Posted by: Patricia Salkin | July 11, 2019

OH Appeals Court Reverses Denial of Permanent Injunction Against Lawn and Garden Equipment Repair Business Due to Wrong Standard of Review for Conditional Use Permit

This post was authored by Matthew Loeser, Esq.

In 2017, Appellant, Village of New Holland, filed a complaint for injunction against Appellee, Michael Murphy, which alleged Appellant was entitled to a permanent injunction pursuant to R.C. 713.13 barring Appellees from operating a business on their property that was located in a residential district. Appellants further contended that Appellees’ business, which involved the repair of lawn and garden equipment and tractors, was a prohibited use on residential property, and that a variance, as opposed to the CUP Murphy had been granted, would have been required under the zoning code. Appellant thereafter filed a motion for a preliminary and permanent injunction on the basis of increased wear and tear and road damage the village attributed to heavy equipment being driven to and from Appellees’ business. This case involved the appeal from a Pickaway County Court of Common Pleas judgment entry denying Appellant’s motion for a permanent injunction to enjoin Appellees.

On appeal, Appellant first argued that in reviewing the village’s zoning ordinances, the trial court used the wrong standard of review. The record reflected that the trial court 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 on Appellees’ alleged violation of zoning ordinances. The court found that there was no evidence in the record that a resolution was passed that officially granted Mr. Murphy a CUP, as required by Village Ordinance section 62.01. Additionally, as Mr. Murphy was a member of the Board of Zoning Appeals at the time his application for a CUP was being considered, the court determined that it could reasonably be inferred that Mr. Murphy knew the CUP was stopped and that the required resolution was never passed. The court found that because a valid CUP was never issued, or formally denied, there was nothing to appeal at that time. Thus, the matter should not have been treated as an appeal from an administrative decision by the trial court below.

The court further found that 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. Instead, Appellant was merely required to demonstrate that it was entitled to an injunction pursuant to R.C. 713.13 and Article 60.06 of its zoning ordinance, which it had to prove by a preponderance of the evidence. Accordingly, the judgment of the trial court was reversed and the matter was remanded to the trial court for further proceedings applying the correct burden of proof.

Village of New Holland, Plaintiff-Appellant, v. Michael J. Murphy, 2019 WL 2526568 (OH App. 6/13/2019)

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