CLERK OF l;ol1rt SUPREME COURT OF OHIO. Appellee, Case No PA IN THE SUPREME COURT OF OHIO. Board of Suffield Township Trustees

Transcription

1 Board of Suffield Township Trustees IN THE SUPREME COURT OF OHIO V. Appellee, On Appeal from the Portage County Court of Appeals, Eleventh Appellate District Alvin O. Rufeners, et al. Court of Appeals Case No PA Appellants. NOTICE OF APPEAL OF APPELLANTS ALVIN AND LANA RUFENER Chad Murdock ( ) 228 West Main Street P.O. Box 248 Ravenna, Ohio (fax) COUNSEL FOR APPELLANTS L CLERK OF l;ol1rt SUPREME COURT OF OHIO CHRISTOPHER J. MEDURI ( ) Assistant Prosecuting Attorney 466 South Chestnut Street Ravenna, Ohio (fax) COUNSEL FOR APPELLEE

2 Notice of Appeal of Appellants Alvin and Lana Rufener Appellants Alvin and Lana Rufener give notice of appeal to the Supreme Court of Ohio from the Judgment of the Portage County Court of Appeals, Eleventh Appellate District, entered in the Court of Appeals Case No PA 0061 on June 30, 2011 and Judgment of the Court entered in the case on August 12, 2011 on a motion to reconsider timely filed by Appellants on July 8, This case is a case of public or great general interest and involves a substantial constitutional question. A memorandum in support of jurisdiction is attached (a copy of the June 30, 2011 Judgment and August 12, 2011 Judgment (reconsideration) is attached thereto). Respectfully submitted, Chad Murdock ( ) 228 West Main Street P.O. Box 248 Ravenna, Ohio (fax) cmurdocklaw@aol.com COUNSEL FOR APPELLANTS Certificate of Service I certify that a copy of this Notice of Appeal was sent by ordinary U.S. Mail to Christopher J. Meduri, Counsel for Appellee, Assistant Prosecuting A ey, 466 South Chestnut Street, Ravenna, Ohio 44266, this Septem er'?,-2011 Chad Murdock ( ) COUNSEL FOR APPELLANTS

3 IN THE SUPREME COURT OF OHIO Board of Suffield Township Trustees Appellee, On Appeal from the Portage County Court of Appeals, Eleventh V. Appellate District Court of Appeals Alvin O. Rufeners, et al. Case No PA Appellants. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANTS ALVIN AND LANA RUFENER Chad Murdock ( ) 228 West Main Street P.O. Box 248 Ravenna, Ohio (fax) COUNSEL FOR APPELLANTS CHRISTOPHER J. MEDURI ( ) Assistant Prosecuting Attorney 466 South Chestnut Street Ravenna, Ohio (fax) COUNSEL FOR APPELLEE

4 TABLE OF CONTENTS Page Explanation of Why This Case is a Case of Public or Great General Interest and Involves a Substantial Constitutional Question... 1 Statement of the Case and Facts... 2 Argument in Support of Proposition of Law... 3 Proposition of Law: Where the Ohio General Assembly delegates to a township board of trustees the authority (or mandate) to regulate land use and the township fails to act, courts cannot regulate in its stead Conclusion... 5 Certificate of Service...:... 6 Appendix Opinion and Judgment of the Portage County Court of Appeals, Case No P-0061 (June 30, 2011), 2011-Ohio-3294 Judgment of the Portage County Court of Appeals, Case No P-0061, reconsideration (August 12, 2011)

5 Explanation of Why this Case is a Case of Public or Great General Interest and Involves a Substantial Constitutional Question This cause concerns the judiciary regulating land use after finding that a township board of trustees under its legislative authority failed to do so, offending the foundation of our constitutional framework. In this case, the trial court found that the township failed to regulate the extension of nonconforming land uses as authorized under R.C In its stead, the trial court adopted a regulation and the court of appeals affirmed. This case is factually of no great concern. No ills would have come to the township had the trial court stopped at finding that the zoning resolution did not regulate the extension of nonconforming land uses. The township cited no health or safety concerns relative to extending the use. Thus, this case is not about the judiciary being active to prevent harm. Nor is it about courts misinterpreting the law. Neither court cited any law in direct support of the holding, and for good reason. No law exists. Rather, this case about whether courts may regulate land use where local governments fail to regulate. The constitutional protections and limitations of nonconforming land uses are codified in R.C (counties), R.C (townships), and R.C (municipalities). These statutes provide the criteria for establishing a nonconforming use and then delegate to local governments the authority to regulate the completion, restoration, reconstruction, extension, or substitution of such use. This court has not decided whether under these statutes local governments may or must regulate these aspects of nonconforming uses. Regardless, if local governments fail to or make the policy decision not to regulate, courts should not regulate in their stead. In addition to offending the constitution, the decision of the court of appeals is of great public interest because it expands the delegation to counties, townships, and municipalities-the 1

