Court of Appeals of Ohio, Seventh District, Mahoning
MICHAEL P. KURILLA JR., DEPUTY ZONING INSPECTOR ELLSWORTH TOWNSHIP PLAINTIFF-APPELLEE
BASISTA HOLDINGS, LLC, et al. DEFENDANTS-APPELLANTS
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 2012 CV 03377
Plaintiff-Appellee: Atty. James F. Mathews Atty. Tonya J.
Rogers Baker, Dublikar, Beck, Wiley & Mathews.
Defendants-Appellants: Atty. Frank Bodor.
Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb,
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.
and Procedural History
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.
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.
Lawsuit - Enforcement Action
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.
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
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
In addition to the current matter, a series of other lawsuits
were filed as a result of the parties' ...