Posted by: Patricia Salkin | April 15, 2019

OH Court of Appeals Holds Genuine Issue of Fact Existed as to Whether Adjoining Property Constituted a Junkyard

This post was authored by Matthew Loeser, Esq.

 

Vernon Lee Havens II was a one-fifth owner of real property located at 1238 State Route 38 in Union Township, Fayette County, Ohio. Havens’ siblings possessed the other four-fifths interest in the property. James and Beverly Moores, abutting property owners, allowed Havens’ poultry to graze on their land until a goose attacked Beverly in 2016. Following this, the Moores instructed Havens to remove his poultry from their land. In response, the 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 more material qualifying as junk or salvage” on the Moores’ land. In this case, Vernon Lee Havens II appealed the decision of the Fayette County Court of Common Pleas, which granted summary judgment in favor of defendants, Union Township and Fayette County.

 

On appeal, Havens argued that 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, and that the defendants had failed to enforce their rules and regulations. However, Havens failed to 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, or that the defendants undertook some project that has substantially interfered with his use of the property. Accordingly, the court found that Havens had not set forth grounds that would support a request for inverse condemnation.

 

As to Havens’ request for a writ compelling the defendants to enforce the local zoning resolution and state laws applicable to junkyards, the court noted that James Moore stated in his summary judgment affidavit that he did not operate a junkyard, but rather an “automobile towing and storage business.” In response, Havens filed the affidavit of Victoria Lynn Havens, which stated, “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. The court found this affidavit sufficient to create a genuine issue of fact with respect to whether the Moores’ land contained a junkyard in violation of the zoning resolution and potentially violated state laws related to the licensing of junkyards.

 

The defendants next argued that Havens was not entitled to a writ for his failure to exhaust administrative remedies. There was no admissible summary judgment evidence in the record detailing any communications between Havens and the zoning official, Skaggs. Furthermore, there were no documents or other evidence of any official decision by Skaggs, despite the fact that the resolution required any complaint to be filed by the zoning official. Accordingly, the court did not have a record upon which to make any reliable determination with respect to exhaustion of remedies. As such, the judgment was reversed on Havens’ claim for a writ of mandamus and remanded for further proceedings.

 

Havens v Union Township, 2019 WL 1591841 (OH App. 4/15/2019)


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: