 [Cite as New Holland v. Murphy, 2019-Ohio-2423.]




                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             PICKAWAY COUNTY

 VILLAGE OF NEW HOLLAND,          :
                                  :   Case No. 18CA6
      Plaintiff-Appellant,        :
                                  :
      vs.                         :   DECISION AND JUDGMENT
                                  :   ENTRY
 MICHAEL J. MURPHY, et al.,       :
                                  :
      Defendants-Appellees.       :
_____________________________________________________________
                            APPEARANCES:

 Jack D’Aurora and John M. Gonzales, The Behal Law Group LLC,
 Columbus, Ohio, for Appellant.

 James R. Kingsley, Circleville, Ohio, for Appellees.
 _____________________________________________________________

 Smith, P.J.

         {¶1} This is an appeal from a Pickaway County Court of Common

 Pleas judgment entry denying Appellant, Village of New Holland’s, motion

 for a permanent injunction seeking to enjoin Appellees, Michael Murphy, et

 al., from operating a business from his residence in violation of the village’s

 zoning ordinances. On appeal, Appellant contends that 1) in deciding

 whether to grant a permanent injunction, the trial court used the wrong
Pickaway App. No. 18CA6                                                          2

burden of proof; and 2) in reviewing the village’s zoning ordinances, the

trial court used the wrong standard of review.

         {¶2} Because we find merit to both of the assignments of error raised

by Appellant, they are both sustained. As a result, the judgment of the trial

court is reversed and this matter is remanded to the trial court for further

proceedings consistent with this opinion, in order to determine the matter in

light of the correct standard of review, while applying the correct burden of

proof.

                                     FACTS

         {¶3} The facts pertinent to this appeal are as follows. On August 30,

2017, Appellant, Village of New Holland, filed a complaint for injunction

against Appellee, Michael Murphy. Appellee's wife was later joined as a

party to the lawsuit. The complaint alleged Appellant was entitled to a

permanent injunction pursuant to R.C. 713.13 barring Appellees from

operating a business on their property, which was located in a residential

district. The complaint further alleged that Appellees had "applied for and

received a purported 'conditional use permit' for the property" on January 30,

2002, but that the conditional use permit (hereinafter "CUP") did not specify

that Appellees were permitted to run a business on their residential property.

Appellants further alleged that Appellees' business, which involves the
Pickaway App. No. 18CA6                                                        3

repair of lawn and garden equipment and tractors, was a prohibited use on

residential property, and that a variance, as opposed to a CUP, would have

been required under the zoning code. Appellants alleged further deficiencies

in the process that resulted in the issuance of the purported CUP, however,

as those issues are not pertinent to our disposition on appeal, we do not

include them. Appellant thereafter filed a motion for a preliminary and

permanent injunction, the basis of which appeared to be increased wear and

tear and road damage the village attributed to heavy equipment being driven

to and from Appellees' business. Appellees' position regarding the basis for

the request for the injunction was that Appellant could not use zoning

ordinances to enforce weight restrictions on streets.

      {¶4} Appellees filed an answer asserting multiple defenses and a

general denial of the allegations of the complaint. During the course of the

litigation, Appellees filed an exhibit, which was a document entitled

"Conditional Use Permit On Property Of Michael Murphy And Ruth

Murphy." The document specified it applied to Appellees' residential

address, which was zoned "R1 & R2[.]" single family homes and two family

homes, respectively. The document was signed by four members of the

zoning board and was dated January 30, 2002.
Pickaway App. No. 18CA6                                                         4

