs this issue through the doctrine of preemption. Finally, the

Smiths argue that the trial court erred by failing to find that their use of the land

was a prior non-conforming use. We will address each of these arguments below.



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       A.     Junk Yards Are Not Allowed Under Bath Zoning Resolution,
       Section 6.18.

       {¶15} With respect to their first argument, the Smiths specifically argue

that the Bath Township Zoning Resolution does not actually prohibit junk yards;

rather, Section 6.18 permits junk yards if they “conform to the provisions of R.C.

4737.05 to 4737.99 and 4738.01 to 4738.99.” They further argue that the Zoning

Resolution should be strictly construed since it limits land use, and as such, their

junk yard is permissible under Section 6.18 of the Zoning Resolution.

       {¶16} The interpretation of a zoning resolution presents a question of law

reviewed de novo by an appellate court. See Berry v. Liberty Township Bd. of

Zoning Appeals (Dec. 28, 1993), 3d Dist. No. 8-93-16, at *1. “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.” Saunders v. Clark

County Zoning Dept. (1981), 66 Ohio St.2d 259, 261, 421 N.E.2d 152, citing In re

University Circle Inc. (1978), 56 Ohio St.2d 180, 184, 383 N.E.2d 139; Pepper

Pike v. Landskroner (1977), 53 Ohio App.2d 63, 76, 371 N.E.2d 579. Therefore,

Zoning Resolutions must be strictly construed in favor of the property owner, and

the scope of the restrictions cannot be extended to include limitations not clearly

prescribed. Saunders, 66 Ohio St.2d at 261, citing Davis v. Miller (1955), 163

Ohio St. 91, 95, 126 N.E.2d 49; State ex rel. Ice & Fuel Co. v. Kreuzweiser


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(1929), 120 Ohio St. 352, 166 N.E. 228; State ex rel. Moore Oil v. Dauben (1919),

99 Ohio St. 406, 124 N.E. 232, paragraph one of the syllabus. Nevertheless, “in

determining the legislative intent of an ordinance, the provision to be construed

should not be reviewed in isolation. Its meaning should be derived from a reading

of the provision taken in the context of the entire ordinance.” In re University

Circle Inc. (1978), 56 Ohio St.2d at 184, citations omitted.

       {¶17} The Bath Township Zoning Resolution was enacted in 1966 after

voter approval on May 3, 1966, but the Zoning Resolution has since been

amended several times, including on March 6, 1986 (eff. April 1986) and on

August 15, 2006 (eff. September 2006). (Tr. at 70); (Exs. 2-3); (Campbell Aff. at

¶2).   Both the 1986 and 2006 versions of the Zoning Resolution divide the

township into eleven (11) districts. (Exs. 2-3, Art. 6.0). Both versions of the

Zoning Resolution then provide separate Articles governing each district setting

forth specific permissible uses for land in those districts. (Exs. 2-3). Section 6.3 in

both versions of the Zoning Resolution provides, in pertinent part, that “[n]o

building shall be erected, converted, or altered, nor shall any * * * land be used

except for a purpose permitted in the district in which the * * * land is located,

except as hereinafter provided.” (Id.). Both versions of the Zoning Resolution also

provide: “[a]ny use which is not specifically provided for nor specifically

authorized by this Zoning Resolution shall be expressly prohibited unless such use

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shall otherwise be authorized or permitted by the Board of Zoning Appeals,

pursuant to the procedures contained herein.” (P’s Ex. 3, Section 7.5); (P’s Ex. 2,

Section 7.6). Junk yards are not listed as permitted uses for any of the eleven

districts in either version of the Zoning Resolution. (P’s Exs. 2-3). Nevertheless,

Section 6.18 in both versions of the Zoning Resolution provides: “Junk Yards

(Automotive Graveyards), Motor Vehicle Salvage: Junk yards shall conform to

the provisions of Chapter 4737.01 to 4738.01 to 4738.99 of the Ohio Revised

Code (license-fence-buffer).” (Id.) (emphasis in original).

