Wintersville v. Bates

[Cite as Wintersville v. Bates, 2026-Ohio-417.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

JEFFERSON COUNTY

VILLAGE OF WINTERSVILLE, OHIO

Appellant,

v.

LARRY BATES,

Appellee.

OPINION AND JUDGMENT ENTRY

Case No. 25 JE 0009

Civil Appeal from the

Court of Common Pleas of Jefferson County, Ohio

Case No. 24 CV 269

BEFORE:

Mark A. Hanni, Carol Ann Robb, Katelyn Dickey, Judges.

JUDGMENT:

Affirmed.

Atty. Jake Michael Linn, for Appellant and

Atty. M. Eric Frankovitch, Frankovitch, Anetakis, Simon, Decapio & Pearl, LLP, for

Appellee.

Dated: February 10, 2026

–2–

HANNI, J.

{¶1} Appellant, the Village of Wintersville, Ohio (the Village), appeals from a

Jefferson County Common Pleas Court judgment reversing, in part, a decision by the

Wintersville Village Board of Nuisance Appeals (the Board) on an appeal by Appellee,

Larry Bates. The trial court determined that Bates is not responsible for abating the

deteriorating condition of any portion of a retaining wall that is not located on his property

and is only responsible for abating the portion of the wall that is actually located on his

property. The Village argues that the trial court merely substituted its judgment for that

of the Board and the court abused its discretion in finding the wall was not in Bates’

control. Because the trial court applied the proper standard of review and did not abuse

its discretion in finding that Bates is only responsible for that portion of the wall that is

actually located on his property, the trial court’s decision is affirmed.

{¶2} Bates is the owner of 333 Fernwood Road in Wintersville. On February 16,

2024, the Village nuisance officer served Bates with a “Notice to Abate Public Nuisance

and Dilapidated Structure located at 333 Fernwood Road” (the Notice). The Notice was

directed at a retaining wall made of railroad ties (the wall) that abuts the side of Bates’

house. Apparently, pieces of the wall were beginning to deteriorate and fall into Parkview

Avenue. It is uncertain when the wall was constructed or who constructed it. The majority

of the wall is not located on Bates’ property. Bates purchased his home in 1990. At that

time, the wall was already in place.

{¶3} A plat survey of Bates’ land and the surrounding area including the wall

shows that the wall only traverses onto Bates’ property at three small points. (Plaintiff’s

Ex. 2). The majority of the wall runs along property on Parkview Avenue until Parkview

Avenue intersects with Fernwood Road. There was no clear evidence as to who owns

that portion of the property on which the wall is located. It is not within the bounds of

Bates’ property. The Village asserts that Bates “occupies” this portion of property even

though he does not own it. The survey indicates that a third property on which a portion

of the wall sits is owned by “NOW OR FORMERLY J DAY VOL 236-PG 381 (RESIDUE).”

The survey does not indicate ownership of the portion of the property that encompasses

Parkview Avenue. So, as the survey demonstrates, the wall is situated on the property

Case No. 25 JE 0009

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of three different owners: (1) Bates; (2) “Now or formerly J. Day”; and (3) an unknown

third party.

{¶4} Bates timely appealed the Notice to the Board. Bates appeared before the

Board on April 4, 2024. The Board heard testimony from Bates, the officer who issued

the Notice, and the Village engineer. It also considered surveys of the area and numerous

photographs. By a vote of two to one, the Board determined that the wall constituted a

nuisance and that Bates was responsible for abating the entire nuisance. The Board did

not make any other findings of fact or conclusions of law. On June 17, 2024, Bates

appealed the Board’s decision to the trial court.

{¶5} The trial court held a hearing on May 19, 2025, where it heard from counsel

for both parties. It also reviewed the transcript of the proceedings before the Board and

the briefs on appeal.

