Opposition Brief — Loriz v. Connaughton (No. 06-711)

Supreme Court brief2006

Ask Donna

What actually matters in this document.

Text

No. 06-711

In the

Supreme Court of the Anited States

MICHAEL HANNING LORIZ,

CARA FRANCKE LORIZ,

Petitioners,

Vv.

JOHN B. CONNAUGHTON, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Jack C. McGowan

Counsel of Record

Michael FE. Jacobs

McGOWAN & JACOBS, LLC

246 High Street, Suite 400

Hamilton, OH 45011

(513) 844-2000

Counsel for Respondents Lee Steenken,

Thomas Bevingion, Gary Salmon, Thomas

Turner, Roger Gates, William E. Balsinger,

James M. Fox, John Zboril, Walt Filpot,

Alan Daniel, Michael A. Fox, Gregory V.

Jolivette, Charles R. Furmon, Anthony E.

Dwyer,Richard K. Jones and Robin Piper

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

QUESTION PRESENTED

Respondents believe that this case really presents only one

question which they state as follows: Whether the Court of

Appeals correctly denied petitioners’ request for an injunction

pending appeal of the District Court’s dismissal of all of

petitioners’ claims due to a lack of jurisdiction under the

Rooker-Feldman doctrine, Williamson County Regional

Planning Commission v. Hamilton Bank of Johnson City, 473

U.S. 172 (1985) (lack of ripeness), and other grounds,

stemming from a decision by the Butler County Board of

Zoning Appeals which granted a conditional use permit for

commercial recreational use of an adjacent property.

PARTIES TO THE PROCEEDING

UNDER RULE 14.1(b)

Respondents are the Honorable Judge Anthony Valen, The

Honorable Judge William Young, The Honorable Judge

Stephen W. Powell, John B. Connaughton, Charles Keller,

Christopher Keller, Michael Simmons, Ridge Wind Quail

Hunts, LLC, Lee Steenken, Thomas Bevington, Gary

Salmon, Alan Daniel, Walt Filpot, Thomas Turner, Roger

Gates, William E. Balsinger, James M. Fox, Jchn Zboril,

Michael A. Fox, Gregory V. Jolivette, Charles k.. Furmon,

Anthony E. Dwyer, Richard K. Jones, Robin Piper and

Steven A. Gray (Chief of the Ohio Department of Natural

Resources Division of Wildlife).

Petitioners are Michael Hanning Loriz and Cara Francke

Loriz.

iil

TABLE OF CONTENTS

QUESTION PRESENTED .......:............ i

PARTIES TO THE PROCEEDING UNDER RULE

MAN oon ob eee ii

TAREE OF COUCTOITS 2. os ee, iii

TABLE OF AUTHORITIES ................. Viii

ONG BGEOW sw... danechidciee eee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

PUREE 6s wo ce ha lelx se oe a eee eee eee 2

SEAT EeIeE GOP TRE CAR 6c ce ccc cs ce nwees 3

SUMMARY OF THE ARGUMENT ~............. 5

REASONS FOR DENYING THE WRIT .......... 9

I. The Court Lacks Jurisdiction Over the Petitioners’

CD 0 sa 6 6 oes Dee ee ee ee eee 2.

A. The Court Lacks Jurisdiction Under the Rooker-

Puen TS wns oo ee ow oe ee 9

B. The Court Lacks Jurisdiction Due to Lack of

Ripeness Under Williamson County Regional

Planning Commission vs. Hamilton Bank of

Johnson City, 473 U.S. 172 (1985) ......... 12

II. The Lower Courts Correctly Abstained From

meverwies Wee WORE ww ce ecco ees 13

Hil.

IV.

A. Colorado River Abstention Limits This Court’s

Review

eowrweweq@ee#etew#rs€@€@ Ff aeeee2evee ee @€ £4 2 € a2 6 8 8

B. Pullman Abstention Limits This Court’s Review

C. Burford Abstention Limits This Court’s Review

Petitioners Are Not Entitled to an Injunction When a

Suit For Compensation Can Be Brought ........

A. Ohio Has Provisions For Awarding Compe.isation

For Persons Whose Property Has Been

I oe ee de ae al a ee ee

B. In Ohio, Mandamus Is the Appropriate Procedure

to Seek Compensation When a Case of

Condemnation Has Not Been Brought .......

The State Agency Decision Which Petitioners Find

Objectionable Merely Affected Their Property

Interests Through A Proper Exercise of State Police

Power Adjusting of the Benefits and Burdens of

Property Ownership and Does Not Quality For

Application of a Per Se Taking Rule or Injunction .

A. Petitioners’ Claim Is An As Applied Challenge,

Not a Facial Challenge, For Which An Injunction

By ee IN i 5 Ge rurea Wola cea aed eee we

B. Petitioners’ Rights to Protect Their Property Have

Phot Teen COMMMIENOE www 5 kn ee Hes

. Petitioners Are Not Otherwise Entitled to Injunctive

Relief for Any of the Alleged Constitutional

Weseeets TET MO oc i ce rece eres

. 20

A. Petitioners’ Due Process Claims Are Premature

Prior To a Final State Agency Decision ...... 27

B. Petitioners Fail to Show Entitlement to an

Injunction Pending Appeal ............... 27

Ot eer eee rere ees eee ee ee 29

APPENDIX

Notice of Violation Under Butler County Zoning

Resolution - dated February 28, 2001........ la

. Complaint - Loriz, et al v. Keller, et al - Butler

County Common Pleas Court, Butler County Ohio

- Case No. CV01-04-0714 - filed April 9, 2001 . 3a

Decision of the Butler County Board of Zoning

Appeals, /n Re: Application of Keller, Case No.

BZAO1-26C - issued July 26, 2001

. Notice of Appeal of Decision of the Zoning Board

of Appeals of Butler County, Ohio - Michael Loriz

v. Butler County Board of Zoning, et al - Butler

County Common Pleas Court, Butler County Ohio

- Case No. CVO1-08-1777 - filed August 6,

2001

Order for Case Consolidation - Loriz, et al v.

Keller, et al - Butler County Common Pleas

Court, Butler County Ohio - Case No. CV01-04-

0714 - filed December 11, 2001 .......... 20a

Amended Complaint - Loriz, et al v. Keller, et al -

Butler County Common Pleas Court, Butler

10.

ll.

12.

County Ohio - Case No. CV01-04-0714 - filed

PNG: GE. oss 4 vo 6 Wad 9 ove en 22a

Entry affirming decision of Butler County Board

of Zoning Appeals - Final Appealable Order -

Loriz, et al v. Keller, et al - Butler ‘County

Common Pleas Court, Butler County Ohio - Case

No. CV01-04-0714 - filed April 11, 2003 .... 36a

Opinion - /n Re: Application of Charles E. Keller -

Twelfth District Court of Appeals, Butler County,

Ohio - 2003-Ohio-6549, Appellate No. CA2003-

04-100 - dated December 8, 2003 ......... 39a

Decision - Loriz, et al v. Keller, et al - Butler

County Common Pleas Court, Butler County Ohio

- Case No. CV01-04-0714 - filed Decemiber 6,

eS Ade ae ae ere tga Cake Stas 46a

Notice of Appeal of Decision of the Zoning, Board

of Butler County Ohio in Civil Case - Loriz, et al

v. Butler County Board of Zoning Appeals -

Butler County Common Pleas Court, Butler

County Ohio - Case No. CV05-07-2228 - filed

ee EE isp ok ok ee es eee 5la

Motion for injunction pending appeal - Loriz, et

al v. John B. Connaughton, et al - U.S Court of

Appeals for the Sixth Circuit - Case No. 06-3427 -

Re Oi EE "aan 6-0 9-4 oh ee ee ae 53a

. $8 0 agg |. y a eee en ees ae _ 56a

Vil

Ohio Revised Code Statutes

R.C. 2506.04 S7a

. ea 2 et Se 2 oo eo Se Cue, 2 Oe. 2 Se Ss 2.82 2. 2.8

ft ie ren en ae ee 57a

i. Se ob wk eee chee eee ees ee een 59a

EE soo bisa sw ko be eee ae ae ees 6la

A; Se be ec aewrhs dee he eee wee 63a

eS ee 006 Ve ee eee ae cps 64a

R.C. 163.61

Vill

TABLE OF AUTHORITIES

CASES

Ada-Cacade Watch Co., Inc. v. Cascade Resource

Recovery, Inc.,

Tau F 26 S77 CG Ct. 1983) gn cece eens 16

Andrus v. Allard,

444 U.S. 51, 65, 100 S. Ct. 318,

C2 is. BR. SEZ CET 6.0 63584 6A 17

Bigelow v. Michigan Dept. of Natural Resources,

how Bi ke Ae er re a 12

Burford v. Sun Oil Co., 319 U.S. 315 (1943) .. 6, 15, 16

Cavanaugh v. Looney, 248 U.S. 453 (1919) ........ 14

City of Monterey v. Del Monte Dunes at Monterey, Lid.,

Fae 8 Gel CRUE 6 0 682 we eee 8, 21

Coles v. Granville, 448 F.3d 853 (6th Cir. 2006) 7, 18, 19

Colorado River Water Conservation Dist. v. U.S. :

S26 WD. Ge GRP 6 nde ste ieee 6, 13, 14

Coogan v. Cincinnati Bar Assn.,

431 F.26 1209 th Cir. 1970)... ces: 10

Covington Court Limited v. Village of Oakbrook,

77 Foe TT? CA, Se. 6 oie 27

Daniels v. Area Planning Commission of Allen County,

woe © .90 TES CC: 3s 5 eo ee eee fe

District of Columbia Court of Appeals v. Feldman,

re passim

Duke Power Company vy. Carolina Study Group, Inc.,

a V_ teh

Ellis v. Gallatin Steel Co. ,

aoa e. 20 46) (th Civ. 2004)... www ee ees 16

Elrod v. Burns, 427 U.S. 347 (1976)... ww ees 27

Exxon Mobil Corp. v. Saudi Basic Industries Corp..,

544 U.S. 280, 125 S. Ct. 1517 (2005) ...... 10, 11

Greene v. Lindsey, 456 U.S. 444 (1982) ........ 4, 44

Harrison v. NAACP, 360 U.S. 167 (1959) ......... 15

Hynes v. Grimes Packing Co.,

CN passim

In Re: Application of Charles E. Keller,

2003-Ohio0-6549

(Ohio App. 12 Dist. Dec. 8, 2003) ........ 2, 4, 11

Kallstrom v. City of Columbus,

163 F.3d 1055 (6th Cir. 1998)............ 28, 29

Kruse v. Village of Chagrin Falls, Ohio,

ee 18, 19

Lingle v. Chevron U.S.A. Inc.,

a Se: passim

Loretto v. Teleprompter Manhattan CATV Corp.,

Te Si. WEEE dt 6 6 a ok ee eae wns 7, 20

Lucas v. South Carolina Coastal Council,

ee a aN is) 6 we ee le ea beat 7, 20

McDonald v. Village of Newport,

166 F.S6 Sas (Oth Cir. 999) nw cece eens 16

Montgomery v. Carter County,

226 F.36 756 (Gt Co. TD ww cece 24, 25

New Orleans Public Serv., Inc. v. Council of the City of New

Orleans,

oh Pe ee ere ey Se 15

Penn Central Transportation Co. v. New York City,

438 U.S. 106-(1978) ......... ea Eee Ee 8, 21

Pennsylvania Coal Co. v. Mahon,

ee th. SE | 6 ik a See eee eee 8

Peterson Novelties, Inc. v. City of Berkley,

305 F.36 366 (Gth Cir. 200Z) ww ww ee ees 10

Railroad Commission of Texas v. Pullman,

Sea Ua Ses on os eh ei eon 6, 14

Rooker v. Fidelity Trust Co.,

eet So SD 8s 6s ow eee ek passim

Ruckelshaus v. Monsanto Co.,

Sr Gra Se CO: 4g 5 wwe Sse eee ees 12,17

Sampson v. Murray, 415 U.S. 61 (1974) .......... 19

Southwest Williamson County Community Association v.

Slater,

Dee FPR ETO CEE. BOO) ccc civcsccces 27

Tonti v. Petropoulos, 656 F.2d 212 (6th Cir. 1981) ... 10

Tropf v. Fidelity National Title Ins. Co.,

y wt fe ee a 1]

United States v. James Daniel Good Real Property,

EE bs ees Be eee ee 7, 2

Village of Euclid v. Ambler Realty Co..,

Pee PE os bac es 14k wees 8, 26

Williamson County Regional Planning Commission vy.