      {¶5} The matter eventually proceeded to a bench trial. Various

witnesses testified, including several of Appellees' neighbors and then-

members of the zoning board, regarding their recollections as to when

Appellees initially obtained the purported CUP back in 2002. Because most

of this witness testimony relates to the deficiencies regarding the issuance of

the purported CUP, as alleged in the complaint and which we have

ultimately determined not to be pertinent to this appeal, we do not include it

here. Of importance to the within matter, however, Mr. Murphy testified at

trial. Of relevance, he testified that he was actually a member of the zoning

board at the time he applied for the CUP in 2002. He testified that he

recused himself from the meeting and did not vote on his application. He

testified he believed he had been granted a CUP that permitted him to both

build a new garage on his residential property, and to also conduct his repair

business from that garage. Importantly, he testified that he was unaware if a

resolution was ever passed granting him a CUP and he was unable to

produce any evidence indicating a resolution had been passed. He further

testified that he had applied for the CUP so that he could downsize his

existing business and relocate it to his residential property. He further

testified that as a result of the issuance of the CUP, he was issued a building

permit, which led to him to build an additional garage on his residential
Pickaway App. No. 18CA6                                                           5

property. He testified that his repair business is currently his only source of

income.

      {¶6} Clair Betzco, Jr., mayor of the village, testified on behalf of

Appellant. He testified that despite a thorough search, the only document he

could find regarding the CUP at issue was the document filed by Appellees,

as referenced above. He stated he found it in the village administrator's

filing cabinet in an unmarked folder in 2017, but that it should have been in

the clerk's office in a filing cabinet marked "Permit Uses." Incidentally,

there was testimony introduced at trial indicating Mr. Murphy may have

actually served as Village Administrator in 2002. Mavis Yourchuck, Village

Clerk, also testified for Appellant. She testified that she physically handed

Mr. Murphy the document purporting to be a conditional use permit. She

also testified, however, that council meeting minutes from February 11,

2002, just twelve days after the CUP was purportedly issued, indicated the

CUP was stopped.

      {¶7} After hearing the trial testimony and considering post-trial

arguments submitted by the parties, the trial court ultimately issued a

decision denying Appellant's request for a permanent injunction. It is from

that judgment that Appellant now brings its timely appeal, setting forth two

assignments of error for our review.
Pickaway App. No. 18CA6                                                      6




                        ASSIGNMENTS OF ERROR

"I.   IN DECIDING WHETHER TO GRANT A PERMANENT
      INJUNCTION, THE TRIAL COURT USED THE WRONG
      BURDEN OF PROOF.

II.   IN REVIEWING THE VILLAGE’S ZONING ORDINANCES, THE
      TRIAL COURT USED THE WRONG STANDARD OF REVIEW."


                       ASSIGNMENT OF ERROR II

      {¶8} For ease of analysis, we address Appellant’s assignments of error

out of order. In its first assignment of error, Appellant contends that in

reviewing the village’s zoning ordinances, the trial court used the wrong

standard of review. Appellant raises three questions under this assignment

of error. First, Appellant questions whether the conditional use permit

(CUP) at issue in this case was a final order. Second, Appellant questions

whether, in reviewing the CUP, the trial court employed the correct standard

of review. Third, Appellant questions whether this Court should review the

CUP de novo. Appellees respond by arguing that the trial court used the

proper standard of review when reviewing the CUP, which was the

“presumption of regularity” standard. However, Appellees concede the trial
Pickaway App. No. 18CA6                                                        7

court improperly applied the standard of review set forth in R.C. 2506.04,

which governs appeals from administrative decisions.

      {¶9} Appellant essentially contends the trial court made a legal error

by applying an incorrect standard of review below. In Wray v. Wessell, 4th

Dist. Scioto Nos. 15CA3724, 15CA3725, 2016-Ohio-8584, ¶11-13, we

considered an argument alleging the trial court had abused its discretion in

the admission of evidence. In reaching our decision we observed that when

an appellant alleges a trial court's evidentiary ruling was based on a

misconstruction of the law or an erroneous standard, the appellate court must

review the trial court's evidentiary ruling using a de novo standard of review.

Citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d

528, ¶16; in turn citing Castlebrook, Ltd. v. Dayton Properties Ltd.

Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2nd Dist. 1992);

see also Shaffer v. Ohio Health Corp, 10th Dist. Franklin No. 03AP-102,

2004-Ohio-63, ¶6 ("however, where a trial court has misstated the law or

applied the incorrect law, giving rise to a purely legal question, our review is

de novo.")

