[Cite as Havens v. Union Twp., 2019-Ohio-1401.]



                                   IN THE COURT OF APPEALS

                          TWELFTH APPELLATE DISTRICT OF OHIO

                                          FAYETTE COUNTY




VERNON LEE HAVENS II,                             :

        Appellant,                                :    CASE NO. CA2018-10-020

                                                  :           OPINION
    - vs -                                                     4/15/2019
                                                  :

UNION TOWNSHIP, et al.,                           :

        Appellees.                                :



         CIVIL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                            Case No. CVH 20170208



Vernon Lee Havens II, 1238 State Route 38 NE, Washington C.H., Ohio, 43160, pro se

Jess C. Weade, Fayette County Prosecuting Attorney, Sean Abbott, Fayette County
Courthouse, 110 East Court Street, Washington C.H., Ohio 43160, for appellees



        HENDRICKSON, P.J.

        {¶ 1} Vernon Lee Havens II appeals the decision of the Fayette County Court of

Common Pleas, which granted summary judgment in favor of defendants, Union Township

and Fayette County, on Havens' complaint for a writ in mandamus compelling the defendants

to enforce a local zoning resolution. For the reasons described below, this court finds that

genuine issues of fact preclude summary judgment with respect to the mandamus claim,

reverses the grant of summary judgment, and remands for further proceedings.
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        {¶ 2} Havens is a one-fifth owner of real property located at 1238 State Route 38 in

Union Township, Fayette County, Ohio ("the property"). Havens' siblings possess the other

four-fifths interest in the property. The Havens siblings took title to the property following the

passing of their mother in 2013. Also in 2013, Havens moved into a residence on the

property and began raising chickens, ducks, and geese.

        {¶ 3} James and Beverly Moore own land that abuts the property. James has

operated what he describes as an "automobile towing and storage business" on their land

since 1990. Initially, James and Beverly allowed Havens' poultry to graze on their land.

However, in July 2016, a goose attacked Beverly. The Moores then instructed Havens to

remove his poultry from their land.

        {¶ 4} Havens began complaining to the local authorities about zoning violations

occurring on the Moores' land. Among other concerns, Havens alleged that the Moores were

operating an unpermitted "junkyard." However, the local zoning official inspected the Moores'

land and determined that it was not in violation of the local zoning resolution.1 Instead, the

zoning official noted that Havens' property was not zoned for agricultural use and Havens'

poultry operation violated the zoning resolution.

        {¶ 5} Havens filed a pro se lawsuit against the defendants.2 The complaint alleged

that the defendants had failed to enforce their rules and regulations concerning junkyards

and that this failure to enforce had resulted in a nuisance and a taking of Havens' property.

Havens asked the court for a writ of mandamus to compel the defendants to enforce their

zoning regulations against the Moores' land, for inverse condemnation, for monetary

damages for the reduction in value of the property, and for injunctive relief "forbidding any




1. When this inspection occurred is not apparent from the summary judgment record.

2. Havens brought the suit individually; his siblings are not parties.
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more material qualifying as junk or salvage" on the Moores' land. The defendants answered,

raising various affirmative defenses and asserting a counterclaim against Havens for

frivolous conduct.

       {¶ 6} Havens moved for "leave to motion for summary judgment."                 This filing

contained arguments akin to a summary judgment motion.               However, assuming this

document could be treated as a motion for summary judgment, Havens failed to submit any

admissible summary judgment evidence. The filing referenced a set of unauthenticated

photographs, documents, and one unnotarized affidavit. The court denied the motion.

Havens also filed – out-of-time and without leave of court – an "amended complaint"

purporting to add claims against the defendants for harassment, libel, and slander.

       {¶ 7} The defendants later moved for summary judgment. The defendants argued

that Havens was not entitled to a writ for various reasons, e.g., that he failed to file a formal

administrative appeal and therefore failed to exhaust administrative remedies prior to filing

suit, that he lacked standing due to his one-fifth interest in the property, and that the

defendants were immune from suit pursuant to the political subdivision tort immunity laws,

i.e., R.C. Chapter 2744. The defendants supported their motion with affidavits, including that

of the local zoning official and of several township officials who averred that Havens, to the

best of their knowledge, had not appealed to the Union Township Board of Trustees with his

concerns of zoning violations.

       {¶ 8} Havens responded in a combined memorandum in opposition to summary

judgment and motion for default judgment. In support of his opposition memorandum,

Havens filed two notarized affidavits of individuals who claimed personal knowledge of the

conditions on the Moores' land.

       {¶ 9} The court later issued an entry overruling Havens' numerous outstanding

motions and granting summary judgment to the defendants on Havens' claims. The court
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stated that it had reviewed the parties' pleadings only and found that there were no genuine

issues of fact for trial.3 Havens appeals, raising three assignments of error.