Hamilton Bank of Johnson City,

ie ee Se Cee So ee ee ae ee ee passim

STATUTES & RULES

ee EE FS ee ee ee PR eee es 2

Sn SE je i 9 re eee ee 7

Re ers eS hee Wa eps ed ale oa ER OSES 2, 18

Se en EE os Soe es wi a ee ee Sap ae 2,18

na LE 5G Gy 0 ae ae ees 2, 18

Ras ar IR case ae wee ae 2,18

See ee ee oo os a ogg oa eh eee ees 2

Xil

Ohio R.C. § 163.61 ............000... es. 2,18

Le ye 2, 16

Federal Rule of Civil Procedure 12(b)(J) .......... 1]

OPINIONS BELOW

Order of the Sixth Circuit Court denying petitioners’

motion to reconsider, Case No. 06-3427, entered October

10, 2006;

Order of the Sixth Circuit Court denying motion for

injunction pending appeal, Case No. 06-3429, entered

August 18, 2006;

Order of U.S. District Court, Southern District of Ohio

adopting Report and Recommendations in Case No. 1:05-

cv-00306-SSB-TSB, entered February 24, 2006;

Report and Recommendations of Magistrate Black, U.S.

District Court, Southern District of Ohio, Case No. 1:05-

cv-00306-SSB-TSB, entered December 29, 2005;

The above Opinions and Orders are those of the federal courts

immediately below. '

The following are underlying Opinions and Order of state

courts and agencies which have preceded the plaintiffs’

complaint in federal court:’

1) Decision of the Butler County Common Pleas Court,

Butler County, Ohio granting motion for summary

judgment of the Butler County Officials, Loriz, et al vs.

' These Opinions and Orders are all set forth in the Petition

Appendix.

* These appear in as Appendices No. 9, 8, 7, 5 and 3, respectively.

Keller, et al, Case No. CV01-04-0714, entered' December

6, 2005;

2) Opinion of the Twelfth District Court of Appeals, Butler

County, Ohio, In Re: Application of Charles E. Keller,

2003-Ohio-6549, Appellate No. CA2003-04-100, dated

December 8, 2003;

3) Final Appealable Order of the Butler County Common

Pleas Court, Butler County, Ohio, Loriz, et al vs. Keller,

et al, Case No. CV01-04-0714, entered April 11, 2003;

4) Order for Case Consolidation of the Butler County

Common Pleas Court, Butler County, Ohio, Loriz, et al

vs. Keller, et_al, Case No. CV01-04-0714, entered

December 11, 2001;

5) Decision of the Butler County Board of Zoning Appeals,

In Re: Application of Keller, Case No. Bz.AQ1-26C,

issued July 26, 2001.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

In addition to the provisions cited by the petitioners,

respondents rely upon 28 U.S.C. § 1257 and Ohio Revised

Code Sections 2506.04, 163.05, 163.09, 163.17, 163.54,

163.55 and 163.61.’

> These statutory provisions are provided in Appendix No. 12.

STATEMENT OF THE CASE

The petition before the court arises from a long running,

bitter and litigious dispute between two adjacent private

landowners in Butler County, Ohio, the Lorizes who lived

and the Kellers who run a business on their property with

Michael Simons as Ridge Wind Quail Hunts, LLC. In 2001,

Mr. Keller was cited for zoning ordinance violation in Jn Re:

BZAOI1-17V, see Appendix No. 1, which case came on for

hearing before the Butler County Board of Zoning Appeals on

April 17, 2001. Prior to the, Board of Zoning Appeal

violation hearing, petitioners sued the Kellers, Ridge Wind,

the National Shoot to Retrieve Association and the Chief of

the Division of Wildlife, Department of Natural Resources of

the State of Ohio in the Butler County Court of Common

Pleas Case No. CV01-04-0714. See Complaint, Appendix

No. 2, pp. 3a - 14a. The Board of Zoning Appeals upheld the

violation notice.

In May of 2001, the Kellers applied for a conditional use

permit for a commercial recreational use and a hearing was

set for July 17, 2001. The petitioners were provided notice

of the hearing as required by law and appeared with counsel

at the hearing. The Lorizes presented testimony and evidence

at the initial hearing. On July 26, 2001, the Board of Zoning

Appeals issued its decision granting the conditional use permit

with seventeen conditions. See Appendix No. 3, pp. 15a -

17a. This permit for a commercial recreational use permitted

Ridge Wind to operate field trials for its patrons, sportsmen

wishing to train and exhibit their hunting dogs’ abilities.

Subsequent to the grant of the permit to the Kellers with

conditions, the Lorizes appealed this decision to the Butler

County Court of Common Pleas, Case No. CV01-08-1777,

challenging the decision of the Board of Zoning Appeals. See

Appendix No. 4, pp. 18a - 19a. The Lorizes lost their

challenge.* One of the original conditions on the permit was

that the Kellers had to come back for annual review. During

the review process, some of the other conditions were

modified. Certain of these modifications are subject to an

appeal by the Lorizes in Butler County Court of Common

Pleas Case No. CV05-07-2228. See Appendix No. 10, pp.

Sla - 52a.

Unhappy with their results in State Court, the Lorizes

turned to Federal Court. Initially, they filed suit against the

defendants in the Eastern District of New York, Case No. 04-

CV-01331-(SJF)-(ARL). After that case was dismissed for

improper venue, the Lorizes re-filed their action in the

Southern District of Ohio, Western Division. ‘The United

States District Court for the Southern District of Ohio

dismissed all of the petitioners’ claims, including those for

* On December 11, 2001, an Order to consolidate the |orizes civil

suit against the Kellers, Case No. CV01-04-0714, with the appeal

of the Board of Zoning Appeals decision, Case No. CV)1-08-1777,

was issued consolidating the zoning appeal into the civil case. See

Appendix No. 5, pp. 20a - 21a. On February 20, 2002, plaintiffs

moved for leave to file an amended complaint which: motion was

granted. The amended complaint added the Butler County Board

of Zoning Appeals members and the County Commission. See

Appendix No. 6, pp.22a - 23a. The Final Appealatle Order on

the Zoning Appeal was entered on April 17, 2003 affirming the

decision of the Board of Zoning Appeals. See Appendix No. 7,

pp. 36a - 38a. Petitioners then appealed to the Twelfth District

Court of Appeals. The Court of Appeals affirmed the clecision. See

In Re: Application of Charles E. Keller, 2003-Ohio-6549 (Dec. 8,

2003). Appendix No. 8, pp. 39a - 45a. However, it was not until

December 6, 2005 that the Court of Common Pleas granted

summary judgment to the county officials dismissing them from the

consolidated lawsuit. See Appendix No. 9, pp. 46a - 50a.

injunctive relief. The Lorizes appealed and requested a

preliminary injunction pending appeal. Specifically, with

respect to the Butler County officials, the Lorizes requested

the Court enjoin the permitting and licensing of the Kellers’

shooting, dog training and field trial activities, and issue an

injunction against the County conditional use permit.°

SUMMARY OF THE ARGUMENT

The District Court correctly did not rule on petitioners’

request for an injunction. Likewise, the Sixth Circuit Court

of Appeals correctly denied plaintiffs’ request for an

injunction. The lower courts’ decisions were supported by

several federal court doctrines which operate to bar

petitioners’ requests for relief. Most notably, this Court’s

Rooker-Feldman doctrine barred the lower courts from ruling

on petitioners’ claims for lack of subject matter jurisdiction.

Rooker-Feldman arises from Rooker v. Fidelity Trust Co. , 263

U.S. 413 (1923) and District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983) which stand for the

proposition that state courts’ decisions be given full force and

effect and that only the United States Supreme Court has

jurisdiction to review state court decisions.

Significantly, subject matter jurisdiction also is lacking

even in this Court as well as the lower federal courts due to

a lack of ripeness under this Court’s decision in Williamson

County Regional Planning Commission v. Hamilton Bank of

° See Motion for Preliminary Injunction Pending Appeal filed in the

United States Court of Appeals for The Sixth Circuit, Case No. 06-

3427, Page 2, attached as Appendix No. 11, p. 55a (only the

portion of the Motion and Memorandum Requesting Relief were

reproduced).

Johnson City, 473 U.S. 172 (1985). Petitioners’ claims are

not ripe under Williamson County since they fail to request

compensation using state court procedures and fail to satisfy

Williamson County’s finality requirement that they exhaust the

possibilities of obtaining relief from the Butler County Board

of Zoning Appeals - the agency issuing the Order which they

now seek to overturn by injunction.

In addition to these jurisdictional bars to petitioners’

claims for relief, several doctrines warrant federal court

abstention from interference with state court decisions. First,

Colorado River abstention warrants federal courts <o leave this

matter in the hands of state court where it was first filed and

is presently pending. Colorado River Water Conservation

Dist. v. U.S., 424 U.S. 800 (1976). Not only was the Butler

County Court of Common Pleas the first court ‘o entertain

plaintiffs’ complaints, Butler County is the location of the

majority of the witnesses, the evidence, the underlying county

agency and is best suited to rule on petitioners’ essentially

state law nuisance claims. /d. Second, Pullman abstention

likewise warrants showing comity toward the decisions and

regulatory scheme set out by state government. Railroad

Commission of Texas v. Pullman, 312 U.S. 496 (1941).

Petitioners’ state law nuisance claims which predominate the

current case should be determined in state court which would

obviate the need for any federal proceedings. Last but not

least, Burford abstention limits federal court equitable

jurisdiction which otherwise would interfere with the orders

of state administrative agencies particularly where difficult

questions of state law or the exercise of federal review would

be disruptive to states’ efforts to establish a coherent policy in

matters of substantial public concern: Burford v. sun Oil Co.,

319 U.S. 315 (1943).

Even the substantive law implicated by petitioners’ claims

warrants a denial of their petition. This Court has long held

that injunctive relief is not available from a taking claim

where the aggrieved party can bring a suit for compensation.

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984). Ohio

has compensation statutes for eminent domain proceedings.

R.C. 163.01, et seq. Furthermore, the Sixth Circuit Court of

Appeals has held that even where a suit for eminent domain

was not instigated by the government, mandamus provides an

appropriate procedure to an aggrieved landowner to obtain

compensation in Ohio. Coles v. Granville, 448 F.3d 853, 862

(6" Cir. 2006).

Petitioners’ claims do not fit within any of the categories

this Court has established for per se rules to qualify for an

injunction. Only facial challenges or instances where a

petitioner’s right to protect his property has been criminalized

has this Court recognized the right to injunctive relief. Hynes

v. Grimes Packing Co., 337 U.S. 86 (1949); Duke Power

Company v. Carolina Study Group, Inc., 438 U.S. 59 (1978).

Cases in other areas of law such as criminal action related to

seizure or due process violations do not constitute grounds for

injunctive relief because petitioners’ complaint sounds in the

Fifth Amendment. Compare Lingle v. Chevron U.S.A. Inc.,

544 U.S. 528 (2005) to United States v. James Daniel Good

Real Property, 510 U.S. 43 (1993) and Greene v. Lindsey,

456 U.S. 444 (1982). Petitioners can cite to no specific

examples, and respondents can find none where a zoning

decision on an adjacent owner resulted in a taking upon a

complainant. This is not a case of physical occupation, as

argued by the petitioners, when this case is compared to

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419 (1982). This case is also not one involving the state

holding petitioners’ use a nuisance as in Lucas v. South

Carolina Coastal Council, 505 U.S. 1003 (1992). This case

is closer to Penn Central Transportation Co. v. New York

City, 438 U.S. 104 (1978). Instead of the regulation directly

regulating petitioners’ property, the regulation regulated the

property of the Kellers, co-defendants in this litigation, which

regulation had no more than an incidental eff2ct on the

property of the plaintiffs.

Petitioners have utterly failed to show that the property

regulation of the Kellers’ property was anything other than

that contemplated by Village of Euclid v. Ambler Realty Co..,

72 U.S. 365 (1926). As this Court originally stated in

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) and

more recently Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

(2005) (unanimous decision), government has tie right to

affect property values through regulation without paying for

it so long as it does not go too far. Petitioners are aot entitled

to injunctive relief. City of Monterey v. Del Monie Dunes at

Monterey, Ltd., 526 U.S. 687, 710 (1999); Williamson

County Regional Planning Commission v. Hamilton Bank of

Johnson City, 473 U.S. 172, 197 (1985) (citations omitted).

As indicated above, one of the central issues fatal to

petitioners’ claim is that their federal claims are premature.

Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

Additionally, petitioners failed to show that the ‘ssuance of

injunction pending appeal would subject them to irreparable

injury. Quite the contrary, injunction pending appeal would

likely subject the Kellers to irreparable injury, potentially

cause substantial harm to others and not be ia the public

interest. In addition, the petitioners do not have a strong

likelihood of success on the merits regarding their federal

claims. The merits of petitioners’ state court nuisance claims,

which are currently being litigated, should not weigh into

whether petitioners have met all of the requiremeats to be in

federal court and or whether they will succeed with their

claims against the Butler County officers in federal court.