      {¶10} Similarly, we conclude Appellant's argument that the trial court

applied an incorrect standard of review in considering the proceedings below

involves a legal question, which we review de novo. Further, in Matter of
Pickaway App. No. 18CA6                                                        8

Name Change of Davis, 4th Dist. Ross. No. 1774, 1992 WL 208905, *4, we

concluded that an appellant must affirmatively show prejudice resulted from

a trial court's utilization of an improper legal standard. With these principles

in mind, we now turn to the merits of Appellant's second assignment of

error.

         {¶11} In order to address the proper standard of review that should

have been employed by the trial court, we must first determine the type of

action and procedural posture of the case that was before the trial court. A

review of the record reveals that the trial court appears to have characterized

the matter as an appeal from an administrative decision approving a CUP in

favor of Appellees, as opposed to the filing of an initial complaint for an

injunction by Appellant, based upon Appellees’ alleged violation of zoning

ordinances. As such, the trial court approached its review of the matter by

stating as follows:

         “Because Plaintiff is challenging the validity of the CUP, this
         Court will review the original issuance of the CUP, an
         administrative action by the Board of Zoning Appeals (“BZA”).
         Pursuant to R.C. 2506.04, in an administrative appeal, the
         common pleas court considers the whole record, including any
         new or additional evidence, and determines whether the
         administrative order is unconstitutional, illegal, arbitrary,
         capricious, unreasonable, or unsupported by the preponderance
         of substantial, reliable, and probative evidence. In reviewing an
         appeal of an administrative decision, a court of common pleas
         begins with the presumption the board’s determination is valid,
Pickaway App. No. 18CA6                                                                                    9

        and the appealing party bears the burden of showing
        otherwise.”1

The trial court made several statements regarding its standard of review

throughout its decision, explaining that, in light of its standard of review, it

was presuming the validity of the "board's determination[.]" It appears

implicit from the language employed by the trial court that the court was

assuming the CUP at issue was, in fact, actually granted, and was, therefore,

final and appealable.

        {¶12} For instance, under the "Conclusions of Law" portion of the

decision the trial court made several additional statements regarding the

standard of review it was employing, as well as presumptions of validity it

was making, as follows:

        1. "This Court reviews an administrative action for abuse of

        discretion, presuming that the administrative body's action is

        valid. Plaintiff carries the burden of proving otherwise."

        2. "As a reminder, this Court must start from the position of

        presuming that the board's determination is valid* * *."

        3. "The fact that records pertinent to this matter are missing,

        * * * does not inure to the benefit of the Village."


1
  In Kearns v. Monroe Twp. Bd. of Zoning Appeals, 196 Ohio App.3d 127, 2011-Ohio-1138, 962 N.E.2d
808, this Court observed essentially this same standard of review at ¶9 regarding a common pleas court's
review of an appeal from an administrative decision.
Pickaway App. No. 18CA6                                                        10

Thus, by characterizing the matter as an appeal from an administrative

decision, the trial court employed a somewhat limited standard of review,

especially to the extent that it essentially afforded a presumption of validity

to Appellees’ claim that the CUP it allegedly possessed was valid, and

imposed a burden upon Appellant to prove otherwise.

      {¶13} Importantly, as set forth above, Appellees concede on appeal

that the trial court employed the wrong standard of review. As succinctly

stated by Appellees in their brief: “The trial court improperly found that the

standard of review in R.C. § 2506.04 applied. After 15 years, the Village

had no right to appeal and Appellees certainly were not appealing it.”

Appellees essentially contend that the trial court nevertheless reached the

correct result. For the following reasons, however, we disagree.

      {¶14} A review of the record before us reveals that Appellees’

position throughout the litigation below was that Mr. Murphy received a

valid and final CUP from the Village of New Holland in January of 2002 for

the operation of a home business that included repair of garden equipment

and tractors, and which included the building of an additional garage in

which to conduct the repairs, on his residential property, which was located

in an R-1/R-2 (residential) district. Appellees’ arguments are based upon the

premise that the CUP at issue is valid, and that the village had no right to
Pickaway App. No. 18CA6                                                     11

appeal the granting of the CUP fifteen years later, and likewise had no right

to revoke the CUP. The position of the Village, on the other hand, has

consistently been that the CUP claimed by Appellees was invalid to the

extent it was never finalized, and thus did not constitute a final order.