       {¶18} The Smith’s interpretation of Section 6.18 is only tenable if it is

inappropriately read in isolation. In re University Circle Inc., 56 Ohio St.2d at 184,

citations omitted.    The Zoning Resolution was drafted in such a way as to

expressly provide for those uses that were permissible in each district, and the

Zoning Resolution further provides that land shall not be used except as

specifically provided therein. Interpreting Section 6.18 as the Smiths interpret it is

not only contrary to the Zoning Resolution’s overall scheme but would lead to the

absurd result that junk yards were permissible in all districts, including residential

districts. “It is a cardinal rule of statutory construction that a statute should not be

interpreted to yield an absurd result.” Mishr v. Poland Bd. of Zoning

Appeals (1996), 76 Ohio St.3d 238, 240, 667 N.E.2d 365, citing State ex rel.

Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 384, 439, 481 N.E.2d

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632; Slater v. Cave (1853), 3 Ohio St. 80, 83-84. The Bath Township Zoning

Inspector offered a reasonable interpretation of Section 6.18 when he averred that

Section 6.18 exists to govern junk yards that were in operation prior to the passage

of the original Zoning Resolution. (See Campbell Aff. at ¶9). Section 6.18 also

applies to those junk yards that were established under prior versions of the

Zoning Resolution that permitted junk yards in specific districts. For example,

Campbell testified that junk yards were a permissible use of land in manufacturing

districts in 1977. (May 17-18, 2010 Tr. at 91). Therefore, we do not interpret

Section 6.18 as an authorization of junk yards in all districts in perpetuity, as the

Smiths interpret it; but rather, as a requirement for the continued operation of junk

yards that were already in existence prior to 1966, when the original Zoning

Resolution was enacted, and junk yards that were established as permissible uses

of land under prior versions of the Zoning Resolution.

       B.     Bath Zoning Resolution Does Not Conflict With R.C. 4737.07.

       {¶19} The Smiths next argue that townships may not prohibit junk yards

since R.C. 4737.07 allows municipalities, but not townships, to prohibit junk

yards. Since Allen County issued them a license to operate a junk yard pursuant to

R.C. 4737.07, the Smiths argue that junk yards are a matter of state law, which

preempts Bath’s Zoning Resolution.



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      {¶20} A township’s authority to enact zoning ordinances is not inherent,

nor does it derive from a constitutional provision like municipalities; rather, the

zoning power of a township is a police power delegated to the township by the

General Assembly. Torok v. Jones (1983), 5 Ohio St.3d 31, 32, 91, 448 N.E.2d

819; Yorkavitz v. Columbia Twp. Bd. of Trustees (1957), 166 Ohio St. 349, 142

N.E.2d 655, paragraph one of the syllabus. See, also, Dsuban v. Union Twp. Bd. of

Zoning Appeals (2000), 140 Ohio App.3d 602, 608, 748 N.E.2d 597. As such,

“[t]he 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, 563 N.E.2d 717,

paragraph one of the syllabus.

      {¶21} “[T]he General Assembly cannot be held to have delegated to

township officials the authority to adopt zoning resolutions which are in

contravention of general laws previously enacted by the General Assembly.”

Yorkavitz, 166 Ohio St. at 351. Consequently, “[a] zoning ordinance, rule or

resolution which violates an explicit statutory command of the General Assembly

is clearly preempted and is therefore invalid and unenforceable.” Newbury Twp.

Bd. of Trustees v. Lomak Petroleum (1992), 62 Ohio St.3d 387, 583 N.E.2d 302,

paragraph one of the syllabus. “The test to determine whether a conflict exists

between a township’s zoning resolution and a general law of the state is ‘whether

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the ordinance permits or licenses that which the statute forbids or prohibits, and

vice versa.”’1 Am. Outdoor Advertising Co., L.L.C. v. Franklin Twp. Bd. of Zoning

Appeals, 177 Ohio App.3d 131, 2008-Ohio-3063, 894 N.E.2d 78, ¶16, quoting

Fondessy Ents., Inc. v. Oregon (1986), 23 Ohio St.3d 213, 492 N.E.2d 797,

paragraph two of the syllabus. Whether a local zoning resolution conflicts with

the general laws of Ohio is a question of law we review de novo. See Smith

Family Trust v. Hudson Bd. of Zoning and Building Appeals, 9th Dist. No. 24471,

2009-Ohio-2557, ¶10; State ex rel. O’Connor v. Davis (2000), 139 Ohio App.3d

701, 704, 745 N.E.2d 494.