REASONS FOR DENYING THE WRIT

1. The Court Lacks Jurisdiction Over the Petitioners’

Claims

A. The Court Lacks Jurisdiction Under the Rooker-

Feldman Doctrine

In the District Court, the Lorizes requested the Court to

enjoin the permitting and licensing of the Keller property and

an injunction against the County conditional use permit.° It

is clear from the petitioners’ Motion that they seek this Court

to overturn the Ohio Common Pleas and Court of Appeals

decisions affirming the Board of Zoning Appeals’ grant of a

permit to the Kellers. This request for relief is an improper

invocation of Federal Jurisdiction under the Rooker- Feldman

doctrine. The District Court properly dismissed this case

Stating

“Under 28 U.S.C. §1257, final judgments of state

courts are entitled to receive full faith and credit from

this court, and the subordinate federal courts do not

have jurisdiction to review these final judgments of

state courts because the review of such determinations

can only be obtained by the United States Supreme

Court by writ of certiorari. See Rooker v. Fidelity

Trust Co., 263 U.S. 413, 415-416 (1923) (an appeal

through the state courts to the U.S. Supreme Court is

* The District Court did not rule upon the Motion for Preliminary

Injunction Pending Appeal.

the exclusive means by which a state court judgment

may be reviewed for constitutional error); District of

Columbia Court of Appeals v. Feldman, 469 U.S.

462, 476, 483-484 n. 6 (1983).’

While the Court of Appeals based its decision on the

plaintiffs’ failure to show irreparable harm, the District

Court’s ruling that Rooker-Feldman applies should be upheld,

and the Lorizes’ Petition should be denied.

Pursuant to the Rooker-Feldman doctrine, federal district

courts lack subject matter jurisdiction “to engage ‘n appellate

review of state court proceedings or to adjudicate claims

‘inextricably intertwined’ with issues decided in state court

proceedings.” Peterson Novelties, Inc. v. City of Berkley,

305 F.3d 386, 390 (6" Cir. 2002). The label of civil rights

action cannot confer jurisdiction on a federal court to

relitigate questions previously decided in state courts.

Coogan y. Cincinnati Bar Assn., 431 F.2d 1206, 1211 (6"

Cir. 1970). The Civil Rights Act was not designed to be used

as a substitute for the right of appeal, nor as a vehicle to

collaterally attack a state court judgment by re-litigating the

issues already decided. /d.; Tonti v. Petropoulos, 656 F.2d

212 (6" Cir. 1981). A two-part test is used to determine

whether Rooker-Feldman applies: 1) the federal claim is

inextricably intertwined with the state court judgment, and

2) the federal claim must be a specific grievance that a law

” See Report and Recommendation that the defendants’ Motion to

Dismiss (Docs. 14, 19) and For Judgment on the Pleadings (Doc.

25) be granted; that all claims against the non-moving defendants

be sua sponte likewise dismissed; and that this case be closed

(hereinafter Report & Recommendation) of Magistrate Black dated

12/29/05, Case No. 1:05CV306, (See Eeport and

Recommendation, Petition Appendix, p. 14a).

was improperly or unconstitutionally applied, rather than a

general challenge to the constitutionality of a state law. Exxon

Mobil Corp. v. Saudi Basic Industries Corp. , 544 U.S. 280,

125 S. Ct. 1517, 1523 (2005) (citations omitted). Because the

facts alleged in the complaint satisfy both of these elements,

the case was properly dismissed for lack of subject matter

jurisdiction.

In affirming the Butler County Board of Zoning Appeals,

the Ohio Twelfth District Court of Appeals specifically held

that “the lower court did not abuse its discretion [in affirming

the decision of the Board of Zoning Appeals] as there was

evidence in the BZA findings to support its decision”. Jn Re:

Application of Keller, 2003-Ohio-6549, at § 20 (Ohio App. 12

Dist. 2003). If this Court were to grant the Lorizes’ any

relief pursuant to their request for an injunction, it would

necessarily require an evaluation of the Twelfth District’s

order in face of an acknowledgment by plaintiffs that the state

court already declined them this relief. (Complaint, R. 1,

q 12, 59, attached to Petition Appendix, p. 29a). Rooker-

Feldman prohibits such a result.

The Lorizes here have not challenged the constitutionality

of Ohio laws governing zoning appeals. Rather, they

requested the lower courts reverse, by injunction, the state

court decision on the grounds that the state court reached an

incorrect result. Rooker-Feldman is implicated only where

plaintiffs bring a specific grievance regarding a particular

decision, not where plaintiffs make a general challenge to the

constitutionality of a state law as unconstitutional per se.

Exxon Mobil Corp., 125 S. Ct. at 1523; Tropf v. Fidelity

National Title Ins. Co., 289 F.3d 929, 937 (6" Cir. 2002).

Accordingly, the District Court correctly dismissed the

complaint and request for injunctive relief under Federal Rule

of Civil Procedure 12(b)(1) for lack of jurisdiction.

B. The Court Lacks Jurisdiction Due to Lack of

Ripeness Under Williamson County Regional

Planning Commission vs. Hamilton Bank of Johnson

City, 473 U.S. 172 (1985)

The District Court correctly held that “‘[i]f a claim is

unripe, Federal Courts lack subject matter jurisdiction and the

complaint must be dismissed. This deficiency may be raised

sua sponte if not raised by the parties.’” Bigelow v. Michigan

Dept. of Natural Resources , 970 F.2d 154, 157 (6" Cir. 1992)

(other quotations and citations omitted).*

In Williamson County Regional Planning Coimmission v.

Hamilton Bank of Johnson City, 473 U.S. 172, 194-195

(1985) (quoting Ruckelshaus v. Monsanto Co., 467 U.S. 986,

1013, 1018 (note 21) (1984), this Court held that “if the

government has provided an adequate process for obtaining

compensation, and if resort to that process ‘yield{s] just

compensation’ then a property owner ‘has no claim against the

government’ for a taking.” Ripeness not only has a

component that an alleged taking victim seek compensation,

but also that the victim obtain a final decision from the

administrative agency before the question of whether a taking

has occurred is judicially reviewable at the federal level. Jd.

at 192. While plaintiffs’ petition is read as one for injunction

pending appeal since the Sixth Circuit has not yet ruled on the

merits as to the dismissal of all of plaintiffs’ clairas, a lack of

jurisdiction for lack of ripeness is equally fatal to their request

for injunction as to their claim for money damages.

Ruckelshaus v. Monsanto Co., 467 U.S. at 1016.

* See Report and Recommendation, Petition Append.x, p. 12a.

{I1. The Lower Courts Correctly Abstained From

Reviewing the Matter

After the Lorizes filed this action in the District Court, the

Butler County Court of Common Pleas dismissed the Butler

County Board of Zoning Appeals, its members and the Butler

County Commissioners from the ongoing and parallel State

Court case in Butler County Common Pleas Case No. CV01-

04-0714.° However, the Lorizes subsequently continued to

litigate the conditional use permit in State appellate court.

(See Notice of Appeal of Decision of the Zoning Board of

Appeal of Butler County, Ohio, Butler County Common Pleas

Case No. CV05-07-2228).'° These cases remain open today.

Several applicable abstention doctrines therefore limited the

lower court’s ability to proceed.

A. Colorado River Abstention Limits This Court’s

Review

The abstention doctrine established by Colorado River

Water Conservation Dist. v. U.S., 424 U.S. 800 (1976)

established a balancing test for federal courts to evaluate

whether to abstain from civil cases out of deference to parallel

state proceedings. Five factors must guide any decision:

(1) which court first assumed jurisdiction over the res

or property involved - in this matter, that would be

*See Appendix No. 9, p. 46a.

See Appendix No. 10 , p. Sla. On June 9, 2005, the Butler County

Board of Zoning Appeals reviewed the conditions on the Keller property

and removed some of the conditions. The Lorizes filed an appeal as to this

decision, Case No. CV05-07-2228.

the Butler County Common Pleas Court

(Complaint, R.1, 9§ 14, 27-32);

(2) the inconvenience of the federal forum;

(3) the desirability of avoiding piecemeal litigation - this

case is duplicative and adds nothing to the ongoing

State court litigation;

(4) the order of filing for the state and federal actions -

this action was filed over four years after ‘he Lorizes

filed the March 2001 Complaint in state court

(Complaint, R.1, 4 14); and

(5) the presence of a federal question - for all the reasons

articulated in the other parts of this brief, the Lorizes

failed to state a cognizable federal question as a matter

of law.

Id. at 818-19 (quoted language in italics). This Court’s

abstention from deciding this matter would further the

important policies of “conserving . . . judicial resources” and

“avoiding duplicative litigation.” /d. at 817.

B. Pullman Abstention Limits This Court’s Review

This Court has likewise endorsed showing appropriate

comity and a “scrupulous regard for the rightful independence

of state governments.” Railroad Commission of Texas v.

Pullman, 312 U.S. 496, 500-501 (1941) (quoting Cavanaugh

v. Looney, 248 U.S. 453, 457 (1919)). Pullman abstention is

built upon the traditional avoidance of unnecessary

constitutional decisions and the sovereign respect due to state

courts. /d. It requires a federal court, faced with a

constitutional challenge (or putative constitutional challenge)

to a state law (or, in this case, a state ruling), to defer the

constitutional question and avoid a direct confrontation if a

decision from the state court “might avoid in whole or in part

the necessity for federal constitutional adjudication, or at least

materially change the nature of the problem.” Harrison v.

NAACP, 360 U.S. 167, 177 (1959). Here, deferring to the

ongoing state court obviates the need for this Court’s

intervention.

C. Burford Abstention Limits This Court’s Review

Finally, the Burford abstention doctrine - which arises

from this Court’s decision in Burford v. Sun Oil Co., 319

U.S. 315 (1943) - is likewise applicable. In Burford, the

Court held that a federal court should abstain from granting

relief that will disrupt a complex state regulatory scheme. In

amore recent formulation of the doctrine, this Court held:

Where timely and adequate state-court review is

available, a federal court sitting in equity must decline

to interfere with the proceedings or orders of state

administrative agencies: (1) when there are “difficult

questions of state law bearing on policy problems of

substantial public import whose importance transcends

the result in the case then at bar”: or (2) where the

“exercise of federal review of the question in a case

and in similar cases would be disruptive of state

efforts to establish a coherent policy with respect to a

matter of substantial public concern.”

New Orleans Public Serv., Inc. v. Council of the City of New

Orleans, 491 U.S. 350, 361 (1989). In this case, the Lorizes

seek to overturn permits issued by the Ohio Department of

Natural Resources and County zoning decisions all of which

have been approved by Ohio state courts and are still being

litigated in the Butler County Court of Common Pleas. Ohio

has created a coherent policy with respect to 2 matter of

substantial public concern, and this Court should not make

decisions implicating it. Federal courts have repeatedly held

that federal challenges to land-use permits such as the one at

bar are subject to Burford abstention. See, ¢.3., Ellis v.

Gallatin Steel Co., 390 F. 3d 461, 479-81 (6" Cir. 2004);

McDonald y. Village of Newport, 164 F.3d 963 (6" Cir.

1999): Ada-Cacade Watch Co., Inc. v. Cascade Resource

Recovery, Inc., 720 F.2d 897, 903 (6" Cir. 1983).

In the instant case, the Lorizes want this Court to review

the decisions of state and local bodies granting permits and

licenses to the Ridge Wind defendants regarding; the use of

their land. Such a controversy is entirely a local matter, and

the federal courts should abstain from exercising jurisdiction

over it. Ohio R.C. § 2506.04 provides the legal basis upon

which a Court of Common Pleas can reverse an ad'ninistrative

officer or agency. The Lorizes have alrezdy availed

themselves of administrative appeals on at least two occasions

with regard to the current controversy; Butler County

Common Court of Common Pleas Case No. CV01-04-0714

(in which the Butler County Commissioners and the Butler

County Board of Zoning Appeals and its members were

dismissed in December of 2005) and more recen’'ly in Butler

County Court of Common Pleas Case No. CV05-07-2228

(still pending). A federal court’s review would :herefore be

improper. For all these reasons, this Court should uphold the

lower court’s denial of plaintiffs’ motion for a2 injunction

pending appeal.

III. Petitioners Are Not Entitled to an Injunction When

a Suit For Compensation Can Be Brought

As stated in Ruckelshaus v. Monsanto Co. , this Court held

_ “equitable relief is not available to enjoin an alleged

taking of private property for public use, duly

-authorized by law, when a suit for compensation can

be brought against the sovereign subsequent to the

taking.”

467 U.S. at 1016 (citations omitted). Petitioners do not claim

that the Butler County Board of Zoning Appeals is not a duly

authorized body under Ohio state law, nor have they alleged

that the Butler County Zoning ordinances were defective or

otherwise not in full force and effect. Thus, the actions of the

Butler County Board of Zoning Appeals were, as this Court

Stated in Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538

(2005) (unanimous opinion), typical

““government regulation [which] by definition [,]

involves the adjustment of rights for the public good’

Andrus v. Allard, 444 U.S. 51, 65, 100 S. Ct. 318, 62

L. Ed. 2d 210 (1997) [noting] that “government hardly

could go on if to some extent values incident to

property could not be diminished without paying for

every such change in the general law’ [Pennsylvania

Coal Co. v.] Mahon, [260 U.S. 393,] 413 [(1922)].”

A. Ohio Has Provisions For Awarding Compensation

For Persons Whose Property Has Been Condemned

The Lorizes have statutory remedies under Chapter 163 of

the Ohio Revised Code.'' The Ohio system even provides for

the payment of interest to the property owner to ensure full

compensation. R.C. 163.17." The Ohio system goes so far

as to make payments to persons displaced from their dwelling

so they can acquire a comparable replacement dwelling. R.C.

