Posted by: Patricia Salkin | November 20, 2020

OH Appeals Court Holds Estoppel Argument was Without Merit as the Site Plan was Incomplete

This post was authored by Matthew Loescher, Esq.

In this case, Darren Powlette appealed from a judgment of the Montgomery County Court of Common Pleas, which affirmed an adjudication order of the Board of Building Appeals (“BBA”). The adjudication order upheld the Montgomery County Building Regulation Division’s (“MCBRD”) stop work order addressed to a barn on Powlette’s property.

 Powlette first claimed that since his property received an agricultural exemption, the MCBRD lacked authority to issue the stop work order pursuant to the Ohio Building Code. Powlette further argued that he “is using the structure in a manner that is incident to an agricultural use of the land on which the structure is located,” and that he “uses the barn for hay storage throughout the year.” According to MCBRD, the evidence established that the structure at issue was not being used exclusively for agriculture, but was being used for public assembly purposes as well. Thus, the court found that this multi-purpose use did not grant complete exemption from the Ohio Building Code.

 The court next held that the barn could not retain its agricultural exemption under these circumstances, given the issues of fire safety and life safety for the attendees of the events in the barn. Specifically, the barn was a nuisance, and when MCBRD became aware of the nature of its use it issued the stop work order and essentially negated the exemption. The court found that the trial court did not err in affirming the BBA’s determination that Powlette could not escape application of the Ohio Building Code to his barn, since it was an assembly occupancy and was clearly promoted as such. Accordingly, Powlette’s first assignment of error was overruled.

Alex Carlson, a Township zoning department employee, stated that Powlette submitted a site plan that was not complete. After reviewing the nature of the structure, it was discovered that the property was not designed primarily as a barn. Instead, Wyckoff stated that Powlette represented that the barn was agriculturally exempt, and that MCBRD had no duty to inspect the barn unless a permit was issued for its construction pursuant to the Ohio Building Code. Accordingly, the trial court did not err or abuse its discretion in concluding that Powlette’s estoppel argument was without merit and that MCBRD was not estopped from issuing the stop work order after being made aware of the true nature of the building, The judgment of the trial court was therefore affirmed.

Powlette v Board of Building Appeals City of Dayton, 2020 WL 6817066 (OH App. 11/20/2020)

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