6 local governments closest to these land use issues, which represent every person in this state-to the courts willing to regulate land uses where these legislatures fail to regulate. Zoning is a function of local govemment. Generally, courts interpret ambiguous land use regulations to construe and apply legislative intent. However, where courts find no regulation, nothing exists to apply; and a court filling a perceived legislative gap is contrary to law. Where it occurs, it demands the corrective attention of this court. Statement of the Case and Facts This case arises out of appellants Alvin and Lana Rufener (the "Rufeners") extending their nonconforming land use within their parcel located in appellee Suffield Township, Portage County (the "township"). In 2004, the Rufeners got an Ohio Department of Natural Resources permit over their entire 74-acre parcel and a township conditional zoning permit over 12.5 of those acres to extract sand and gravel. In September 2007, the township rezoned their land residential turning their permitted use into a nonconforming use (before September 2007, half of their parcel was zoned residential and the other half industrial (extracting sand and gravel had been a conditionally permitted use in the industrial half)). In 2010, the Rufeners sought to extend their use to a hill within their parcel. They reviewed the township zoning resolution and found that it did not regulate the extension of nonconforming land uses. They asked the township zoning inspector to verify their understanding, which request was ignored. In January 2011, the Rufeners began extracting fill material from the ^7iii^ii^ raans ip ^ued^f^r^ oner^ fnr-ir;janr.tive_reliief. Although the township recognized that in 2007 it rezoned their land to residential, which prohibited sand and gravel extraction, the township alleged that the Rufeners were operating in violation of their 2004 permit. The Rufeners answered that because of the rezoning their use was 2

7 now nonconforming and governed under the nonconforming use section of the township zoning resolution, as expressly stated in the resolution (and R.C ). See C.D.S., Inc. v. Vill. of Gates Mills (1986), 26 Ohio St.3d 166, 168, 497 N.E.2d 295 (stating that "Logically then, a permitted use is not a nonconforming use"). The trial court found that the Rufeners established a nonconforming use within the area of their 2004 permit and that the township zoning resolution did not regulate the extension of nonconforming land uses as mandated under R.C The trial court allowed the Rufeners to extend their use within the area of the former industrial district (half of their parcel), but held that because the hill had been (and still was) in the residential half of the parcel, where such use could not have been "lawful" when the Rufeners established their use (four years earlier), they could not extend their use to the hill. The trial court did not cite any regulation in the township zoning resolution. The court of appeals affirmed. Throughout the proceedings, the Rufeners asked which regulation in the township zoning resolution was being interpreted to read that where two zoning districts exist on one parcel and the repeal of one district creates a nonconforming use, the extension of such use is limited to the area of the repealed district. Nothing in the nonconforming use section or any other section of the resolution supports this proposition. Argument in Support of Proposition of Law Proposition of Law: Where the Ohio General Assembly delegates to a township board of trustees the authority (or mandate) to regulate land use and the _tawjushin fails to act courts cannot regulate in its stead. As this court has often stated, the Ohio General Assembly is the proper body to resolve public policy issues. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 834 N.E.2d 791, Ohio-4985, at 14. The Ohio General Assembly resolved whether and if so to what extent, non- 3

8 conforming land uses may be extended by delegating to local govemments the authority to regulate such matters. In pertinent part, R.C states: The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enactment of a zoning resolution or amendment thereto, may be continued, although such use does not conform with such resolution or amendment, ***. The board of township trustees shall provide in any zoning resolution for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning resolution. Ohio Rev. Code Ann (West). No doubt courts can and often do give a liberal read to local government regulation of nonconforming uses. See Petti v City of Richmond Heights (1983), 5 Ohio St.3d 129, , 449 N.E.2d 768, citing Akron v. Chapman (1953), 160 Ohio St. 382, 386, 116 N.E.2d 697, 52 O.O. 242 (stating that "Although a nonconforming use may be established when the requirements are satisfied, zoning ordinances usually contemplate the gradual elimination of nonconforming uses in a zoned area"). However, the court of appeals failed to recognize that where no regulation exists, courts have nothing to apply. This court has held that the right to continue land use in a lawful business and in a manner that does not constitute a nuisance and that was lawful at the time the use began is within the protections of the Constitution of the United States and the Ohio Constitution. City of Akron v. Chanman (1953), 160 Ohio St. 382, 388, 116 N.E.2d 697. Also, as R.C provides, the right to extend such use "upon such reasonable terms as are set forth in the zoning resolution" is equally protected. Deerfield Twp. v. Deerfield Raceway (Aug. 8, 2008), 11th Dist. No P Ohio-4047, - at 27. Further,ordinances-that3mposeJrestrietill.~,s-upon such-`''se-`v' 'IL 0060, be strictly construed, and their scope cannot be extended to include limitations not therein clearly 4

9 prescribed. Davis v. Miller (1955), 163 Ohio St. 91, 95, 126 N.E.2d 49 (citation omitted). These protections and this rule of construction were ignored in this case. Unlike in Davis, when the Rufeners established their nonconforming use (after the township rezoned their parcel residential) their parcel was one lot, and not divided by a road. They held an Ohio Department of Natural Resources permit to extract sand and gravel-the nonconforming use-over the entire parcel. Unlike in Davis, no definition of "lot" in the zoning resolution was interpreted to restrict extending their use within their parcel. Nevertheless, the court of appeals restricted extending their use. The court applied the criteria for establishing a nonconforming use to extending a nonconforming use, without applying any regulation in the township zoning resolution. The court of appeals reasoned that because the Rufeners could not establish a nonconforming use on the hill when the rezoning occurred (because the use did not exist on the hill then and if it had, it would have been contrary to zoning and therefore unlawful), they could not extend their use to the hill. Clearly, a nonconforming use cannot be established in an area where such use did not exist before the zoning resolution or amendment. See Pschesang v. Vill. of Terrace Park (1983), 5 Ohio St.3d 47, 448 N.E.2d However, the question was whether the Rufeners could extend their established, nonconforming use into such area. Under R.C , that question was for the township to answer in its zoning resolution. Succinctly state, courts have no legislative authority. 85 Ohio Jur. 3d Statutes 131, Avoidance of judicial legislation (September 2011). R.C , R.C , and R.C delegate legislative authority to loc^governmen s; an no thzn eo^ts irrthe'r^ st Conclusion The court of appeals overstepped its bounds in affirming the regulation adopted and ap- 5