        {¶22} R.C. 4737.07 provides, in pertinent part:

        No person shall operate and maintain a junk yard outside of a
        municipality * * * without first obtaining a license to do so from
        the county auditor of the county in which such junk yard is
        located or in which such junk yard is to be established. * * * If,
        after January 1, 1964, a junk yard is established within one
        thousand feet of the nearest edge of the right of way of a state or
        county highway or within three hundred feet of the nearest edge
        of the right of way of a township road, it shall be so located that
        the view thereof from such road is obscured by natural objects
        or a fence. If the yard is so obscured, the person operating or
        maintaining it shall be issued a license. * * *

         * * * If a junk yard is established after November 18, 1969,
         within one thousand feet of the nearest edge of the right of way
1
  We note that this conflict test was developed by the Ohio Supreme Court in its jurisprudence relating to
potential conflicts between a municipality’s ordinance and state law, not a township Zoning Resolution and
state law; nevertheless, this same test has been applied by The Court of Appeals in cases dealing with the
latter as well. See, e.g., Osnaburg Twp. Zoning Inspector v. Eslich Environmental, Inc., 5th Dist. No.
2008CA00026, 2008-Ohio-6671, ¶55; Center Twp. Bd. of Twp. Trustees v. Valentine (Nov. 9, 2000), 6th
Dist. No. WD-99-065, at *2; Am. Outdoor Advertising Co., L.L.C., 2008-Ohio-3063, at ¶16.

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       of an interstate or primary highway, it shall be so located that
       the view thereof from such highway is obscured by natural
       objects or a fence. If the yard is so obscured, the person
       operating or maintaining it shall be issued a license under this
       section. Nothing contained in this section shall be construed to
       relieve any person of his duty to comply with the provisions of
       ordinances enacted by municipal corporations regulating or
       prohibiting junk yards, including requirements to obtain a
       license under municipal ordinances. The requirement to obtain
       a license from the municipality under this section shall be in
       addition to regulations imposed and licenses required under
       municipal ordinances. No license shall be issued unless such
       yard accords with the provisions of this section. * * *

      {¶23} R.C. 519.02, on the other hand, “gives a local board of township

trustees the authority to regulate land use within the township confines, and the

power to divide the area into such districts or zones as the board determines are

proper.” Lomak Petroleum, 62 Ohio St.3d at 390; Funtime, 55 Ohio St.3d at 107.

“A township’s power to regulate may include the power to exclude a use.”

Machnics v. Sloe, 11th Dist. No. 2004-G-2554, 2005-Ohio-935, ¶51, appeal not

allowed by Machnics v. Sloe, 106 Ohio St.3d 1484, 2005-Ohio-3978, 832 N.E.2d

737, citing E. Fairfield Coal Co. v. Booth (1957), 166 Ohio St. 379, 382, 143

N.E.2d 309.

      {¶24} As an initial matter, we note that Bath Township’s Zoning

Resolution does not forbid or prohibit what R.C. 4737.07 permits or licenses on its

face. Section 6.18 of the Bath Township Zoning Resolution provides that “[j]unk

yards shall conform to the provisions of Chapter 4737.01 to 4738.01 to 4738.99 of

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the Ohio Revised Code (license-fence-buffer).” (P’s Exs. 2-3). Nevertheless, the

Smiths assert that the conflict results because the Zoning Resolution no longer

permits the establishment of new junk yards even though R.C. 4737.07 permits the

licensure of junk yards. This argument lacks merit.

