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Rootstown Township Board of Trustees v. Portage Self Storage

Court of Appeals of Ohio, Eleventh District, Portage

April 30, 2018

ROOTSTOWN TOWNSHIP BOARD OF TRUSTEES, Plaintiff-Appellee,
v.
PORTAGE SELF STORAGE, et al., Defendants-Appellants.

          Civil Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV 00930.

          Victor V. Vigluicci, Portage County Prosecutor; Pamela J. Holder and Christopher J. Meduri, Assistant Prosecutors, (For Plaintiff-Appellee).

          Lester L Ferguson, (For Defendants-Appellants).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellants, Portage Self Storage and Lynn Robinson (individually and in her capacity as executor of the estate of Mark A. Robinson, deceased), [1] appeal from the judgment of the Portage County Court of Common Pleas, granting injunctive relief to appellee, Rootstown Township Board of Trustees, and ordering the removal of some 55 containers/steel storage vaults from appellants' property. At issue is whether the trial court erred in entering the foregoing order. We affirm.

         {¶2} Mark A. Robinson, prior to his death, and Lynn Robinson (the "Robinsons") own and operate Portage Self Storage ("PSS"), a self-storage facility. The Robinsons also own the real property on which the facility is located in Rootstown Township, Ohio. The property is zoned "light industrial, " pursuant to the Rootstown Township Zoning Resolution ("RTZR"), and "mini/self storage" is an allowed use but requires a conditional use permit under RTZR Section 370.03(D)(2). Section 370.02 indicates that Rootstown Township has adopted exclusionary zoning. That section states: "Any use not specifically listed as either a permitted principal or conditional use shall be a prohibited use in these zoning districts * * *." As a result, if a use is not listed as permitted, it is prohibited.

         {¶3} During a Rootstown Board of Zoning Appeals ("BZA") hearing, which took place on March 18, 1997, the previous owners of the property, Don and Mark Robinson (the "prior owners"), sought a variance and conditional use permit to place the mini/self-storage facility on the parcel. The minutes of the hearing reflect the prior owners' proposal to construct the facility in two phases. The BZA granted tentative approval of a variance upon meeting the requirements and conditions set forth by the relevant bodies and the RTZR. The BZA also approved the conditional use for a mini/self-storage facility.

         {¶4} The minutes of a June 2000 BZA hearing reflect the board was considering a development plan submitted by the prior owners. The BZA minutes state the prior owners sought to erect three buildings "right away and then play it by ear." The BZA granted the application.

         {¶5} On November 12, 2001, the prior owners submitted another development plan that included an application for a variance and conditional use permit for the parcel. The minutes and application indicate the prior owners wished to combine two properties for 22-34 mini/self-storage buildings and to obtain a variance for "outdoor storage" relating to "boats, campers and other recreational vehicles." At a December 2001 meeting, the BZA granted the application and permit.

         {¶6} In July 2014, Mark Robinson filed a development plan applying for a variance on the parcel. The application sought a variance to move two buildings, which the BZA granted.

         {¶7} In the summer of 2014, the Robinsons placed numerous large, steel storage vaults on the property. It is undisputed the vaults were used in the course of PSS's business operations. Appellants admitted they had placed as many as 55 storage vaults on the property. Moreover, the vaults were not specifically part of any site-development plan previously submitted and approved and were not mentioned in any previous application for variance or conditional use permit. As of the date of the underlying suit, appellants had not submitted an application for the BZA to approve the use of the vaults as part of the mini/self-storage business.

         {¶8} On December 15, 2015, the zoning inspector sent the Robinsons a "Notice of Zoning Violation." The nature of the violation was that "[s]hipping containers/storage containers shall not be allowed for a period of time longer than thirty (30) days in all districts, " pursuant to RTZR Section 230.06(C).

         {¶9} On October 18, 2016, appellee filed a complaint seeking a permanent injunction enjoining the Robinsons from using the subject property in violation of the RTZR and a fine of up to $250.00 per day of violation. The complaint alleged, inter alia, that RTZR Section 370.03(D)(2) permits "mini/self storage" as a conditionally permitted use, and RTZR Section 370.11 provides that "[u]ses * * * in industrial districts shall be permitted only after development plans have been reviewed and approved according to the procedures set forth in Chapter 620." RTZR Chapter 620 governs "Development Plan Review, " and RTZR Section 620.10 provides that "[a]ny departure from such plan shall be considered a violation of this Resolution." Appellee asserted that because the steel vaults were never approved for use on the property through the prior development plan, appellants' use of the vaults were a violation of the resolution. Appellee also asserted the Robinsons were in violation of RTZR Section 230.06(C), the prohibition against containers being stored for longer than 30 days in any zoning district.

         {¶10} Appellants filed an answer with a jury demand. Both parties filed motions for summary judgment and duly opposed the same. Appellee submitted proposed findings of fact and conclusions of law, which the trial court subsequently adopted. In its final order, the trial court concluded:

The placement of these containers on the real property and which were not approved by the BZA as part of any site plan and/or development plan is a violation of the RTZR including: Section 370.02.B. whereby the BZA is to make the determination that the requirements of Chapter 390 (Conditional Use Regulations) according to the procedures set forth in Chapter ...

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