10 plied by the trial court. The Rufeners request that this court accept jurisdiction so it can review on the merits the important issue presented. Respectfully submitted, Chad Murdock ( ) ^--z-_ COUNSEL FOR APPELLANT, ALVIN AND LANA RUFENER Certificate of Service I certify that a copy of this Memorandum was sent by ordinary U.S. Mail to Christopher J. Meduri, Counsel for Appellee, Assistant Prosecuting Attorney, 466 South Chestnut Street, Ravenna, Ohio 44266, this September-^-,, 2011 Chad Murdock ( ) COUNSEL FOR APPELLANT, ALVIN AND LANA RUFENER 6

11 IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO FILED COURT OF APPEALS jun uporta6e COUNTI; OHIOK BOARD OF SUFFIELD TOWNSHIP TRUSTEES, Plaintiff-Appellee, OPINION CASE NO P vs - ALVIN O. RUFENER, et al., Defendants-Appellants. Civil Appeal from the Portage County Court of Common Pleas, Case No: 2010 CV Judgment: Affirmed. Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH (For Plaintiff-Appellee) 228 West Main Street, P.O. Box 248, Ravenna, OH (For Chad E. Murdock, Defend ants-appellants). DIANE V. GRENDELL, J. a { 1} Defendants-appellants, Alvin and Lana Rufener, appeal from the July 23 Order and Journal Entry of the Portage County Court of Common Pleas, adopting the Magistrate Decision and granting the plaintiff-appeltee, Board of Suffield Township Trustees' (Suffield), request for a permanent inlunct^n-against-threu fer1,eri_,preventing them from extracting natural resources from a portion of their property. For the following reasons, we affirm the decision of the court below.

12 { 2} In 1993, the Rufeners purchased a 73.9 acre tract of land, located at 725 State Route 224, in Suffield Township, Ohio. This tract of land is situated at lot number 38. At the time of the purchase and continuing through 2007, the tract of land was divided into roughly two halves for the purposes of zoning. The eastern half of the property, which occupied approximately fifty-four percent of the total lot, was located in a residential (R-1) district, while the western half, which occupied approximately forty-six percent of the lot, was located in an industrial (I-1) district. { 3} In 2000, the Rufeners applied for both a conditional use permit for the industrial portion of their land and a variance for the residential portion of the land. In their application, they stated that they wanted to conduct "sand [and] gravel extraction and processing" on their land. The Suffield Township Board of Zoning Appeals (BZA) found that "[m]ineral extraction is not a conditionally permissible use in an RI district" and that the Rufeners testified that they could not proceed with the project on only the industrial portion of the land. Therefore, the Rufeners' requests were denied by the BZA. { 4} In November of 2002, a proposed zoning amendment was submitted to the voters of Suffield Township on the general election ballot. This amendment proposed rezoning the residential portion of the Rufeners' lot to industrial, and would have made the entire property industrial. This proposed amendment was rejected. { 5} On May 27, 2004, the BZA granted the Rufeners' request for a permit to Rufeners were on fhe =fipoytiutrof^^rop ^3`TnP allow gravel and sand extraction granted a conditional use permit. The conditions on this permit required that mining be limited to only a specific portion of the I-1 half of the property. This area was 2

13 approximately 12.5 acres and was located 80 feet west of the State Route 224 right of way, 100 feet from the rear of the property, 100 feet from the R-1 district to the east, and 50 feet from the creek. Other conditions required that the Rufeners erect a visual barrier to this area and create lines to show the area where they could conduct mining operations. { 6} In 2007, the Suffield Township Zoning Commission rezoned the Rufeners' property, zoning the entire property as R-1, residential. This changed the half of the property previously zoned industrial to residential. No part of the Rufeners' property remained zoned industrial. { 7} On February 2, 2010, Suffield filed a Complaint seeking preliminary and permanent injunctions against the Rufeners, pursuant to R.C and Suffield alleged that the Rufeners were extracting natural resources from portions of their property beyond the land that had been approved for such extractions, the 12.5 acres allocated by the Rufeners' 2004 conditional use permit. Suffield requested that the permanent and preliminary injunctions be issued to prevent the Rufeners from extracting natural resources from any portion of their property, including within the 12.5 acre area described by the BZA. { 8} Suffield also filed a Motion for Temporary Restraining Order on February 2, 2010, seeking that the court enjoin the removal of natural resources outside of the 12.5 acre area. In an attached affidavit, James Albertoni, Zoning Inspector for Suffield - _- -- _--- th^ _Rufpn^.rs- were extracting Township, asserted that he had perso rlk-nowiedge natural resources outside of the permitted 12.5 acre area and that the amount removed exceeded 10,000 tons. 3

