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Kurilla v. Basista Holdings, LLC

Court of Appeals of Ohio, Seventh District, Mahoning

December 22, 2017

MICHAEL P. KURILLA JR., DEPUTY ZONING INSPECTOR ELLSWORTH TOWNSHIP PLAINTIFF-APPELLEE
v.
BASISTA HOLDINGS, LLC, et al. DEFENDANTS-APPELLANTS

         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2012 CV 03377

          For Plaintiff-Appellee: Atty. James F. Mathews Atty. Tonya J. Rogers Baker, Dublikar, Beck, Wiley & Mathews.

          For Defendants-Appellants: Atty. Frank Bodor.

          Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb, Judge.

          OPINION

          WAITE, J.

         {¶1} Appellant Basista Holdings, LLC appeals the decision of the Mahoning County Court of Common Pleas to dismiss Appellant's counterclaims in favor of Appellee, Michael J. Kurilla ("Kurilla"). Based on the following, we find Appellant's assignments of error are without merit and the judgment of the trial court is affirmed.

         Factual and Procedural History

         {¶2} This matter is part of an extremely contentious and long-running dispute regarding zoning of the subject property, an 18-acre parcel located on State Route 45 in Ellsworth Township, Mahoning County, Ohio ("the property"). Appellant is a limited liability company whose owner and sole member is David J. Lewis. Appellant purchased the property on May 20, 2003. At the time of the purchase the property consisted of two parcels, which Appellant had consolidated into a single parcel in 2007.

         {¶3} On July 24, 2007, Appellant submitted an application for a zoning certificate to then zoning inspector, Diane Dudek ("Dudek") to allow for industrial use of the entire property, which had a frontage of 900 feet and a depth of 871 feet. Dudek approved the application in a letter dated September 14, 2007. The approval went to the Ellsworth Township Trustees at a meeting on October 8, 2007. Appellee contends, and a 1969 township zoning map reflects, that the entire property was not zoned industrial.

         Current Lawsuit - Enforcement Action

         {¶4} Laura Lewis, the wife of David Lewis, was an authorized representative for Appellant and also served on the Ellsworth Township Board of Trustees in 2011. At the suggestion of legal counsel and to avoid any potential conflict of interest while Laura Lewis served as a trustee, the township retained Kurilla as a deputy zoning inspector to investigate all complaints against Appellant.

         {¶5} On September 1, 2011, Kurilla issued two notices of zoning violations to Appellant regarding the subject property and a separate property owned by Appellant in the township. The other property was subsequently transferred to Laura Lewis and is not involved in this litigation. Appellant appealed the zoning violations on the subject property. In 2012, Appellant also submitted a revised site plan for the subject property, which was denied on October 10, 2012. This denial was appealed as well. Appellant later dismissed both the zoning violation appeal and the denial of the site plan appeal.

         {¶6} As Appellant had failed to remedy the zoning violations, Kurilla, in his capacity as zoning inspector, filed a complaint against Appellant in the Mahoning County Court of Common Pleas. Appellant filed a counterclaim to Kurilla's enforcement action, seeking declaratory judgment regarding the zoning classification of the property, as well as injunctive relief and monetary damages. It also filed a counterclaim for violation of the Ohio Open Meetings Act, which was later dismissed. Appellant's counterclaim was bifurcated for trial purposes. A trial on the issues contained in Appellant's counterclaim was held before a magistrate on March 23, 2015. In a decision dated April 8, 2015, the magistrate found that the 1969 Ellsworth Township Zoning Map was unambiguous and that the parties' rights were determined by the Ellsworth Township Zoning Resolution which incorporated the zoning map. Therefore, the property was zoned industrial only up to a depth of 500 feet. Appellant filed objections. Hearing was held before the trial court, which adopted the magistrate's decision and dismissed Appellant's objections. Appellant filed this appeal.

         {¶7} In addition to the current matter, a series of other lawsuits were filed as a result of the parties' ...


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