Appellees likewise claim that in the absence of the valid CUP, there was

nothing to appeal and concomitantly nothing to revoke. Thus, Appellant’s

big-picture argument, which seems to have been lost upon the trial court and

Appellees below, is that the CUP relied upon by Appellees was invalid, as it

was never finalized. Stated another way, there was no CUP because the

process of granting a CUP was never completed. We agree.

      {¶15} A review of the Village of New Holland Zoning Ordinance

demonstrates that a process does, in fact, exist for property owners to request

and obtain both conditional use permits and variances. Article 61 of the

zoning ordinance provides the manner in which the Board of Zoning

Appeals may act, and states as follows in section 61.02:

      “The Board shall act by resolution; and the concurring vote of
      three (3) members of the Board shall be necessary to reverse
      any order or determination of the Zoning Inspector, or to decide
      in favor of an applicant in any matter on which the Board has
      original jurisdiction under this Ordinance, or to grant any
      variance from the requirements stipulated in this Ordinance.”
      (Emphasis added).
Pickaway App. No. 18CA6                                                                                 12

Thus, the Board of Zoning Appeals only formally acts through the issuance

of a resolution. The fact that the Board of Zoning Appeals only acts by

resolution is central to our disposition of this matter.

         {¶16} Here, Appellees claim they were granted a valid CUP, asserting

as evidence a document entitled “Conditional Use Permit On Property Of

Michael Murphy and Ruth Murphy,” which contains the signatures of four

members of the zoning board.2 However, Appellee Michael Murphy

testified in the proceedings below that he had no information indicating a

resolution was passed authorizing him to repair equipment on his property.

Further, there was no evidence introduced below indicating a resolution

granting a CUP to Michael Murphy for any purpose was ever passed, as

required by Ordinance No. 61.02.

         {¶17} Further, the explanation for why a resolution was never passed

actually appears in the Village of New Holland Regular Council meeting

minutes dated February 11, 2002, which are part of our record on appeal. A

Planning Commission and Zoning report contained in the meeting minutes

states as follows:

         “Faye reported that they are still going through the present
         zoning ordinance. They approved a Conditional Use Permit to
         Mike Murphy to build a garage at his residence on Oak Street.

2
  Article 61, Board of Zoning Appeals specifically provides in section 61.02 that “[t]hree (3) members of
the Board shall constitute a quorum.”
Pickaway App. No. 18CA6                                                                                   13

         Phil made a motion to stop the Conditional Use Permit with
         Mike Murphy until it was checked out to see if it was done
         correctly. This is due to a variance for Mrs. Osborne not being
         permitted in 1997. 2nd by Jim. 6 yea’s, motion carried.”

Thus, although four members of the Board of Zoning Appeals apparently

voted to approve the CUP on January 30, 2002, and issued a document to

Mr. Murphy purporting to be a CUP, on February 11, 2002, it was reported

to Village Council that the board subsequently passed a motion to stop the

CUP. According to the village ordinance, voting to approve a CUP was only

step one of a two-step process for granting a CUP. Issuing a resolution was

step two. However, there is nothing in the record to indicate further action

was ever taken, that the CUP process was reinstated or that a resolution was

ever passed, which, importantly, is the only manner in which the board may

act. Therefore, no valid CUP was ever issued.3

         {¶18} Further, we are troubled by the trial court's suggestion of

wrongdoing on the part of the village in its judgment entry. This suggestion

further indicates Appellant was, in fact, prejudiced by the incorrect standard

of review employed by the trial court. For instance, the trial court stated as

follows:

3
  The parties spend much time debating what rights the CUP granted Mr. Murphy. Appellees argue, and
the trial court found, that the CUP permitted the building of a garage and the right to operate a repair
business in that garage, with certain limitations. Appellant argues, at the most, and only if the CUP is
declared valid, that it granted Mr. Murphy the right to build a garage only, and did not expressly state he
could operate a business on his residential property. However, in light of our determination that no CUP
was actually granted, as no resolution was ever passed, we do not address the breadth of the purported
CUP, as that issue is now moot.
Pickaway App. No. 18CA6                                                       14

      What is troubling here is that the Village attempts to use its
      own mistakes to its benefit. The Village of New Holland is
      responsible for maintaining the records of the BZA activities
      and meetings as well as its Council meetings. The fact that
      records pertinent to this matter are missing, * * * does not inure
      to the benefit of the Village.