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE TRIAL COURT ERRED BY GRANTING THE DEFENDANTS SUMMARY

JUDGEMENT.

       {¶ 12} Havens presents numerous arguments and sub-issues in support of this

assignment of error but principally argues that the court erred in granting summary judgment

because of the existence of genuine issues of fact as to whether a junkyard exists on the

Moores' land. An appellate court reviews a trial court's decision on a motion for summary

judgment de novo, independently and without deference to the decision of the trial court.

Flagstar Bank, FSB v. Sellers, 12th Dist. Butler No. CA2009-11-287, 2010-Ohio-3951, ¶ 7.

Summary judgment is proper when the pleadings, depositions, answers to interrogatories,

written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any,

show that (1) there is no genuine issue of any material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) the evidence submitted can only lead reasonable minds

to a conclusion that is adverse to the nonmoving party. Civ.R. 56(C); Harless v. Willis Day

Warehousing Co., 54 Ohio St.2d 64, 66 (1978).

       {¶ 13} The moving party bears the initial burden of informing the court of the basis for

the motion and demonstrating the absence of a genuine issue of material fact. Dresher v.

Burt, 75 Ohio St.3d 280, 293 (1996). Once this burden is met, the nonmoving party may not

rest upon the mere allegations or denials of the pleadings, but must supply evidentiary

materials setting forth specific facts showing there is a genuine issue of material fact for trial.

Puhl v. U.S. Bank, N.A., 12th Dist. Butler No. CA2014-08-171, 2015-Ohio-2083, ¶ 13.


3. The court certified the entry with Civ.R. 54(B) language. The defendants' frivolous conduct claim was
unresolved as of the filing of this appeal.
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Summary judgment is proper if the nonmoving party fails to set forth such facts. Id. In

determining whether a genuine issue of material fact exists, the evidence must be construed

in favor of the nonmoving party. Palmer v. Mossbarger, 12th Dist. Madison No. CA2014-04-

011, 2015-Ohio-231, ¶ 13.

       {¶ 14} Initially, we note that Havens' complaint alleged a taking and requested inverse

condemnation. "Inverse condemnation" is a "'shorthand description of the manner in which a

landowner recovers just compensation for a taking of his property when condemnation

proceedings have not been instituted.'" City of Cincinnati v. Chavez Props., 117 Ohio App.3d

269, 274 (1st.Dist 1996), quoting United States v. Clarke, 445 U.S. 253, 257, 100 S. Ct. 1127

(1980). It is predicated upon the concept that a taking of private property has occurred and

the government should have but did not initiate formal condemnation proceedings. Wilson v.

Trustees Union Twp., 12th Dist. Clermont No. CA98-06-036, 1998 Ohio App. LEXIS 5025,

*15-16 (Oct. 26, 1998); see also Chavez at 274.

       {¶ 15} Inverse condemnation actions can be grouped into a few broad categories.

First, there are those which involve governmental regulations on the use of property. Lucas

v. S.C. Coastal Council, 505 U.S. 1003, 1015, 112 S. Ct. 2886 (1992). Such restrictions may

constitute a taking if they (1) compel the property owner to suffer a "physical invasion" of his

property or, (2) where regulation denies all economically beneficial or productive use of land.

Id. Second, inverse condemnation has been pursued where government actions, such as

public works projects like airports or urban renewal projects, "substantially interfere" with the

use of property. Chavez at 274, citing Thompson v. Tualatin Hills Park and Recreation Dist.,

496 F.Supp. 530, 539, (D.Or.1980).

       {¶ 16} Havens does not claim that the defendants enacted any new regulations that

caused a physical invasion of the property or that denied him all economically beneficial use

of the property. Nor does he allege that the defendants undertook some project that has
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substantially interfered with his use of the property. Instead, he claims that the defendants

have failed to enforce their rules and regulations. Thus, Havens has not set forth grounds

that would support a request for inverse condemnation. Accordingly, this court affirms the

lower court to the extent it granted summary judgment to the defendants on Havens' takings

claim.

         {¶ 17} The gravamen of Havens' complaint is his request for a writ compelling the

defendants to enforce the local zoning resolution and state laws applicable to junkyards. To

be entitled to a writ of mandamus Havens must shows by plain, clear, and convincing

evidence that (1) he has a clear legal right to the relief requested, (2) the defendants are

under a clear legal duty to perform the requested act, and (3) Havens has no plain and

adequate remedy in the ordinary course of law. State ex rel. Ney v. Niehaus, 33 Ohio St.3d

118, 118-119 (1987), citing State ex rel. Middletown Bd. of Edn. v. Butler Cty. Budget

Comm., 31 Ohio St. 3d 251, 253 (1987).