14 { 9} On February 5, 2010, the magistrate issued a Judgment Entry granting Suffield's Motion for Temporary Restraining Order and ordered that the Rufeners cease extraction of natural resources from their land outside of the designated 12.5 acres. The trial court adopted the magistrate's decision on February 5, { 10} On February 12, 2010, the court held a hearing on the preliminary injunction. The following testimony was presented at the hearing. { 11} Larry Schrader, Chairman of the Suffield Township Zoning Commission, testified that prior to the 2007 change in zoning, the Rufeners' property was zoned 1-1, industrial on one portion and R-1, residential on the other portion. He testified that in September of 2007, the Rufeners' property was rezoned, as part of a township-wide rezoning. This rezoning was done in an attempt to create zoning boundaries consistent with property lines. After this rezoning, the Rufeners' entire property was zoned',r-1, residential. { 12} Marc Frisone, Chairman of the BZA, testified that the Rufeners applied for both a conditional use permit and a variance in 2000, but did not receive either of the two. Frisone also testified that the Rufeners again applied for a conditional use permit for the industrial zone in 2004, and were given such a permit, with conditions. Frisone testified that one condition required the Rufeners to construct a visual barrier that would protect the adjoining neighbors. Another condition required the Rufeners to create a "line of demarcation" by erecting wooden posts and placing piping on the ground, to Rufeners could conduct extractions. Frisone c y show ^i ^e ^^^c^^^p^"^^fhe testified that it was the intent of the BZA that no mining would occur outside of that 12.5 acre area. Frisone testified that in 2009, the Rufeners requested an extension of time 4

15 on their conditional use permit but that the BZA ultimately did not make a finding as to whether to grant the extension, due to the BZA's belief that it did not have jurisdiction. { 13} Jim Albertoni, a Zoning Inspector, testified that he observed the Rufeners extracting sand and gravel at a rate of about 80 truckloads per day in January of He also testified that the Rufeners were currently mining outside of the 12.5 acre marked area. Albertoni testified that he believed the Rufeners were removing approximately 1,600 tons of soil from their property daily. {1t14} On March 2, 2010, the magistrate issued a Magistrate Decision and Journal Entry, ruling on the preliminary injunctions. The court held that the Rufeners were enjoined from mining on the eastern portion of the property, the portion that had always been zoned R-1, residential. The court found that because "mining was never a lawful use on the originally zoned R-1 Residential property, mining could never become a nonconforming use." { 15} However, the court denied the injunction regarding the Rufeners' use of the remaining portion of the property, the portion that had previously been zoned industrial, which included the 12.5 acres permitted for use. The court found that the Rufeners could not be enjoined from mining on the 12.5 acres because that use was lawful and that the Rufeners would be permitted to continue mining as a nonconforming use. { 16} The court also found that the Rufeners could continue to make extractions a n fnrea ^t^i^ z""^^ ousl dustrial but outside from the additional property loc t of the designated 12.5 acres. The court found that the current Suffield Zoning Resolution did not include a provision regarding the extension or expansion of 5

16 nonconforming uses, as is required by R.C Since no such provision existed in the zoning resolution, the court held the Rufeners could not be enjoined from expanding their extraction business beyond the 12.5 acre area covered by the conditional use permit "and onto the adjacent, originally zoned I-1 Industrial property." { 17} The Rufeners filed Objections to the Magistrate Decision on March 18, They asserted that the magistrate erred in allowing mining on only a portion of the property but not on the rest of the property. They argued that their nonconforming use should be extended throughout the entire parcel. { 18} On March 19, 2010, the trial court adopted the Magistrate Decision. { 19} On June 4, 2010, the magistrate issued a Magistrate Decision and Journal Entry, ruling on the permanent injunctions. The Entry stated that "[t]he parties agree that no further testimony or other evidence is necessary, and that the Magistrate decision filed March 5, 2010, contains sufficient findings of fact and conclusions of law in making the final decision in this case." As it did with the preliminary injunctions, the court granted the permanent injunction against the Rufeners regarding extracting sand and gravel from the portions of the property zoned R-1 at the time of the purchase, but denied the permanent junction as to the area located in the former industrial zone. { 20} The Rufeners filed Objections to the Magistrate Decision on June 21, 23, 2010, the trial court issued an Order, finding the Rufeners' objections On July not well-taken and adopting the Magistrate Decision. ' te^ aditk^^h? ti court on to S^y ^g { 21} The Rufeners filed a Motion August 10, 2010, requesting that the court stay execution of judgment for the pendency of their appeal. The trial court denied this motion on August 12,

17 { 22} On August 30, 2010, the Rufeners filed a Motion to Stay Judgment with this court seeking to stay the permanent injunction as to the residential segment of their property, pending the outcome of this appeal. On september 23, 2010, this court entered a Judgment Entry, overruling the Rufeners' Motion to Stay Judgment. { 23} The Rufeners timely appeal and assert the following assignment of error: { re udicial error in enjoining the Rufeners from 24} "The trial court committed p J extending their valid, nonconforming use onto the area of their parcel zoned residential vvhen purchased." { 25} Suffield brought the action for injunctive relief against the Rufeners pursuant to R.C , which provides, in relevant part, as follows: { 26} "In case any building ** or any land is or is proposed to be used in violation of sections to *** of the Revised Code, or of any regulation of provision adopted by any board of township trustees under such sections, such board, the township zoning inspector, or any adjacent the prosecuting attorney of the county, eciall damaged by such viofation, or neighboring property owner who would be esp Y may institute injunction *** or any other appropriate action or proceeding to prevent **^ such unlawful *** use." { 27} Thus, R.C "creates a cause of action against a landowner C Chapter uses or proposes to use his land in violation of any of the provisions [of] R 11th Dist. resoiution." Ghindia v. Buckeye Land Dev., LLC, 519 or any township zoning. ++ _ ^lnder this code section, "a No T-0084, 2007-Ohio-779, at ci a ^(i crn'hattorney, or a township zoning trustees, a county prosecuting board of township inspector may file an action for injunction to prevent any unlawful use of buildings or 7