163.54" and .55.'* Also, incidental expenses may be paid to

the land owner. R.C. 163.61". Therefore, Ohio

condemnation statutes do provide compensation, contrary to

the Lorizes’ contention.

B. In Ohio, Mandamus Is the Appropriate Procedure

to Seek Compensation When a Case of

Condemnation Has Not Been Brought

The Sixth Circuit Court of Appeals noted n Coles v.

Granville, 448 F.3d 853, 862 (6" Cir. 2006) (quoting Kruse

v. Village of Chagrin Falls, Ohio, 74 F.3d 694, 700 (1996):

“In regulatory cases, where the government has

fulfilled its obligation to provide notice to the property

' See Appendix No. 12, pp.57a - 60a for statutes R.C. 163.05 and

163.09.

'2 See Appendix No. 12, p. 61a - 62a

'> See Appendix No. 12, p. 63a.

' See Appendix No. 12, p. 64a.

- See Appendix No. 12, p. 65a.

owner, it may be fair to place the burden of making

the next move on the landowner. It may make sense

to require landowners to pursue relief through

administrative appeals and the mandatory injunction

process when the landowners know in advance that the

government is planning action that threatens their

property . . .since there are generally numerous

opportunities available to landowners to be heard and

to attempt to prevent a proposed zoning ordinance

from taking effect, or to reach a compromise with the

authorities that permit some alternative use of the

land.’”

While in Kruse the court also held that mandamus does not

afford an appropriate remedy for one whose land was taken

by physical invasion,74 F.3d at 700, Coles held that this was

a decision only made necessary due to the temporal flux of

Ohio state law which had since resolved through a minimum

of six Ohio Supreme Court decisions affirming the use of

mandamus and the general acceptance of mandamus by Ohio

intermediate courts. Coles, 448 F.3d at 863 (citations

omitted).

Thus, Ohio’s remedy of mandamus is now firmly

established and Ohio provides for a statutory scheme to

compensate property owners whose land has allegedly been

taken, facts which weigh heavily against the prospect of

injunctive relief. See Sampson v. Murray, 415 U.S. 61, 90

(1974) (citations omitted).

1V.The State Agency Decision Which Petitioners Find

Objectionable Merely Affected Their Property Interests

Through A Proper Exercise of State Police Power

Adjusting of the Benefits and Burdens of Property

Ownership and Does Not Qualify For Application of a

Per Se Taking Rule or Injunction

In Lucas v. South Carolina Coastal Council, 505 U.S.

1003, 1018 (1992) (emphasis added, italics in original), this

Court held that

“the functional basis for permitting the government,

by regulation, to affect property values without

compensation-that ‘government could hardly zo on if

to some extent values incident to property could not be

diminished without paying for every such change in

the general law’ [Pennsylvania Coal Co. v. Mahon,

260 U.S. 393,] 413 [(1922)] - does not apply to the

relative rare situations where the government has

deprived a landowner of all economically beneficial

uses.”

See also Williamson County Regional Planning Commission

v. Hamilton Bank of Johnson City, 473 U.S. a: 199. The

petitioners have failed to establish that they have been

deprived of all beneficial uses. They merely argue that their

two chosen uses have been interfered with as a result of the

business of Ridge Wind.

This Court, in Lingle v. Chevron U.S.A. Inc., 544 U.S.

528, 537-540 (2005), discussed the practical limitations of per

se rules such as found in Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992) (depriving an owner of all

economically beneficial use) and Loretto v. Teleprompter

Manhattan CATV Corp. , 458 U.S. 419 (1982) (granting rights

over the property of another resulting in a physical invasion,

no matter how minor) and the balancing test set forth in Penn

Central Transportation Co. v. New York City, 438 U.S. 104

(1978) (requiring the evaluation of the economic impact of the

regulation, its interference with distinct investment backed

expectations, the character of the governmental action and

whether the regulation was merely an adjusting of the benefits

and burdens of economic life)."° As noted throughout this

response to the Petition, there are many reasons why an

injunction does not lie.'’ Most notably among these is that the

petitioners do not fall within the narrowly prescribed per se

rules requiring compensation or an injunction.

A. Petitioners’ Claim Is An As Applied Challenge, Not

a Facial Challenge, For Which An Injunction Is

Not Available

As noted in Section I(A), petitioners are making an as

applied challenge. However, the jurisprudence is clear that

injunctions are generally only available for pre-enforcement

facial challenges. Hynes v. Grimes Packing Co., 337 U.S. 86

'© Similar situations as between petitioners and the Ridge Wind

defendants could have arisen with other commercial uses. Had

Ridge Wind been a golf course or driving range, petitioners could

have suffered overshot golf balls. Had Ridge Wind been a

motocross course, petitioners could have suffered noise, dust,

sediment laden run off and increased air pollution. Had Ridge

Wind been a landfill, petitioners could have suffered increased

noise, odor and scavengers.

'’ See also City of Monterey v. Del Monte Dunes at Monterey, Ltd.,

526 U.S. 687, 710 (1999); Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 197

(1985) (citations omitted).

(1949); Daniels v. Area Planning Commission of Allen

County, 306 F.3d 445 (7" Cir. 2002). Other caszs cited by

petitioners for the proposition that an injunction is available

are not applicable. See United States v. James Duniel Good

Real Property, 510 U.S. 43, 48 (1993) (drug forfeiture laws

require due process pre-seizure); Greene v. Lindsey, 456 U.S.

444, 450-451 (1982) (requiring actual service for notice of

eviction proceedings). In Duke Power Company ». Carolina

Study Group, Inc., 438 U.S. 59, 71 fn. 15, (1978), this Court

indicated where an individual is subject to a taking, he can

seek a declaration as to the constitutionality of the legislation

under the Declaratory Judgment Act. However, petitioners

are not seeking advanced assurance of adequate compensation

or a declaration of unconstitutionality regarding threatened

action. They are seeking to have this Court reverse the

decisions of the Butler County Board of Zoning Appeals,

Butler County Court of Common Pleas and the Ohio Twelfth

District Court of Appeals allowing a commercial recreational

use permit. As this is not a facial challenge but an as applied

challenge, injunctive relief is not available and as noted

above, Rooker-Feldman applies.

B. Petitioners’ Rights to Protect Their Property Have

Not Been Criminalized

Petitioners discuss several cases as standing for the

proposition that an alleged taking victim is entitled to an

injunction. While some of these cases can be distinguished on

the basis that they were facial challenges to the

constitutionality of laws, some were as applied challenges.

However, petitioners’ cited cases of takings of rights

appurtenant to real property, whether as applied challenges or

facial challenges, which granted injunctions can be

distinguished on the fact that the alleged taking victim’s

ability to protect or enjoy its property rights had been

criminalized.

In Hynes v. Grimes Packing Co. , 337 U.S. 86, 97 (1949),

the Regional Director, Fish & Wildlife Service, Dept. of the

Interior Frank Hynes was charged with the duty of enforcing

Acts of Congress and regulations issued thereunder as related

to waters in the proximity of Kodiak Island in Alaska. Under

one regulation, Hynes “threatened the seizure of all boats and

equipment used to fish in the waters covered by this

regulation to respondents’ substantial and irreparable loss.”

Id. Both the District Court and the Ninth Circuit Court of

Appeals had held the regulation invalid and enjoined its

enforcement. /d. at 96. Violation of the applicable regulation

could result in fines, imprisonment, seizure of boats, gear,

equipment, and the catch with forfeiture to the United States.

Id. at99. The Court held

“the sanctions deny to respondents an adequate

remedy at law for to challenge the regulation in an

ordinary criminal proceeding is to hazard a loss

against the payment of a license fee in compliance

with the fishing rules of the natives. Yet, to stay out

of the reservation prevents the profitable operation of

the canaries.” '®

Id. at 99. In light of the criminalization of the ability to

profitably carry on their businesses as they had in the past and

given the statute’s invalidity, injunctive relief was necessary

for the protection of property rights in the context of the facial

'® The regulation gave exclusive right to the native Indians to issue

permits for fishing inside a restricted area set by the Indians which

area was protected by the regulation. /d. at 98.

challenge. /d. at 98-99. Thus, Hynes is readily

distinguishable from the facts of the case at bar as the

plaintiffs are making an as applied challenge and have not

alleged a criminalization of their ability to protect their

property.

Petitioners, assuming it is determined that they have

suffered a private taking, cite Montgomery v. Car’er County,

226 F.3d 758 (6" Cir. 2000), for the proposition that they are

entitled to have the taking desist (i.e., an injunction) as well

as to more than “just compensation.” Petition at p-. 19 (citing

Montgomery v. Carter County, 266 F. 3d at766).'° However,

the Montgomery court does not explore the issue of equitable

relief stating merely

“private-use takings, rare as they may le, are

unconstitutional regardless of whether just

compensation is paid. See, e.g., [Hawaii Housing

Authority v.] Midkiff, 467 U.S. [229,] 245, 1048S. Ct.

2321 [(1984)] (‘a purely private taking could not

withstand the scrutiny of the public use requirements;

it would serve no legitimate purpose of government

and would thus be void.’); Porter v. DiBlasio, 93

F.3d 301, 310 (7" Cir. 1996) (‘the Constitution

forbids a taking executed for no other reason than to

confer a private benefit on a particular private party,

even when the taking is compensated.’). Moreover,

eminent domain proceedings do not supply the

appropriate remedy. Unwilling landowners must

accept being forcibly bought out by the state if the

'9 Montgomery v. Carter County, was incorrecily cited by

petitioners at p. 4 as “266 F.3d 758, 766.” The correct cite is 226

F.3d 758.

purchase is for a public use and if just compensation

(which is ‘fair market value,” Gamble [v. Eau Claire

County], 5 F.3d [285,] 287 {(7" Cir. 1993)] is paid.

A person whose property is confiscated for a strictly

private use need not settle for ‘just compensation.’”

Montgomery, 226 F.3d at 766-767.

Even if Montgomery could be construed as permitting

injunctive relief to enjoin a private-use taking, it is

distinguishable on multiple grounds from the claims of the

petitioners. The facts in Montgomery were that Mary L.

Nave had owned property which included an eleven foot wide

driveway more than five hundred feet long. /d. at 761. At

some point in time, the driveway became listed as a county

road. /d. at 762. After victimized by two attempted

robberies, one successful, she wanted to erect a fence and

gate on the driveway. /d. At about this same time, her

daughter, in trying to take care an underground water pipe,

was informed that the driveway was a public road. /d. at 763.

Eventually, the county took the position that the driveway was

a public road. /d. The court noted Tennessee law prohibited

the obstruction of public roads and that fencing or gating of

the driveway would have been an illegal act. /d. at 762.

Thus, the declaration that the driveway was a county road

allowed any member of the public to occupy the road and

gave Nave no right to exclude them. Additionally, attempts

to exclude members of the public were criminalized by

Tennessee statute. In contrast, petitioners’ right to exclude

members of the public from their property is intact.

Likewise, their ability to fence off their property has not been

criminalized. Thus, the facts of Montgomery v. Carter

County are not analogous to the facts of the petitioners’ case.

V. Petitioners Are Not Otherwise Entitled to [njunctive

Relief for Any of the Alleged Constitutional Violations

They Raise

The petitioners allege that their substantive due process

rights have been violated by state action qualifying petitioners

for injunctive relief due to irreparable harm. Petition at p. 28

(citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 543

(2005). However, the examples that Lingle cites were failing

“to meet the ‘public use’ requirement or [to be] so arbitrary

as to violate due process .. .” Id. at 543. Lingle clarified

that a taking analysis and a due process analysis are two

separate issues. /d. at 540. In Lingle, this Court noted that

the due process test to challenge a zoning ordinance

announced in Village of Euclid v. Ambler Realty Co., 72 U.S.

365, 395 (1926), which held “that a municipal zoning

ordinance would survive a substantive due process challenge

so long as it was not ‘clearly or arbitrary and unreasonable,

having no substantial relation to the public health, safety,

morals, or general welfare,’” was still proper due process

analysis for constitutionality. Lingle, 544 U.S. at 541

(emphasis in original). As noted previously, many conditions

were imposed upon the Kellers for the public health, safety

and general welfare based upon the testimony presented to the

Board of Zoning Appeals. While there could hav2 been more

restrictive conditions, petitioners cannot establish that the

decision was clearly arbitrary and unreasonable having no

substantial relation to the public health, safety, morals and

general welfare. Thus, petitioners cannot establish a

substantive due process violation by the Board of Zoning

Appeals and are not entitled to an injunction as the BZA’s

decision was clearly neither arbitrary nor unreasonable.

A. Petitioners’ Due Process Claims Are Premature

Prior To a Final State Agency Détision

This Court in Williamson County Regional Planning

Commission v. Hamilton Bank of Johnson City, clearly held

that a due process claim cannot be ruled upon until the person

affected obtains a final decision. 473 U.S. at 199-200; See

also Covington Court Limited v. Village of Oakbrook, 77 F.3d

177, 179 (7" Cir. 1996) (citing Williamson County, 473 U.S.

at 188-189). As discussed in I(B) above, petitioners have

failed to satisfy the finality requirement. Therefore, the

petition should be dismissed.