       {¶25} The Ohio Attorney General has previously concluded that the duties

of the county auditor to license junk yards in Chapter 4737 does not conflict with a

township’s ability to prohibit junk yards by adopting zoning resolutions under

Chapter 519. 1969 Ohio Atty.Gen.Ops. No. 69-136. The opinion provides, in

pertinent part:

            There is nothing in Chapter 4737, Revised Code, which
       expressly refers to or conflicts with the provisions of Chapter
       519, Revised Code. Considering the duties of the county auditor,
       it becomes apparent that the licensing power of the county
       auditor is designed basically as a revenue measure. In effect, the
       county auditor’s licensing power presents an independent
       condition precedent to the establishment of a junk yard, which is
       in no way affected by a township’s capacity to prohibit junk
       yards in certain areas by adopting Zoning Resolutions.
            It consequently becomes clear that the county auditor is
       authorized to issue a license for a junk yard under Chapter
       4737, supra, if the application is proper, regardless of the
       existence of a township Zoning Resolution forbidding junk yards
       in the area described in the application. The responsibility lies
       with the applicant to ensure that there are no other restrictions
       which might prevent the establishment of the junk yard.
            * * * [A] township’s zoning regulation of junk yards does
       not conflict with a county auditor’s power to license junk yards.
       Therefore, it is clear that the township’s power to control junk
       yards through their Zoning Resolution is not affected by the


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       licensing power granted to county auditors in Chapter 4737,
       supra.
            * * * [A] township’s zoning authority under Chapter 519,
       Revised Code, is not inconsistent with the requirement under
       Section 4737.07, Revised Code, of a license issued by the county
       auditor prior to the establishment of a junk yard. The county
       auditor’s licensing power, with respect to junk yards, and the
       township’s zoning authority are mutually independent and
       separately enforceable.

       {¶26} We agree with the Ohio Attorney General’s conclusion that a county

auditor’s duty to license operators of junk yards found under R.C. 4737.07 is not

in conflict with a township’s authority to prohibit junk yards through local zoning

resolutions enacted pursuant to Chapter 519. Rather, the landowner’s compliance

with local zoning regulations and state licensing present two independent criteria

for the establishment of a junk yard. See Set Products, Inc. v. Bainbridge Twp. Bd.

of Zoning Appeals (1987), 31 Ohio St.3d 260, 265, 510 N.E.2d 373, citing

Hulligan v. Bd. of Zoning Appeals (1978), 59 Ohio App.2d 105, 392 N.E.2d 1272.

See, also, Machnics, 2005-Ohio-935, at ¶55 (“* * * although the state of Ohio has

preempted the field of licensure regarding the regulation of motor vehicle dealers,

no legal authority exists which suggests that a township is precluded from

prohibiting commercial motor vehicle sales as part of its land use plan.”).

       {¶27} The Ohio Attorney General’s position is further supported by the fact

that Title 47 governs licensure or certification of occupations and professions—not

land use. R.C. 4701 to 4709. In fact, R.C. 4737.07 begins with “[n]o person shall

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operate or maintain a junk yard * * *”. R.C. 4737.07’s plain language read in the

context of Title 47 as a whole leads us to conclude that the license issued under

that section is a junk yard operator’s license, which enables the person to operate a

junk yard, not a license for the use of the land as a junk yard. Accepting the

Smiths’ argument leads to the absurd result that any person issued a license under

Title 47, whether it be an accountant or a pawn broker, would likewise be able to

open up a place of business to practice their occupation or profession

notwithstanding local zoning. Nothing would prevent the establishment of such

places of business, including junk yards, from being located in residential areas.

As previously observed, “[i]t is a cardinal rule of statutory construction that a

statute should not be interpreted to yield an absurd result.” Poland Bd. of Zoning

Appeals, 76 Ohio St.3d at 240, citing Wells, 18 Ohio St.3d at 384; Slater v. Cave

(1853), 3 Ohio St. at 83-84. Stated in simple terms, the fact that one has a license

to practice a profession or occupation is a separate requirement distinct from

zoning regulations governing the location of the place wherein one may practice

that profession or occupation.