18 1 162 Ohio App 3d 258, 2005-Ohio-3664, at 12. Since land." Id., citing Baker v. Blevins, the remedy is statutory, the petitioner need only show that a violation of the ordinance is ury or that there is no or prove an irreparable inj occurring and is "not required to plead Trustees v. Union Twp. Bd. of at law, as is required by Civ.R. 65." adequate remedy by (2000), 137 Ohio App.3d 289, 294. ^^Rather, the petitioner must prove, Old 74 Corp. clear and convincing evidence, that the property is being used in violation of the zoning 2007-Ohio-779, at 19 (citation omitted). ordinance." Ghindia, ( 28} "The trial court's decision to grant an injunction is reviewed under an abuse of discretion standard." Id. at 20, citing Baker, 2005-Ohio-3664, at 17. "Absent a clear showing that the trial court abused its discretion in granting the injunction, an appellate court cannot reverse the judgment of the trial court." Id. (citation omitted). to find that the { 29} The Rufeners argue that the trial court erred in failing roperty for extracting dirt and other materials was a Rufeners' use of their p including the nonconforming use and should be allowed on all portions of the property, eastern portion that was zoned R-1, residential prior to the 2007 rezoning. in existence at the time t 301 "A nonconforming use is a Iawful use of property of enactment of a zoning resolution which does not conform to the regulations under the Inc. v. Denmark Twp. Zoning Bd. new resolution." Aluminum Smelting & Refining Co., of Zoning Appeals, 11th Dist. No A-0050, 2002-Ohio-6690, at 14 (citation a"n,^-anal arealtowed to exist omitted). Nonconforming uses are not "favori^ of^^ and continue due to "constitutional prohibitions against immediate termination of the use." Id.

19 use must meet two requirements. First, the use { 31} "A prior non-conforming prior to the enactment of the prohibitory land use. Second, must have been in existence in question must have been lawful at the time it commenced" Stud20 the land use 01 11th Dist. No P 0015, 2001 Ohio 8780, Aurora City Bd. of Zoning Appeals, Ohio App. LEXIS 5448, at *5 (citation omitted). There is a "right to continue the use of one's property in a lawful business and in a manner which does not constitute a nuisance and which was lawful at the Terrace another way, time" the use was establisheod^itt d) es`stated Park (1983), 5 Ohio St.3d 47, 48 (emphasis sic) (citation the use in question must have been in full conformance with ali applicable land use regulations in effect when the activity was begun." Dublin v. Finkes (1992), 83 Ohio App.3d 687, 690. { 32} Extraction of natural resources is defined by Suffie{d Township Zoning *** of any mineral natural Resolution (2000) as the "mining, quarrying, excavating resource (coal, sand, gravel, clay, stone, top-soil and sub-soil)," and "the removal of topsoil and or sub-soil shall also be included when the extraction involves two hundred and fifty (250) tons or more. " Extraction of a natural resource is a cond ald be allowed if the BZA issues a conditional zoning permissible use, which may See ilowed without the issuance o certificate, and which may not be af such a permit. 2000) and (2008), Section 421.2(B), and Section Suffield Township Zoning Resolution ( issible 801. Extraction of a natural resource is listed as a conditionally perm use on land (resi en' zoned 1-1 ( industrial) but not R-1 Section 403(B). ir^ at Section 421.2(B)(2), and 9

20 the Rufeners that under both current and past Suffield { 33} It is undisputed by Zoning Resolutions, mining and extraction are not allowed in R-1 districts, with or on such property would not be a without a conditional use permit.i Therefore, mining ortion of the property under the zoning legal use of the eastern, always residential, p laws. While use on the previously industrial western portion would have been legal prior to rezoning, mining on the residential portion was never allowabte.i The change of the I- s been zoned residential. 1 section to R-1 had no effect on the land that had alway to the change in Therefore, even if the Rufeners had been conducting this mining prior zoning, it wouid not qualify as a nonconforming use because it was never a legal use of the eastern portion of the property the use must have { 34} In additioh, for the Rufeners' use to be nonconforming, 1983) 5 Ohio (1983), e in the law. Torok v. Jones been preexisting at the time of the chang use only St.3d 31, "A person is entitled to use his property as a nonconforming use prior to adoption of the to the extent that such use was established by preexisting 10th Dist. No. 76AP-4, 1976 Ohio App. Wolfenbarger, regulation involved." Havranek v. LEXIS 6246, 5.., use on the { 35} In this case, although the Rufeners had established a the evidence conditionally permitted 12.5 acres prior to the 2007 change in zoning, presented at the hearing shows that their use on the eastern portion of the land did not es. The use of this portion of the land is ommence until well after the,zoning chang c fore an expans ^f te - - ^ _ ^-- -' e taa tr ial portion una^i n >,. Thee different than using the indus ortion would be using the land to a different extent nonconforming use to the eastern p ee Id. at *5 I 10