B. Petitioners Fail to Show Entitlement to an

Injunction Pending Appeal

Even if there had been a final decision, a substantive due

process violation through a land-use regulation entitles the

victim only to “authorized and appropriate actual damages.”

Id. at 197 (citations omitted). In addition to the fact that the

petitioners have not suffered irreparable harm from the permit

issued to the Kellers, petitioners’ alleged first amendment

claim does not entitle them to an injunction since the alleged

violation was neither threatened nor occurring at the time of

the relief being sought. See Elrod v. Burns, 427 U.S. 347,

373-374 (1976). The general test of assessing whether

someone is entitled to a preliminary injunction was set forth

in Southwest Williamson County Community Association v.

Slater, 243 F.3d 270, 277 (6" Cir. 2001) (interior quotations

omitted):

“a district court must consider: (1) whether the

movant has a strong likelihood of success on the

merits; (2) whether the movant would otherwise suffer

irreparable injury; (3) whether issuance of a

preliminary injunction would cause substantial harm to

others; and (4) whether the public interest would be

served by the issuance of a preliminary injunction.”

As already noted, actual damages are the appropriz.te measure

for relief. However, due to the lack of finality with the

petitioners failing to request variances or other relief to

protect their property, the effect of the potential application of

zoning by the Board of Zoning Appeals on >etitioners’

property cannot be measured. See Williamson County

Regional Planning Commission, 473 U.S. at 200.

While the Sixth Circuit indicated petitioners may have a

chance of success on the merits, it did not offer an opinion as

to which, if any, of the myriad of claims the petitioners have

brought would likely have success. Petition Appeidix, p. 2a.

Likewise, there was a lack of discussion as to harm to others

and the public interest. Petition Appendix, pp. 2a-3a. The

potential of an inunction causing harm to others such as the

Kellers is obvious. Suffering an injunction would cause a

complete loss of their business revenue related to their

commercial recreational use permit and may also expose them

to additional liabilities as a result of not being able to fulfill

obligations to patrons. Residents of Butler County also may

be harmed if an injunction were to issue as they would likely

be forced to travel farther to find a comparable facility for

field trials and other sporting events. Lastly, the public

interest would not be served by an injunction against a permit

appropriately issued after hearings and proper notice to

affected landowners and multiple state court appeals.

Kallstrom v. City of Columbus, 163 F.3d 1055, (6 Cir.

1998) is also distinguishable from the facts of petitioners’

claims. In Kallstrom, the City of Columbus threatened of

release confidential personal information of undercover police

officers to the criminal gang subjects of their investigation

implicating their fundamental privacy rights under the due

process clause. /d. at 1060-1061. However, the type of

governmental action in Kallstrom is not the same as faced by

the petitioners. In the instant case, the petitioners have been

subject to acts of private individuals, perhaps careless,

shooting into their property during field trial events. As

discussed above, the petitioners did not seek finality with

respect to the impact of the grant of the commercial

recreational use permit to the Kellers. Therefore, comparing

the undercover officers’ complete lack of control over their

identity and personal information once it is disclosed is not

the same as the situation faced by the Lorizes when they have

failed to explore all of the potential relief that could be

afforded to them through the county board of zoning appeals.

Likewise, in Kallstrom, the potential recipients of the

confidential, personal information had reasons to despise, hate

and seek retribution against the officers for their investigation.

Unlike in Kallstrom, the patrons of the Kellers who have

come to the property to conduct field trials have not been

criminally investigated or prosecuted by the Lorizes.”

Although, patrons could potentially be sued civilly should

they cause any damage to the Loriz property or subject to

prosecution for any criminal violations. However, these

consequences would be no different for anyone who damages

someone else’s property while in the course of hunting or

sporting activities.

CONCLUSION

This Court should deny plaintiffs’ petition for writ of

certiorari. Petitioners have continually failed to take the

*” See Complaint, 4 45, Petition Appendix, p. 40a.

appropriate steps which are prerequisites tc properly

requesting federal relief. This Court should abstain from

interfering with the state agency and court proceec.ings which

are currently ongoing. This Court should refuse injunctive

relief since the alleged taking claim is not ripe for federal

action. It is doubtful that plaintiffs could succeed on the

merits even if they had met the jurisdictional requirements of

a taking claim when this Court considers that the outcome of

the nuisance action in state court will likely be determative of

the litigation between the Kellers and the Lorizes. Butler

County requests that this Court deny petitioners’ request for

writ of certiorari.

Respectfully submitted

Jack C. McGowan

Counsel of Record

Michael E. Jacobs

McGowan & Jacobs, L.LC

246 High Street, Suite 400

Hamilton, OH 45011

(513) 844-2000

Counsel for Respondents

Lee Steenken, Thomas Bevington,

Gary Salmon, Thomas Turner,

Roger Gates, William E.

Balsinger, James M. lox, John

Zboril, Walt Filpot Alan Daniel,

Michael A. Fox, Gregory V.

Jolivette, Charles R. Furmon,

Anthony E. Dwyer, Richard K.

Jones and Robin Piper

APPENDIX

APPENDIX 1

Violation Number ]

Date February 28, 2001

NOTICE OF VIOLATION

UNDER BUTLER COUNTY ZONING RESOLUTION

BUILDING AND ZONING DEPARTMENT

130 HIGH STREET

HAMILTON, OHIO 45011

Charles & Christopher Keller

1242 Bauer Rd.

Somerville, Ohio 45064

Dear Mr. Keller:

You are hereby notified that your property in Milford Twp.

Somerville Ohio, 45064 parcel #’s F2610-012-000-028,

F2610-012-000-036 & F2610-012-000-037 is used in violation

of Butler County Zoning Resolution, Section(s) 6.01, 6.08,

7.01 & 7.03 in the following manner: Running of a

commercial recreation facility from your property in a open

yard A-! Agricultural Zoning District.

You are hereby requested to discontinue, cease and desist this

violation within ten (10) days from the date of the NOTICE

OF VIOLATION in compliance with the requirement of the

Zoning Resolution, Section 25.1 by: permanently ceasing the

use and removing all business activities from the property

unless and until you secure necessary Zoning authorization to

conduct a commercial recreation activity on this property.

Failure to comply will result in legal action begin taken!

If you have further question regarding this matter, or if you

wish to file an appeal from this order with the County Board

of Zoning Appeals, please contact my office @ (513) 887-

3204.

Respectfully,

/s/

James M. Fox

Zoning & Drainage Inspector

APPENDIX 2

IN THE COURT OF COMMON PLEAS

BUTLER COUNTY, OHIO

CASE NO.: CV2001-04-0714

[Filed April 9, 2001]

MICHAEL & CARA LORIZ

1566 OXFORD-MIDDLETOWN ROAD

HAMILTON, OHIO 45013

Plaintiffs,

Vv.

CHARLES E. KELLER

1242 BAUER ROAD

SOMERVILLE, OHIO 45064

AND

CHRISTOPHER E. KELLER

1242 BAUER ROAD

SOMERVILLE, OHIO 45064

AND

RIDGEWIND QUAIL FARMS

1242 BAUER ROAD

SOMERVILLE, OHIO 45064

eee eee ewe eee i ie iO iO Ss ae ae ie le

AND

NATIONAL SHOOT TO RETRIEVE

ASSOCIATION-OHIO REGION C/O

REGION PRESIDENT: DION BLISS

642 SANDUSKY STREET

ASHLAND, OHIO 44805

AND

MICHAEL J. BUDZIK CHIEF,

DIVISION OF WILDLIFE, OHIO

DEPARTMENT OF NATURAL

RESOURCES

1840 BELCHER DRIVE

BUILDING G-3

COLUMBUS, OHIO 43224

Defendants.

Nee Nw eee eee es Se”

COMPLAINT OTHER CIVIL

WITH JURY DEMAND

Now come the Plaintiffs, Michael and Cara Loriz, through

their Complaint, and causes of action, state as follows:

I. PARTIES

1. Plaintiffs, Michael and Cara Loriz (hereinafter referred

to as “Loriz”), are husband and wife, and are the owners of

residential property located at 1566 Oxford-Middletown

Road, Milford Township, Butler County, Ohio.

2. Defendants Charles E. Keller and Christopher E. Keller

are the owners of land located at 6508 State Road, Milford

Township, Butler County, Ohio, and more specifically

defined in the Butler County Auditor’s Property records as

comprised of parcel numbers F2610-012-000-028, F2610-

012-000-036, and F2610-012-000-037 (hereinafter referred to

as the “Keller Farm”).

3. The Defendants Charles E. Keller and Christopher E.

Keller (hereinafter referred to as “Kellers”), are residents of

Butler County, Ohio, residing at 1242 Bauer Road,

Somerville, Butler County, Ohio.

4. The Defendant Ridgewind Quail Farms, ts an

unincorporated Field Trial Club, as that term is used in Title

XV Conservation of Natural Resources, Ohio Revised Code

1533 et seq., owned and operated by Defendant Charles E.

Keller. Ridgewind Quail Farms principle place of business is

1242 Bauer Road, Somerville, Butler County, Ohio.

5. The Defendant National Shoot to Retrieve Association -

Ohio Region, is an unincorporated association, operated by

Regional President David Bliss whose principle place of

business is 642 Sandusky St. Ashland, OH 44805.

6. Michael J. Budzik is the Chief of the Wildlife Division,

for the Ohio Department of Natural Resources, an agency

within the State of Ohio, whose jurisdiction spans the State.

7. Venue properly lies in the Court of Common Pleas,

Butler County, State of Ohio pursuant to Civ.R. 3.

Jurisdiction properly lies with the Court of Common Pleas,

Butler County, State of Ohio.

Il. OPERTATIVE FACTS

8. The Loriz property is comprised of approximately 47

acres, a portion of which shares a common property line with

the Keller Farm. The Keller Farm is coraprised of

approximately 180 acres. Both properties are zoned A-1

(Agricultural District) as defined in the Butler County Zoning

Resolutions as revised 11 March 2000.

9. The Loriz property is mostly wooded, and is being

reforested under the State of Ohio’s State Stewardship

Incentive plan.

10. The Keller Farm is primarily cultivated fields.

11. The Loriz family residence is located less than 200

feet from the property line with the Keller Farm.

12. On or about November 2000, the Defendants began to

advertise hunting, under the name Ridgewind Quail Farm.

Advertising was accomplished by the posting of'signs in the

area surrounding Defendants’ property located at 6508 State

Road, with the name Ridgewind Quail Farm, combined with

a phone number with the number’s suffix as “HUNT.”

13. On or about 10 May 2000, Charles E. Keller applied

and received approval for a Dog Training Grounds

Application and Permit, with the Ohio Department of Naturai

Resources, pursuant to Ohio Revised Code 1533.191. (Copy

of Permit application attached as Plaintiffs’ Exhibit “A” and

hereinafter referred to as “Training Permit” .)

14. The Training Permit failed to provide a proper legal

description of the property where the training, was to be

conducted.

15. On or about 10 May 2000, Charles E. Keller applied

for a Commercial Wild Animal Propagation Permit

Application and License, with the Ohio Department of

Natural-Resources, pursuant to Ohio Revised Code 1533.71.

(Copy of permit application attached as Plaintiffs’ Exhibit “B”

and hereinafter referred to as “Propagation Permit” .)

16. The Propagation Permit specified the Bobwhite Quail

were to be held at the Keller Farm.

17. At a date, as yet unknown, but within the preceding

10 months, Charles E. Keller applied for a Field Trial Club

permit with the Ohio Department of Natural Resources,

pursuant to Ohio Revised Code 1533.19.

18. On or about 20 and 21 January 2001, the Loriz family

was awakencd to the sound of numerous shotguns being fired,

men shouting, dogs barking, and All Terrain Vehicles

running. This continued during the course of the entire day of

20 January 2001 and was repeated on 21 January 2001. The

Loriz’s subsequently discovered that the activity they heard

and witnessed was a commercial Quail hunt, and dog field

trials, organized and operated by Charles and Christopher

Keller, in their individual capacities, and through a field trial

club known as Ridgewind Quail Farm. Additionally, the trial

was advertised, sponsored and conducted by Defendant

National Shoot to Retrieve Association - Ohio Region. This

trial was approved by the Defendant, Division of Wildlife,

Ohio Department of Natural Resources. At the conclusion of

the trials, awards were presented to the top three participants

in various categories. The aforementioned activities occurred

within 200 feet of the Loriz family residence.

19. On or about 24 and 25 March 2001, a second field

trial was conducted upon the Keller Farm again, awakening

the Loriz family to the sound of numerous shotguns being

fired, men shouting, dogs barking, and All Terrain Vehicles

running. This continued during the course of the entire day of

24 March 2001 and was repeated on 25 March 2001. The

Loriz’s subsequently discovered that the activity they heard

and witnessed was a commercial Quail hunt, and dog field

trials, organized and operated by Charles and Christopher

Keller, in their individual capacities, and through a field trial

club known as Ridgewind Quail Farm. Additionally, the trial

was advertised, sponsored and conducted by Defendant

National Shoot to Retrieve Association - Ohio Region. This

trial was approved by the Defendant, Division of Wildlife,

Ohio Department of Natural Resources. At the ccnclusion of

the trials, awards were presented to the top three »articipants

in various categories. The aforementioned activities occurred

within 200 feet of the Loriz family residence.