       {¶28} The logical result of the Smiths’ argument is also antithetical to the

General Assembly’s delegation of its power to townships under Chapter 519 to

manage the use of land within their unincorporated territory. Nevertheless, the

Smiths argue that the General Assembly did not provide townships the ability to

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prohibit junk yards in R.C. 4737.07, like it did for municipalities. While it is true

that the General Assembly provided that a person who obtains a junk yard license

under R.C. 4737.07 must still comply with ordinances enacted by municipal

corporations regulating or prohibiting junk yards, we are not persuaded that the

General Assembly intended junk yards to be exempt from township zoning by

virtue of its silence in R.C. 4737.07 alone. Had the General Assembly intended to

limit a township’s authority to prohibit junk yards, it could have done so in

Chapter 519, as it has done with other items of public concern, such as: outdoor

advertising, agriculture, public utilities, railroads, liquor sales, oil and gas

production, telecommunication towers, permanently sited manufactured homes,

and small wind farms. R.C. 519.20-213. Furthermore, the fact that the General

Assembly allowed municipalities to regulate and prohibit junk yards through

zoning ordinances indicates the General Assembly’s intent to permit local control

over the location of junk yards.

       {¶29} The Smiths rely heavily upon Sheffield v. Rowland (1999), 87 Ohio

St.3d 9, 716 N.E.2d 1121 to support their preemption argument. We, however,

find this case distinguishable from Sheffield. Sheffield involved the establishment

of a construction and demolition debris facility licensed and regulated pursuant to

Revised Code Chapter 3714. Id. at 9-12. Chapter 3714 appears in Title 37, which

governs Health, Safety, and Morals, not the licensure of professions and

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occupations, like Title 47 wherein Chapter 4737 appears. The regulations in

Chapter 3714 are much more comprehensive than that found in Chapter 4737,

manifesting the General Assembly’s concern for state-wide uniformity. Eastlake v.

Ohio Bd. of Bldg. Standards (1981), 66 Ohio St.2d 363, 369, 422 N.E.2d 598. For

example, R.C. 3714.051 requires a permit to install new construction and

demolition debris facilities, and R.C. 3714.06(A) requires that the facility annually

renew an operation license, which is issued by the board of health or the Director

of Environmental Protection. Sheffield, 87 Ohio St.3d at 11.            The license

application is site-specific and must include accompanying plans, specifications,

and information regarding the facility and its operations. Id., citing R.C.

3714.06(A). Chapter 3714 also has various provisions concerning the inspection

of such facilities, enforcement orders, suspension and revocation of the license,

and makes violations of Chapter 3714 second degree misdemeanors. See R.C.

3714.08, .10, .12, .13, .99. Chapter 4737, on the other hand, contains no similar

application process for the installation of new junk yards—evidence that the

installation of junk yards was to be in accordance with local regulation. Although

Chapter 4737 does provide for semi-annual inspections of junk yards and

revocation of the license upon various violations (R.C. 4737.10), the regulations

found in Chapter 4737 are far less comprehensive than in Chapter 3714.



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       {¶30} Most significantly, Chapter 3714 also provides several limitations on

the location of construction and demolition debris facilities akin to those

limitations that otherwise would have been provided for through local zoning. For

example, a license may not be issued for a construction and demolition debris

facility that is located within the boundaries of a one-hundred-year flood plain or

within the boundaries of a sole source aquifer. R.C. 3714.03(B)(1)-(2). Licenses

may also not be issued when the “horizontal limits of construction demolition

debris placement at the new facility are proposed to be located”: (1) within 100

feet of a perennial stream or a category 3 wetland; (2) within 100 feet of the

facility’s property line; (3) within 500 feet of a residential or public water supply

well, subject to a few exceptions; (4) within 500 feet of a state or federal park,

national recreation area, or land purchased for those purposes but not designated

as such; (5) within 500 feet of any natural area, state wildlife area, nature preserve,

or national wildlife refuse; (6) within 500 feet of a lake or reservoir of one acre or

more that is connected to ground water; (7) within 500 feet of a state forest; (8)

within 500 feet of a state historic landmark; and (9) within 500 feet of an occupied

dwelling unless written consent is provided by the dwelling owner. R.C.