21 1 { 36} The Rufeners also argue that when use on a parcel is nonconforming, this use extends to the entire parcel and that the Suffield Zoning Resolution allows a nonconforming use to extend to their full parcel. Therefore, atthough extraction of resources would never have been allowed in an R-1 area, the fact that the Rufeners mined on the western portion of the same lot should allow for an extension of the use onto the eastern portion. { 37} We note that this case is factually distinct from other cases in which a has only one zoning district, as is typically the case. On such piece of property -^' properties, conduct that is lawful on one portion of the property would also be lawful on the other portion of the property. This case is different, as the Suffield Zoning Resolution allows conditional permits for extraction on I-1 zoned land, but not on R-1 land. Moreover, "[e]ven when a preexisting use is properly established, expansion is Rootstown Twp. Trustees v. Morgan, subject to reasonable zoning restrictions." still 856 at *11. Even if the extraction on 11th Dist. No. 90-P-2178, 1991 Ohio App. LEXIS 1, the western portion was a nonconforming use, because it is not otherwise legal under the Zoning Resolution to have such a use on the eastern portion, the use cannot be expanded. / { 38} In addition, a court can find a portion of a lot or a tract of land to have a nonconforming use but still find that use does not extend to another portion. See Havranek, 1976 Ohio App. LEXIS 6246, nonconforming use existed as to p a^i o^t ye hr el'`^`'d front of such a line and held that at `4-*6 ( where the court held that a a-bu^ldan'^^tback line but not in "other provisions of the zoning resolution, such as building line requirements, must also be considered in determining the nature and 11

22 extent of the nonconforming use established"); Randolph Twp. Trustees v. Portage Cty. LEXIS 3465, at "6 *7 Agricultural Soc., 11th Dist. No. 91-P-2384, 1992 Ohio App. (where the owner of a quarry owned one tract of land divided into two parcels, nonconforming use could not be expanded from one parcel to the other parcel). { 39} Moreover, the Rufeners' contention that mining should now be allowed on the portion of their property that has always been zoned residential is in conflict with the basic principles and purposes of nonconforming use. Nonconforming use is allowed "based on the recognition that one should not be deprived of a substantial investment which existed prior to the enactment of the zoning resolution." Beck v. Springfield Twp. Bd. of Zoning Appeals (1993), 88 Ohio App.3d 443, 446, citing Curtiss v. Cleveland (1959), 170 Ohio St. 127, 132; Morgan, 1991 Ohio App. LEXIS 1856, at 9 ("[n]onconforming uses are allowed to exist merely because of the harshness of and the constitutional prohibition against the immediate termination of a use which was legal when the zoning ordinance was enacted") (citation omitted). { 40} Such a purpose is not present in this case and the Rufeners are not placed in a worse position regarding the eastern portion of their Iand. The Rufeners were aware, at the time they purchased the property and throughout their ownership, that mining and extraction was prohibited on the eastern, R-1 portion of their land. Therefore, they would have never had reason to invest resources into mining on this portion of the land. Allowing the Rufeners to now extract minerals from the eastern, - ^_ e^^t-oiy, always residentially zoned portion of their lan wou^d go^garnst â`tbe-s'uffip - Zoning Resolution, but also against the purposes of allowing nonconforming use. The 12

23 Rufeners, under the trial court's Order, are allowed to continue with extraction on the land where they had been allowed since 2004, the western portion of the land. { 41} The Rufeners assert that because they intended to use their parcel for extracting sand and gravel and obtained the appropriate permits with the State to do so, They further their use should extend throughout the entire boundaries of their property. assert that such an approach is consistent with diminishing-asset use cases. { 42} Suffield argues that the diminishing asset doctrine further supports the trial court's decision because there was never any intent for the Rufeners to use the eastern portion of their land for extracting resources. { 43} The doctrine of diminishing assets has generally not been used in Ohio, but asserts that "an owner of a nonconforming use may sometimes be found to have a vested right to use an entire tract even though only a portion of the tract was used when the restrictive ordinance was enacted." Stephan & Sons, Inc. v. Anchorage Zoning Bd. of Examiners & Appeals (Alaska 1984), 685 P.2d 98, (citation omitted). The determining factor is "whether the nature of the initial nonconforming use, in the light of the character and adaptability to such use of the entire parcel, manifestly implies that the entire property was appropriated to such use prior to adoption of the restrictive zoning ordinance. *"" The mere intention or hope on the part of the landowner to extend the use over the entire tract is insufficient; the intent must be objectively manifested by the present operations." Id.; Connecticut Resources Recovery Auth. v ord ( onn.`r993'r Planning &Zoning Comm. of Wall -mgl fr2f^-."-,.2^ 7Ooj 7^?-71^;-- Wotfeboro v. Smith (N.H.1989), 556 A.2d 755,