20. Other field trials, and activities envisicned by the

Field Trial permits, have occurred on the Keller Farm in the

preceding six months.

21. The Kellers constructed, or caused to be constructed,

two wooden towers, in excess of fifteen feet in height, upon

the Keller Farm and are utilized judging the J*ield Trials

which were the subject of the aforementioned permits. Such

towers are within several hundred feet of the Loriz family

residence.

22. The 20 and 21 January 2001 activities that occurred on

the Keller Farm, were field trials, as that term is defined in

the O.R.C. 1533 et. seq. The Kellers, nor Ridg2wind Quail

Farms, nor the National Shoot to Retrieve Association - Ohio

Region were in compliance with the signage requirements of

O.R.C. 1533.22.

23. The 20 and 21 January 2001 activities that

occurred on the Keller Farm, and the activities occurring on

24 and 25 March 2001, as well as the recently constructed

two towers are all in violation of Articles 6 and 7 of the

Butler County Zoning Resolutions as revised 11 March 2000.

24. On 28 February 2001, the Butler County Building and

Zoning Department issued a “Notice of Violation Under

Butler County Zoning Resolution.” (copy attached as

Plaintiffs’ Exhibit “C”). The aforementioned Notice of

Violation specifically identified violations of Sections 6.01,

6.08, 7.01 and 7.03 of the Butler County Zoning Resolutions

as revised 11 March 2000.

25. Participants of the 20 and 21 January 2001 activities

originating upon the Keller Farm, trespassed upon the Loriz

property.

26. The activities that occurred on 20-21 January 2001

and 24-25 March 2001, upon the Keller Farm, as well as at

other times within the past six months have caused the Loriz

family to fear walking outside on their own property in an

area that is in close proximity to the aforementioned activities

for fear of being stricken by shotgun pellets emanating from

the activities occurring upon the Keller Farm.

27. The Defendant, Michael J. Budzik Chief of the

Division of Wildlife, Ohio Department of Natural Resources

(hereinafter referred to as “ODNR”), granted, directly or

through one of his agents, permits to Charles E. Keller

(attached as Plaintiffs’ Exhibits A & B) granting permission

from the State of Ohio. The granting of such permits, without

any consideration of the property rights of adjoining property

owners, constitutes a State sanctioned taking of private

property without due process and is_ therefore

unconstitutional, as it is in violation of the Ohio Constitution

and the U.S. Constitution.

10a

COUNT ONE

VIOLATION OF THE BUTLER COUNTY ZONING

RESOLUTIONS

28. Plaintiffs repeat Paragraphs one (1) through twenty-

seven (27) as if fully rewritten herein.

29. The Defendants, the Kellers and Ridgewind Quail

Farm, are in violation of the Butler County Zoning

Resolutions, and such violations result in the Loriz loss of

Quiet Enjoyment, such violations constitute a wrongful taking

of real property, as the Loriz may not use that por:ion of their

property adjoining the Keller Farm, when field trial activities

are taking place. The Kellers use the Loriz wooded property

to provide “cover” for Quail they raise and release for field

trials unjustly enriches them at the Loriz expense.

30. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

COUNT TWO

LOSS OF QUIET ENJOYMENT

31. Plaintiffs repeat Paragraphs one (1) through thirty (30)

as if fully rewritten herein.

32. The Field Trial activities identified above, are

permitted by the Defendants, the Kellers and Ridgewind Quail

Farm, and result in the Loriz loss of Quiet Enjoyment. The

activities preclude the Loriz from enjoying their property in

a manner to be expected for property zoned A-! Agricultural

as set forth above.

lla

33. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

COUNT THREE

TRESSPASS TO LAND

34. Plaintiffs repeat Paragraphs one (1) through thirty-

three (33) as if fully rewritten herein.

35. The Defendants, the Kellers, Ridgewind Quail Farm

and the National Shoot to Retrieve Association - Ohio Region,

failure to properly demark the Keller Farm property lines,

their failure to have posted signage as dictated by Ohio

Revised Code 1533.22, and their failure to “wholly enclose”

the Keller Farm, as is required by Ohio Revised Code

1533.70 and 1533.71, and their failure to control users of the

Keller Farm, resulted in the Loriz. property being trespassed

upon.

36. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

COUNT FOUR

NUISANCE

37. Plaintiffs repeat Paragraphs one (1) through thirty-six

(36) as if fully rewritten herein.

38. The Defendants, the Kellers, Ridgewind Quail Farm

and the National Shoot to Retrieve Association - Ohio Region,

actions constitute a Nuisance, due to the Defendants negligent

failure to properly demark the Keller Farm property lines,

their failure to have posted signage as dictated by Ohio

12a

Revised Code. 1533.22, and their failure to whol:y enclose”

the Keller Farm, as is required by Ohio Revised Code

1533.70 and 1533.71, and their failure to control users of the

Keller Farm, such that participants in the Field Trials are

firing their weapons in close proximity to the Loriz family

home, thereby creating a potential and unreasonable risk of

harm.

39. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

COUNT FIVE

PRIVATE TAKING OF REAL PROPERTY

40. Plaintiffs repeat Paragraphs one (1) throug)1 thirty-nine

(39) as if fully rewritten herein.

41. The Defendants, the Kellers, Ridgewind Quail Farm

and the National Shoot to Retrieve Association - Ohio Region,

actions constitute a Private Taking of Real Property, due to

the Defendants negligent failure to properly demark the Keller

Farm property lines, their failure to have posted signage as

dictated by Ohio Revised Code 1533.22, and their failure to

“wholly enclose” the Keller Farm, as is required by Ohio

Revised Code 1533.70 and 1533.71, and their failure to

control users of the Keller Farm, such that participants in the

Field Trials are firing their weapons in close proximity to the

Loriz family home and adjacent property, creating a potential

and unreasonable risk that someone on the Loriz property may

be struck by shot from participants in the Field Trail. Such

risk, thereby precludes a reasonable and prudent person from

utilizing their personal property for their own use and

enjoyment during the aforementioned field trials.

13a

42. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

COUNT SIX

VIOLATION OF DUE PROCESS RIGHTS

43. Plaintiffs repeat Paragraphs one (1) through forty-two

(42) as if fully rewritten herein.

44. The Defendant’s, ODNR, granting of the Training

Permit, the Propagation Permit, and Field Trial Club permit

constitute a taking of the Loriz property without just review

or compensation and deprive Loriz of his due process rights,

such that ODNR’s granting of the permits is unconstitutional

under the Ohio and U.S. Constitutions.

45. Ohio Revised .Code 1533.19 Field Trial Club Permits

is unconsututional, as it results in State sanctioned activities

which have resulted in the private taking of property, and

done so with out any regard for adjoining owncr’s due process

rights. The state failed to provide notice and an opportunity

to be heard at a meaningful time and in a meaningful manner

where the state seeks to infringe a property interest. Such

actions are in violation of the Ohio Constitution, to include

Section 19, Article I, well as the United States Constitution

via the Fourteenth Amendment.

46. As a direct and proximate result of the Defends

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

WHEREFORE, Plaintiffs pray that this Court grant

judgment in an amount in excess of Twenty-Five Thousand

Dollars ($25,000.00), representing the damages suffered by

14a

Plaintiffs as a result of Defendants violation of -he Zoning

Resolutions, loss of quiet enjoyment, trespass to land,

nuisance, private taking of real property, and violation of

Plaintiffs’ Due Process Rights, plus court costs, punitive

damages, attorney’s fees, and all other relief thai this Court

deems fit.

Respectfully Submitted,

BRANDABUR & BOWLING

A Legal Professional Association

/s/

Michael J. Brandabur (OH #0067246)

Plaintiffs’ Trial Attorney

306 South Third Street

Hamilton, Ohio 45011

Phone Number: 513.892.3400

JURY DEMAND

The Plaintiffs herein requests this court empanel a jury to

hear the within cause of action.

/s/

Michael J. Brandabur (OK #0067246)

Plaintiffs’ Trial Attorney

l5a

APPENDIX 3

BUTLER COUNTY, OHIO

BOARD OF COMMISSIONERS

Commissioners

Charles R. Furmon

Courtney E. Combs

Michael A. Fox

Resolution Concerning a Variance from the Zoning

Resolution of Butler County Resolution No. 01-26C

WHEREAS, Application of Charles E. Keller Case Number

BZAO1-26C submitted to the Board of Zoning Appeals, to

grant a Conditional Use from/under Section(s) 6.01, 6.08,

7.01, 7.03, 7.0301, 26.5, 26.51, 26.52 & 26.52203 of the

Butler County Zoning Resolution for permission to: conduct

a commercial bird shooting preserve from his property.

Location of said property: 6508 State Road

Somerville, Ohio 45064

WHEREAS, Said application was reviewed by the Board at

a regular meeting held in conjunction therewith

on July 17, 2001.

WHEREAS, an appropriate study of said application was

made by the Board; and

NOW THEREFORE BE IT RESOLVED, that on the basis

of the above and by virtue of the authority vested in the Board

l6a

of Zoning Appeals by law, said Board herewith approved this

request with the following stipulations:

10.

11.

There will be at least 10 hard surface parking

spaces.

The drive must be concrete or blacktop on the

common driveway from State Roac to where it

enters Mr. Keller’s property, to elirninate dust.

There must be a landscape buffer on both sides

of the rear boundaries.

There will be no direct lighting or glare on any

other property owner.

There cannot be a sign any larger than | sq. ft.

stating the area.

This will be a Conditional Use only for Mr.

Keller. Any new owner must come before the

Board.

There will be a safety zone established and

clearly marked on all boundaries.

There will be a 100-foot buffer along any

adjoining property line that requests it.

The area used for the commercial fiunting must

be entirely fenced and signed to the Ohio

Department of Natural Resource’s

specifications.

There will be an annual review cach year by

the Board, where the citizens of the

community have the right to come in and talk

about any problems that the operation is

creating.

All proper documentation must be obtained

that is required by the State of Ohio

Department of Wildlife for any of the

operations, raising of game birds and

harvesting of game birds.

17a

12. There wiil be no birds or deer that are killed,

left to rot. Anything killed must be taken or

disposed of properly.

13. | The hours of operation will be 8:00 A.M. to

6:00 P.M.

14. Commercial hunting will be September | thru

April 30.

15. Any field trials that are done will have 2

hunters, 2 judges, 2 dogs and possibly 2

gunners.

16. Activity will be solely on parcels F2610-

012.000-037 and F2610-012.000-036.

17. | There must be a 100-yard buffer zone between

Mr. Loriz’s property and the hunting area.

BE IT FINALLY RESOLVED, that a copy of this resolution

be forwarded to the applicant and that said constitute an

official notice.

July 26, 2001 i - _

Lee O. Steenken, Chair

Hamilton, Ohio i ae

William E. Balsinger, Secretary

18a

APPENDIX 4

BOARD OF APPEALS OF

BUTLER COUNTY, OHIO

CASE NO.: 2001 08 1777

[Filed August 6, 2001]

IN RE: APPLICATION OF )

CHARLES E. KELLER __ )

)

ZONING BOARD OF APPEALS

CASE NUMBER BXMO1-26C

NOTICE OF APPEAL OF DECISION OF THE

ZONING BOARD OF APPEALS OF BUTLER,

COUNTY, OHIO

The undersigned, Michael Loriz and Cara Loriz, and by

their counsel, Gregory E. Hatcher, hereby give notice of their

appeal to the Common Pleas Court of Butler County, Ohio,

from the final order, adjudication or decision of the Zoning

Board of Appeals of Butler County, Ohio, made z.nd rendered

on the 26" day of July, 2001, in which it was decided by

Resolution and held that Charles E. Keller was granted a

variance granting a conditional use to conduct a commercial

bird shooting preserve on his property located at 6508 State

Road, Somerville, Ohio 45064, with certain stipulations. A

19a

copy of the Resolution is attached hereto and marked Exhibit

“A ” :

Respectively submitted,

/s/

MICHAEL LORIZ

/s/

CARA LORIZ

/s/

GREGORY E. HATCHER

Attorney for Michael and Cara Loriz

Ohio Sup. Ct. Reg. No. 0021559

301 High St., Suite 400

Hamilton, Ohio 45011

Telephone: (513) 867-1856

20a

APPENDIX 5

In The Common Pleas Court

Butler County, Ohio

Case No. CV 2001 04 0714

Case No. CV01-08-1777 (Inactive)

[Filed December 11, 2001]

CARA LORIZ

Plaintiff

CHARLES E. KELLER

Defendants

AND

MICHAEL LORIZ

Plaintiff

BUTLER COUNTY BOARD

OF ZONING, et al.

Defendants

21a

ORDER FOR CASE CONSOLIDATION

It appearing to the Court that the above captioned matters

involve similar issues of law and fact, it is hereby ordered that

these cases be consolidated into the above listed active case

number.

