The opinion
[Cite as Union Twp. Bd. of Trustees v. Jordan, 2021-Ohio-3871.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
UNION TOWNSHIP BOARD OF :
TRUSTEES,
: CASE NO. CA2021-01-003
Appellant,
: OPINION
11/1/2021
- vs - :
:
REGINA JORDAN,
:
Appellee.
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2017-CVH-00748
Schroeder, Maundrell, Barbiere & Powers, and Christopher L. Moore, and Jonathon T.
Deters, for appellant.
Wood + Lamping LLP, and Kathleen F. Ryan, for appellee.
HENDRICKSON, J.
{¶1} Appellant, Union Township, appeals the denial of injunctive relief by the
Clermont County Court of Common Pleas, which dismissed its complaint with prejudice.
{¶2} On September 2, 2014, appellee, Regina Jordan, purchased her property at
456 Old State Route 74, Union Township, Ohio, 45244. Jordan's property is an
approximately one-half acre lot located in an area classified as "B-1" Business Zone by the
Union Township Zoning Resolution ("UTZR"). Its use as a single-family residence in this
zone is a nonconforming use. Since 2016, Jordan has owned and kept a horse and pig on
Clermont CA2021-01-003
her property.
{¶3} On April 19, 2017, the Union Township Zoning Inspector sent a letter to
Jordan informing her that her property was not in compliance with the UTZR. The letter
requested Jordan "take appropriate action to correct these issues" and threatened legal
action if she failed to do so. On May 2, 2017, Jordan replied in a letter asserting that her
horse was a registered service animal and that she believed she was permitted to keep the
horse on her property. Following a May 4 inspection of the property, Union Township
Assistant Administrator and Planning & Zoning Director, Cory Wright, sent a letter to Jordan
once again asserting that her property was in violation of the UTZR and directing her to
"correct the above-mentioned violations" or appellant would take legal action. Jordan did
not take the requested actions.
{¶4} On June 19, 2017, appellant filed a complaint in the Court of Common Pleas
pursuant to R.C. 519.24, requesting a finding that Jordan was in violation of the UTZR,
preliminary and permanent injunctions enjoining Jordan from violating the UTZR, damages
incurred for alleged violations, and court costs associated with bringing the action. Jordan
filed an answer and asserted three counterclaims. Both parties moved for summary
judgment, which the trial court denied. After submitting additional evidence, both parties
again moved for summary judgment. The trial court granted appellant's motion as to
Jordan's counterclaim and denied the motion as to appellant's claims. It also granted
Jordan's motion in part and denied it in part.
{¶5} The trial court then referred this matter to a trial before a magistrate pursuant
to Civ.R. 53(C)(1)(b). The trial was held on October 2, 2020, and the parties each filed
post-hearing or closing argument briefs one week later. The trial addressed two issues: (1)
whether Jordan's keeping of the horse and pig on her property was a violation of the UTZR,
and (2) whether Jordan's keeping of a horse trailer on her property was a violation of the
-2-
Clermont CA2021-01-003
UTZR. All other issues were previously addressed by the trial court in its earlier disposal
of the parties' multiple motions for summary judgment. At trial, Wright testified for appellant
about whether appellant had the authority to regulate agriculture on Jordan's property.
Appellant also submitted a map of Clermont County showing various plats.
{¶6} The magistrate found that Wright's testimony was insufficient to prove that
Jordan's property was located in an area consisting of fifteen or more lots approved under
R.C. 711.131 that are contiguous to one another in the manner described in R.C.
519.21(B)(1). Consequently, the magistrate found that the evidence before the trial court
was insufficient to prove that Jordan's property was in an area where appellant could
regulate agriculture under R.C. 519.21(B)(1). The magistrate awarded judgment in favor of
Jordan and dismissed appellant's complaint with prejudice.
{¶7} The trial court adopted the findings of the magistrate, and thereafter appellant
timely objected to the magistrate's decision pursuant to Civ.R. 53(D)(3)(b). Appellant
asserted that the magistrate had "incorrectly placed the burden of proof" on appellant, that
Wright's testimony and the map established that appellant had authority to restrict
agricultural use of Jordan's property, that the magistrate incorrectly interpreted R.C.
711.131, and that the magistrate improperly limited which claims appellant could present at
trial. Finally, the trial court issued its decision and final judgment entry, granting judgment
to Jordan on all claims and overruling appellant's objections in their entirety.
{¶8} Appellant now appeals, raising the following assignments of error:
{¶9} Assignment of Error No. 1:
{¶10} THE TRIAL COURT ERRED IN RULING FOR DEFENDANT WHEN NO
REBUTTAL EVIDENCE WAS PRESENTED IN THE FACE OF DIRECT TESTIMONY AND
EVIDENCE PRESENTED BY UNION TOWNSHIP'S WITNESS.