24 { 44} The record indicates that there was no objective intent to use the eastern portion of the Rufeners' property for mining: In 2004, the Rufeners sought a permit only to conduct extraction on the western, industrial portion of the property. Members of the BZA testified that there was never any intent for the eastern, residential portion to be used for extraction. The Rufeners also did not begin to extract soil from the eastern portion of the property until after the zoning change occurred in There is a lack of evidence to show that the Rufeners objectively manifested their intent to mine throughout their entire property prior to the change in zoning. { 45} The Rufeners also argue that because the Suffield Zoning Resolution fails to include a provision allowing for an extension of nonconforming use, it fails to meet the requirements of R.C The Rufeners cite Deerfield Twp. Trustees v. Buckeye Fireworks Mfg. Co., Inc., 11th Dist. No. 1137, 1982 Ohio App. LEXIS 13575, where the appellate court found that the failure to include a provision in a zoning resolution allowing a nonconforming use to be extended prevented the appellant from successfully seeking a permanent injunction. Id. at *3 *4. { 46} R.C reads, in pertinent part: { 47} "The board of township trustees shall provide in any zoning resolution for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning resolution." { 4S} The magistrate found that the current Suffield Zoning Resolution did not contain the appropriate provision to allow for the extension of a nonconforrning use; as. required by R.C However, the magistrate also found this failure to include this { provision applied only as to the extension of the use of the permitted 12.5 acres to the 14

25 remainder of the western, previously zoned 1-1 portion of the land. He did not find that the failure to include an extension provision precluded Suffield's ability to obtain an injunction as to the eastern portion of the property. We agree. and related cases are distinguishable from this { 49} We note that Deerfield case. In such cases, the party with an appropriate nonconforming use was unable to obtain a nonconforming use permit because of the absence of provisions in the zoning resolution allowing for the extension of such a use. In this case, such a situation is not present, as the Rufeners would not be able to obtain a nonconforming use permit, regardless of the existence of an extension provision in the Suffield Zoning Resolution. { 50} As discussed in the foregoing analysis, extracting resources on the eastern part of the property is not a nonconforming use. Therefore, where there is no nonconforming use, the failure to include a provision allowing for that extension of such a use is irrelevant and did not preclude Suffield from successfully receiving an injunction as to the eastern portion of property that had always been zoned residential. The trial court did not abuse its discretion in granting an injunction to Suffield and enjoining the Rufeners from conducting extraction of natural resources on the eastern portion of their property. { 51} The Rufeners finally argue that the trial court abused its discretion in finding that the conditional use permit was a binding contract and that permits are not contracts. cntries-do^ s--notah W that e { 52} We note that a review of the fower^g^s trial court made a determination as to whether a conditional use permit is a contract. Therefore, there is no basis to determine that the trial court erred in finding that the 15

26 zoning permit is a contract. Regardless, any analysis related to this issue would be related only to the industrialty zoned portion of the property, as the permit was only related to this area. The Rufeners are not disputing the part of the trial court's decision that denied Suffield's request for an injunction as to the western, formerly industrial portion of the Rufeners' property. { 53} The sole assignment of error is without merit. { 54} For the foregoing reasons, the Entry of the Portage County Court of Common Pleas, adopting the Magistrate Decision and granting Suffield's request for a permanent injunction against the Rufeners, is affirmed. Costs to be taxed against appellants. CYNTHIA WESTCOTT RICE, J., MARY JANE TRAPP, J., concur. 16

27 FILED COURT OF APPEALS JUN LI ppr7age COUNTY, OHo K STATE OF OHIO ) )SS. COUNTY OF PORTAGE ) IN THE COURT OF APPEALS ELEVENTH DISTRICT BOARD OF SUFFIELD TOWNSHIP TRUSTEES, Plaintiff-Appellee, JUDGMENT ENTRY CASE NO P vs - ALVIN O. RUFENER, et al., Defend ants-appellants. For the reasons stated in the Opinion of this court, the sole assignment of error is without merit. The order of this court is that the judgment of the Portage County Court of Common Pleas is affirmed. Costs to be taxed against appellants. JUDGE DIANE V. GRENDELL FOR THE COURT

28 FILED COURTOFAPPEALS AUG LINDA K. FANKHAUSER, CLERK, PORTAGE COUNTY, OHIO STATE OF OHIO ) )SS. IN THE COURT OF APPEALS COUNTY OF PORTAGE ) ELEVENTH DISTRICT BOARD OF SUFFIELD TOWNSHIP TRUSTEES, Plaintiff-Appellee, - vs - JUDGMENT ENTRY CASE NO P-0061 ALVIN O. RUFENER, et al., Defend ants-appel lants. This matter comes before this court on the July 8, 2011 motion of appellants Alvin and Lana Rufener, to reconsider this court's decision in Bd. of Suffield Twp. TrusteesY. Rufener, 11th Dist. No P-0061, 2011-Ohio No motion in opposition has been filed. For the following reasons, we deny the Rufeners' motion to reconsider. In Suffield, this court affirmed the Judgment of the Portage County Court of Common Pleas, granting the plaintiff-appellee, Board of Suffield Township Trustees', request for a permanent injunction against the Rufeners, preventing them from extracting natural resources from a portion of their property. _ Aqnellate^_Rule 26 A) does not provide specific guidelines to be used by an appellate court when determining whether a prior decision should be reconsidered or modified. State v. Black (1991), 78 Ohio App.3d 130, 132. When considering a motion for reconsideration, "[t]he test generally applied *** is

