The opinion
[Cite as Powlette v. Dayton Bd. of Bldg. Appeals, 2020-Ohio-5357.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
DARREN POWLETTE :
:
Plaintiff-Appellant : Appellate Case No. 28666
:
v. : Trial Court Case No. 2018-CV-5412
:
BOARD OF BUILDING APPEALS : (Civil Appeal from
CITY OF DAYTON, et al. : Common Pleas Court)
:
Defendant-Appellee :
...........
OPINION
Rendered on the 20th day of November, 2020.
...........
GREGORY S. PAGE, Atty. Reg. No. 0065264, 7501 Paragon Road, Lower Level, Dayton,
Ohio 45459
Attorney for Plaintiff-Appellant
MATHIAS H. HECK, JR., by NATHANIEL S. PETERSON, Atty. Reg. No. 0095312,
Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate
Division, Montgomery County Courts Building, 301 West Third Street, P.O. Box 972,
Dayton, Ohio 45422
Attorney for Defendant-Appellee
.............
DONOVAN, J.
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{¶ 1} Darren Powlette appeals from a judgment of the Montgomery County Court
of Common Pleas, which affirmed an adjudication order of the Board of Building Appeals
(“BBA”). The adjudication order upheld the Montgomery County Building Regulation
Division’s (“MCBRD”) stop work order addressed to a barn on Powlette’s property. We
affirm the judgment of the trial court.
{¶ 2} On November 20, 2018, Powlette filed a notice of administrative appeal in
the court of common pleas, attached to which was a copy of the June 25, 2018 stop work
order issued to Powlette (Adjudication Order No: AO18-003) by the MCBRD. The stop
work order cited a project entitled “Wedding Barn at Stoney Hill Bed and Breakfast,”
located at 7757 Upper Miamisburg Road. The stop work order stated: “According to our
investigation, you have constructed a barn without any permits or inspections, and are
using it as a wedding chapel, which is a place of public assembly, and is regulated by the
Ohio Building Code.” Citing R.C. 3781.11, the stop work order listed the following issues
of non-compliance: 1) constructing a barn for use as a wedding chapel without first
obtaining approval; 2) failing to submit any construction documents for review or approval
“for this building or this use”; 3) constructing the building without any inspections or
inspection approval; and 4) using the building for wedding events without a Certificate of
Occupancy, “which puts many lives at risk, both from a structural and fire safety
perspective.”
{¶ 3} The stop work order listed the following required actions: 1) apply for
approval for the construction of and use of the building; 2) submit construction documents
for review which bear the seal of a registered design professional and contain all
information necessary to ascertain building code compliance; 3) have all work inspected,
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including any work covered up without inspection; 4) cease use of the building until all
code requirements have been met and a certificate of occupancy has been issued.
{¶ 4} A copy of the BBA’s October 26, 2018 decision was also attached to the
notice of administrative appeal. The decision stated:
Number one, the structure at issue is being used for both agricultural and
for public assembly occupancy purposes for weddings, wedding receptions,
and similar activities.
Item number two, assembly occupancies such as those are specifically
regulated under the Ohio Building Code with respect to sanitation, fire
safety, and life safety.
Number three, the structure was constructed without first obtaining approval
for an assembly occupancy by the Montgomery County Building
Regulations Division.
Number four, the chief building official of Montgomery County has issued
an adjudication order AO18-003 citing the unapproved assembly
occupancy as a “public nuisance” as defined in ORC 3781.11 in accordance
with his authority under the Ohio Revised Code.
Number five, the chief building official has cited as the basis of his
determination the failure of the applicant to comply with the standards
applicable to assembly occupancies as defined in ORC 3781.06(A)(1).
Number six, the appellant has failed to demonstrate to the Board that the
assembly use of the structure does not constitute a public nuisance.
Number seven, accordingly, it is the opinion of the Board that the appellant’s
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request for relief from adjudication Order AO18-003 be denied.
For these reasons, the BBA “denied’ Powlette’s appeal.
{¶ 5} Powlette filed his brief in the trial court on April 8, 2019. In the brief, he
asserted that he acquired the 26-acre property at issue in May 2016. He asserted that,
since 2003, the property had been used to grow hay, producing 900 bales per year, and
hay production had “always been at the forefront” of his farming activities; he also raised
turkeys, chickens, and alpacas in the barn on the property. Powlette stated that, given
the agricultural use of the property, he secured an agricultural exemption from Miami
Township for the barn he was constructing on the property in 2017. Specifically,
Powlette asserted that he filed a “Declaration of Intent – Agricultural Exemption” with
Miami Township in October 2017, and that the “agricultural exemption exempts the barn
from the Ohio Building Code.”
{¶ 6} Powlette asserted that, before constructing the barn and contemporaneous
with his filing of the Declaration of Intent in October 2017, he provided Miami Township
with complete drawings and a site plan for his project. He stated that the drawing were
provided by Judge Engineering and that the Township “admitted that it received the site
plan.” According to Powlette, the drawings were stamped “Zoning Approved” on October
5, 2017 by the Community Development Department of Miami Township, and this
“completed the Property’s agricultural exemption.”
{¶ 7} Powlette asserted that he submitted an additional Declaration of Intent-
Agricultural Exemption on July 6, 2018; in that declaration, he added agritourism to the
proposed uses of the barn. According to Powlette, he also submitted an application to
obtain a current agricultural use valuation (CAUV) by the Montgomery County Auditor.
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According to Powlette, the Auditor had approved his CAUV for as long as he had owned
the property, and it was “wholly apparent” that the property was being used for agricultural
purposes “and furthermore that the subject barn has an agricultural exemption.” He
asserted that, under either of these circumstances, his barn was exempt from the Ohio
Building Code. According to Powlette, the MCBRD issued a stop work order nearly a
year after the barn was finished.
{¶ 8} Powlette argued in the trial court that the BBA wrongly upheld the stop work
order for two reasons, namely that the structure at issue retained the benefits of an
agricultural use exemption pursuant to R.C. 3781.061 and Miami Township Ordinance
307, and the barn was used for agricultural purposes and was therefore exempt from the
Ohio Building Code pursuant to R.C. 3781.06(B)(1).