{¶11} Appellant argues that Jordan had the burden of proving that the Union
-3-
Clermont CA2021-01-003
Township Zoning Resolution did not apply to her property. It cites cases discussing the
presumption to be afforded to statutes, ordinances, and township zoning regulations in
support of this assertion.
{¶12} "The grant or denial of a motion for injunctive relief is solely within the trial
court's discretion." Southwestern Ohio Basketball, Inc. v. Himes, 12th Dist. Warren No.
CA2020-08-045, 2021-Ohio-415, ¶ 34, quoting N. Fairfield Baptist Church v. G129, L.L.C.,
12th Dist. Butler No. CA2010-11-298, 2011-Ohio-3016, ¶ 18. On appeal, an appellate court
cannot reverse that decision absent an abuse of discretion. Deerfield Twp., Warren Cty. v.
Loveland Park Baptist Church, 12th Dist. Warren No. CA2000-07-064, 2001 WL 290270 at
*2 (Mar. 26, 2001). "A decision constitutes an abuse of discretion when the trial court acted
unreasonably, arbitrarily, or unconscionably." Wells Fargo Bank v. Maxfield, 12th Dist.
Butler No. CA2016-05-089, 2016-Ohio-8102, ¶ 32. "A decision is unreasonable if there is
no sound reasoning process that would support that decision." AAAA Ents. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).
{¶13} The township's request for an injunction was filed pursuant to R.C. 519.24. In
relevant part, the statute provides that in case
any land is or is proposed to be used in violation of * * * any
regulation or provision adopted by any board of township
trustees under such sections, such board, the prosecuting
attorney of the county, the township zoning inspector, * * * in
addition to other remedies provided by law, may institute
injunction, mandamus, abatement, or any other appropriate
action or proceeding.
R.C. 519.24. We have previously held that "[t]his provision authorizes a township zoning
board to institute an action for an injunction when a building or land is used in violation of a
township's zoning laws." Union Twp. Bd. of Trustees v. Old 74 Corp., 137 Ohio App.3d
289, 294 (12th Dist. 2000). Because the statute grants the injunctive remedy, appellant
was not required to plead or prove an irreparable injury or that there is no adequate remedy
-4-
Clermont CA2021-01-003
at law, as is required by Civ.R. 65. Id.; see also Deerfield Twp. at *2 ("Although the statute
provides an injunctive remedy, the township is only required to show that the property was
used in violation of the township's zoning laws"); Palmer v. Gray, 12th Dist. Warren No.
CA2011-04-034, 2011-Ohio-6796, ¶ 25.
{¶14} Ohio townships do not have inherent or constitutionally granted police power,
which is the power upon which zoning legislation is based. W. Chester Twp. Bd. Of
Trustees v. Speedway Superamerica, L.L.C., 12th Dist. Butler No. CA2006-05-104, 2007-
Ohio-2844, ¶ 66; see also Fischer Dev. Co. v. Union Twp., 12th Dist. Clermont No. CA99-
10-100, 2000 WL 525815 at *1 (May 1, 2000) ("[A] township is a creation of statute, and the
zoning ordinance may not exceed the bounds of statutory authority"). As such, the zoning
authority possessed by Ohio townships is limited to that which is specifically conferred by
the General Assembly. Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364, ¶ 18.
{¶15} The General Assembly, through R.C. 519.02, authorizes township trustees,
in the interest of the public health and safety, to adopt resolutions limiting the size and
location of buildings and other structures and the uses of land for trade, industry, residence,
recreation, or other purposes. R.C. 519.02(A); Terry at ¶ 20. That power, however, is
limited by R.C. 519.21, which provides that subject to narrow exceptions, the General
Assembly has conferred no power on any township "to 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." R.C. 519.21(A). The statute defines "agriculture" to
include "animal husbandry, including, but not limited to, the care and raising of livestock,
equine, and fur-bearing animals." (Emphasis added.) R.C. 519.01.
{¶16} Townships are, however, permitted to prohibit the use of land for agricultural
purposes in certain circumstances:
A township zoning resolution, or an amendment to such
-5-
Clermont CA2021-01-003
resolution, may * * * in any area consisting of fifteen or more lots
approved under section 711.131 of the Revised Code that are
contiguous to one another, or some of which are contiguous to
one another and adjacent to one side of a dedicated public road,
and the balance of which are contiguous to one another and
adjacent to the opposite side of the same dedicated public road
regulate * * * [a]griculture on lots of one acre or less.
