Litchfield Twp. Bd. of Trustees v. Nimer , 2012 Ohio 5431 ( 2012 )


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  • [Cite as Litchfield Twp. Bd. of Trustees v. Nimer, 
    2012-Ohio-5431
    .]
    STATE OF OHIO                     )                         IN THE COURT OF APPEALS
    )ss:                      NINTH JUDICIAL DISTRICT
    COUNTY OF MEDINA                  )
    LITCHFIELD TOWNSHIP BOARD OF                                C.A. No.   11CA0037-M
    TRUSTEES
    Appellee
    APPEAL FROM JUDGMENT
    v.                                                  ENTERED IN THE
    COURT OF COMMON PLEAS
    ABDALLA NIMER, et al.                                       COUNTY OF MEDINA, OHIO
    CASE No.   09CIV2309
    Appellants
    DECISION AND JOURNAL ENTRY
    Dated: November 26, 2012
    BELFANCE, Presiding Judge.
    ¶1       Appellants, Abdalla A. Nimer and Cathy Fobes Al-Nimer, appeal the order of the
    Medina County Court of Common Pleas that permanently enjoined them from using structures
    on their property for commercial purposes until they comply with the Litchfield Township
    Zoning Resolution. This Court affirms in part and reverses in part.
    I.
    ¶2       The Nimers own property located at 9696 Crow Road and 9706 Crow Road in
    Litchfield Township. They also own Medina Meats, Inc., which processes and packages beef
    jerky, beef sticks and honey ham sticks for wholesale distribution. According to Mr. Nimer, they
    are one of the few remaining producers of beef jerky in the United States, and they operate on a
    large scale. The production and packaging is done at a processing facility located on 9706 Crow
    Road. That property is zoned for commercial use under the Litchfield Zoning Resolution, but
    the Nimers’ operation spills over onto the adjacent property at 9696 Crow Road, part of which is
    2
    zoned for commercial use and part of which is zoned for residential use. The portion of the
    property that is zoned for commercial use contains an existing building. In 2009, the Nimers
    modified that existing building by expanding it and adding an extension structure that connected
    the building to the beef jerky facility. They built an 80 foot by 120 foot pole barn on the
    residentially zoned portion of 9696 Crow Road. Mr. Nimer claimed an agricultural exemption
    for this building based upon his representation that the barn was for storing hay and cattle. In
    January 2010, the Nimers constructed an additional 30 foot by 60 foot building on the residential
    portion of 9696 Crow which Mr. Nimer referred to as a “cattle barn.” The Nimers did not fully
    comply with the Litchfield Township Zoning Resolution with respect to any of this activity, nor
    did they obtain necessary permits. Instead, they took the position that compliance with the
    zoning resolution was not required because their planned operations were an agricultural use of
    the property.
    ¶3       Litchfield Township filed a complaint for a permanent injunction against the
    Nimers, and the case proceeded to a bench trial on the issue of whether they were exempt from
    the zoning resolution because of an agricultural use. The trial court decided that any agricultural
    use of the property was secondary to the meat processing business and granted the permanent
    injunction. The Nimers appealed.
    II.
    ASSIGNMENT OF ERROR I
    THE TRIAL COURT ERRED IN GRANTING A PERMANENT INJUNCTION
    UPON THE ENTIRE LITCHFIELD PROPERTY WHERE THERE WAS A
    VIOLATION OF DEFENDANTS’/APPELLANTS’ RIGHT OF DUE
    PROCESS[.]
    ¶4       The Nimers’ first assignment of error is that they were deprived of procedural due
    process because (1) not all of the buildings subject to the injunction were included in the
    3
    complaint, (2) notice of potential violations was sent only to Mr. Nimer and not to Mr. and Mrs.
    Nimer jointly, and (3) the property has since been transferred to a limited liability corporation.
    We disagree.
    ¶5      “Before a protected liberty or property interest may be infringed, due process
    requires notice and an opportunity to be heard at a meaningful time and in a meaningful
    manner.” Bd. of Trustees of Columbia Twp. v. Albertson, 9th Dist. No. 01CA007785, 
    2001 WL 1240135
    , *5 (Oct. 17, 2001), citing State v. Hochhausler, 
    76 Ohio St.3d 455
    , 459 (1996). Due
    process requires notice that is sufficient to permit a defendant to lodge objections. W. Chester
    Twp. Bd. of Trustees v. Speedway Superamerica, L.L.C., 12th Dist. No CA2006-05-104, 2007-
    Ohio-2844, ¶ 43. It “is a flexible concept, and the procedures required vary as demanded by
    circumstances.”   Riffe v. Ohio Real Estate Appraiser Bd., 
    130 Ohio App.3d 46
    , 51 (9th
    Dist.1998).