SO ORDERED,

/s/_ —_

Judge Patricia S. Oney

/s/

Judge Michael J. Sage

22a

IN THE COURT OF COMMON PLEAS

BUTLER COUNTY, OHIO

CASE NO.: CV2001-04-0714

[Filed February 20, 2002]

MICHAEL LORIZ

1566 OXFORD-MIDDLETOWN ROAD

HAMILTON, OHIO 45013

AND

CARA LORIZ

1566 OXFORD-MIDDLETOWN ROAD

HAMILTON, OHIO 45013

Plaintiffs,

Vv.

CHARLES E. KELLER

1242 BAUER ROAD

SOMERVILLE, OHIO 45064

AND

CHRISTOPHER E. KELLER

1242 BAUER ROAD

SOMERVILLE, OHIO 45064

23a

AND

MICHAEL SIMMONS

3047 KIRCHLING ROAD

HAMILTON, OHIO 45013

AND

RIDGEWIND QUAIL FARMS

1242 BAUER ROAD

SOMERVILLE, OHIO 45064

AND

NATIONAL SHOOT TO RETIREVE

ASSOCIATION-OHIO REGION C/O

REGION PRESIDENT: DION BLISS

642 SANDUSKY STREET

ASHLAND, OHIO 44805

AND

BUTLER COUNTY BOARD OF

ZONING APPEALS

LEE STEENKEN

JOHN ZBORIL

ALAN DANIEL

THOMAS BEVINGTON

GARY SALMON

130 HIGH STREET

HAMILTON, OHIO 45011

AND

)

24a

COURTNEY COMBS

BUTLER COUNTY COMMISSIONER

130 HIGH STREET

HAMILTON, OHIO 45011

AND

MICHAEL FOX

BUTLER COUNTY COMMISSIONER

130 HIGH STREET

HAMILTON, OHIO 45011

AND

CHARLES FURMON

BUTLER COUNTY COMMISSIONER

130 HIGH STREET

HAMILTON, OHIO 45011

Defendants.

Nee eee eee ee eee ee

AMENDED COMPLAINT OTHER CIVIL

WITH JURY DEMAND

Now comes the Plaintiffs, Michael and Cara Loriz,

through counsel, and for their Complaint, and causes of

action, state as follows:

I. PARTIES

1. Plaintiffs, Michael and Cara Loriz, (hereinaf:er referred

to as “Loriz”), are husband and wife, and are the owners of

residential property located at 1566 Oxford-Middletown

Road, Milford Township, Butler County, Ohio.

25a

2. Defendams, Charies ©. Keliet and Christopher E.

Keller, are the owners of land located at 6508 State Road,

Milford Township, Butler County, Ohio, and more

specifically defined in the Butler County Auditor’s Property

records as comprised of Parcel Numbers F2610-012-000-028,

F2610-012-000-036, and F2610-012-000-037 (hereinafter

referred to as the “Keller Farm”).

3. The Defendants, Charles E. Keller and Christopher E.

Keller, (“hereinafter referred to as “Kellers”), are residents

of Butler County, Ohio, residing at 1242 Bauer Road,

Somerville, Butler County, Ohio.

4. The Defendant, Michael Simmons, (hereinafter referred

to as “Simmons”), is a resident of Butler County, Ohio,

residing at 3047 Circling Road, Hamilton, Butler County,

Ohio.

5. The Defendant, Ridgewind Quail Farms is an

unincorporated Field Trial Club, as that term is used in Title

XV Conservation of Natural Resources, Ohio Revised Code

1533 et seq., owned and operated by Defendant, Charles E.

Keller, and Defendant, Michael Simmons. Ridgewind Quail

Farms principle place of business is 1242 Bauer Road,

Somerville, Butler County, Ohio.

6. The Defendant, National Shoot to Retrieve Association-

Ohio Region, is an unincorporated association, operated by

Regional President, David Bliss, whose principle place of

business is 642 Sandusky Street, Ashland, Ohio 44805.

7. The Defendant, Butler County Zoning Board of

Appeals, and its members, Defendants Lee Steenken, John

Zboril, Alan Daniel, Thomas Bevington and Gary Salmon,

26a

are empowered by the Butler County Commissioner to

enforce the Butler County, Ohio Zoning Resolution.

8. The Defendant’s, Courtney Combs, Michael Fox, and

Charles Furmon, are the County Commissioners elected to

govern Butler County, Ohio, and in that capacity appoint

various officials to perform regulatory functions interpreting

and enforcing administrative rules, resolutions and

regulations. In their capacity as County Commissioners, the

Defendants appointed and/or are responsible for the acts or

omissions of the Butler County Zoning Board of Appeals.

9. Venue properly lies in the Court of Common Pleas,

Butler County, State of Ohio, pursuant to Civ.R. 3.

Jurisdiction properly lies with the Court of Common Pleas,

Butler County, State of Ohio.

Il. OPERATIVE FACTS

10. The Loriz property is comprised of approximately 45

acres, a portion of which shares a common property line with

the Keller Farm. The Keller Farm is comprised of

approximately 180 acres. Both properties are zoned A-1

(Agricultural District) as defined in the Butler County Zoning

Resolutions as revised March 11, 2000.

11. The Loriz property is mostly wooded, and is being

reforested under the State of Ohio’s State Stewardship

Incentive Plan.

12. The Keller Farm is primarily cultivated fields.

13. The Loriz family residence is located less than 200

feet from the property line with the Keller Farm.

27a

14. On or about November, 2000, the Defendants, —

Charles Keller, Christopher Keller, and Michael Simmons,

began to advertise hunting, under the name Ridgewind Quail

Farm. Advertising was accomplished by the posting of signs

in the area surrounding Defendants’ property located at 65087

State Road, with the name Ridgewind Quail Farm, combined

with a phone number with the number suffix as “HUNT”.

15. On or about May 10, 2000, Charles E. Keller applied

and received approval for a Dog Training Grounds

Application and Permit, with the Ohio Department of Natural

Resources, pursuant to Ohio Revised Code 1533.191. (Copy

of permit application attached as Plaintiff's Exhibit “A” and

hereinafter referred to as “Training Permit” .)

16. The Training Permit failed to provide a proper legal

description of the property where the training was to be

conducted.

17. On or avout May 10, 2000, Charles E. Keller applied

for a Commercial Wild Animal Propagation Permit

Application and License with the Ohio Department of Natural

Resources, pursuant to Ohio Revised Code 1533.71. (Copy of

permit application attached as Plaintiffs’ Exhibit “B” and

hereinafter referred to as “Propagation Permit” .)

18. The Propagation Permit specified the Bobwhite Quail

were to be held at the Keller Farm.

19. At a date, as yet unknown, but within the preceding

10 months, Charles E. Keller, applied for a Field Trial Club

permit with the Ohio Department of Natural Resources,

pursuant to Ohio Revised Code 1533.19

28a

20. On or about January 20 or 21, 2001, the L.oriz family

were awakened by the sound of numerous sho' guns being

fired, men shouting, dogs barking, and All Terrzin Vehicles

running. This continued during the course of the cntire day of

January 20, 2001, and was repeated on January 21, 2001. The

Loriz’s subsequently discovered that the activity they heard

and witnessed was a commercial Quail hunt, ard dog field

trials, organized and operated by Charles Keller, Christopher

Keller and Michael Simmons, in their individua: capacities,

and through a field trail club known as Ridgewind Quail

Farm. Additionally, the trial was advertised, sponsored and

conducted by Defendant, National Shoot to Retrieve

Association-Ohio Region. At the conclusion of the trials,

awards were presented to the top three participanis in various

categories. Many of the aforementioned activities occurred

within 200 feet of the Loriz family residence.

21. On or about March 24 and 25, 2001, a second field

trial was conducted upon the Keller Farm again, awakening

the Loriz family to the sound of numerous shotguns being

fired, men shouting, dogs barking, and All Terrain Vehicles

running. This continued during the course of the entire day of

March 24, 2001, and was repeated on March 25, 2001. The

Loriz’s subsequently discovered that the activity they heard

and witnessed was a commercial Quail Hunt, and dog field

trials, organized and operated by Charles Keller, Christopher

Keller, and Michael Simmons, in their individual capacities,

and through a field trial club know as Ridgewind Quail Farm.

Additionally, the trial was advertised, sponsored and

conducted by Defendant, National Shoot ‘o Retrieve

Association-Ohio Region. At the conclusion of the trials,

awards were presented to the top three participants in various

categories. The aforementioned activities occurred within 200

feet of the Loriz family residence.

29a

22. Other field trials and activities envisioned by the Field

Trial permits, have occurred on the Keller Farm in the

preceding six months.

23. The Kellers constructed, or caused to be constructed,

two wooden towers, in excess of fifteen feet in height, upon

the Keller Farm and are utilized for judging the field trials

which were the subject of the aforementioned permits. Such

towers are within several hundred feet from the Loriz family

residence.

24. The January 20 and 21, 2001, activities that occurred

on the Keller Farm, were field trials, as that term is defined

in the O.R.C. 1533 et. seq. The Kellers, nor Ridgewind Quail

Farms, nor National Shoot to Retrieve Association-Ohio

Region, were in compliance with the signage requirements of

O.R.C. 1533.22.

25. The January 20 and 21, 2001, activities that occurred

on the Keller Farm, and the activities occurring on March 24

and 25, 2001, as well as the recently constructed two towers

are all in violation of Articles 6 and 7 of the Butler County

Zoning Resolutions as revised March 11, 2000.

26. On February 28, 2001, the Butler County Zoning

Department issued a “Notice of Violation Under Butler

County Zoning Resolution”. (Copy attached as Plaintiff's

Exhibit “C”.) The aforementioned Notice of Violation

specifically identified violations of Sections 6.01, 6.08, 7.01

and 7.03 of the Butler County Zoning Resolutions as revised

March 11, 2000

27. Participants of the January, 20 and 21, 2001, activities

originating upoa the Keller Farm, trespassed upon the Loriz

property.

30a

28. The activities that occurred on January 20 and 21,

2001, and March 24 and 25, 2001, upon the Keller Farm, as

well as other items within the past six months caused the

Loriz family to fear walking outside on their own'property in

an area that is in close proximity to the aforementioned

activities for fear of being stricken by shotgun pellets

emanating from the activities occurring upon the Keller Farm.

29. On July 26, 2001, the Defendants, Lee Steznken, John

Zboril, Alan Daniel, Thomas Bevington, and Gary Salmon,

in their capacity as members of the Butler County Zoning

Board of Appeals granted a Conditional Wse to the

Defendants, Kellers, allowing for the property to be used as

a commercial bird shooting preserve. This granting of a

conditional use was arbitrary and capricious. As a result

thereof, the Plaintiffs have been deprived of the quiet

enjoyment of their land, have had their land subject to

trespass, have been subjected to nuisance and have been

precluded from utilizing their land and thus been subject to a

taking of their land, all to their detriment.

30. Notwithstanding, the Defendants, Kellers and

Simmons, have failed to abide by the conditions and

requirements set forth in the Conditional Use all to the

Plaintiffs detriment.

COUNT ONE

VIOLATION OF THE BUTLER ZONING

RESOLUTIONS

31. Plaintiffs repeat Paragraphs | through 30 as if fully

rewritten herein.

31a

32. The Defendants, the Kellers and Ridgewind Quail

Farm, are in violation of the Butler County Zoning

Resolutions, and such violations result in the Loriz loss of

Quiet Enjoyment, such violations constitute a wrongful taking

of real property, as the Loriz may not use that portion of their

property adjoining the Keller Farm, when field trial activities

are taking place. [The Kellers use the Loriz wooded property

to provide “cover” for Quail they raise and release for field

trials unjustly enriches them at the Loriz expense. |

33. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

COUNT TWO

LOSS OF QUIET ENJOYMENT

34. Plaintiffs repeat Paragraphs | through 33 as if fully

rewritten herein.

35. The field trial activities identified above, are permitted

by the Defendants, the Kellers, Simmons, and Ridgewind

Quail Farm, and result in the Loriz loss of Quiet Enjoyment.

The activities preclude the Loriz from enjoying their property

in a manner reasonably to be expected for property zoned A-1

Agricultural as sd forth above. |

ae: ; ;

36. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to \be determined.

32a

COUNT THREE

TRESPASS TO LAND

37. Plaintiffs repeat Paragraphs | through 36 as if fully

rewritten herein.

38. The Defendants, the Kellers, Simmons, Ridgewind

Quai! Farm, and the National Shoot to Retrieve Association-

Ohio Region, failure to properly demark the Keller Farm

property lines, their failure to have posted signage as dictated

by Ohio Revised Code 1533.22, and their failure to “wholly

enclose” the Keller Farm, as is required by Ohio Revised

Code 1533.70 and 1533.71, and their failure to control users

of the Keller Farm, resulted in the Loriz property being

trespassed upon.

39. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

COUNT FOUR

NUISANCE

40. Plaintiffs repeat Paragraphs | through 39 as if fully

rewritten herein.

