Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2016 CV 00930.
V. Vigluicci, Portage County Prosecutor; Pamela J. Holder and
Christopher J. Meduri, Assistant Prosecutors, (For
L Ferguson, (For Defendants-Appellants).
TIMOTHY P. CANNON, J.
Appellants, Portage Self Storage and Lynn Robinson
(individually and in her capacity as executor of the estate
of Mark A. Robinson, deceased),  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.
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.
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.
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.
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
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.
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.
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).
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
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 ...