[Cite as State ex rel. Perrine v. Alborn, 2012-Ohio-3051.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO, EX REL.                                       JUDGES:
SHARON PERRINE, ZONING                                       Hon. Patricia A. Delaney, P.J.
INSPECTOR, PIKE TOWNSHIP,                                    Hon. William B. Hoffman, J.
STARK COUNTY, OHIO, ET. AL.                                  Hon. Sheila G. Farmer, J.

        Plaintiffs-Appellees                                 Case No. 2011CA00263

-vs-
                                                             OPINION
EDWARD CHARLES ALBORN, ET AL.

        Defendants-Appellants



CHARACTER OF PROCEEDING:                                 Appeal from the Stark County Court of
                                                         Common Pleas, Case No. 2009CV01110


JUDGMENT:                                                Affirmed


DATE OF JUDGMENT ENTRY:                                  June 29, 2012


APPEARANCES:


For Plaintiffs-Appellees                                 For Defendants-Appellants


CHARLES D. HALL III                                      ROBERT H. CYPERSKI
Hall Law Firm                                            1201 30th St. N.W., Suite 102-B
610 Market Ave. North                                    Canton, Ohio 44709
Canton, Ohio 44702
Stark County, Case No. 2011CA00263                                                  2

Hoffman, J.


      {¶1}    Defendants-appellants Edward Alborn and Edna Elliot appeal the

November 3, 2011 Judgment Entry entered by the Stark County Court of Common

Pleas in favor of the State of Ohio ex rel. Sharon Perrine, Zoning Inspector, Pike

Township, Stark County, Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant Edna Elliott owns real property located at 2090 Riceford Road

S.W., Pike Township, Stark County, Ohio, consisting of 42.48 acres. The property is

zoned R-1, one and two family residential, under the Pike Township zoning regulations.

Appellant Edward Alborn resides on the property.       In the past, Appellant Alborn

operated a number of businesses on the property, and claims he remains self-employed

at seventy-eight years of age. Alborn operated businesses of stripping coal, clay and

shale, trucking and performing fabrication and mechanical work.      He continues to

perform some fabrication and mechanical repairs and some livestock farming to

supplement his Social Security income. He has not had an Ohio Vendor’s License, has

not held a business checking account, has not filed any Ohio or Federal Income Tax

returns, has not issued any 1099’s to suppliers or independent contractors, has not

issued any W-2’s to any employee, and has not held a Commercial Driver’s License for

more than four years. Appellants have never lawfully operated a junk yard or salvage

yard from the property.

      {¶3}    Appellee State of Ohio, ex rel. Sharon Perrine, Zoning Inspector, Pike

Township, Stark County filed a complaint against Appellants on March 19, 2009

asserting Appellants had discontinued their nonconforming use and were in violation of
Stark County, Case No. 2011CA00263                                                   3


the zoning laws of Pike Township. Appellee filed a motion for summary judgment,

which the trial court denied.

       {¶4}   On September 13, 2010, the matter proceeded to a non-jury trial. On April

27, 2011, the Magistrate issued a decision finding Appellants were in violation of the

Pike Township Zoning Regulations, and ordered Appellant remove all items not

compatible with an agricultural or residential use within thirty days. Appellants filed

objections to the Magistrate’s decision.

       {¶5}   Via Judgment Entry of November 3, 2011, the trial court issued an order

modifying and adopting the Magistrate’s decision.

       {¶6}   Appellants now appeal, assigning as error:

       {¶7}   “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING

THAT THE APPELLANTS ARE IN VIOLATION OF THE PIKE TOWNSHIP ZONING

RESOLUTIONS, AS THIS DECISION WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

       {¶8}   “II. THE TRIAL COURT COMMITTED AN ERROR IN DETERMINING

THAT MANY OF THE ITEMS ON THE PROPERTY COULD NOT BE USED FOR

AGRICULTURAL OR RESIDENTIAL USE AND THEREFORE ARE JUNK VEHICLES

AND MUST BE REMOVED FROM THE PROPERTY.

       {¶9}   “III. THE TRIAL COURT COMMITTED AN ERROR IN FAILING TO

DETERMINE THAT ENFORCING ZONING REGULATIONS OF PIKE TOWNSHIP

WILL SO INTEREFERE [SIC] WITH THE USE OF THE PROPERY [SIC] AS TO

CONSTITUTE A TAKING OF THE PROPERTY.”
Stark County, Case No. 2011CA00263                                                      4


                                            I., II, and III.

       {¶10} Appellants’ assigned errors raise common and interrelated arguments;

therefore, we will address the assignments of error together.