         {¶ 18} The Moores' land is subject to the Union Township Zoning Resolution ("the

resolution") and is zoned commercial and industrial. Per the resolution, "motor vehicle

storage and salvage yards" are conditional uses in the industrial district. Article XIX, Section

19.04(C). The resolution defines "storage yard" or "salvage yard" as "an area for the

temporary storage of operable motor vehicles for a period of time generally less than one (1)

month, such as an impound lot." Article II, Section 2.02.63.

               The resolution also defines "junk yard," it is:

               [a]n open area where waste, used, or second hand materials are
               bought and sold, exchanged, stored, baled, packaged,
               disassembled or handled including but not limited to scrap iron
               and other metals, paper, rags, rubber tires, and bottles. A 'junk
               yard' includes automobile wrecking yards and includes any area
               of more than two hundred (200) square feet for storage, keeping,
               or abandonment of junk but does not include uses established
               entirely within enclosed buildings. The storage of an inoperable
               or unlicensed vehicle shall be construed to be a junkyard.
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(Emphasis added).

       {¶ 19} The resolution permits junkyards but with certain requirements including (1) the

submission of a development plan to the Board of Zoning Appeals, (2) that the site of the

junkyard be a minimum of 200 feet from any residence or public area and include a 50 foot

section of screening vegetation or trees, and (3) that the junkyard owner submit evidence that

he or she is compliant with applicable state laws. Appendix A, Junkyards, Paragraphs 1

through 5.

       {¶ 20} The resolution provides that the zoning official shall "[e]nforce the Zoning

Resolution and take all necessary steps to remedy conditions found in violation by ordering,

in writing, the discontinuance of illegal uses or work in progress, by causing a citation to be

issued, and by directing cases of noncompliance to the Board of Zoning Appeals or other

appropriate entity for action." Article III, Section 3.01.03(A).

       {¶ 21} The resolution also provides that "any person may file a written complaint"

"[w]henever a violation of this Resolution occurs, or is alleged to have occurred * * *." Article

IV, Section 4.10.02. "Such complaint shall state fully the causes and basis thereof, and shall

be filed with the Zoning Official. The Zoning Official shall record properly such complaint,

immediately investigate, and take such appropriate action thereon as may be necessary and

provided for by this Resolution." Id.

       {¶ 22} The state laws applicable to junkyard licensing are set forth in R.C. 4737.05

through 4734.14. Junkyards outside of municipalities must be licensed by the county auditor.

R.C. 4737.07. There are fencing requirements and procedures set forth for inspections

before licensure. R.C. 4737.09 and 4737.10. The county prosecutor is empowered to sue

for injunction or other relief if the prosecutor finds that a junkyard is being operated in

violation of the Revised Code. R.C. 4737.11.


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        {¶ 23} With respect to whether the conditions on the Moores' land could constitute a

junkyard, James Moore averred in his summary judgment affidavit that he does not operate a

junkyard, but rather an "automobile towing and storage business." The zoning official, Harold

Skaggs, averred: "[i]n my opinion, the automobile towing and storage business operated by

James and Beverly Moore is not in violation of the Union Township Zoning resolution."

Neither affidavit addresses whether inoperable vehicles have been stored on the Moores'

land.

        {¶ 24} However, Havens filed the affidavit of Victoria Lynn Havens. She averred: "I

have annually viewed the [Moores'] property since they acquired it and have observed it to be

a continuously and steadily growing and expanded repository of junk and salvage vehicles. *

* * Further, I assert that there are inoperable vehicles upon that property which have been in

the same place and position longer than I can remember, but certainly longer than since

2010." Havens also filed the affidavit of his neighbor Bryce Miller. Miller averred "I have

viewed countless wrecked vehicles including cars, vans, panel trucks, and school buses with

open doors, windows, broken windows, open floors, …, upon the Moore property, and I have

seen dead carcasses and skeletons of animals which appeared to be older prey taken into

those vehicles with the flesh eaten off of them."

        {¶ 25} Havens' summary judgment affidavits, which this court construes in his favor,

are sufficient to create a genuine issue of fact with respect to whether the Moores' land

contains a junkyard in violation of the zoning resolution and potentially violates state laws

related to the licensing of junkyards. The resolution provides that any person may file a

complaint concerning a violation of the resolution and it is the zoning official's express duty to

investigate and enforce the resolution and take necessary steps to ensure compliance.

Similarly, the county has statutory responsibilities to ensure compliance with state laws

concerning junkyards. Accordingly, this court concludes that genuine issues of fact remain
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with regard to whether a junkyard exists on the Moores' land and whether Havens may be

entitled to a writ to compel compliance with the local zoning and state laws.

       {¶ 26} The defendants argue that Havens is not entitled to a writ because they are

immune from suit under R.C. Chapter 2744. However, R.C. Chapter 2744 bars tort claims

for money damages against political subdivisions and has no application in actions in equity

or for extraordinary writs. See Barrow v. Village of New Miami, 12th Dist. Butler No. CA2017-

03-031, 2018-Ohio-217, ¶ 16; City of Cincinnati v. City of Harrison, 1st Dist. No. C-130195,

2014-Ohio-2844, ¶ 31. Thus, political subdivision immunity would not preclude Havens' right

to a writ.