{¶ 9} According to Powlette, the BBA relied on “unsubstantiated, public comment”
in arriving at its decision, rather than “relevant, substantive testimony.” Specifically, he
argues that the BBA permitted “an angry neighbor to ‘testify’ though none of his testimony
made a question of law or fact more or less probable.” Powlette also stated that he had
been repeatedly advised by MCBRD employees that his barn would not be inspected due
to the agricultural exemption. He asserted that MCBRD and BBA should be “estopped
from issuing and then enforcing” the stop work order.
{¶ 10} On April 10, 2019, the BBA filed a motion seeking to be dismissed from the
administrative appeal, because it was the MCBRD that had sought to enforce the order.
Powlette opposed the motion and sought, in the alternative, to substitute the proper party
or amend his notice of appeal. The court overruled the motion to dismiss on May 16,
2019. It determined that the BBA was not the proper party in this action, but that it could
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have informed Powlette or the court of this fact “at a much earlier date than six months
after the filing” of the appeal; the court permitted Powlette to add MCBRD as a necessary
party. Powlette filed an amended notice of administrative appeal on May 16, 2019.
{¶ 11} MCBRD filed a brief on June 28, 2019. It asserted that Maury Wyckoff, the
Chief Building Official for MCBRD, had testified that the stop work order was issued
because the barn failed to comply with the Ohio Building Code, and that Wyckoff also
testified that the Miami Township Zoning Department had issued a zoning violation to
Powlette “due to business use on an agriculturally zoned property.” According to
Wyckoff, the zoning violation had been upheld by the Miami Township Board of Zoning
Appeals (“BZA”). According to MCBRD, the decision of the BZA had been affirmed by
the court of common pleas.
{¶ 12} MCBRD further asserted that Alex Carlson, an employee of the Miami
Township Zoning Department, testified that weddings are not related to agritourism and
therefore are not “agriculturally exempt,” and that the barn was a “building for public
assembly” and therefore was regulated by the Ohio Building Code. MCBRD argued that
Powlette had represented the structure as a “wedding barn” and the property as “Stoney
Hill Bed and Breakfast” on a website that he maintained.
{¶ 13} MCBRD further asserted that the Miami Valley Fire District had issued a
citation to Powlette (Order #2018-0001), which listed 21 violations of the Ohio
Administrative Code (also known as the Ohio Fire Code). According to MCBRD, the
State Board of Building Appeals affirmed the citation.
{¶ 14} MCBRD asserted that the BBA had correctly determined that 1) the
structure at issue was being used both for agricultural purposes and for public assembly
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purposes, such as weddings and wedding receptions, and 2) structures for “assembly
occupancies” such this one were specifically regulated under the Ohio Building Code
“with respect to sanitation, fire safety, and life safety,” and 3) the structure at issue was
constructed without first obtaining approval for assembly occupancy by MCBRD.
{¶ 15} MCBRD characterized the issue presented as, “[i]n many regards, * * * a
case of first impression,” because it was unclear in the case law “whether a structure used
for both agriculture and non-agriculture purposes is wholly and entirely exempt from
regulation by the [Ohio Building Code] as a result of the use for agricultural purpose.”
However, it noted that the BBA, the Miami Township Zoning Department, and the
Montgomery County Court of Common Pleas had all found that Powlette’s assembly use
of the structure was not exempted under the law, and thus not free from appropriate and
necessary regulation.
{¶ 16} MCBRD further noted that Powlette cited to no statute or case law
“regarding estoppel of a county, state, or municipal, building department from enforcing
its duties under the Ohio Revised Code” based on an owner’s representation that the
structure at issue was used only for agricultural purposes and thus was agriculturally
exempt. In addition to Powlette’s misrepresentation regarding the use of the barn,
MCBRD asserted that he failed to follow the proper building procedures, which allowed
MCBRD to inspect the structure.
{¶ 17} MCBRD attached to its brief the May 30, 2019 judgment of the Montgomery
County Court of Common Pleas in Montgomery C.P. No. 2018-CV-4129 (Exhibit BB); that
judgment affirmed an August 6, 2018 decision of the BZA, which found violations of
Zoning Resolution 801 relating to Powlette’s barn. The judgment noted that, prior to the
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notice of violation, Powlette’s agricultural exemption was based upon the proposed use
of the barn for “viticulture, storing of agricultural products.” The judgment noted that the
BZA’s argument was that, at the time of the violation, “the barn did not house any
livestock, there was no viticulture or the selling of wine or the storage of agricultural
products and Powlette had entered into contract(s) to rent the barn for a wedding venue
and was advertising the barn as being available to rent for weddings.” The judgment
affirmed the BZA’s May 8, 2018 decision of that Powlette’s use of the barn did not
constitute agritourism. The court declined to “make an advisory opinion” about whether
a barn’s use as a wedding venue would constitute agritourism if the owner were also
housing animals, hay, and/or farm equipment in the barn at the time of the wedding.
{¶ 18} MCBRD also attached to its brief the January 2, 2019 citation from the
Miami Valley Fire District, which was directed to “Stoney Hill Rustic Weddings, LLC” and
Powlette (Exhibit CC). The citation stated that Robert Pugh, a Certified Fire Safety
Inspector, inspected Powlette’s barn on October 29, 2018 and found reason to believe
that the barn violated the part of the Ohio Administrative Code known as the Ohio Fire
Code. As discussed above, the citation listed 21 violations, and it ordered Powlette to
take 21 corrective actions within 30 days to abate the violations. For example, the first
violation was set forth as follows:
1. * * * The responsible person(s) have occupied or permitted the
structures at the site to be occupied while the structures constitute a serious
hazard to the public and responsible persons. The structures have been
altered, repaired and/or constructed in violation of the Ohio Building and
Ohio Fire Codes in a manner that constitutes an unapproved or
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impermissible change of use under the Ohio Building Code and Ohio Fire
Code. These changes to structures have occurred in a manner that
constitutes a distinct or serious fire hazard to occupants, including persons
attending weddings, wedding receptions and other parties therein. As
described more fully in (2-21) of this citation, the structures either do not
have or the responsible persons have not properly maintained essential fire
protection system features, including fire alarms systems, fire department
notification systems, fire suppression systems, fire pumps and water
supplies, emergency lighting, fire extinguishers and/or egress markings for
the actual occupancy types occurring in the structures. The structures
have grossly and/or unsafe electrical systems, HVAC systems, egress
provisions and/or business operations for the actual occupancy types
occurring in the structure. The structure has been constructed without the
approval of the building code official having jurisdiction. The facility was
built without permits, inspection or approval of the building code official
having jurisdiction.