{¶6} The court made several findings of fact. It found that the existence of the

wall predated Bates’ ownership of his property. The court noted it was not established

when the wall was constructed or who constructed it. The court further found significant

portions of the wall are in disrepair and in a deteriorating condition. The court found the

large majority of the wall is not located on Bates’ property. And it noted that the vast

majority of the wall is on an unknown third party’s land.

{¶7} The court then concluded the Board’s finding that Bates was responsible

for abating the entire nuisance, which is largely not located on Bates’ property, was

arbitrary and capricious and placed an impossible burden on Bates. The court also noted

that the Village did not notify all of the possible landowners upon which the wall sits of a

potential nuisance on their property and did not make them parties to this action.

Consequently, the court found Bates is not responsible for abating the deteriorating

condition of any portion of the wall that is not located on his property. However, it did find

Bates is responsible “to the extent that the small portion of the wall located on his property

is a nuisance.” The court stated that the survey indicating Bates’ property boundaries is

determinative as to the portion of the wall for which he is responsible.

{¶8} The Village filed a timely notice of appeal on July 3, 2025. It now raises two

assignments of error. We will address the assignments of error out of order for ease of

discussion.

Case No. 25 JE 0009

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{¶9} The Village’s second assignment of error states:

THE TRIAL COURT ERRED IN ITS APPLICATION AND

INTERPRETATION OF THE LAW AND ITS DECISION WAS NOT

SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE AS A

MATTER OF LAW WHEN IT FOUND THE DECISION OF THE BOARD OF

NUISANCE APPEAL’S DECISION WAS ARBITRARY AND CAPRICIOUS.

{¶10} Here, the Village contends the trial court substituted its judgment for that of

the Board when it found Bates was not responsible for abating the nuisance caused by

the wall, which is under his control. It asserts the Board based its decision on evidence,

which was not contradicted, that Bates controls the entire wall and it lies partially on Bates’

property. The Village claims the trial court merely substituted its judgment for that of the

Board without explanation.

{¶11} R.C. 2506.04 governs appeals from administrative agencies to the common

pleas court:

If an appeal is taken in relation to a final order, adjudication, or decision

covered by division (A) of section 2506.01 of the Revised Code, the court

may find that the order, adjudication, or decision is unconstitutional, illegal,

arbitrary, capricious, unreasonable, or unsupported by the preponderance

of substantial, reliable, and probative evidence on the whole record.

Consistent with its findings, the court may affirm, reverse, vacate, or modify

the order, adjudication, or decision, or remand the cause to the officer or

body appealed from with instructions to enter an order, adjudication, or

decision consistent with the findings or opinion of the court. The judgment

of the court may be appealed by any party on questions of law as provided

in the Rules of Appellate Procedure and, to the extent not in conflict with

those rules, Chapter 2505. of the Revised Code.

{¶12} As to such administrative appeals, in Scio v. N. Twp. Bd. of Trustees, 2023-

Ohio-2479, ¶ 27-28 (7th Dist.), this Court explained:

This standard of review gives the common pleas court “extensive power to

weigh” the evidence. Henley v. Youngstown Bd. of Zoning Appeals, 90

Case No. 25 JE 0009

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Ohio St.3d 142, 147, 735 N.E.2d 433 (2000). Although a trial is not

conducted de novo where the proceedings before the board were recorded,

in this type of appeal to the trial court from the denial of annexation, “a virtual

de novo examination of the record is conducted by the court pursuant to

R.C. 2506.04.” In re Petition to Annex 320 Acres to the Village of S.

Lebanon, 64 Ohio St.3d 585, 594, 597 N.E.2d 463 (1992), fn.6.

Thereafter, “[t]he judgment of the [trial] court may be appealed by

any party on questions of law as provided in the Rules of Appellate

Procedure and, to the extent not in conflict with those rules, Chapter 2505.

of the Revised Code.” R.C. 2506.04. See also R.C. 2505.01(A)(2) (“Appeal

on question as law” is defined as “including the weight and sufficiency of the

evidence”). The scope of the appellate court's standard of review is more

limited, as the ability to review questions of law does not include the same

extensive power to determine the preponderance of the evidence. Henley,

90 Ohio St.3d at 147, 735 N.E.2d 433. The appellate court can review for

an abuse of discretion and shall not substitute its judgment for the

administrative agency or the trial court merely because it would have

decided the case differently. Id. at 147-148, 735 N.E.2d 433.