Because the trial court was conducting its review of the proceedings from

the standpoint that the board's determination, which implicitly included an

assumption a CUP had, in fact, been granted and was valid, it made several

"presumptions" that in effect favored Appellees. However, viewing this

matter anew, without making presumptions regarding the validity of the

CUP, it could be equally presumed that the records were not missing, but

instead that the records did not exist because they were never, in fact,

created.

      {¶19} There is simply no evidence in the record that a resolution was

passed officially granting Mr. Murphy a CUP, as required by Village

Ordinance section 62.01. Further, considering Mr. Murphy was actually a

member of the Board of Zoning Appeals at the time his application for a

CUP was being considered, we believe it could fairly be inferred that Mr.

Murphy knew the CUP was stopped and that the required resolution was

never passed.

      {¶20} In light of the foregoing, we conclude a valid CUP was never

finalized according to the process required by the village ordinance.
Pickaway App. No. 18CA6                                                         15

Because a valid CUP was never issued, or formally denied, there was

nothing to appeal at that time, nor should the matter have been treated as an

appeal from an administrative decision by the trial court below. The trial

court’s characterization of the matter as an appeal from an administrative

decision affected the court’s review of the matter, especially to the extent it

presumed the validity of the allegedly-issued CUP and imposed upon

Appellant the burden of proving otherwise. Further, Appellees concede on

appeal the trial court mischaracterized the nature of the proceedings below

and applied an incorrect standard of review. Instead, the trial court should

have characterized the action as it was titled, a complaint for an injunction

based upon an alleged zoning violation, which necessarily involves a

broader standard of review.

      {¶21} Thus, the arguments raised under Appellant’s second

assignment have merit and are sustained. Accordingly, the decision of the

trial court is reversed and this matter is remanded for further proceedings to

employ the correct standard of review, which we will discuss in more detail

under Appellant’s first assignment of error.

                        ASSIGNMENT OF ERROR I

      {¶22} In his first assignment of error, Appellant contends that the trial

court used the wrong burden of proof in deciding whether to grant a
Pickaway App. No. 18CA6                                                         16

permanent injunction. Specifically, Appellant argues the trial court failed to

differentiate between the requirements for a regular injunction versus a

statutory injunction. Appellant further argues the trial court incorrectly

imposed a clear and convincing evidence burden of proof upon it, rather than

preponderance of the evidence. Appellees counter by arguing that the trial

court correctly required a clear and convincing evidence burden of proof.

Thus, as in Appellant's second assignment of error, Appellant contends the

trial court committed a legal error by utilizing an incorrect legal standard.

Therefore, this is also a question we will review de novo.

      {¶23} This case began with the filing of a complaint by a village,

requesting a permanent injunction against a property owner based upon a

violation of a zoning ordinance. More specifically, Appellant, the village,

sought an injunction pursuant to R.C. 713.13 prohibiting Appellees, the

Murphys, from operating a business from their residence in violation of the

village's zoning ordinance. Appellant also relied upon Article 60.06 of its

zoning ordinance in support of its claim. R.C. 713.13, titled "Violation of

zoning ordinance may be enjoined" provides, in pertinent part, as follows:

      No person shall erect, construct, alter, repair, or maintain any
      building or structure or use any land in violation of any zoning
      ordinance or regulation * * *. In the event of any such
      violation, * * * the municipal corporation * * * may institute a
      suit for injunction to prevent or terminate such violation.
Pickaway App. No. 18CA6                                                       17