    ¶6      The Nimers’ first argument is that the Township’s complaint did not reference a
    pole barn constructed on the property that had been in the process of renovation, yet the trial
    court ordered that with respect to “any buildings on the property including any buildings that
    have been constructed or were in the process of being constructed when the Township filed its
    complaint[,]” the Nimers “may not occupy or use any such buildings in any manner except for
    the keeping and feeding of animals * * * [and] [i]n particular they may not use such buildings for
    the processing of meat, the storage of meat products, or as an office.” The complaint specifically
    referenced the construction of a connecting structure between the structure located on the
    commercial portion of 9696 Crow Road and the existing meat processing facility, and broadly
    sought an injunction restraining construction and improvements on the subject properties. In
    March 2010, the parties appeared at a hearing during which the Township stated that it was
    4
    seeking injunctive relief as to any further construction activity on the entire property and further
    use of the buildings that had been constructed without a zoning certificate.
    ¶7     Several months later, at trial, both the Township and the Nimers presented
    evidence related to the use of both buildings located on the residential portion of the property.
    The Township requested amendment to the complaint under Civ.R. 15(B) to conform to the
    evidence. Under these circumstances, the Nimers did not lack notice nor an opportunity to
    respond, as demonstrated by Mr. Nimer’s extensive testimony.
    ¶8     The Nimers have also argued that the Township only sent notice of the zoning
    violations to Mr. Nimer’s attention rather than to Mr. and Mrs. Nimer. There is no dispute,
    however, that Mrs. Nimer was served with the complaint and that the Nimers had ample
    opportunity to defend the case. Similarly, they have argued that the trial court could not enjoin
    use of the subject property, which has since been consolidated into a single parcel and, according
    to the Nimers, transferred to a limited liability corporation. Although there was some testimony
    on this point at trial, Mr. Nimer also testified that the limited liability corporation is controlled by
    him and Mrs. Nimer and that the transfer was solely for the purpose of shielding their personal
    assets. In any event, it is clear that the Nimers had adequate notice and did, in fact, defend the
    case.
    ¶9     The Nimers’ first assignment of error is overruled.
    ASSIGNMENT OF ERROR II
    THE TRIAL COURT ERRED IN GRANTING A PERMANENT INJUNCTION
    UPON        THE        LITCHFIELD    PROPERTY      WHERE
    DEFENDANTS/APPELLANTS MET THEIR BURDEN OF PROOF TO SHOW
    THAT THE USE OF THE LITCHFIELD PROPERTY WAS AGRICULTURAL
    UNDER R.C. 519.01 AND 519.21[.]
    5
    ¶10     In their second assignment of error, the Nimers argue that the trial court erred in
    granting a permanent injunction because they demonstrated that the use of the parcel was
    agricultural and therefore exempt from the township zoning resolution. We disagree.
    ¶11     The Ohio Supreme Court has noted that, as a general rule, “[t]he grant or denial of
    an injunction is solely within the trial court’s discretion and, therefore, a reviewing court should
    not disturb the judgment of the trial court absent a showing of a clear abuse of discretion.”
    Garono v. State, 
    37 Ohio St.3d 171
    , 173 (1988). In this case, however, Mr. Nimer has argued
    that the evidence at trial established that the property at issue is agricultural. In other words, he
    has argued that the trial court’s conclusion in that respect is against the manifest weight of the
    evidence. Accordingly, this Court “weighs the evidence and all reasonable inferences, considers
    the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
    [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the
    [judgment] must be reversed and a new trial ordered.”           (Internal citations and quotations
    omitted.) Eastley v. Volkman, 
    132 Ohio St.3d 328
    , 
    2012-Ohio-2179
    , ¶ 20, quoting Tewarson v.
    Simon, 
    141 Ohio App.3d 103
    , 115 (9th Dist.2001).
    ¶12     Although R.C. 519.02 grants townships the authority to adopt zoning resolutions,
    that authority is circumscribed by statute. See Bd. of Twp. Trustees of Bainbridge Twp. v.