       {¶11} Upon review of an administrative appeal, a court of common pleas

considers whether the enforcement of a zoning resolution is supported by a

"preponderance of substantial, reliable, and probative evidence on the whole record."

R.C. 2506.04. An appellate court's review of the trial court's judgment is limited to

affirming the decision of the trial court unless the appellate court finds, as a matter of

law, the trial court's decision is not supported by a preponderance of reliable, probative

and substantial evidence. Id. Further, the appellate court is limited to reviewing the

judgment of the trial court strictly on questions of law. Id.

       {¶12} O.R.C. 519.02(A) governs non-conforming uses, providing:

       {¶13} "The lawful use of any dwelling, building, or structure and of any land or

premises, as existing and lawful at the time of enactment of a zoning resolution or

amendment thereto, may be continued, although such use does not conform with such

resolution or amendment, but if any such nonconforming use is voluntarily discontinued

for two years or more, any future use of said land shall be in conformity with sections

519.02 to 519.25, inclusive, of the Revised Code. The board of township trustees shall

provide in any zoning resolution for the completion, restoration, reconstruction,

extension, or substitution of nonconforming uses upon such reasonable terms as are

set forth in the zoning resolution"

       {¶14} The Pike Township Zoning Resolution complies with the requirements and

provides, "[w]henever a nonconforming use has been discontinued for a period of two
Stark County, Case No. 2011CA00263                                                     5


years or more, any further use shall be in conformity with the provisions of this

Resolution." Pike Township Resolution, SECTION TEN, TITLE II(F).

      {¶15} Here, Appellant Alborn testified at trial it has been more than two years

since he engaged in any strip mining of clay, shale or other materials from the property.

Further, the equipment at issue has been sitting idle, in the same position, in the open,

for two years.   He testified at trial he has not engaged in sandblasting or painting

railroad stock for at least three years. He has not run a stone crushing operation for at

least four years. The truck driving business has been discontinued for over two years,

and two of the three semi-tractors have been sitting on the property unlicensed for

several years, unmoved. In addition, the evidence and testimony introduced at trial

support the trial court's finding numerous items and vehicles on the property are

damaged and inoperable. Based upon the above, we find the trial court’s decision was

supported by a preponderance of substantial reliable, and probative evidence.

      {¶16} Appellant argues the ordinance so interferes with the use of his property it,

in effect, constitutes a taking. Jaylin Investments, Inc. v. Moreland Hills (2006), 107

Ohio St.3d 339. However, the application of a general zoning regulation to a particular

property is not a taking if it does not deny an owner all economically viable use of his

land, does not render the land valueless, or does not force only uses which, under the

circumstances, are highly improbable, practically impossible, or not economically

feasible. Id. The landowner bears the burden to prove there is no economically viable

use of his land. Valley Auto Leases of Chagrin Falls, Inc v. Auburn Twp. Bd. Of Zoning

Appeals (1988), 36 Ohio St.3d 184.    A mere deprivation of some economic rights does
Stark County, Case No. 2011CA00263                                                   6


not amount to a denial of all use of one's property, including the rights of possession

and use of the property. McKee v. Akron (1964), 176 Ohio St. 282.

      {¶17} Here, Appellants have not demonstrated he has been deprived of any

economic right as a result of the zoning enforcement. Rather, the evidence introduced

at trial demonstrates Appellant Alborn has not had a business checking account for

several years, and has not operated a profitable business on the property for several

years prior to the action taken herein. Furthermore, Appellants have not shown the

zoning regulation denies them all economically viable use of the land. Accordingly, we

find Appellants have not met the necessary burden to demonstrate a taking.

      {¶18} Appellants’ assignments of error are overruled, and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ Patricia A. Delaney _________________
                                           HON. PATRICIA A. DELANEY


                                           s/ Sheila G. Farmer __________________
                                           HON. SHEILA G. FARMER
Stark County, Case No. 2011CA00263                                               7


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL.
SHARON PERRINE, ZONING
INSPECTOR, PIKE TOWNSHIP,
STARK COUNTY, OHIO, ET. AL.               :
                                          :
       Plaintiffs-Appellees               :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
EDWARD CHARLES ALBORN, ET AL.             :
                                          :
       Defendants-Appellants              :         Case No. 2011CA00263


       For the reasons stated in our accompanying Opinion, and the judgment of the

Stark County Court of Common Pleas is affirmed. Costs to Appellants.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY


                                          s/ Sheila G. Farmer___________________
                                          HON. SHEILA G. FARMER
