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Thomas E. Jones, et al v. Auburn Township

December 24, 2012


Administrative Appeal from the Geauga County Court of Common Pleas, Case No. 10A001299.

The opinion of the court was delivered by: Thomas R. Wright, J.

Cite as Jones v. Auburn Twp. Bd. of Zoning Appeals,


Judgment: Reversed and remanded.

{¶1} This appeal is from a final judgment of the Geauga County Court of Common Pleas. Appellants, Thomas E. and Diane J. Jones, challenge the court's decision to uphold a prior administrative ruling of the Auburn Township Board of Zoning Appeals denying their zoning application. Specifically, they assert the court should have held that they were entitled to construct a wind turbine upon their property because the Auburn Township Zoning Resolution does not set forth any restrictions on the use of such wind turbines.

{¶2} Appellants own a large farm in Auburn Township, upon which they breed, train, and show Arabian horses. The farm has a number of buildings and other facilities which use a considerable amount of electricity. In light of the costs they were incurring for the electricity, appellants decided to construct a wind turbine on their property in order to produce their own electricity.

{¶3} As part of the system for transmitting the generated electricity, appellants' proposed turbine would be connected to the power grid of a public electric company. This connection would be necessary to ensure that the property would still receive electricity when the wind turbine is not operating, and also to serve as a means of storing any excess electricity when the turbine produces more than the farm needs. Given the nature of the connection, the local electric company classified appellants' electric meter as "commercial."

{¶4} To defray some of the costs for their proposed turbine, appellants applied for state and federal grants. In order to qualify for the grants, it was necessary for them to state that their wind turbine would be for "commercial" use. However, since they only intended to use the generated electricity for the horse farm, appellants contend that the turbine would be essentially for an agricultural purpose.

{¶5} In April 2010, appellants submitted a zoning application to Frank V. Kitko, Auburn Township Zoning Inspector. In that application, they specifically indicated that the electricity generated by the wind turbine would be used exclusively for agricultural purposes. Initially, Inspector Kitko granted the zoning application, stating in a letter that appellants were entitled to an agricultural exemption under R.C. 519.21. Upon asking for additional information about the project, though, Inspector Kitko reversed his original decision. In a second letter sent in July 2010, he denied the application on the grounds that there were still unanswered questions concerning whether some of the electricity generated by the turbine would be used for commercial purposes.

{¶6} Appellants appealed the denial of their zoning application to the Auburn Township Board of Zoning Appeals ("the board"). In September 2010, the board held a hearing on the appeal, during which appellant submitted ten exhibits and the "testimony" of two witnesses. The witnesses consisted of a master electrician, who would assist in the installation of the turbine, and an employee of the company who manufactured the turbine. Their "testimony" essentially consisted of answering various questions raised by the board members.

{¶7} Approximately one month after the hearing, the board released its written decision upholding the denial of appellants' application. As the basis for its ruling, the board basically concluded that appellants failed to show that the electricity generated by the wind turbine would be solely for agricultural purposes. In support of its conclusion, the board emphasized that, since the turbine would be directly connected to the local power grid, the public electric company would be able to employ any excess electricity produced by appellants. According to the board, this means that appellants would be distributing electricity for "off-site" use.

{¶8} Appellants then appealed the board's decision to the common pleas court, pursuant to R.C. Chapter 2506. Initially, appellants captioned their notice of appeal as a "complaint" in which they tried to assert claims for relief. Moreover, besides Inspector Kitko and the zoning board, appellants also tried to name the Auburn Township Board of Trustees as a party to the proceeding. However, after the case had been pending for nearly five months, the common pleas court issued an entry in which it was noted that appellants' "complaint" did not raise any constitutional challenge to the township zoning resolution. As a result, the case went forward solely as an administrative appeal. After the transcript of the board proceedings was filed, the parties submitted their respective briefs on the merits. No oral hearing was held before the common pleas court, and no new evidence was taken regarding the "agricultural use" issue.

{¶9} In its final judgment, the common pleas court began its analysis by noting that, under R.C. 519.21(A), real property used for agricultural purposes is exempt from township zoning regulations. However, the common pleas court then observed that the statutory scheme governing township zoning had a specific section, R.C. 519.213, that pertained to the use of wind turbines. Applying the definition in subsection (A) of that statute to the assertions in appellants' zoning application, the court concluded that the installation of the proposed turbine would cause their property to be considered a "small wind farm" which could be subject to township zoning regulation. Turning to subsection

(B) of the statute, the common pleas court next emphasized that R.C. 519.213 gives a board of township trustees or a board of zoning appeals the power to regulate certain matters involving a "small wind farm." In light of these specific provisions, the common pleas court ultimately decided the case without ...

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