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Alt v. Bauer

Court of Appeals of Ohio, Fifth District, Richland

July 2, 2019

JANICE ALT, Plaintiff - Appellant
v.
ROGER L. BAUER, ET AL., Defendants - Appellees

          Appeal from the Richland County Court of Common Pleas, Case No. 2015CV1531

          For Plaintiff-Appellant J. JEFFREY HECK The Heck Law Offices, Ltd.

          For Defendants-Appellees ANDREW J. BURTON Renwick, Welsh & Burton LLC

          JUDGES: Hon. William B. Hoffman, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, J.

          OPINION

          Baldwin, J.

         Plaintiff-appellant Janice Alt appeals from the October 25, 2017 Order of the Richland County Court of Common Pleas granting summary judgment in favor of defendants-appellees.

         STATEMENT OF THE FACTS AND CASE

         {¶1} Appellant is the owner of real properly located at 2953 Plymouth-Springmill Road in Shelby, Ohio. Appellees are neighbors. Appellant and appellees have lived on adjoining parcels for approximately twenty-two (22) years.

         {¶2} According to appellant, on or about July 16, 2013, appellee Roger Bauer and another family member entered onto her property without her permission while carrying a can of spray paint, a piece of rebar, a metal detector and a sledge hammer. Appellant, in her affidavit, alleged that she told them repeatedly to get off of her property and that the property was hers, but appellee Roger Bauer claimed that it was his property and proceeded to pound the rebar into the ground and spray paint a large "X" with orange paint on the grass.

         {¶3} On or about May 19, 2014, appellee Roger Bauer submitted an Application for Zoning Certificate to Craig Stover as the Jackson Township Zoning Inspector, for the construction of a six foot high fence at appellees' property. The application indicated that the fence was to consist of four sections as follows: 24 feet, 24 feet, 80 feet and 120 feet for a total of 248 feet. No sketch or plan of the proposed fence was attached to the application which was approved on May 21, 2014 by Stover. Several weeks later, the plan and sketch of the fence were delivered to the township. The fence was completed in June of 2014. It was 275 feet.

         {¶4} The Richland County Regional Planning Commission Staff, in September of 2014, recommended revocation of the fence permit on the basis that it had been improperly filed and approved, among other reasons.

         {¶5} In December of 2015, appellant filed a complaint against appellees, alleging nuisance and trespass. Appellant, in her complaint, sought injunctive relief and money damages. Appellant, in her complaint, alleged in support of her nuisance claim that the person who appellees submitted their application to for a fence permit was not the lawful Zoning Inspector of Jackson Township at the time and that appellees "knew or should have known" this; that the application was incomplete and improper and that appellees knew this, and that the fence was completed in a manner inconsistent with the application. Appellant further alleged in her complaint, in relevant part, as follows, at paragraphs 15-16:

         {¶6} "Further, since the erection of the fencing, defendants have failed and refused to maintain the grass, noxious weeds and other plant materials along their fencing and between that fencing and plaintiffs property line. This grass, noxious weeds and other plant material are unsightly and have grown to the point that they violate provisions of the Ohio Revised Code and also constitutes a nuisance.

         {¶7} Further, defendants have cemented in place a six foot (6') high permanent post in the ground only 3 inches from the plaintiffs southern property line. Such post is not any portion of any fencing and violates known an (sic) existing Jackson Township setback regulations and requirements."

         {¶8} In support of her trespass action, appellant alleged that, before the fence was constructed, appellees and their agents had entered onto her property without her permission and remained thereon, refusing to leave ...


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