Article 60.06, titled "Violations - Remedies" provides as follows:

       In case any building is or is proposed to be located, erected,
       constructed, reconstructed, enlarged, changed, maintained, or
       used, or any land is or is proposed to be used in violation of this
       Ordinance or any amendment or supplement thereto, the
       Village Council, the Village Solicitor, the Zoning Inspector, or
       any adjacent or neighboring property owner who would be
       specially damaged by such violation, in addition to other
       remedies provided by law, may institute injunction, mandamus,
       abatement, or any other appropriate action, actions, proceeding
       or proceedings to prevent, enjoin, abate or remove such
       unlawful location, erection, construction, reconstruction,
       enlargement, change, maintenance, or use.

       {¶24} The alleged zoning violation involved the fact that Appellees

were operating a business from their home, which was located in a district

zoned for residential use. As fully discussed above, Appellees claimed they

were in possession of a valid conditional use permit, or CUP, which

permitted them to build a garage on their residential property and to also

operate a business on that property. The trial court denied Appellant's

request for an injunction based upon its finding that Appellees had a valid

CUP permitting operation of their business. However, as set forth above, we

have determined a CUP was never actually issued, as the Board of Zoning

Appeals never passed the required resolution that was necessary to grant a

CUP.

       {¶25} At issue in this assignment of error, however, is whether the

trial court utilized and applied the correct burden of proof in denying
Pickaway App. No. 18CA6                                                        18

Appellant's request for an injunction. Appellant contends the trial court

mistakenly utilized a clear and convincing evidence standard, rather than a

preponderance of evidence standard, in denying its request for an injunction.

Appellees contend that the clear and convincing evidence is the correct

burden of proof, as "enunciated" by the judge. Appellees concede, however,

the judge misspoke "when he said the Village had to prove irreparable harm

before the injunction could be granted[.]" Nonetheless, Appellees claim this

error was essentially harmless, arguing "that issue was not a basis of his

decision."

      {¶26} "To obtain a permanent injunction, the plaintiff must

demonstrate a right to relief under any applicable substantive law." Office of

Scioto Township Zoning Inspector, v. Puckett, 2015-Ohio-1444, 31 N.E.3d

1254, ¶28; citing Island Express Boat Lines, Ltd. v. Put–in–Bay Boat Line

Co., 6th Dist. Erie No. E–06–002, 2007-Ohio-1041, ¶93. "Additionally, the

plaintiff must ordinarily prove, by clear and convincing evidence, that the

injunction is necessary to prevent irreparable harm and that the plaintiff does

not have an adequate remedy at law." Id. (Emphasis added). However, “[i]t

is established law in Ohio that, when a statute grants a specific injunctive

remedy to an individual or to the state, the party requesting the injunction

‘need not aver and show, as under ordinary rules in equity, that great or
Pickaway App. No. 18CA6                                                          19

irreparable injury is about to be done for which he has no adequate remedy

at law * * *.’ ” Puckett at ¶28; quoting Ackerman v. Tri–City Geriatric &

Health Care, Inc., 55 Ohio St.2d 51, 56, 378 N.E.2d 145 (1978); quoting

Stephan v. Daniels, 27 Ohio St. 527, 536 (1875). “ ‘Therefore, statutory

injunctions should issue if the statutory requirements are fulfilled.’ ”

Puckett at ¶28; quoting Columbus Steel Castings Co. v. King Tool Co., 10th

Dist. Franklin Nos. 11AP–351 & 11AP–355, 2011-Ohio-6826, ¶66; citing

Ackerman at 57.

      {¶27} Further, although not directly discussed and not directly at issue

in Puckett, in State ex rel. Dewine v. Ashworth, et al., 4th Dist. Lawrence

No. 11CA16, 2012-Ohio-5632, ¶64, this Court held that in a civil case

involving a request for a statutory injunction, the burden of proof is

preponderance of evidence, rather than clear and convincing evidence. In

reaching this holding, we reasoned as follows:

      Because this is a civil case and these provisions are silent as to
      the applicable burden of proof, we conclude that the State only
      had to prove the violations by a preponderance of the evidence,
      not by clear and convincing evidence as the Appellants suggest.
      See Wilson v. Ward, 183 Ohio App.3d 494, 2009–Ohio–2078,
      917 N.E.2d 821, ¶11 (9th Dist.).