{¶13} With these standards of review in mind, we conclude that the trial court did

apply the appropriate standard here.

{¶14} At the hearing before the trial court, the court advised the parties:

Let’s get some ground rules before we start then. This is an administrative

appeal. So normally, the Court’s review - in this case, the trial court level -

looks to see if, in fact, all the procedural mechanisms were followed, not so

much substituting its own judgment for that of the Village or whomever

made the decision.

(Tr. 24). Thus, the court was clear that it would not merely substitute its judgment for that

of the Board.

{¶15} And in its judgment entry, the trial court explained that before reaching its

decision it reviewed Bates’ motion and brief, the Village’s brief, the transcript and audio

Case No. 25 JE 0009

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tape of the proceedings before the Board, and counsel’s arguments. (June 4, 2025 JE).

The court then made several findings of fact, each of which was fully supported by

uncontroverted evidence. After setting out these uncontroverted findings of fact, the court

concluded that the Board’s decision requiring Bates to “abate a nuisance which is not

located on his property was arbitrary and capricious and created an impossible burden”

on Bates. (June 4, 2025 JE). Finally, the court concluded that Bates was not responsible

for abating the nuisance of the deteriorating condition of the wall for that portion of the

wall that is not on his property. It further concluded that Bates was responsible to the

extent that the small portion of the wall located on his property is a nuisance. The court

stated that the survey indicating the property boundaries was determinative as to the

portion of the wall for which Bates is responsible.

{¶16} In this case, the Board did not make any factual findings or indicate what

evidence it considered. It simply informed Bates by way of a letter that, after reviewing

the evidence, it decided by a vote of two to one that the wall constituted a nuisance and

it was affirming the finding of the nuisance officer.

{¶17} As set out above, in its review of the Board’s decision, the trial court had

“extensive power to weigh” the evidence. Scio, 2023-Ohio-2479 at ¶ 27 (7th Dist.),

quoting Henley, 90 Ohio St.3d at 147. Additionally, R.C. 2506.04 allows a trial court to

conduct “a virtual de novo examination of the record”. Id., quoting Village of S. Lebanon,

64 Ohio St.3d at 594, fn.6.

{¶18} The trial court’s statements and findings, both at the hearing and in its

subsequent judgment entry, demonstrate a thoughtful and thorough review of the Board’s

decision. The court considered and weighed the evidence and the arguments, as it was

permitted to do by statute, in reaching its decision. It properly applied the standard as set

out in R.C. 2506.04. It was within the court’s statutory authority to find that the Board’s

decision was arbitrary and capricious.

{¶19} Accordingly, the Village’s second assignment of error is without merit and

is overruled.

{¶20} The Village’s first assignment of error states:

Case No. 25 JE 0009

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THE TRIAL COURT ERRED WHEN IT ABUSED ITS DISCRETION BY

FINDING THAT THE AT ISSUE STRUCTURE WAS NOT IN THE

CONTROL [OF] THE APPELLEE LARRY BATES.

{¶21} The Village argues that the trial court failed to apply Wintersville Ordinance

Section 1341.02, which provides: “No owner, tenant or other person or legal entity in

charge of or in possession of property shall create, permit or allow a public nuisance to

exist upon such property.” Wintersville Ordinance Section 1341.02(a).

{¶22} A “public nuisance” includes:

(e) A building or structure, or any portion, member, appurtenance or

ornamentation thereof, which is likely to fail or become detached, dislodged

or to collapse and thereby injure persons or damage property.

