Posted by: Patricia Salkin | December 5, 2014

OH Appeals Court Upholds Injunction Prohibiting Storage of Construction Equipment

Fioritto purchased a two-acre parcel of land that was located within a General Commercial zoning classification and he requested a conditional use permit or variance to operate his construction business on his property, but failed to return with additional information that was requested from the Board. During this time he ran his business which also involved making and delivering nursery landscape supplies such as mulch, topsoil and trees. He owned four dump trucks, two excavators, a caterpillar dozer two trailers and a 300-gallon fuel tank, which was located on the property. The Township of Brimfield brought a claim against Fioritto when notified about the equipment on the property and moved for permanent injunction against him for using the property in a way that was not permitted in a General Commercial District. The court granted the request for a permanent injunction, finding that Fiotitto used his construction equipment to clear his lot but did not obtain a certificate to allow the equipment to be stored after the lot was cleared and this appeal ensured.

On the question of whether an individual can store construction vehicles and equipment on his land while clearing the land of trees and whether a nursery is permitted use of property zoned General Commercial, the Court of Appeals of Ohio found that a trial court’s granting of an injunction should not be disturbed in the absence of a clear abuse of discretion or if the findings of fact is against the manifest weight of the evidence. The Court of Appeals went on to find that the even though Fioritto was not prohibited from clearing his land, he was not given permission to store a large collection of construction equipment on his property, and the facts did not support a conclusion that the construction equipment and materials were being used solely for the purposes of clearing the property of trees or grading the property for future building or other developments. In regards to whether the court improperly used the definition of agricultural nursery to define a retail nursery under the Brimfield Zoning Resolution which would create an exemption from the zoning, the Court of Appeals held that the trial court properly concluded that Fioritto did not produce nursery stock or cultivate plants on his property and hence did not meet the definition. The Court of appeals further found that even if he was operating a nursery, Fioritto was still required to comply with the zoning certificate requirement of the Zoning Resolution.

Brimfield v Fioritto, 2014 WL 5421212 (OH App. 10/27/2014)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2014/2014-ohio-4743.pdf


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