A civil penalty of $1,000.00 was assessed for each violation.
{¶ 19} Exhibit CC also included a final order from the State Board of Building
Appeals related to the Fire District’s citation, which upheld all 21 items of the citation and
assessed a “civil penalty of $21,000 per month starting 180 days after the date of this
hearing and continuing until all items are abated.” Finally, Exhibit CC contained
Powlette’s notice of administrative appeal from the State Board of Building Appeals’ final
order. The court’s docket reflects that Powlette dismissed his appeal without prejudice
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on April 7, 2020.
{¶ 20} In reply, Powlette asserted that the barn had “always been used for
agricultural purposes,” and that no courts have determined that “weddings held in barns
do NOT constitute agritourism. * * * As such, the converse must be true * * *. That is to
say, weddings held in barns are agritourism.” Powlette argued that Miami Township had
never revoked or modified the exemption certificate it issued to him. He argued that the
“officials charged with the responsibility of enforcing the building code constantly refused
to inspect [his] barn” and “told him his barn was exempt from the building code because
he had an exemption certificate.” Finally, Powlette asserted that “the acts and conduct
of Montgomery County” clearly demonstrated that it had no authority to inspect the barn
and no interest in inspecting the barn because it was an exempt structure, that he relied
on the County’s acts and conduct to his detriment, and that this was “a quintessential
case of waiver by estoppel.”
{¶ 21} On July 11, 2019, Powlette filed a motion to strike the exhibits attached to
MCBRD’s brief; MCBRD opposed the motion on the same day. On August 16, 2019, the
trial judge to whom the case had been assigned filed a request for disqualification, noting
that the judge’s staff attorney had represented a party adverse to Powlette in another
administrative appeal prior to her employment with the court. On September 18, 2019,
the matter was transferred to a different judge.
{¶ 22} On December 4, 2019, the trial court affirmed the MCBRD’s decision,1 and
1 The trial court also found that MCBRD was the proper party to enforce building
regulations, and it dismissed the BBA as a party to the appeal.
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it denied Powlette’s motion to strike MCBRD’s exhibits, citing R.C. 3781.031. 2 After
summarizing the parties’ arguments, the court determined as follows:
Upon review of the certified record, the briefs of the parties, and the
other documents referenced herein, the Court finds there is a
preponderance of the evidence that supports the reasonableness and
lawfulness of the BBA’s adjudication order upholding [MCBRD’s] stop work
order. The Court finds that the evidence in the record that was before the
BBA is reliable, probative, and substantial and the adjudication order is in
accordance with law. Therefore, the Decision of the [BBA] is AFFIRMED.
{¶ 23} On appeal from the trial court’s affirmance of the administrative decision,
Powlette asserts two assignments of error. His first assignment of error states:
THE TRIAL COURT’S DETERMINATION THAT THE STRUCTURE
ON APPELLANT’S PROPERTY DID NOT RETAIN AN AGRICULTURAL
EXEMPTION IS CONTRARY TO LAW AND AN ABUSE OF DISCRETION.
{¶ 24} As argued below, Powlette asserts that the structure on his property
“retain[ed] the benefits of an agricultural exemption pursuant to [R.C.] 3781.061 and
Miami Township Ordinance 307,” was used for agricultural purposes, and therefore
retained the benefits of an agricultural exemption pursuant to R.C. 3781.06(B)(1). He
argues that, if the structure has an agricultural exemption, the stop work order had no
merit and “must be set aside or rescinded.”
{¶ 25} Powlette cites Griffith v. Rielage, 127 Ohio Misc.2d 122, 2004-Ohio-1443,
2
R.C. 3781.031(D) states: “ * * * The court shall not be confined to the record as certified
to it by the agency but any party may produce additional evidence and the court shall
hear the matter upon the record and additional evidence any party introduces. * * *.”
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806 N.E.2d 621 (C.P.). In that case, the owners of an equestrian center brought an
administrative appeal from a decision of the Ohio Board of Building Appeals, which upheld
orders and citations of remediation issued by an inspector from the Fire Marshal’s Office
relating to inadequate fire protection and unsafe means of egress for apartments in the
horse barn. The Franklin County Court of Common Pleas determined that the record
contained ample evidence that the occupants of appellants' barn were “placed at
unreasonable risk due to the lack of fire warning devices and the lack of adequate means
of emergency egress.” Id. at ¶ 17. The court determined, however, that the order was
not “in full accordance with law.” “Most notably,” the order dictated that the owners take
remediation measures in accordance with the Ohio Building Code, but as the owners
correctly point out, the zoning inspector “certified that appellants' barn was used in
agriculture.” Id. at ¶ 36. Thus, the court found that “the provisions of R.C. 3781.061
become operative.” The court concluded:
Considering that the board's remediation or abatement order
includes overt and specific adherence to the Ohio Basic Building Code, it is
overly broad inasmuch as appellants' property is not subject to regulation
promulgated under the authority of the statutes referenced immediately
above. Accordingly, the board's October 31, 2003 order and the remediation
order incorporated therein are modified to the extent that appellants cannot
be compelled to adhere to R.C. 3781.06 to 3781.20 or 3791.04 and
regulations promulgated under R.C. 3781.06 to 3781.20 or 3791.04.
Regulations having as their genesis other Revised Code sections may,
however, be the source of regulatory effect. Similarly, appellee may use
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any other of its statutory granted authority to effect hazard abatement
herein.