       {¶ 27} The defendants further argue that Havens lacks standing to pursue a writ

because he is only a one-fifth owner of the property. The defendants cite no legal authority

for this position. This court finds that Havens has a sufficient personal stake in the outcome

of this case to establish standing. He resides in a home next to the land of which he

complains and possesses an ownership interest in the property. His status as a fractional

owner does not diminish the alleged injury in this case.

       {¶ 28} Finally, the defendants argued that Havens was not entitled to a writ for his

failure to exhaust administrative remedies. The zoning resolution provides for review of the

zoning official's actions by the Board of Zoning Appeals. Article III, Section 3.05 provides:

              It is the intent of this Resolution that all questions of
              interpretation and enforcement shall first be presented to the
              Zoning Official. Such questions shall be presented to the Board
              of Zoning Appeals only on appeal from the decision of the
              Zoning Official, and recourse from the decisions of the Board of
              Zoning Appeals shall be only to the courts as provided by law.
              The Board of Township Trustees shall not have the authority to
              override the decisions of the Board of Zoning Appeals and/or the
              Zoning Official on matters of appeal or variance. Nothing in this
              Resolution shall be interpreted to prevent any person from
              appealing a decision of the Board of Zoning Appeals to the
              courts pursuant to Chapters 2505 and 2506 of the Ohio Revised


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                Code. Such appeal shall be made within thirty (30) days of the
                Board's written decision.

        {¶ 29} It is possible that Havens failed to exhaust his administrative remedies prior to

filing this suit and therefore has a plain and adequate remedy at law that would preclude the

issuance of a writ. However, there is a dearth of information in the summary judgment record

on this subject and it would be speculative for this court to conclude whether Haven had

exhausted administrative remedies prior to filing this lawsuit.                  The only relevant and

admissible summary judgment evidence consists of the affidavits of three elected township

trustees, one township fiscal officer, and the zoning official, who all simply averred that

Havens, "to the best of their knowledge," had not filed a formal appeal with the Union

Township Board of Trustees concerning potential zoning violations at the Moore's property.

However, the resolution provides for an appeal to the Board of Zoning Appeals, not the

Board of Trustees. In fact, the resolution provides that the Board of Trustees has no veto

power over the Board of Zoning Appeals. Thus, an appeal to the Union Township Board of

Trustees would be inconsistent with the zoning resolution.

        {¶ 30} Moreover, there is no admissible summary judgment evidence detailing any

communications between Havens and the zoning official, Skaggs.4 There is no document or

other evidence of any official decision by Skaggs, although the resolution requires any

complaint to be filed by the zoning official. Skaggs averred that he inspected the Moores'

land and determined there were no violations, but he does not state when this inspection

occurred, whether he inspected the property pursuant to Havens' request, whether he

informed Havens of his findings in any manner, or whether he only inspected the property

after the lawsuit was filed. Accordingly, this court does not have a record upon which to




4. There is an unauthenticated, undated document attached to one of Havens' filings which appears to be a one-
way correspondence from Havens to Skaggs.
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make any reliable determination with respect to exhaustion of remedies.

      {¶ 31} Havens' remaining issues within this assignment of error are overruled as moot

based upon this court's decision that genuine issues of fact remain on Havens' request for a

writ of mandamus. This court sustains Havens' first assignment of error.

      {¶ 32} Assignment of Error No. 2:

      {¶ 33} THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF DEFAULT

JUDGEMENT.

      {¶ 34} Havens argues that the court erred in denying his motion for default judgment

because "egregious perjury, fraud on the court, and unclean hands are grounds to grant

default judgment." Perjury, fraud, and the doctrine of unclean hands are not grounds to grant

default judgment under Civ.R. 55. A court may grant a default judgment where the party

against whom a default judgment is sought has failed to plead or otherwise defend a lawsuit.

Civ.R. 55(A). The defendants have pled and defended against Havens' suit. Accordingly,

this argument has no merit and this court overrules Havens' second assignment of error.

      {¶ 35} Assignment of Error No. 3:

      {¶ 36} THE TRIAL COURT ERRED IN DENYING PLAINTIFF SUMMARY

JUDGEMENT.

      {¶ 37} Havens argues that the court erred in denying him summary judgment.

However, Havens did not move for summary judgment. Accordingly, this argument has no

merit and this court overrules Havens' third assignment of error.

      {¶ 38} Judgment reversed on Havens' claim for a writ of mandamus and remanded for

further proceedings but otherwise the decision granting summary judgment is affirmed in all

respects.


      S. POWELL and M. POWELL, JJ., concur.

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