(f) A building or structure or any portion thereof that is likely to

partially or completely collapse because of dilapidation, deterioration,

decay, faulty construction, the removal, movement or instability of any

portion of the ground necessary for the purpose of supporting the building,

the deterioration, decay, or inadequacy of its foundation, or any other cause.

Wintersville Ordinance Section 1341.01(e)(f).

{¶23} The Village notes that, at the hearing, its engineer testified that Bates’ house

could not exist without the wall. The Village asserts that the entire wall is built from the

same material and was likely built at the same time as the house in order to support it. It

further claims that no one other than Bates can remedy the situation because the wall is

built “into” his house and to alter it will almost certainly affect the structural integrity of the

house. The Village points out that Bates did not present any evidence or arguments that

the wall is not a public nuisance.

{¶24} The Village maintains that the wall is encroaching on a publicly-dedicated

right-of-way as evidenced by the surveys introduced at the initial hearing. It claims Bates

purchased his house knowing about this obvious defect and he is therefore liable for the

wall’s trespass.

{¶25} The Village also asserts that it does not owe Bates a duty of lateral support.

It states it does not own the street, it merely holds a right-of-way over the street. And it

Case No. 25 JE 0009

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claims a duty of lateral support does not extend to structures but only to the underlying

land.

{¶26} Bates, on the other hand, argues the trial court correctly found that the large

majority of the wall is not within his control. Bates further argues that the Village exceeded

its authority by ordering him to abate a nuisance located on property outside of his

ownership and control. Bates points out that according to Wintersville Ordinance Section

1341.03(b), “[t]he notice to abate may be served upon either the owner, tenant or legal

entity in charge of possession of the property.” (Emphasis added). Bates notes the

Village has conceded that he is not the owner of most of the property on which the wall

sits. And he claims the evidence did not demonstrate that he is a tenant or legal entity in

charge of possession of that property. Moreover, Bates urges the record is clear that he

neither built nor controlled the wall.

{¶27} The Village says that R.C. 2744.02(B)(3) controls this case. It provides:

(B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political

subdivision is liable in damages in a civil action for injury, death, or loss to

person or property allegedly caused by an act or omission of the political

subdivision or of any of its employees in connection with a governmental or

proprietary function, as follows:

...

(3) Except as otherwise provided in section 3746.24 of the Revised Code,

political subdivisions are liable for injury, death, or loss to person or property

caused by their negligent failure to keep public roads in repair and other

negligent failure to remove obstructions from public roads, except that it is

a full defense to that liability, when a bridge within a municipal corporation

is involved, that the municipal corporation does not have the responsibility

for maintaining or inspecting the bridge.

The Village claims this statute can be interpreted to say that political subdivisions have

no duty to maintain public right-of-ways. As can be seen, R.C. 2744.02 is the political

subdivision immunity statute. But this is not an immunity case. So the statute does not

apply here.

Case No. 25 JE 0009

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{¶28} The Village also cites to Pelletier v. Campbell, 2018-Ohio-2121, ¶ 17, where

the Ohio Supreme Court stated:

Relevant here, R.C. 2744.01(H) defines “public roads” to mean “public

roads, highways, streets, avenues, alleys, and bridges within a political

subdivision. ‘Public roads’ does not include berms, shoulders, rights-of-way,

or traffic control devices unless the traffic control devices are mandated by

the Ohio manual of uniform traffic control devices.”

The Village asserts that when read in conjunction with the above-quoted immunity statute,

the Ohio Supreme Court makes clear that the Ohio Legislature intentionally left rights-of-

way out of the purview of this statute and, therefore, Bates’ contention is meritless. But

like R.C. 2744.02 on which the Village relies, Pelletier’s focus is on political subdivision

immunity.

{¶29} Thus, the statute and case on which the Village relies in part are not

applicable here. This is not a case of political subdivision immunity or a case of

maintaining a public right-of-way. Instead, it is a case as to who can and should abate a

public nuisance. The Village suggests that, based on the political subdivision immunity

statutes, it has no authority to abate a public nuisance on a right-of-way. But “[u]nder

common law, the State of Ohio has the authority to abate public nuisances. This authority

is extended to Ohio municipalities by the Home Rule provision of the Ohio Constitution.”