(Emphasis sic.) Id. at ¶ 37. Powlette asserts that, similarly, since his property received
an agricultural exemption, the MCBRD lacked authority to issue the stop work order
pursuant to the Ohio Building Code.
{¶ 26} Powlette further asserts that he “is using the structure in a manner that is
incident to an agricultural use of the land on which the structure is located,” and that he
“uses the barn for hay storage throughout the year.” According to Powlette, the structure
is also used for poultry husbandry and houses alpacas.
{¶ 27} The MCBRD responds that “public assembly occupancies” are regulated
under the Ohio Building Code, “particularly with respect to sanitation, fire safety, and life
safety concerns,” and therefore the record supported the BBA’s finding that the structure
on Powlette’s property had to adhere to the Ohio Building Code and thus, by extension,
to the stop work order. According to MCBRD, the evidence established that the structure
at issue was not being used exclusively for agriculture, but for public assembly purposes
as well, and “[t]his multi-purpose use does not grant complete exemption” from the Ohio
Building Code. The MCBRD directs our attention to Exhibit BB of its brief, the common
pleas court decision in the case which found violations of Zoning Resolution 801 relating
to Powlette’s barn.
{¶ 28} This Court has previously noted:
“The standards of review for a court of common pleas and an
appellate court differ considerably when an administrative appeal is
involved.” Gem City Metal Spinning Co. v. Dayton Bd. of Zoning Appeals,
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2d Dist. Montgomery No. 22083, 2008-Ohio-181, ¶ 17. In the case of In re
Application for Conditional Use of Watkins, 2d Dist. Montgomery No. 17723,
2000 WL 192430 (Feb. 18, 2000), this court confirmed that a court of
common pleas must “ ‘determine whether there exists a preponderance of
reliable, probative, and substantial evidence to support’ ” an agency's
decision. Id.at *2, quoting Dudukovich v. Lorain Metro Hous. Auth., 58 Ohio
St.2d 202, 207, 389 N.E.2d 1113 (1979). “Further, the [common pleas]
court must presume that the agency decision is ‘reasonable and valid.’ ” Id.,
quoting Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning
Appeals, 66 Ohio St.3d 452, 456, 613 N.E.2d 580 (1993). “[I]n an
administrative appeal pursuant to R.C. Chapter 2506, the common pleas
court considers the whole record, including any new or additional evidence
admitted under R.C. 2506.03, and determines whether the administrative
order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative
evidence.” (Citation omitted.) Durrell v. Spring Valley Twp. Bd. of Zoning
Appeals, 2d Dist. Greene No. 2012 CA 23, 2012-Ohio-5098, ¶ 21.
In contrast, when an appellate court reviews a common pleas court's
decision regarding an agency order, the appellate court uses two distinct
standards of review. Lamar Outdoor Advertising v. Dayton Bd. of Zoning
Appeals, 2d Dist. Montgomery No. 18902, 2002 WL 1349600, *2 (June 21,
2002). On a question of fact, an appellate court's review is limited to an
abuse of discretion. * * * Id. However, on a question of law, an appellate
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court's review is de novo. Ohio Dept. of Commerce, Div. of Real Estate v.
DePugh, 129 Ohio App.3d 255, 261, 717 N.E.2d 763 (4th Dist.1998).
Key Ads v. Dayton Bd. of Zoning Appeals, 2014-Ohio-4961, 23 N.E.3d 266, ¶ 12-13 (2d
Dist.).
{¶ 29} R.C. 3781.06(B) states:
Sections 3781.06 to 3781.18, 3781.40, and 3791.04 of the Revised
Code do not apply to either of the following:
(1) Buildings or structures that are incident to the use for agricultural
purposes of the land on which the buildings or structures are located,
provided those buildings or structures are not used in the business of retail
trade. * * *
{¶ 30} R.C. 3781.061 states:
Whenever a county zoning inspector under section 303.16 of the
Revised Code, or a township zoning inspector under section 519.16 of the
Revised Code, issues a zoning certificate that declares a specific building
or structure is to be used in agriculture, such building is not subject to
sections 3781.06 to 3781.20, 3781.40, or 3791.04 of the Revised Code.
{¶ 31} We note that, in Case No. 2018-CV-4129, wherein the common pleas court
affirmed violations of Miami Township Zoning Resolution 801 relating to Powlette’s barn,
the court recognized, as the BZA had, that Zoning Resolution 307(A)(2) adopted the
definition of agritourism set forth in R.C. 901.80(A)(2): “an agriculturally related
educational, entertainment, historical, cultural, or recreational activity, including you-pick
operations or farm markets, conducted on a farm that allows or invites members of the
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general public to observe, participate in, or enjoy that activity.”
{¶ 32} R.C. 901.80(A)(4) defines “farm” as “land that is composed of tracts, lots, or
parcels totaling not less than ten acres devoted to agricultural production or totaling less
than ten acres devoted to agricultural production if the land produces an average yearly
gross income of at least twenty-five hundred dollars from agricultural production.”
{¶ 33} R.C. 519.01 provides that “agriculture”
includes farming; ranching; algaculture meaning the farming of algae;
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.
{¶ 34} R.C. 519.21(C)(4) provides that a township zoning commission, board of
trustees or board of zoning appeals may not prohibit agritourism in a district zoned for
agriculture.
{¶ 35} It is undisputed that under Miami Township Zoning Resolution 307, a
structure used exclusively for agricultural or agritourism activities qualifies for an
agricultural exemption. Pursuant to Zoning Resolution 307(B), any resident claiming a
structure should be exempt from permit-approval based on agriculture or agritourism
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activities must submit a “Declaration of Intent – Agricultural Exception” form to the
Township. The structure being exempted will not be required to have a permit on file
and no fee will be required.