    Funtime, Inc., 
    55 Ohio St.3d 106
     (1990), paragraphs one and two of the syllabus. See also State
    ex rel. Schramm v. Ayres, 
    158 Ohio St. 30
    , 33 (“[T]ownships are creatures of the law and have
    only such authority as is conferred on them by law.”). Zoning resolutions are in derogation of
    the common law and deprive a property owner of certain otherwise lawful uses of his land.
    “Therefore, such resolutions are ordinarily construed in favor of the property owner.
    Restrictions on the use of real property by ordinance, resolution or statute must be strictly
    6
    construed, and the scope of the restrictions cannot be extended to include limitations not clearly
    prescribed.”   Terry v. Sperry, 
    130 Ohio St.3d 125
    , 
    2011-Ohio-3364
    , ¶ 19.                In addition,
    exemptions from restrictive zoning provisions are to be liberally construed. 
    Id.
    ¶13     Under R.C. 519.21(A), townships cannot “prohibit the use of any land for
    agricultural purposes or the construction or use of buildings or structures incident to the use for
    agricultural purposes of the land on which such buildings or structures are located[]” or require a
    zoning certificate for such structures.       “In other words, R.C. 519.21(A) provides two
    circumstances under which the use of a property is exempt from township zoning regulations: (1)
    the property is used for agricultural purposes or (2) the construction or use of buildings or
    structures on the property is incident to an agricultural use of the land.” Terry at ¶ 21.
    ¶14     “Agriculture” is defined by R.C. 519.01:
    As used in section 519.02 to 519.25 of the Revised Code, “agriculture” includes
    farming; ranching; aquaculture; apiculture; horticulture; viticulture; animal
    husbandry, including, but not limited to, the care and raising of livestock, equine,
    and fur-bearing animals; poultry husbandry and the production of poultry and
    poultry products; dairy production; the production of field crops, tobacco, fruits,
    vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or
    mushrooms; timber; pasturage; any combination of the foregoing; and the
    processing, drying, storage, and marketing of agricultural products when those
    activities are conducted in conjunction with, but are secondary to, such
    husbandry or production.
    (Emphasis added.) Applying the general definition of agriculture contained in R.C. 519.01, we
    must consider whether the Nimers’ property could be seen to have a use for agriculture in caring
    for livestock or in the processing, storage, and marketing of agricultural products. Terry at ¶ 23.
    The Beef Jerky Facility
    ¶15     In its complaint, the Township sought a permanent injunction prohibiting the
    Nimers from continuing any construction activity on the commercially zoned portion of 9696
    Crow Road. This included the expansion of an existing building located in the commercially
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    zoned portion of 9696 Crow Road as well as the construction of an extension connecting this
    building to the beef jerky facility. The Nimers contend that because they are engaging in
    agriculture by virtue of their animal husbandry activities and because the beef jerky facility is
    engaged in the processing and marketing of agricultural products, the beef jerky facility is
    exempt as provided in R.C. 519.21(A). To qualify as “agriculture” pursuant to R.C. 519.01,
    however, the processing and marketing activity must be secondary to the animal husbandry.
    Terry, 
    130 Ohio St.3d 125
    , 
    2011-Ohio-3364
    , at ¶ 23.
    ¶16     The Nimers’ business is producing beef jerky and beef sticks on a large scale,
    with annual gross revenues of approximately $6.2 million. Although they do have a small retail
    store on the Crow Road property, Mr. Nimer testified that most people do not know that it is
    there and that his business is overwhelmingly wholesale production for various distributors. Mr.
    Nimer testified that the processing business requires 400,000 pounds of beef hearts, which he
    purchases exclusively from outside sources, and almost one million pounds of meat per year, or
    approximately 1,187 cattle. Of that total, 39% of the meat and 100% of the beef hearts come
    from outside sources, while 71% of the meat comes from cattle that he purchases and initially
    raises on another property that he owns which he referred to as the Chatham farm.