3714.03(C)(1)-(9).    The only marginally similar requirement found in R.C.

4737.07 is the requirement of a fence or natural boundary around the perimeter of

the junk yard to obscure its view. The absence of statutory limitations on the

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location of junk yards, like those enacted in Chapter 3714 with respect to

construction and demolition debris facilities, is further indication that the General

Assembly intended to allow the location of junk yards to be determined by local

regulation.

       {¶31} For all these reasons, we conclude that R.C. 4737.07 and the Bath

Township Zoning Resolution do not conflict with one another; and therefore, R.C.

4737.07 does not preempt the local Zoning Resolution.           The license issued

pursuant to R.C. 4737.07 is a separate requirement for the operation of a junk yard

apart from local zoning. A landowner who owns land in a township and who

wishes to establish a junk yard must: (1) determine that a junk yard is an

acceptable use of his/her property under the township’s zoning resolution (or

secure a variance or conditional use permit for the junk yard if provided by the

zoning resolution); and (2) obtain a license to operate the junk yard under R.C.

4737.07. See 1969 Ohio Atty.Gen.Ops. No. 69-136.

       C. The Smiths’ Use of their Property is not a Pre-existing Non-
       conforming Use

       {¶32} Finally, the Smiths argue that the use of their property is a prior non-

conforming use and should be allowed under R.C. 713.15 and Article 7 of the

Zoning Resolution. R.C. 519.19 provides, in pertinent part: “[t]he lawful use of *

* * any land * * *, as existing and lawful at the time of enactment of a Zoning


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Resolution or amendment thereto, may be continued, although such use does not

conform with such resolution or amendment * * *.” In order to qualify as a pre-

existing, nonconforming use under R.C. 519.19, the landowner must demonstrate

by a preponderance of the evidence that the use of the property existed at the time

of the effective date of the zoning change, and that the use was lawful at the time it

was established. Loy v. Liberty Twp. Bd. of Trustees, 3d Dist. No. 5-02-60, 2004-

Ohio-1391, quoting Castella v. Stepak (May 14, 1997), 9th Dist. No. 96CA0057,

at *1, citing Pschesang v. Terrace Park (1983), 5 Ohio St.3d 47, 448 N.E.2d 1164,

syllabus.

       {¶33} The Smiths argue that the junk yard is a prior non-conforming use

since the property had junk on it before he purchased it in 1986. That argument

lacks merit. The previous owner, Janet Mauk, denied leaving scrap metal on the

property and testified that she had never seen the scrap metal on the property as

photographed in defense exhibits A and B. (Id. at 104, 106). Mauk testified that

all of the business materials were taken from the property by a partner that bought

out their share of the business. (Id. at 102). Smith, on the other hand, testified that

the scrap metal photographed in defense exhibits A and B was on the property

when he purchased it. (Id. at 118-20).          He further testified that his brother

purchased a junk bulldozer from the Mauks on this same property in 1980, but

Mrs. Mauk denied ever having any equipment on the property. (Id. at 118-19);

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(101). The testimony at trial also demonstrated that the property in question was

zoned R-1, residential district, until 1984, when the township granted the Mauks’

application to the have the property re-zoned to B-2, general business district, so

their construction business could be established on the property. (Sept. 13, 2010

Tr. at 85-86, 97-99). The Smiths’ property is currently classified as B-2, general

business district, and junk yards were not permitted uses in B-2 general business

districts under the 1986 Zoning Resolution or the 2006 Zoning Resolution,

currently in effect. (Id. at 77); (P’s Exs. 2-3, Art. 15).

       {¶34} Even if the trial court found that the Mauks had left scrap metal on

the property from their construction business and previously had an inoperable

bulldozer as Smith testified, that does not mean their property was used as a “junk

yard” or “scrap metal processing facility” as those terms are defined in R.C.