R.C. 519.21(B)(1). The UTZR is precisely such a township zoning resolution. It copies the
language of R.C. 519.21(B) in providing, on the types of properties where the township is
statutorily permitted to regulate agricultural uses, that "[o]n lots less than one (1) acre, all
agricultural uses are prohibited." UTZR 621(7)(a)(2). The UTZR has also adopted the
definition of agriculture provided by R.C. 519.01. In this case, the parties agree that
Jordan's keeping of the horse and pig on her property is an agricultural use. They also
agree that Jordan's property is less than one acre. Finally, they agree that the UTZR
prohibits agricultural uses of certain types of property. Where they disagree is whether
Jordan's property is of the type on which agricultural uses are prohibited.
{¶17} The question before the trial court, therefore, was whether Jordan's property
was located in an "area consisting of fifteen or more lots approved under section 711.131
of the Revised Code." R.C. 519.21(B). To prove that the property was located in such an
area, appellant relied principally upon the testimony of Wright at trial. It now contends that
where Jordan did not "rebut" Wright's testimony, that testimony must be accepted as truth.
To support this assertion, appellant relies on case law establishing a presumption of
constitutionality for zoning ordinances and placing the burden of proof on the party
challenging a regulation. See, e.g., Goldberg v. Richmond Hts., 81 Ohio St.3d 207, 209
(1998); Brown v. City of Cleveland, 66 Ohio St.2d 93, 95 (1981). However, as the trial court
properly noted, "[t]he statutory or constitutional validity of the zoning regulation in play here,
was not before the Court." Jordan did not challenge the validity or constitutionality of the
UTZR's prohibition on agricultural uses on lots less than one acre, but simply argued that it
-6-
Clermont CA2021-01-003
did not apply to her property. As such, any reference on appellant's part to a presumption
of validity of its regulation is irrelevant to our considerations.
{¶18} It is well established that the party seeking injunctive relief has the burden of
proof. State ex rel. Hardin v. Clermont Cty. Bd. Of Elections, 12th Dist. Clermont Nos.
CA2011-05-045 and CA2011-06-047, 2012-Ohio-2569, ¶ 22; State ex rel. Sigall v. Aetna
Cleaning Contrs. of Cleveland, Inc., 45 Ohio St.2d 308, 315 (1976). Further, the right to an
injunction must be established by the strength of plaintiff's own case rather than by any
weakness of that of its adversary. Freeman Indus. Prods., L.L.C. v. Armor Metal Group
Acquisitions, Inc., 12th Dist. Clermont Nos. CA2010-09-071 and CA2010-09-080, 2011-
Ohio-1995, ¶ 14; Union Twp. v. Union Twp. Professional Firefighters' Local 3412, 12th Dist.
Clermont No. CA99-08-082, 2000 WL 189959 at *3 (Feb. 14, 2000) ("[T]he movant must
support its claim through the strength of its own case, not by any weakness in the
nonmoving party's case"). Appellant's argument that the burden of proof was on Jordan as
the nonmoving party is unpersuasive. See Bd. of Trustees of Union Twp. v. Keith, 12th
Dist. Clermont No. CA93-08-060, 1994 WL 117767 at *2 (Mar. 28, 1994). Appellant's
argument that the trial court should have ruled in its favor simply because Jordan did not
rebut the testimony of its expert is similarly unconvincing. Appellant was responsible for
proving its entitlement to injunctive relief and the trial court found that it did not meet that
burden. We agree.
{¶19} The only evidence produced by appellant to prove that Jordan's property was
of the type on which it could legally prohibit agriculture was the testimony of Wright, and an
ambiguous map of the area (labelled by the trial court as "Exhibit 6"). The trial court
characterized Wright's testimony as "cavalier." He did not identify what fifteen lots
comprised the area within which Jordan's property lies. Instead, he repeatedly referred to
a loosely defined area and when asked, repeatedly failed to identify any lots approved under
-7-
Clermont CA2021-01-003
R.C. 711.131. We agree with the trial court that Wright's conclusions were ipse dixit, that
is, "I say it is so, therefore it is so." We further agree that his failure to demonstrate that
Jordan's property was located in an area "consisting of fifteen or more lots approved under
[R.C. 711.131]" was "fatal to [appellant's] cause."
{¶20} Appellant argues that its Exhibit 6 in conjunction with Wright's testimony was
sufficient to meet its burden. Once again, we disagree. The map produced by appellant is
decidedly unhelpful, as it not only fails to identify Jordan's property, it also fails to identify
which fifteen lots apply. It is worth quoting the trial court's discussion on this matter in its
final decision at length:
Exhibit 6 bears no identifiers of who created it; it does not bear
the label, 'Clermont County Plat Map'; it does not identify what
county or township authority may have approved it and under
what statutory authority it was approved; it does not bear a
stamp verifying it was 'approved by (planning authority) no plat
required'; and it does not bear the signature of any clerk,
secretary, or other official as required by R.C. 711.131.