    ¶17     At trial, Mr. Nimer described the location of the cattle from the time he purchases
    them over the rest of their lifespan. Specifically, he testified that he buys the cattle from a
    vendor when they are between 800 and 900 pounds and maintains them at the Chatham farm
    until they grow to 1,000 pounds. Mr. Nimer consulted a specialist who helped him devise a plan
    so that he could ensure that his healthy cattle would not get ill from other diseased cattle. By
    keeping his cattle at the Chatham farm he could ensure that they were either disease-free or
    sufficiently free from antibiotics prior to being transported to Crow Road. According to the plan,
    8
    Mr. Nimer would take healthy cattle from the Chatham farm and bring them to Crow Road in
    small batches at which point he would care for them another 30 to 40 days until they attain a
    weight of about 1,200 pounds and are ready for slaughter.          He anticipated that he would
    slaughter 30 cattle weekly while maintaining another 30 on the Crow Road property.
    ¶18      Mr. Nimer uses an outside business for slaughtering although he hoped to bring
    the slaughtering to Crow Road while maintaining the “continuous cycle” of rotating mature cows
    onto the Crow Road property for 30-40 days before slaughter and processing. Mr. Nimer also
    indicated that he would continue to purchase all of the beef hearts used in the production from
    outside sources. Mr. Nimer also testified that he wished to build several additional buildings on
    the residentially zoned portion of the Crow Road property so that he could begin to raise pigs
    and process the meat for producing honey ham sticks. He indicated that he was currently
    producing honey ham sticks at the beef jerky facility, but this was very tedious because all of the
    equipment had to be cleaned and special precautions taken so as to ensure that the production of
    beef products and ham sticks were completely separate. Mr. Nimer also planned to raise the pigs
    at the Chatham farm and transport them in batches over to the Crow Road property for additional
    growth prior to slaughter. As of the date of trial, there were 21 head of cattle on the Crow Road
    property. Thus, according to his plan, Mr. Nimer anticipated caring for approximately 60 head of
    cattle at any one time and an unspecified number of pigs while maintaining the remainder at the
    Chatham farm.
    ¶19      In light of the evidence, we conclude that the beef jerky business does not
    constitute “agriculture” within the meaning of R.C. 519.01. It is clear that the care of livestock
    constitutes agriculture as defined in R.C. 519.01, and Mr. Nimer demonstrated that he is
    engaging in agriculture by caring for cattle on his property. In addition, the processing and
    9
    marketing of the beef products could fall within the definition of agriculture if it were secondary
    to the care of the cattle. Here, however, it is apparent that the marketing and processing
    operation on the property is not secondary to the care of the livestock that occurs on the Crow
    Road property. In this respect, we note that it is particularly significant that, at the time of trial,
    Mr. Nimer was caring for only 21 heads of cattle on the Crow Road property. However,
    according to his own testimony, his processing and operation entails thousands of pounds of
    meat as well as beef hearts that Mr. Nimer does not raise or care for on the land.
    Use of Buildings on the Land
    ¶20     As noted above, a township has no power to prohibit the “use of buildings or
    structures incident to the use for agricultural purposes of the land on which such buildings or
    structures are located[.]” R.C. 519.21(A). In this case, there are four structures at issue, two that
    are located on the commercial portion of the Crow Road property and two that are located on the
    residentially zoned portion.
    ¶21     The township sought an injunction prohibiting Mr. Nimer from engaging in
    further construction activity on an existing building and an extension that connected this building
    to the Medina Foods Plant. The evidence adduced at trial demonstrated that the building and the
    extension are used for the beef jerky business and not used in conjunction with the care of the
    cattle. As we have concluded that the beefy jerky operation does not constitute agriculture, it
    cannot be said that the use of the building and extension are incident to an agricultural use.
    ¶22     The township also sought a permanent injunction as to two structures located on
    the residential portion of 9696 Crow Road. The first was a pole barn that measures 80 by 120
    feet and the second was an 80 by 60 foot structure referred to as a cattle barn. According to Mr.
    Nimer, he told Eric Noderer, the township zoning inspector, that he planned to use the 80 by 120
    10
    foot pole barn structure as a hay barn and submitted a form describing its agricultural use to that
    effect. As noted above, Mr. Nimer testified he planned to turn it into a pork processing facility
    similar to the existing beef processing facility. He also planned to build two more buildings the
    same size that would attach to the existing structure and be part of the same processing facility.
    With respect to the current use of the structure, Mr. Noderer testified that while he had not been
    permitted inside, the exterior made it appear that it was presently being used or prepared for
    office space. On cross-examination, Mr. Nimer testified that the structure had been partially
    drywalled and fitted with rough plumbing and electrical wiring sufficient to process pork. Mr.
