Court of Appeals of Ohio, Fifth District, Richland
from the Richland County Court of Common Pleas, Case No.
Plaintiff-Appellant J. JEFFREY HECK The Heck Law Offices,
Defendants-Appellees ANDREW J. BURTON Renwick, Welsh &
JUDGES: Hon. William B. Hoffman, P.J. Hon. Craig R. Baldwin,
J. Hon. Earle E. Wise, J.
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.
OF THE FACTS AND CASE
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.
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.
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.
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.
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
"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.
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."
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 ...