Posted by: Patricia Salkin | May 12, 2015

OH Appeals Court Upholds Permanent Enjoinment of Landowners Use of Property as a Pay Pond from Committing a “Nuisance,” Finding it was Not Aquaculture

Appellants Robert and Berna Puckett appealed the decision of the Pickaway County Court of Common Pleas, granting summary judgment in favor of Appellee, Scioto Township Zoning Inspector, on the issue of whether the operation of Puckett’s Pay Pond constitutes aquaculture. They also appeal the trial court’s final decision, which issued a permanent injunction enjoining Appellants from committing a nuisance. On appeal, Appellants question whether 1) the trial court committed prejudicial error when it found they were not engaged in aquaculture; and 2) the trial court committed prejudicial error when it enjoined them from committing a nuisance.

As to the first issue, although it appeared that Appellants might have engaged in some limited aquaculture, by virtue of the fact they did have a valid permit and because some reproduction did take place, the Court of Common Pleas found that the primary use of their land was for the operation of a commercial pay lake. Thus, because Appellants’ land was not primarily used for agricultural purposes, as required by R.C. 519.21(A), this court determined that Appellants’ primary operation was that of a pay lake, not aquaculture, and affirmed the trial court’s grant of summary judgment.

In their second assignment of error, Appellants contended that the trial court committed prejudicial error when it enjoined Appellants from committing a nuisance. However, the court concluded the Appellants’ commercial pay lake was “a right thing in the wrong place”, and thus, was a nuisance and a violation of the zoning resolutions. Accordingly, the trial court properly abated by issuance of a permanent injunction pursuant to R.C. 519.24.

Scioto Township Zoning Inspector v Puckett, 2015 WL 1741349 (OH App. 4/10/2015)

The opinion can be accessed at: http://sc.ohio.gov/rod/docs/pdf/4/2005/2005-Ohio-5430.pdf


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