29 whether the motion for reconsideration calls to the attention of the court an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by us when it should have been." State v. Jones, 11th Dist. No A-0027, 2003-Ohio-621, at 5 (citation omitted). Importantly, an application for reconsideration is not designed to be used in situations where a party simply disagrees with the logic employed or conclusions reached by an appellate court. State v. Owens (1996), 112 Ohio App.3d. 334, 336. Instead, App.R. 26 is meant to provide "a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error" or renders a decision that is not supported by law. Id. In the instant matter, the Rufeners argue that this court made an obvious error by failing to find that the Rufeners could expand their established, nonconforming use from the western, industrially zoned portion of their property to the eastern, residentially zoned portion of their property. We note that the Rufeners do not raise any new arguments, but simply assert arguments previously raised in their original appellate brief. The Rufeners first argue that this court failed to distinguish between establishing a nonconforming use and expanding a noncon orming use. owever, ms- - misconstrues the court's findings, as this court did distinguish between the two 2

30 and addressed both issues in its opinion. See Suffield, 2011-Ohio-3294, at Regarding the issue of the existence of a nonconforming use, this court found that such use must initially be lawful. In this case, the use of the residential portion of the Rufeners' property never constituted a lawful use, due to the fact that the eastern portion of the property had always been residential and the Suffield Zoning Resolution never allowed for extraction on residential property. Although the Rufeners dispute the court's finding as to this issue, they offer no case law to support their contention. They also fail to recognize the unique circumstances of this case, in which the parcel of land is zoned in two separate districts. While they attempt to assert that the issue in this case is only the expansion of a nonconforming use and not the establishment of a nonconforming use, the circumstances of this case support a finding that there was no nonconforming use as to the residential portion of their property. Although the Rufeners disagree with this court's decision, that alone does not justify a different result. Owens, 112 Ohio App.3d at 336. Moreover, even if the Rufeners could establish the existence of a nonconforming use, this court also found that the expansion of such a use was not proper in this case. In Suffield, this court noted that "when a preexisting use is properly established, expansion is stilt sutitect--to reaso ai5ie mlirryrestrictions." 2011-Ohio-3294, at 37, citing Rootstown Twp. Trustees v. Morgan, 11th Dist. No. 90-P-2178, 1991 Ohio App. LEXIS 1856, at *11. The 3

31 court further found that "[e]ven if the extraction on the western portion was a nonconforming use, because it is not otherwise legal under the Zoning Resolution to have such a use on the eastern portion, the use cannot be expanded." Id. In addition, a court can find a portion of a lot to have a nonconforming use without determining that the use extends to another portion of the land. See Havranek v. Wolfenbarger, 10th Dist. No. 76AP-4, 1976 Ohio App. LEXIS 6246, at '4-'6. Therefore, this court's finding that there was no existing nonconforming use and that, even if there was such a use, it could not expand to the eastern, residential portion of the Rufeners' property, was supported by law and there was no obvious error as to this issue. The Rufeners also argue, as they did in their brief, that Suffield Township's failure to include an expansion provision in its zoning resolution, pursuant to R.C , prevents Suffield from seeking an injunction preventing the Rufeners' mining. As noted above, the Rufeners did not have an appropriate nonconforming use on the eastern, residential portion of their land. As such, no nonconforming use expansion provision is required. Suffield, 2011-Ohio-3294, at 50 ("where there is no nonconforming use, the failure to include a provision allowing for the extension of such a use is irrelevant and did not preclude Suffield from --- successfully receiving an injunction as to the eastern-po ion of pro erty-that-'rrad -- always been zoned residential"). The Rufeners concede that R.C

32 requires the township to have a provision governing the expansion of a nonconforming use, not the establishment of a nonconforming use. The Rufeners assert that this court's decision is contrary to Deerfield Twp. Trustees v. Buckeye Fireworks Mfg. Co., Inc., 11th Dist. No. 1137, 1982 Ohio App. LEXIS 13575, and other precedent. However, this court properly addressed this argument in its opinion, noting that such cases are distinguishable, for the reasons discussed above. Suffield, 2011-Ohio-3294, at 49. In such cases, the party with an appropriate nonconforming use was unable to obtain a nonconforming use permit because of the absence of provisions in the zoning resolution, whereas in the Rufeners' case, they would not be able to obtain a nonconforming use permit, regardless of the existence of an extension provision in the Suffield Zoning Resolution. The Rufeners provide no contrary authority regarding a situation similar to the Rufeners', where the party did not have a nonconforming use to expand. The Rufeners finally argue that there are no reasonable zoning restrictions in existence to prevent the Rufeners' expansion of their use to the eastern, residential portion of their property. However, as noted in this court's opinion, the Suffield Zoning Resolution has never permitted the use of residentially zoned property for extraction, and, therefore, expansion of this use to such a parcel is contrary to existing zoning restrictions. Seu^fi d I owns n p Zoning Resoiuisonn (2000) and (2008), Section 421.2(B) and Section 403(B) (extraction of a natural resource is not a permissible use on land zoned R-1, residential). 5

33 The Rufeners are simply attempting to use the nonconforming use law in an effort to extend their extraction to a part of their property where they otherwise could not have expanded, but for the occurrence of the property rezoning. As the Rufeners have not identified an obvious error in this court's opinion or an issue not fully considered therein, the Application for Reconsideration is denied. ^d 1 ^Gk:^ JUDGE DIANE V. GRENDELL CYNTHIA WESTCOTT RICE, J., MARY JANE TRAPP, J., concur. 6