{¶ 36} At the hearing before the BBA, Maury Wyckoff of MCBRD testified that the
stop work order was “based on the need to comply with the provisions” of the Ohio
Building Code. He stated that Powlette initially asked for permission from the Township
to build a chapel for church services, and the Township denied that request; Powlette
then “came back and said that he was going to use the building for viticulture, which is
the making of wine, and they [the Township] agreed that that would meet the definition”
of an agriculturally exempt use. Wyckoff stated that Powlette subsequently began to use
the barn as a wedding venue and, in May 2018, the Township issued a zoning violation
due to the business use on an agriculturally zoned property. Powlette appealed the
zoning violation to the BZA, claiming that the barn was an agricultural exempt building
and that “any gatherings were exempt as * * agritourism.” Wyckoff stated that the BZA
found that the use of the property did not constitute agritourism and that it appeared that
Powlette had “only attempted to * * * hastily collect features of agriculture/farming
properties to cloak the operation of the wedding venue as permissible agritourism.”
According to Wyckoff, the BZA further concluded that Powlette’s “additions” had not
changed the fact that there was “insufficient connectivity between the wedding venue and
the agricultural features of the property such that the wedding venue’s operations
remain[ed] the primary use of the property in contrast to being incidental to the
overarching agricultural use of the property.” Wyckoff provided a copy of the BZA’s
decision, which was marked as Exhibit 1.
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{¶ 37} Wyckoff further testified as follows:
So, again, this is a building that is regulated by the Ohio Building
Code because it does not fall under the exemptions for agriculture use. As
a building used for public assembly, we have ongoing concerns about life
safety at this property including structural adequacy and life safety among
other compliance issues, and we ask that the Board uphold our [stop work
order] which includes affirming that Mr. Powlette immediately cease using
the building until he obtains permits and inspections and is issued a
Certificate of Occupancy demonstrating compliance with the Ohio Building
Code.
Wyckoff noted that neither his office nor the fire department and been able to gain access
to the property, so they did not have firsthand knowledge of what was going on there, but
they had neighbors call to tell what they were observing. According to Wyckoff, he had
not had any discussions with Powlette about building code compliance or “what kind of
alternatives might be available” that MCBRD could support, because Powlette had simply
maintained that the building was exempt from the building code.
{¶ 38} Powlette asserted that the stop work order should be rescinded because
the barn was exempt from the Ohio Building Code and because Wyckoff’s actions had
“waived the right to inspect at this stage by refusing to inspect the property when it was
being constructed,” notwithstanding that Powlette had made such demand. He also
asserted that the agricultural exempt certificate had never been revoked and was not a
subject of the BZA hearing. Powlette asserted that the barn housed alpacas and
contained a hay loft, and that the property had been used for hay baling for the last 14
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years, with over 24 acres of his property used for hay baling.”
{¶ 39} When asked the age of the barn, Powlette responded that it had been
started a year or year and a half earlier but still was not complete. Powlette’s attorney
asserted that the structure itself was “incidental” to the farming use, noting that the baling
equipment was stored in the barn and it was used for agricultural purposes “365 days a
year” and had been used for other purposes on “less than ten occasions.” Powlette’s
attorney indicated that plans were submitted showing the location of the barn, but that the
township did not ask for building plans, and that there was no need to submit building
plans after Wyckoff “told [his] client it was not a structure subject to inspection.”
{¶ 40} In response to questions from his counsel, Powlette indicated that he filed
an application in 2016 to obtain current agricultural use valuation from the Montgomery
County Auditor’s office; Powlette identified a copy of the application. Powlette stated that
the application was approved and was renewed in 2018. Powlette also identified a copy
of his Declaration of Intent - Agricultural Exemption form, and he acknowledged that it
required the requested information and “a property site plan along with” the application.
Powlette stated that a site plan was provided and was in the possession of the Township.
Alex Carlson, a Township zoning department employee, acknowledged that a site plan
had been provided, but it had not contained “typical building elevations or anything else.”
Carlson denied that he had ever seen any drawings of the barn.
{¶ 41} Powlette stated that the barn was “multi-story” and had two cupolas at the
top of the roof line, a silo, and two decks. He stated that it had two large garage doors
in the lower level where equipment was stored. Powlette stated that he had been “a
custom home builder in commercial buildings” since 1994 and had built approximately 30
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custom homes.
{¶ 42} Powlette identified photos depicting his three alpacas in a fenced area and
in the barn, chickens and turkeys, a fishing pond being constructed behind the barn, the
barn itself, equipment in the barn, and a sign on the property from the Ohio Farm Bureau
exempting the property from liability for injury or death to a participant engaged in
agritourism activity. Powlette stated that the chickens and turkeys resided inside the
barn from birth to two months and were then replaced with a set of new hatchlings.
{¶ 43} Powlette stated that an architect in Seattle had prepared plans for the
construction of the barn, and that Miami Township had a copy of “those stamped
drawings,” which were also stamped by structural engineers. Carlson testified that he
had not personally seen those drawings, but “would not refute if they [may] have been
submitted elsewhere, but they’re not a requirement of an agricultural exemption form.”
The only official submitted document of which Carlson was aware was “just a small site
plan,” which was not a complete set of construction drawings.
{¶ 44} Powlette then stated that Judge Engineering did his site plan; Powlette did
not know if those plans had been stamped. Powlette stated that Kyle Hinkelman (the
director of zoning) had the stamped building blueprints for Powlette’s barn, and Powlette
also had copies. Wyckoff stated that he had spoken to Hinkelman several times and the
issue of the existence of the blueprints, but that this was not pertinent to an agricultural
exemption, which does not address “the structural adequacy or lack thereof of the barn
or the fire safety, you know, design of it.”
{¶ 45} The following exchange occurred between counsel for Powlette and a board
member:
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[Counsel for Powlette]: To underscore some of the issues that
you’ve raised, as we know, the code puts enforcement onto the Township.
The Township has passed an ordinance as to what they are going to do in
these situations related to ag exempt structures. In Miami Township * * *
where my client’s property is, an applicant may submit a Declaration of
Intent in lieu of obtaining a zoning certificate.
So Miami Township has accepted that this is the process they’re
going to use, and the only thing we have to do to go along with that is
provide a site plan that shows the location and size of the exempted
structure. That’s what [Powlette] did.
Miami Township accepted it. Miami Township has never revoked it.
And so we followed the plan that we’re required to follow in order to have
an exempt structure. And I think even Miami Township has acknowledged
they’ve received the site plan that detailed where the structure is and its
size.