4737.05(B) and (D). Furthermore, even if these acts transformed the Mauks’ use

of the property into a junk yard, the Smiths failed to demonstrate that the Mauks’

use of the property as a junk yard was lawful under the then-existing Zoning

Resolution. At least since March 6, 1986, and prior to the Smiths’ ownership, the

property has been zoned B-2 general business district, where junk yards are not

permitted uses. (P’s Exs. 3-4); (Sept. 13, 2010 Tr. at 120). Therefore, the Smiths

also cannot demonstrate that their use of the property as a junkyard was lawful,

and as such, it is not a pre-existing non-conforming use as a matter of law. R.C.

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519.19; Loy, 2004-Ohio-1391, quoting Stepak 9th Dist. No. 96CA0057, at *1,

citing Pschesang, 5 Ohio St.3d 47, syllabus.

      {¶35} For all these reasons, the Smiths’ first assignment of error is

overruled.

                      ASSIGNMENT OF ERROR NO. II

      THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      BY GRANTING RELIEF BEYOND THE RELIEF
      REQUESTED BY A PARTY AND EXPRESSLY TRIED TO
      THE COURT.

      {¶36} In their second assignment of error, the Smiths argue that the trial

court erred by ordering that he remove all debris from their property since the

Township Zoning Inspector brought the action under R.C. 505.173(A) and (C) to

remove junk motor vehicles alone from the property. The Smiths argue that the

trial court erroneously granted a remedy beyond that provided in R.C. 505.173(B).

We disagree.

      {¶37} Civ.R. 15(B) provides, in pertinent part:

      When issues not raised by the pleadings are tried by express or
      implied consent of the parties, they shall be treated in all
      respects as if they had been raised in the pleadings. * * * Failure
      to amend as provided herein does not affect the result of the trial
      of these issues.

Throughout the course of this litigation, the zoning inspector sought more than

merely the removal of the junk cars stored on the Smiths’ property pursuant to


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R.C. 505.173(B). In his June 3, 2006 letter, the zoning inspector indicated that the

Smiths must remove “all debris, junk, vehicles, trailers, and general trash” from

their property. (D’s Ex. H). Furthermore, the zoning inspector’s complaint sought

a permanent injunction enjoining the Smiths “from violating the Zoning

Resolution of Bath Township, Ohio and/or maintaining a nuisance on the

premises at 1601 Reservoir Road * * *.” (Doc. No. 1) (Emphasis added). In his

memorandum contra to the Smiths’ motion for summary judgment, the zoning

inspector asserted that he initiated this action “to compel the removal of junk or

inoperable motor vehicles.” (Doc. No. 13) (Emphasis added). In both opening and

closing arguments, the zoning inspector stated that the case was about junk

vehicles and common law nuisance, generally, and sought an order enjoining the

Smiths from storing “junk motor vehicles, junk, construction debris, or any other

materials prohibited by the Bath Township Zoning Resolution.” (Sept. 13, 2010

Tr. at 2); (Doc. No. 29). Aside from the zoning inspector’s filings and his letter, it

is also clear that the Smiths were aware that the zoning inspector was alleging that

their use of the property constituted a nuisance for purposes of trial. (See

Campbell Depo. at 21) (Q: “Now, in your complaint you indicate that the property

is a nuisance. Can you explain that, why it’s a nuisance?”).

       {¶38} Since the zoning inspector raised the issue of common law nuisance

throughout the proceedings and at trial, it is treated as if it had been specifically

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raised in the pleadings. Civ.R. 15(B). Furthermore, we find that the Smiths have

waived this issue for purposes of appeal by litigating this matter in the trial court.

As such, we cannot conclude that the trial court erred by enjoining the Smiths

from keeping “other debris” on their property as the Smiths argue.

       {¶39} The Smiths’ second assignment of error is, therefore, overruled.

       {¶40} Having found no error prejudicial to the appellants herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

ROGERS, P.J. and WILLAMOWSKI, J., concur.

/jlr




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