Divoky v. Acquaviva , 2023 Ohio 4367 ( 2023 )

[Cite as Divoky v. Acquaviva, 2023-Ohio-4367.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY
REBECCA DIVOKY, et al., CASE NO. 2023-G-0004
Appellant,
Administrative Appeal from the
- vs - Court of Common Pleas
RICHARD ACQUAVIVA,
ZONING INSPECTOR Trial Court No. 2020 A 000451
HAMBDEN TOWNSHIP,
Appellee.
OPINION
Decided: December 4, 2023
Judgment: Appeal Dismissed
Erik L. Walter, Dworken & Bernstein Co., LPA, 60 South Park Place, Painesville, OH
44077 (For Appellant).
John D. Pinzone and Frank H. Scialdone, Mazanec, Raskin & Ryder Co, LPA, 100
Franklin’s Row, 34305 Solon Road, Cleveland, OH 44139 (For Appellee).
ROBERT J. PATTON, J.
{¶1} Appellant, Rebecca Divoky (“Ms. Divoky”), appeals the order of the Geauga
County Common Pleas Court declining to find appellee, Richard Acquaviva (“Mr.
Acquaviva”), the Hambden Township zoning inspector, in contempt for not enforcing a
zoning regulation.
{¶2} Divoky sought an order of contempt against Mr. Acquaviva arising from the
earlier order of the trial court of April 5, 2021, where it reversed the decision of the
Hambden Township Board of Zoning Appeals (“BZA”). The April 5, 2021, order granted
Ms. Divoky’s appeal and directed Mr. Acquaviva to enforce a 50-foot zoning regulation.
Enforcement of the regulation would require a neighboring mobile home park district to
implement a 50-foot buffer zone distancing the trailers from Ms. Divoky’s property line
adjacent to the park.
{¶3} Ms. Divoky moved to one of the properties adjacent to Leaders Mobile
Home Park (“Leaders”) in 2012. The property was previously owned and occupied by her
husband, Daniel Divoky, who acquired the property from his family in 2002. Ms. Divoky
testified that she first contacted the zoning inspector in Hambden Township about her
concerns with Leaders in 2012, when she noticed they were tearing down trees,
elongating the road and expanding the park. She testified in an October 17, 2019, BZA
hearing that when she contacted the zoning inspector in 2012 she was told that there was
nothing that could be done. In 2017, Ms. Divoky and her husband purchased additional
property adjacent to Leaders and she testified that it was at that point they felt compelled
to take further action. Ms. Divoky again contacted the zoning inspector about trouble
arising from the expansion of the trailer park and an abundance of trash, litter, trespassing
tenants, and encroachments from the trailer park onto her property. Ms. Divoky contends
that storage sheds and other structures were built and encroached onto her property. Ms.
Divoky further testified that she and her husband paid $40,000 to construct a fence to
attempt to remedy the problem themselves, but to no avail.
{¶4} In October of 2017, Ms. Divoky’s husband filed a complaint with the
Hambden Township zoning inspector. The complaint was denied because the property
line was not clear. As a result, Ms. Divoky and her husband worked with Leaders’ owner
to define the property line. Some of the encroachments were then corrected. In February
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of 2018, Ms. Divoky contacted Mr. Acquaviva again and explained that while many
encroachments were eliminated, others remained. Ms. Divoky believed that Leaders was
in violation of Section 405.13 of the Hambden Township Zoning Resolution, which
required a 50-foot buffer zone where a residential district abuts a manufactured home
park district. Ms. Divoky filed a second complaint against Leaders for non-compliance
with the 50-foot buffer zone on July 24, 2019. Mr. Acquaviva did not inspect the property
in response to Ms. Divoky’s complaint. On October 17, 2019, Mr. Acquaviva testified at a
BZA hearing that an investigator representing the Ohio Department of Commerce
inspected the property. Mr. Acquaviva further testified that, based on his interaction with
the Ohio Department of Commerce, he believed that the State of Ohio exclusively
regulated the use and operation of mobile home parks. Based on that belief, Mr.
Acquaviva concluded that the Ohio Department of Commerce had sole authority to
regulate mobile home parks in the State of Ohio. Mr. Acquaviva maintained that the State
requires only a 10-foot setback from the property line, and that the investigator reported
that no violation of that 10-foot setback was found. Mr. Acquaviva maintained that to
enforce the 50-foot buffer zone regulation would conflict with the 10-foot State regulation,
force Leaders to displace the residents of the trailers while they relocate, and force
Leaders to push the park boundaries away from Ms. Divoky’s property towards the public
road resulting in new State violations.
{¶5} With this information, Mr. Acquaviva denied appellant’s zoning complaint.
Ms. Divoky appealed Mr. Acquaviva’s decision to the Hambden Township BZA, and her
appeal was denied. Ms. Divoky then appealed the decision of the BZA to the Geauga
County Court of Common Pleas. In the court below, Mr. Acquaviva argued, in addition to
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being preempted by the State’s regulations, that Leaders’ violation of the 50-foot buffer
zone constituted a pre-existing non-conforming use and therefore was not subject to the
township’s zoning regulations. The trial court determined that Mr. Acquaviva did not
provide support to find that Leaders enjoyed a pre-existing non-conforming use status. On
April 5, 2021, the Geauga County Common Pleas decision overruled the BZA’s denial of
Ms. Divoky’s appeal and reversed the decision of the Hambden Township BZA. In that
decision, the trial court clarified that the State regulations do not preclude the Hambden
Township from enforcing a stricter buffer zone regulation.
{¶6} Appellant’s sole assignment of error asserts: “The trial court erred when it
denied Appellant’s Motion to Show Cause without an evidentiary hearing after allowing
Appellee to enter new evidence.” We disagree.
{¶7} The record reflects that Ms. Divoky seeks enforcement of the April 5, 2021
order which overruled the BZA. However, an amendment was adopted by the Hambden
Township Zoning Commission Board of Trustees that eliminated the 50-foot zoning
requirement on June 15, 2022. On December 30, 2022, more than six months after the
zoning ordinance was eliminated, Ms. Divoky filed an order to show cause asking the trial
court to find Mr. Acquaviva in contempt for not enforcing the April 5, 2021, order. In his
brief in opposition, filed on January 13, 2023, Mr. Acquaviva informed the trial court of the
recently adopted amendment which rendered any enforcement of the April 5, 2021 order
moot. On January 30, 2023, the trial court denied Ms. Divoky’s motion for order to show
cause.
{¶8} Appellant’s motion to show cause was filed more than six months after the
Hambden Township Board of Trustees amended their zoning ordinances, eliminating the
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50-foot buffer requirement. When appellant filed her motion to show cause, there was no
longer an ordinance that served as the legal predicate to the relief she requested. The
absence of a legal foundation for appellant’s motion to show cause renders the trial court’s
decision of January 30, 2023, as moot. A township cannot enforce a zoning ordinance
that no longer exists. Accordingly, this appeal is moot and must be dismissed.
{¶9} For the foregoing reasons, this appeal is dismissed.
MATT LYNCH, J.,
EUGENE A. LUCCI, J.,
concur.
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