MR. MARISCALCO: Counselor, I don’t mean to be argumentative
with you, and I would agree that your words are correct, but judging by
what’s been represented to me, at least, as a site plan, a small square with
a couple of scribbles does not adequately describe what this structure is.
Now, here again, it’s hard to know what inquiries Miami Township
actually made. If it says barn, the common understanding of barn is * * * a
big pole structure, four walls and a roof, dirt floor, timbers, * * * used for
livestock, hay, agricultural products.
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So, here again, this may be a matter for the courts and possibly not
for the Board of Building Appeals, but the site plan does lack any kind of
specificity, and it reflects a barn. This is a barn of a type, and it’s not
designed primarily as a barn, and I think that’s what the - - that’s what the
board is looking at is then what is this - - what is this thing to be called if not
a barn.
[Counsel for Powlette]: Well, it’s a structure.
MR. MARISCALO: It is a structure.
[Counsel for Powlette]: And * * * under the code the structure is
exempt regardless of whether you call it a barn, an outhouse, a henhouse.
***
[Counsel for Powlette]: * * * I’m referring to the Ohio Revised Code
and the Miami Township ordinances that are relevant to this inquiry.
***
[MR. CARLSON]: * * *
It was Miami Township’s staff and now the official opinion of the
Miami Township Board of Zoning Appeals that weddings in this case are
not related to agritourism, and in that case once staff made the
determination that this was not agritourism, we did in fact issue a zoning
violation. * * * The Board of Zoning Appeals affirmed that decision, and that
is where we are today.
***
MR. MARISCALCO: * * * I mean, if it turns out - - and this is not
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within the purview of the Board of Building Appeals, but if it turns out that
this agriculture exemption either did not apply or does not apply or no longer
applies, * * * then the structure would come under the Ohio Building Code
and compliance would be required?
[Counsel for Powlette]: Well, that would lead me to my second
argument of waiver. * * *
{¶ 46} Wyckoff requested a sealed and stamped copy of the construction
documents for the barn. Powlette stated that Judge Engineering drew the site plan. He
stated that his initial Declaration of Intent was filed “a year or a year and a half ago” (it
was dated October 4, 2017) and included the site plan, that a second one was filed on
July 6, 2018, and that the only difference between the two was adding “agritourism.”
Wyckoff further stated:
* * * I would never tell somebody that we don’t inspect barns without
the discussion clearly being we don’t inspect agricultural exempt barns.
And so if somebody has held something out to be ag exempt and - - then,
therefore, we would have no reason to inspect, and we certainly would not
go out and look at footings without having already looked at drawings and
determined whether the drawings indicated a code-compliant solution.
And once that happened, then we would issue a permit, and then we
could inspect construction for compliance with a permit set of drawings.
But if somebody has not obtained a permit and asks us to come out
and inspect, whether it’s Mr. Powlette or anybody else, we say we don’t do
inspections until we issue a permit, and then we’d have drawings because
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our inspectors are not just inspecting to say, geez, that looks like a good
amount of concrete or that looks like a nice depth. They look at what did
the engineers say the design was supposed to be and did we accept the
engineering; for instance, when you talk Mr. Mariscalco, about looking at
the engineering, did the building meet all of the live load and dead load
requirements for the proposed use. If I saw drawings and found they didn’t,
I wouldn’t approve the drawings and therefore I wouldn’t inspect something
that might potentially be a deficient design.
{¶ 47} Wyckoff directed the board’s attention to a case from Greene County that
made its way to this court in Dixon v. Caesarscreek Township Bd. of Zoning Appeals, 2d
Dist. Greene No. 2018-CA-1, 2018-Ohio-2549. Counsel for Powlette observed that, in
Dixon, “the Township argued that a wedding was not agritourism, and the judge “had
every opportunity” to declare that weddings were not agritourism, but did not do so. In
response, Wyckoff focused on Exhibit 1, the BZA decision in a previous case, which
addressed Dixon in detail.
{¶ 48} We note that Exhibit 1 reflects that Cheryl Dixon provided public comment
on Powlette’s barn to the BZA. The BZA decision stated:
Cheryl Dixon testified that she is not a resident of Miami Township,
but she heard about the Appeal on the news and was involved in a similar
dispute previously. Ms. Dixon testified that she owns farm property in
Xenia, Ohio on which she rehabbed a home and a barn that was originally
constructed in the 1800s. Ms. Dixon testified that she hosted weddings on
her farm up until about five years ago when the local government informed
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her that her use of the agriculturally-zoned property was prohibited. Ms.
Dixon testified that a lawsuit ensued, ultimately ending up in front of the
Second District Court of Appeals of Ohio. Ms. Dixon testified that the
Second District upheld weddings and other celebratory events held on
farms as agritourism. Ms. Dixon testified that weddings are very common
on smaller farms throughout the U.S. because holding these events allows
owners of small farms to turn a profit. When describing how she hosts
weddings on her property, Ms. Dixon stated that the weddings are held
outside, with herself and her husband present during the events. Ms.
Dixon testified that she has denied requests from renters to hold weddings
in the barn on her property because she uses the barn to house her
livestock. Ms. Dixon testified that, during the event, she and her husband
are engaged with guests, discussing the farm and its history, and give
guided tours of the property to wedding guests in between the wedding
ceremony and reception. Ms. Dixon testified that it is her belief that the
production of hay on [Powlette’s] property is a sufficient agricultural activity
to consider weddings held on the property as agritourism.
(Footnotes omitted.)
{¶ 49} In the BZA’s decision, in its Conclusions of Law, the BZA determined in part
as follows:
E. The BZA concludes that the Ohio Second District Court of Appeals did
not hold in [Dixon, 2d Dist. Greene No. 2018-CA-1, 2018-Ohio-2549] that
weddings are per se agritourism activities under the [Revised Code].
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1. In light of Cheryl Dixon’s testimony that the Ohio Second District
Court of Appeals has upheld weddings on farms as agritourism within the
meaning of R.C. 901.80, the BZA feels it necessary to analyze Ms. Dixon’s
court case and ensure its decision is consistent with the Court’s holding.