    Nimer testified that the structure was not currently being used for any purpose other than to store
    some machinery.
    ¶23     The trial court determined that the Nimers could use the two buildings located on
    the residential portion of the land for the keeping and feeding of animals and the storage of feed,
    however, they could not use the buildings for the processing and storage of meat products or as
    an office. Considering this testimony, and particularly in light of Mr. Nimer’s own testimony
    that he planned to use this structure to expand his commercial operations, the trial court did not
    err granting an injunction which allowed Mr. Nimer to use the buildings in a manner consistent
    with his agricultural use of the land but prohibited Mr. Nimer from using it in furtherance of his
    beef jerky business which, as noted above, does not constitute agriculture as defined in R.C.
    519.01.
    ¶24      To summarize, the care of the cattle constitutes agriculture. However, the meat
    processing business does not fall within the definition of “agriculture” under R.C. 519.01
    because it is not “in conjunction with, but secondary to” the care of livestock. Similarly, the
    structures located on the commercial portion of the Crow Road property at issue are not subject
    11
    to the agricultural exemption set forth in R.C. 519.21(A) for buildings “incident to the use for
    agricultural purposes[.]” The buildings located on the residential portion of the Crow Road
    property are exempt from zoning to the extent that their use is incident to the care of the cattle.
    ¶25     The trial court’s decision that the Nimers’ use of the property and buildings at
    issue was nonagricultural is not against the manifest weight of the evidence because the meat
    processing activities on Crow Road are not “agriculture” as defined in R.C. 519.01 and the use of
    the buildings on the Crow Road property for meat processing are not incident to an agricultural
    use on the land so as to exempt them from zoning. The Nimers’ second assignment of error is,
    therefore, overruled in that respect. To the extent that the trial court enjoined all uses of the
    buildings on the Nimers’ property, whether agricultural or not, other than “the keeping and
    feeding of animals” or “the storage of feed,” however, the scope of the injunction is overbroad,
    and the second assignment of error is sustained in that respect.
    ASSIGNMENT OF ERROR III
    THE TRIAL COURT ERRED IN GRANTING A PERMANENT INJUNCTION
    UPON THE ENTIRE LITCHFIELD PROPERTY WHERE LITCHFIELD’S
    ENFORCEMENT OF THE ZONING RESOLUTION VIOLATED
    DEFENDANTS’/APPELLANTS’ RIGHT OF EQUAL PROTECTION UNDER
    THE LAW[.]
    ¶26     The Nimers’ third assignment of error is that the trial court erred by enjoining the
    use of their property when other similarly situated properties were not required to comply with
    the Litchfield Township Zoning Resolution.
    ¶27     Although the Nimers made this argument in the trial court, they did so with only
    passing and conclusory reference to the persons who, according to them, are being treated
    differently by Litchfield Township. Specifically, testimony on the issue was limited to Mr.
    Nimer’s own belief about the nature of the agricultural exemptions applied to the properties and
    12
    the zoning inspector’s suspicion that the agricultural use of those properties might be secondary
    to commercial uses. There is no evidence in the record establishing that there are properties
    similarly situated to the Crow Road property at issue or that they are, in fact, being treated
    differently. Without such a record, it is impossible for this Court to determine the merits of the
    Nimers’ equal protection argument, and their third assignment of error is overruled.
    III.
    ¶28     The Nimers’ first and third assignments of error are overruled. Their second
    assignment of error is sustained in part. The judgment of the Medina County Court of Common
    Pleas is affirmed in part and reversed in part, and this matter is remanded to the trial court for
    proceedings consistent with this opinion.
    Judgment affirmed in part,
    reversed in part,
    and cause remanded.
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    13
    Costs taxed equally to both parties.
    EVE V. BELFANCE
    FOR THE COURT
    CARR, J.
    DICKINSON, J.
    CONCUR.
    APPEARANCES:
    THEODORE J. LESIAK, Attorney at Law, for Appellants.
    DEAN HOLMAN, Prosecuting Attorney, and TOM J. KARRIS and BRIAN RICHTER,
    Assistant Prosecuting Attorneys, for Appellee.
    

Document Info

Docket Number: 11CA0037-M

Citation Numbers: 2012 Ohio 5431

Judges: Belfance

Filed Date: 11/26/2012

Precedential Status: Precedential

Modified Date: 10/30/2014