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City of North Olmsted v. Rock

Court of Appeals of Ohio, Eighth District

July 18, 2013

CITY OF NORTH OLMSTED PLAINTIFF-APPELLEE
v.
KIM M. ROCK DEFENDANT-APPELLANT

Criminal Appeal from the Rocky River Municipal Court Case No. 12 CRB 2093

ATTORNEY FOR APPELLANT Michael R. Blumenthal Waxman, Blumenthal L.L.C.

ATTORNEYS FOR APPELLEE: Michael Gareau, Jr. Director of Law By: Bryan O'Malley Assistant Director of Law City of North Olmsted

BEFORE: S. Gallagher, J., Jones, P.J., and McCormack, J.

JOURNAL ENTRY AND OPINION

SEAN C. GALLAGHER, J.

{¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1. Appellant Kim M. Rock appeals the judgment of the Rocky River Municipal Court that found her guilty of two building code violations. For the reasons stated herein, we affirm.

{¶2} On August 16, 2012, a complaint was filed against Rock that charged her with violating North Olmsted Codified Ordinances ("NOCO") Sections 1135.02(e) (animal shelter violation) and 1363.07(b)(l)(G)(3) (fencing violation). On September 11, 2012, Rock entered a plea of no contest.

{¶ 3} At a pretrial held on September 26, 2012, Rock signed a time waiver for trial and a trial date was set for November 2, 2012. On October 31, 2012, Rock filed a motion for continuance that was granted by the trial court. Ultimately, the matter proceeded to trial on November 19, 2012. The court found Rock guilty of the charges, imposed a fine of $250 on each of the two counts, and ordered her to pay court costs. Rock filed a timely notice of appeal. Her motion to stay payment of fines and costs pending appeal was granted.

{¶ 4} On appeal, Rock raises three assignments of error for our review. Her first assignment of error provides as follows:

I. The trial court erred in charging appellant with a violation of [NOCO] 1135.02(e), removal of dog house (pig shelter within 200 feet of adjacent building) as appellant falls under the grandfather clause.

{¶ 5} The complaint alleged that on her residential property in North Olmsted, Rock "did construct, install and/or otherwise maintain an animal shelter within 200 feet of a neighboring dwelling unit and did fail to abate said violation * * * in violation of [NOCO] Section 1135.02(e)[.]" NOCO Section 1135.02(e) allows for animal shelters, subject to the following requirements:

Animal Shelter. Accessory buildings designed, built, altered or used to house domestic fowl or animals provided that it is located so that no part of the same shall be within ten feet of any rear or side line of the lot on within the same is located and within 200 feet of a dwelling on any adjacent lot within 200 feet of the source of any private water supply or any street line. Shelters for dogs shall not be subject to the foregoing requirements as to location except that the same shall be confined to the rear yard.

{¶ 6} With respect to this count, evidence was presented that along with her dogs, Rock was keeping a pot belly pig in an animal shelter on her property and that it was located within 200 feet of a neighboring dwelling unit. Photographs in the record show the pig utilizing the animal shelter on Rock's property. Jim McGaughey, the property maintenance inspector for the city of North Olmsted, testified that he photographed the pig using the animal shelter. Rock received a first and a second notice of violation, but failed to comply. At trial, Rock conceded that the pig used the animal shelter, but indicated that her five dogs also utilize it. She maintains that the shelter is a "dog house" that the pig also uses. We must recognize that it is the pig's use of the shelter that created the violation. "All animals are equal, but some animals are more equal than others." George Orwell, Animal Farm, Ch. 10(1945).

{ΒΆ 7} Nevertheless, Rock argues that her use of the animal shelter for the pig predated the promulgation of NOCO Section 1135.02(e) and is permitted under the grandfather clause. She testified at trial that the dog house has been on her property for 25 years and that the pig has been there for 25 years. The pig was raised as an indoor/outdoor family pet. Rock ...


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