The administrative appeal was originally filed in the Greene County
Common Pleas Court in 2017. Ms. Dixon brought the appeal to dispute
the partial denial of her Application for Agritourism Activity by the
Caesarscreek Township BZA * * *.” The Caesarscreek BZA approved Ms.
Dixon’s application to conduct certain activities on her property it found to
be agritourism within the meaning of the [Revised Code] and its Zoning
Resolution, but prohibited her from hosting “theme based weddings,
receptions, birthday celebrations and reunions,” finding that they were not
“agriculturally related.” Ms. Dixon thereafter filed an administrative appeal
to the decision with the common pleas court. While Ms. Dixon was correct
in her testimony that the court reversed the Caesarscreek BZA’s decision,
her testimony as to the court’s rationale was not accurate. The court
reversed the BZA’s decision because the court found no evidence to
support the BZA’s determination to exclude theme-base events from Ms.
Dixon’s agritourism activities. The court also found the transcript and
record devoid of any explanation as to how or why the BZA came to its
decision. As such, the court found the decision to be arbitrary and
capricious. The Caesarscreek BZA appealed the common pleas court
decision and the case proceeded on to the Second District Court of
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Appeals. The sole issue considered by the Second District was whether
the common pleas court abused its discretion by failing to conduct an
evidentiary hearing at the trial level. The Second District found the
common pleas court had not abused its discretion and upheld the lower
court’s decision. Contrary to Ms. Dixon’s testimony, neither of the courts
involved in this case held that weddings are per se agritourism activities.
In fact, neither court even considered that question. The courts merely
held that the record of the Caesarscreek BZA hearing on Ms. Dixon’s
Application was insufficient to support its decision prohibiting theme-based
events on her property.
2. Further, the BZA notes that there are important differences in
how Ms. Dixon holds weddings on her farm versus how weddings are held
on [Powlette’s] property. First, Ms. Dixon testified that she advertises
weddings on her farm as “farm weddings,” which are held outside with
guests immersed in the agricultural features of the Property. Additionally,
Ms. Dixon testified that both her residence and the barn on her property
were originally built in the 1800s, providing her property with a historical
aspect [Powlette’s] property lacks. Ms. Dixon also testified that she gives
guests an informational tour of the property during the wedding cocktail
hour. Finally, Ms. Dixon’s testimony indicates that the primary purpose of
her property is agricultural, evidenced by the fact that Ms. Dixon testified
that she has been asked if weddings could be held in the barn on her
property and she said it could not be done because the barn is used to
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house her livestock. In contrast, [Powlette] does not promote the Wedding
Venue by advertising a farm theme or the agricultural aspects of the
Property, evidenced by [his] own testimony and that of the Millers. Unlike
Ms. Dixon’s farm, [Powlette’s] Property is not used primarily for agricultural
purposes, and lacks traditional farm features and historical structures. The
overall manner in which [Powlette] operates the Wedding Venue also differs
from how Ms. Dixon is engaged with guests during the events and even
gives a guided tour of the property during cocktail hour. No evidence was
presented showing that [Powlette] engages with wedding guests during
events in any manner, let alone in an agriculturally-related manner. To the
contrary, Cheryl Turton testified that when she called [Powlette] to inform
him that wedding guests were reaching onto her property to pet her horses,
Appellant stated he was unaware that was happening because he had been
asleep.
3. Given the fact that the Second District Court of Appeals has not
held that weddings are per se permissible under the agritourism statute, the
BZA finds Ms. Dixon’s testimony does not alter its previous conclusion.
Therefore, the BZA concludes [Powlette’s] use of the property on May 8th
did not constitute agritourism under the [Revised Code].
{¶ 50} Wyckoff also asserted that he had taken and shown to the BZA some
screen shots he had captured from the Stoney Hill Bed and Breakfast website, which
showed the barn and identified the barn as 5,000 square feet on the main level and 3,500
square feet on the lower level, with 1,400 square feet decks overlooking the pond and the
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horse stable and a 1,000 square foot covered porch. The website also stated that the
barn would comfortably seat about 200 people.
{¶ 51} At the conclusion of the hearing, counsel for Powlette agreed to provide the
MCBRD with copies of the site plan and “hard copies” of the stamped drawings. Carlson
agreed to provide Wyckoff with “the original zoning certificate.” None of those
documents are in the record before us.
{¶ 52} As noted above, Wyckoff asked the MCBRD to uphold the stop work order,
including that. Powlette be required to immediately cease using the building until he
obtained permits and inspections and was issued a Certificate of Occupancy
demonstrating compliance with the Ohio Building Code. The trial court determined that
reliable, probative and substantial evidence supported the MCBRD’s decision that the
barn was used for both agricultural and public assembly occupancy purposes. We
agree.
{¶ 53} R.C. 3781.06(A)(1) provides:
Any building that may be used as a place of resort, assembly, education,
entertainment, lodging, dwelling, trade, manufacture, repair, storage, traffic,
or occupancy by the public, any residential building, and all other buildings
or parts and appurtenances of those buildings erected within this state, shall
be so constructed, erected, equipped, and maintained that they shall be
safe and sanitary for their intended use and occupancy.
{¶ 54} R.C. 3781.11 provides:
* * * Any building, structure, or part thereof, constructed, erected,
altered, manufactured, or repaired not in accordance with the statutes of
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this state or with the rules of the board, and any building, structure, or part
thereof in which there is installed, altered, or repaired any fixture, device,
and material, or plumbing, heating, or ventilating system, or electric wiring
not in accordance with such statutes or rules is a public nuisance.
{¶ 55} Powlette hosts weddings at his barn, and he has been ordered to stop work
by the MCBRD, cited by the BZA, and cited by the Fire District. The Fire District citations
were affirmed by the State Board of Building Appeals and remain in effect. Wyckoff
testified that there was an unapproved or impermissible change of use regarding the barn,
and we conclude that the barn cannot retain its agricultural exemption under these
circumstances, given the issues of fire safety and life safety for the attendees of the
events in the barn. In other words, the barn is a nuisance, and when MCBRD became
aware of the nature of its use, it correctly issued the stop work order and essentially
negated the exemption. The trial court did not err in affirming the BBA’s determination
that Powlette cannot escape application of the Ohio Building Code to his barn, since it is
clearly an assembly occupancy and promoted as such. Accordingly, Powlette’s first
assignment of error is overruled.