{¶21} The trial court then noted that Wright's testimony did not remedy any of the
above discrepancies:
Initially, the Court finds that Mr. Wright's identification of Exhibit
6 as the 'Clermont County Plat Map' is speculative at best. If
this is indeed the map [appellant] alleges it to be, it could have
easily obtained a certified copy of it from the appropriate county
authority that maintains it. That certainly did not happen here.
Further, Mr. Wright does not explain, in any manner, what
indicia he used to conclude that it 'appears to be' the 'Clermont
County Plat Map' that supports [appellant's] claim. Yet another
ipse dixit conclusion of Mr. Wright.
{¶22} Once again, we agree with the trial court. Appellant failed to meet the burden
of proof necessary to prevail at trial. The evidence it produced in the form of Wright's
testimony and Exhibit 6 was insufficient to show that appellant was entitled to injunctive
relief. This objection is without merit and is therefore overruled.
{¶23} Assignment of Error No. 2:
-8-
Clermont CA2021-01-003
{¶24} THE TRIAL COURT ERRED IN DENYING UNION TOWNSHIP'S MOTIONS
FOR SUMMARY JUDGMENT AS JORDAN NEVER EXHAUSTED HER
ADMINISTRATIVE REMEDIES.
{¶25} Union Township argues that, where Jordan never filed for a variance or
administrative appeal following the notices of violation she received, she failed to exhaust
her administrative remedies and her claims and defenses are consequently void.
{¶26} It is a well-established principle of Ohio law that, prior to seeking court action
in an administrative matter, the party must exhaust the available avenues of administrative
relief through administrative appeal. Nemazee v. Mt. Sinai Med. Ctr., 56 Ohio St.3d 109,
111 (1990). The doctrine of failure to exhaust administrative remedies is an affirmative
defense. Jones v. Chagrin Falls, 77 Ohio St.3d 456, 457, 1997-Ohio-253, paragraph one
of the syllabus. An affirmative defense is a new matter which, assuming the complaint to
be true, constitutes a defense to it. State ex rel. The Plain Dealer Publishing Co. v.
Cleveland, 75 Ohio St.3d 31, 33 (1996). Such a defense "admits that the plaintiff has a
claim * * * but asserts some legal reason why the plaintiff cannot have any recovery on that
claim." Id. As the name suggests, an affirmative defense, such as the doctrine of failure to
exhaust administrative remedies, cannot be brought by a plaintiff, but must be brought by
the responding party, or defendant. Civ.R. 8(C).
{¶27} Appellant cites a Tenth District case for the proposition that "the failure to
exhaust administrative remedies can be applied when * * * the enforcement agency is forced
to file a civil action to stop the asserted violations." Prairie Twp. Bd. of Trustees v. Hay,
10th Dist. Franklin No. 01AP-1198, 2002-Ohio-4765, ¶ 31. In Hay, the Tenth District
affirmed the trial court's decision to abstain from a decision on the underlying merits of the
case, based on defendant's failure to exhaust administrative remedies. Id. at ¶ 32. This
case differs significantly from Hay. In Hay, defendant was notified on four separate
-9-
Clermont CA2021-01-003
occasions by the township that his property was in violation of its zoning regulations. Id. at
¶ 3-7. On each occasion, he was ordered to correct the violations, and informed of an
appeal process. Id. On each occasion, he took no action. The trial court therefore held
that he had failed to exhaust the administrative remedies available to him and should thus
be deprived of the opportunity to contest the administrative determinations in a subsequent
judicial proceeding.
{¶28} In this case, appellant was served with two letters notifying her of alleged
violations of the UTZR and ordering her to take action to correct the alleged violations by a
specified date or else "further legal action" would be taken. No provision for appeal of the
administrative determination was given in either letter. Neither notice indicated that Jordan
could challenge or appeal appellant's finding that she was in violation of the UTZR. Further,
at this point, appellant had not imposed any penalties nor sought any remedies. The mere
threat of "further legal action" at an unspecified date in the future was not sufficient to require
Jordan to seek administrative remedies, particularly where appellant did not provide an
opportunity to appeal its findings.
{¶29} Even if the facts supported appellant's claim that Jordan had an opportunity
to appeal appellant's determination, appellant's argument that the trial court could not rule
in Jordan's favor where Jordan had not first exhausted the administrative remedies
available remains unconvincing. As the trial court noted, "[appellant] chooses to ignore the
fact that it initiated this action by citing [Jordan] for violating its zoning regulations." Jordan
was not seeking a "remedy" in this matter and therefore had no remedies to exhaust.
Appellant's second assignment of error is without merit and therefore overruled.
{¶30} Judgment affirmed.
PIPER, P.J., and BYRNE, J., concur.
- 10 -