McClanahan v. City of Cleveland, 1980 WL 354634, *1 (8th Dist. Apr. 3, 1980), citing

Solly v. Toledo, 7 Ohio St.2d 16 (1966).

{¶30} More importantly, however, whether the Village may or may not be

authorized to abate the nuisance here is not at issue in this case. At issue in this case is

whether the trial court abused its discretion in finding that Bates cannot be held

responsible to abate a nuisance (part of the wall) that is not located on his property. The

trial court acted within its discretion.

{¶31} As set out above, our standard of review is limited here. We shall not

substitute our judgment for the Board or the trial court merely because we would have

decided the case differently. Scio, 2023-Ohio-2479, at ¶ 28 (7th Dist.), citing Henley, 90

Ohio St.3d at 147-148. We can review only for an abuse of discretion. Id. Abuse of

Case No. 25 JE 0009

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discretion implies that the court's attitude was arbitrary, unreasonable, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶32} The trial court based its decision on several undisputed facts: (1) the wall

predates Bates’ ownership of his property; (2) it is unknown when the wall was built or

who built it; (3) significant portions of the wall are in disrepair and in a deteriorating

condition; and (4) the majority of the wall is not on Bates’ property but on an unknown

third-party’s property. Each of these facts was established at the hearing before the

Board.

{¶33} Three witnesses testified at the hearing before the Board.

{¶34} Bates testified that when he purchased the house in 1990, the wall was

already there. (Nuisance hearing transcript). He acknowledged that the wall was now

rotting and deteriorating. (Nuisance hearing transcript). Bates stated that he and the

Village both had surveys done, which were basically the same. (Nuisance hearing

transcript). He testified that in order for him to do anything to the wall he would have to

go onto someone else’s property because most of the wall was not located on his

property, according to the surveys.

{¶35} Eric Hashbarger is the Village nuisance officer. Hashbarger testified that

he received a complaint from the Village administrator about the wall’s condition.

(Nuisance hearing transcript). He then issued Bates a notice to abate the nuisance.

Hashbarger acknowledged that he did not know where the property lines were and he

could not dispute that the wall is not on Bates’ property. (Nuisance hearing transcript).

{¶36} Finally, Village Engineer and registered surveyor John McDevitt testified

that a portion of the wall runs down the Village’s right-of-way. (Nuisance hearing

transcript). He also stated that a portion of the wall is located on Bates’ property.

(Nuisance hearing transcript). And he agreed that a large portion of the wall is not located

on Bates’ property. (Nuisance hearing transcript). McDevitt opined that the wall would

likely continue to deteriorate and, at some point, parts of the wall were likely to fall into

the street. (Nuisance hearing transcript). He also opined that the wall was likely built and

“fill” was put in so that the house could be built. (Nuisance hearing transcript). And he

agreed that the wall was probably built at the same time as another “wall” on the opposite

Case No. 25 JE 0009

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side of Bates’ garage, as they appeared to be built from the same materials. (Nuisance

hearing transcript).

{¶37} After reviewing this evidence and the surveys, we cannot conclude that the

trial court abused its discretion in finding Bates is only responsible for abating the portion

of the nuisance wall that actually sits on his property. The trial court agreed that the wall

is a nuisance. The court did not act unreasonably, arbitrarily, or unconscionably in finding

Bates is not responsible for abating a nuisance that is not located on his property.

{¶38} Accordingly, the Village’s first assignment of error is without merit and is

overruled.

{¶39} For the reasons stated above, the trial court’s judgment is hereby affirmed.

Robb, J., concurs.

Dickey, J., concurs.

Case No. 25 JE 0009

[Cite as Wintersville v. Bates, 2026-Ohio-417.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be taxed against

the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.