Just like in Ashworth, the relevant statutory provisions here are silent as to

the burden of proof that must be met in order to demonstrate a statutory

violation. Thus, consistent with our prior precedent on this issue, we hold
Pickaway App. No. 18CA6                                                      20

Appellant only had to prove a statutory violation, the premise of which was

a zoning violation, by a preponderance of the evidence, rather than by clear

and convincing evidence, in order to obtain an injunction.

      {¶28} Appellees argue Ashworth was either wrongly decided or

factually distinguishable from the present case. Appellees further argue that

its holding was since "disavowed" in State ex rel. Dewine v. 333 Joseph,

LLC, 2014-Ohio-5090, 21 N.E.3d 1142. However, we reject Appellees'

arguments. The 333 Joseph court did not disavow our prior holding in

Ashworth. Rather, it noted that on the issue of the applicable burden of

proof in statutory injunction cases, there was no consensus among Ohio

courts. 333 Joseph at ¶17 ("A further review of Ohio cases does not show

consensus among Ohio courts."); citing Ashworth at ¶64 and State v. Dann,

2nd Dist. Montgomery No. 22162, 2007-Ohio-7165. Further, we find no

distinguishing factors between the present facts and those of Ashworth, nor

do we see a compelling reason to depart from our prior precedent on this

issue. The holding in 333 Joseph is not binding authority upon this Court.

Our prior holding and precedent set forth in Ashworth, however, is. Thus,

we reject Appellees' arguments.

      {¶29} We also reject Appellees' argument that the trial court's

decision was not based upon the standard of review and burden of proof it
Pickaway App. No. 18CA6                                                          21

expressly set forth in its decision. In its decision, the trial court set forth the

requirements that must be met in order to obtain a permanent injunction (i.e.

1) right to relief under an applicable substantive law; 2) proof by clear and

convincing evidence that a) an injunction is necessary to prevent irreparable

harm; and b) the plaintiff does not have an adequate remedy at law.)

However, it did not go on to note that the present case involved a request for

a statutory injunction, which necessitates a different type of review.

Importantly, as set forth above, Appellant was not required to prove, by clear

and convincing evidence, that the injunction was necessary to prevent

irreparable harm, or that it did not have an adequate remedy at law. Rather,

Appellant only had to demonstrate that it was entitled to an injunction

pursuant to R.C. 713.13 and Article 60.06 of its zoning ordinance, based

upon a zoning violation, which it had to prove by a preponderance of the

evidence. These are two very different sets of requirements.

       {¶30} Thus, we cannot agree with Appellees' argument that the

recitation of this incorrect standard of review, as well as burden of proof, did

not affect the trial court's ultimate denial of Appellant's request for a

permanent injunction based upon a statutory violation. If fact, we believe

the framework within which the trial court reviewed this matter directly

affected its decision. As a result, Appellant's first assignment of error is
Pickaway App. No. 18CA6                                                        22

sustained. Accordingly, and as set forth above, the judgment of the trial

court is reversed and this matter is remanded to the trial court for further

proceedings consistent with this opinion, to apply the correct standard of

review, based upon the correct burden of proof.

                                 JUDGMENT REVERSED AND CAUSE
                                 REMANDED FOR FURTHER
                                 PROCEEDINGS CONSISTENT WITH
                                 THIS OPINION.
Pickaway App. No. 18CA6                                                         23

                           JUDGMENT ENTRY


    It is ordered that the JUDGMENT IS REVERSED and that the
CAUSE IS REMANDED. Appellees shall pay the costs.

      The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing
the Pickaway County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

McFarland, J.: Concur in Judgment and Opinion; Abele, J: Dissents.

                                        For the Court,

                                 BY: ___________________________
                                     Jason P. Smith, Presiding Judge

                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
Pickaway App. No. 18CA6   24