{¶ 56} Powlette’s second assignment of error is as follows:
THE TRIAL COURT’S DETERMINATION THAT THE
MONTGOMERY COUNTY BUILDING INSPECTOR WAS NOT
ESTOPPED FROM ISSUING THE STOP WORK/ADJUDICATION ORDER
IS CONTRARY TO LAW AND AN ABUSE OF DISCRETION.
{¶ 57} Powlette asserts that over several weeks and months, he had multiple
conversations with Wyckoff and Robert Martin about conducting inspections of the barn
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on his property and, on each occasion, “Montgomery County refused to inspect” it. He
argues that Wyckoff and Martin made representations to him on which he relied, and that
he (Powlette) spent hundreds of thousands of dollars constructing the barn and “suffered
tremendous pecuniary loss” based on this reliance.
{¶ 58} MCBRD responds that it would be “a ridiculous policy” to allow structural
and life safety compliance inspections to be waived for structures that were going to be
occupied by human beings. MCBRD also asserts that it had no reason to inspect an
agriculturally exempt building, as Powlette represented the building to be, and it only later
learned that the building was not used exclusively for agriculture and needed to comply
with additional requirements.
{¶ 59} This Court has noted:
“In a claim for promissory estoppel, ‘a plaintiff may enforce a clear
and unambiguous promise, even in the absence of the consideration
necessary to form a contract, if the plaintiff reasonably relies on the promise
to his or her detriment.’ ” Wells Fargo Fin. Ohio 1, Inc. v. Robinson, 2d Dist.
Champaign No. 2016-CA-23, 2017-Ohio-2888, ¶ 21, quoting Americana
Inv. Co. v. Natl. Contr. & Fixturing, LLC, 10th Dist. Franklin No. 15AP-1010,
2016-Ohio-7067, ¶ 12.
Nationstar Mtge. LLC v. Abston, 2019-Ohio-3003, 140 N.E.3d 1103, ¶ 23 (2d Dist.).
{¶ 60} Powlette directs our attention to Pilot Oil Corp. v. Ohio Dept. of Trans., 102
Ohio App.3d 278, 656 N.E.2d 1379 (10th Dist.1995), wherein the Tenth District noted that
estoppel may apply where a municipality made a representation, which was within its
power to make and which induced reliance. Id. at 283, citing Cleveland v. Cleveland
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Elec. Illum. Co., 440 F.Supp. 193. (N.D.Ohio 1976). In Pilot Oil, the court concluded
that the Ohio Department of Transportation (“ODOT”) was estopped from denying the
validity of its prior approval of a sign. ODOT had exercised its discretion in interpreting
R.C. 5516.02(C) and had determined that appellant's proposed sign complied with that
statutory provision. Id. at 283. The court found it significant that ODOT had “had full
opportunity to be informed” prior to making its decision. The court further found that
ODOT's approval had induced appellant to go ahead with the construction and erection
of its sign. The supervisor of the advertising device control section of ODOT had been
authorized to approve the proposed sign, and therefore it was reasonable for appellant to
rely on his approval. Id.
{¶ 61} Unlike in Pilot Oil, in this case MCBRD did not initially have full opportunity
to be informed about Powlette’s barn. Powlette initially requested permission to build a
chapel for church services on the property, and that request was denied. We conclude
that that request was consistent with the nature of the project that Powlette intended,
namely one with insufficient connectivity to the agricultural features of the land to be
agriculturally exempt. Powlette’s subsequent July 6, 2018 Declaration of Intent merely
listed agriculture, agritourism, hay storage, turkeys, chickens, and viticulture as uses. In
other words, the declaration did not put building officials on notice that the barn was
subject to the Ohio Building Code, because Powlette did not disclose that a primary
purpose of the structure was to host weddings there.
{¶ 62} By his own account, Powlette was an experienced builder. He was
undoubtedly aware of the Ohio Building Code and its requirements, and he attempted to
circumvent them. As Wyckoff explained, Section 105.1 of the Ohio Building Code
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provides:
Approvals required. Any owner or authorized agent who intends to
construct, enlarge, alter, repair, move, or change the occupancy of a
building or structure, or portion thereof, or to erect, install, enlarge, alter,
repair, remove, convert or replace any electrical, gas, mechanical, plumbing
system, other building service equipment, or piping system the installation
of which is regulated by this code, or to cause any such work to be done,
shall first make application to the building official and obtain the required
approval.
{¶ 63} Further, Section 106.1 provides:
Submittal documents. Construction documents, statement of special
inspections required and other data shall be submitted in two or more sets
with each application for an approval. Before beginning the construction
of any building for which construction documents are required under section
105, the owner or the owner’s representative shall submit construction
documents to the building official for approval. When construction
documents have been found to be in compliance with the rules of the board
of building standards in accordance with section 107 by a certified building
department, that determination of compliance shall be deemed sufficient to
obtain approval for construction pursuant to section 105.2 and the building
official shall issue the certificate of plan approval. * * *
{¶ 64} Carlson stated that Powlette submitted a site plan that was not complete.
After reviewing the nature of the structure, Mariscalco noted that it was not designed
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primarily as a barn. Wyckoff stated that Powlette represented that the barn was
agriculturally exempt, and that MCBRD had no duty to inspect the barn unless a permit
was issued for its construction pursuant to the Ohio Building Code. The trial court did
not err or abuse its discretion in concluding that Powlette’s estoppel argument was without
merit and that MCBRD was not estopped from issuing the stop work order after being
made aware of the true nature of the building,. Powlette’s second assignment of error is
overruled.
{¶ 65} The judgment of the trial court is affirmed.
.............
TUCKER, P.J. and WELBAUM, J., concur.
Copies sent to:
Gregory S. Page
Mathias H. Heck, Jr.
Nathaniel S. Peterson
Hon. Richard Skelton