41. The actions of the Defendants, the Kellers, Simmons,

Ridgewind Quail Farm, and the National Shoot to Retrieve

Association-Ohio Region, constitute a nuisance, due to

excessive noise, due to the Defendants negligent failure to

properly demark the Keller Farm property lines, their failure

to have posted signage as dictated by Ohio Revised Code

1533.22, and their failure to “wholly enclose’ the Keller

33a

Farm, as is required by Ohio Revised Code 1533.70 and

1533.71, and their failure to control users of the Keller Farm,

such that participants in the field trials are firing their

weapons in close proximity to the Loriz family home, thereby

creating a potential and unreasonable risk of harm.

42. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

COUNT FIVE

PRIVATE TAKING OF REAL PROPERTY

43. Plaintiffs repeat Paragraphs 1 through 42 as if fully

rewritten herein.

44. The Defendanis, the Kellers, Simmons, Ridgewind

Quail Farm, and the National Shoot to Retrieve Association-

Ohio Region, actions constitute a private taking of real

property, due to the Defendants negligent failure to properly

demark the Keller Farm property lines, their failure to have

posted signage as dictated by Ohio Revised Code 1533.22,

and their failure to “wholly enclose” the Keller Farm, as 1s

required by Ohio Revised Code 1533.70 and 1533.71, and

their failure to control users of the Keller Farm, such that

participants in the iield trials are firing their weapons in close

proximity to the Loriz family home and adjacent property,

creating a potential and unreasonable risk that someone on the

Loriz property may be struck by shot from participants in the

field trial. Such risk, thereby precludes a reasonable and

prudent person from utilizing their personal property for their

own use and enjoyment during the aforementioned field trials.

34a

45. As a direct and proximate result of the Defendants

actions, Plaintiffs have been damaged and have been deprived

in an amount yet to be determined.

WHEREFORE, the Piaintiffs pray that this Court grant

judgment in an amount in excess of Twenty-five Thousand

Dollars ($25,000.00), representing the damages suffered by

Plaintiffs as a result of Defendants violation of the Zoning

Resolutions, loss of quiet enjoyment, trespass to land,

nuisance, private taking of real property, and violations of

Plaintiffs’ Due Process Rights, plus court costs, punitive

damages, attorney fees, and all other relief this Court deems

fit.

Respectfully submitted,

/s/

GREGORY E. HATCHER

Co-Counsel for Plaintiffs

Ohio Sup. Ct. Reg. No. 0021559

301 High Street, Suite 400

Hamilton, Ohio 45011

Telephone: (513) 867-1856

/s/

DONALD C. LEROY

Co-Counsel for Plaint:ffs

Ohio Sup. Ct. Reg. No.

304 N. Second Street

Hamilton, Ohio 45011

Telephone: (513) 867-8200

35a

JURY DEMAND

The Plaintiffs herein requests this Court empanel a jury to

hear the within cause of action.

/s/_

GREGORY E. HATCHER

Attorney for Plaintiffs

Ohio Sup. Ct. Reg. No. 0021559

301 High Street, Suite 400

Hamilton, Ohio 4501 |

Telephone: (513) 867-1856

36a

APPENDIX 7

COURT OF COMMON PLEAS

Butler County, Ohio

Case No. CV 2001-04-0714

[Filed April 11, 2003]

Michael Loriz, et al 7 )

Plaintiffs )

)

Vv. )

)

Charles E. Keller, et al)

Defendants )

ASS. ere

ENTRY

This matter came on for hearing on the appeal of the

Plaintiffs/Appellants, Michael Loriz and Cara Loriz from the

final decision of the Zoning Board of Appeais of Butler

County, Ohio, issued on July 26, 2001, and the amended

decision issued February 19, 2003, granting a variance to

Defendants/Appellees Charles E. Keller regarding his

property located at 6508 State Road, Somerville, Ohio,

45064, permitting a commercial bird shooting preserve.

Section 2506.04 of the Ohio Revised Code sets forth the

standard of review that the Court must apply. Tre Court may

37a

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. 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, or decision with the finding or opinion

of the Court.

The Court must weigh the evidence in the record, and

whatever additional evidence was permitted pursuant to statute

to determine whether there exists a preponderance of reliable,

probative and substantial evidence to support the agency

decision. This does not mean, however that the Court may

blatantly substitute its judgment for that of the agency,

especially in areas of administrative expertise. (Dudukovich

v. Housing Authority, 58 OS 2nd 202

This Court, after careful consideration of the evidence

finds that the Board of Zoning Appeals’ decision is supported

by a preponderance of substantial, reliable and probative

evidence on the record.

It is therefore the order of this Court that the decision of

the Butler County Board of Zoning Appeals is affirmed.

This Court further finds that this is no just cause for delay

and this is a final appealable order.

This Court further finds that the previous stay order issued

by this Court is hereby vacated.

38a

Costs to Plaintiffs.

/s/

Judge William B. Stapleton

39a

APPENDIX 8

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

CASE NO. CA2003-04-100

[Filed December 8, 2003]

IN RE:

APPLICATION OF

CHARLES E. KELLER.

CIVIL APPEAL FROM BUTLER COUNTY

COURT OF COMMON PLEAS

Case No. CV01-04-0714

OPINION

VALEN, P.J.

{41} Appellants, Michael and Cara Loriz, appeal the

decision of the Butler County Court of Common Pleas

affirming the decision of appellee, Butler County Board of

Zoning Appeals (“BZA”), granting appellee, Charles Keller

(“Keller”), a conditional use permit to operate a commercial

hunting range. We affirm the decision of the lower court.

40a

{42} In July 1995, appellants purchased 45 acres of

property in Butler County adjacent to Keller’s property.

Appellants built a 5,000 square foot home on the property.

{43} In September 1995, Keller approached appellants and

informed them of his intention to open a commer-ial hunting

range on his property with his business partner, Michael

Simmons (“Simmons”). However, Keller’s financial backers

reconsidered and the commercial hunting ranze was not

opened.

{44} In 2001 Keller erected a sign advertising his

business, Ridgewind Quail Farm. Keller raises pheasants,

quail, partridge and ducks and allows hunters to hunt the

farm-raised birds. On February 28, 2001, Keller was cited for

running a commercial hunting business on his property. The

BZA affirmed the violation order. Keller then applied to the

BZA for a conditional use permit to operate a commercial

hunting range on his property. A hearing was heki on July 17,

2001. The BZA granted the conditional use permit with

several conditions.

{45} Appellants appealed the granting of the conditional

use permit to the Butler County Common Pleas Court. The

common pleas court remanded the matter to the BZA with

orders to hear additional testimony and to submit written

findings of fact to the common pleas court. The BZA heard

additional evidence on February 4, 2003. Following the

hearing, the BZA filed “Conclusions of Fact” with the

common pleas court.

{46} On April 11, 2003, the common pleas court affirmed

the BZA’s decision to grant Keller a conditional permit for a

commercial hunting range. Appellants appeal che common

pleas court’s decision raising two assignments of error:

4la

{47} Assignment of Error No. 1:

{48} “THE JULY 17, 2003 [SIC] BZA HEARING WAS

NOT CONDUCTED IN ACCORDANCE WITH OHIO

LAW.”

{49} Appellants argue that the July 17, 2001 hearing was

not conducted as an adjudicatory hearing. Appellants maintain

that “the hearing was conducted as a non-evidentiary, public

political meeting, at which any member of the public could

speak, regardless of whether he or she possessed information

relevant to the BZA’s decision.” Therefore, appellants

maintain that it was improper to “rely on subjective and

unsubstantiated opinions, unsworn testimony, and testimony

not subject to cross-examination.”

{410} The transcript indicates that all witnesses except for

two were sworn at the July 17, 2001 hearing. The two

witnesses not sworn were attorneys. The Board stated that as

officers of the court, “it’s not necessary to swear you in.”

However, appellants never requested that witnesses be sworn

in. The “omission of administration of the oath to a witness

in a trial or administrative hearing is a waivable error.”

Dudukovich vy. Lorain Metro. Housing Auth. (1979), 58 Ohio

St.2d 202, 206. Where there is no objection to the admission

of unsworn testimony at an administrative hearing, any error

allowing such evidence is waived and the court must then

consider the unsworn testimony as though it were given under

oath. Zurow v. Cleveland (1978), 61 Ohio App. 2d 14,

syllabus. Furthermore, if timely objection is not made “this

error is waived throughout the entire proceeding, including

the appellate level.” Id. Since appellants did not object to the

witnesses that were not sworn in, appellants have waived this

issue.

42a

{411} Appellants also argue that they were not permitted

to cross-examine witnesses. However, they never asked to

cross-examine witnesses during the proceedings before the

BZA. Failure to request cross-examination of a witness acts

as a waiver. Kandell v. City Council of Kent (Aug. 2, 1991),

Portage App. No. 901-P-2255. Inasmuch as appellants did not

“raise the issue of cross-examination during the proceedings

before the [BZA], they waived their rights to claim these

errors in an appeal to the Common Pleas Court *** and

subsequently to this court.” Zurow at 24.

{412} Appellants also argue that they were “limited in

presenting evidence in ways Keller was not.” As zn example,

appellants argue that their “testimony was limited to five

minutes.” However, a review of the record demonstrates that

Michael Loriz stated at the hearing, “I'd like to, within five

minutes if I can, try to give you a littke background of the

entire-six-year history of my involvement with tie case and

then go into the safety aspects which I think are very critical

from my - from my standpoint.” When Loriz concluded he

was asked, “do you have any concluding remarks?” Loriz

responded, “thank you very much for your time and

consideration. And I would ask that you deny this request

that’s before you.” Furthermore, after Simmons testified

before the BZA, Loriz was allowed to offer a rebuttal of

statements made by Simmons. We find that the appellants

were not limited in presenting evidence.

{413} The common pleas court found, “after careful

consideration of the evidence, [that] the Board of Zoning

Appeals’ decision is supported by a preponderance of

substantial, reliable and probative evidence on the record.” A

court of appeals is required to affirm the decision of a

common pleas court in an appeal of an administrative decision

“unless the court of appeals finds, as a matter of |aw, that the

43a

decision of the Common Pleas Court is not supported by a

preponderance of reliable probative and substantial evidence. ”

Dudukovich, 58 Ohio St.2d at 207.

{414} Having examined the record, this court finds that

appellants have waived any errors regarding unsworn

testimony and testimony not subjected to cross-examination.

Furthermore, appellants were not limited in presenting

evidence. The decision of the common pleas court is

supported by a preponderance of reliable probative and

substantial evidence, and the common pleas court did not

abuse its discretion in finding as it did. The first assignment

of error is overruled.

{415} Assignment of Error No. 2:

{416} “THE COURT OF COMMON PLEAS ERRED IN

UPHOLDING THE CONDITIONAL USE PERMIT TO

OPERATE A COMMERCIAL HUNTING RANGE

BECAUSE THE BZA’S DECISION WAS

UNREASONABLE AND UNSUPPORTED BY THE

PREPONDERANCE OF SUBSTANTIAL, RELIABLE,

AND PROBATIVE EVIDENCE.”

{417} Appellants argue that “even if the Common Pleas

Court were permitted to consider the unsworn and uncross-

examined [sic] evidence submitted at the July 17, 2001

hearing, the court still erred in upholding the BZA’s decision

because Keller’s evidence was overwhelmed by the evidence

submitted by the Lorizes.”

{418} A common pleas court should not substitute its

judgment for that of an administrative board, such as the

board of zoning appeals, unless the court finds that there is

44a

not a preponderance of reliable, probative and substantial

evidence to support the board’s decision. Kisil v. City of

Sandusky (1984), 12 Ohio St.3d 30, 34. Furthermore, the

common pleas court “must give due deference to the

administrative agency’s resolution of evidentiary conflicts.”

Budd Co. v. Mercer (1984), 14 Ohio App.3d 269, 273-4. The

common pleas court found, “after careful consideration of the

evidence, [that] the Board of Zoning Appeals’ decision is

supported by a preponderance of substantial, reliable and

probative evidence on the record.”

{419} An appellate court’s review of an administrative

‘\ decision is more limited than that of a common pleas court.

Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 1993-

- Ohio-122, rehearing denied (1993), 67 Ohio St.3d 1439. In

Pons, the Ohio Supreme Court noted:

{420} “While it is incumbent on the trial court to examine

the evidence, this is not a function of the appellate: court. The

appellate court is to determine only if the trial court has

abused its discretion, i.e., being not merely an error of

judgment, but perversity of will, passion, prejudice,

partiality, or moral delinquency. Absent an abuse of

discretion on the part of the trial court, a court of appeals may

not substitute its judgment for [that of an administrative

agency] or a trial court. Instead, the appellate court must

affirm the trial court’s judgment.” Id. See, als», Hal Artz

Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury

Div. (Sept. 24, 1992), Franklin App. No. 91AP-1493, motion

to certify overruled, 66 Ohio St.3d 1459. After reviewing the

common pleas court’s decision, we find that the lower court

did not abuse its discretion as there was evidence in the BZA

findings supporting its decision.

45a

{421} Appellants also argue that the transcripts of the

hearing are inaccurate as words are “randomly misstated and

omitted.” Therefore, appellants argue that the decision should

be vacated and remanded for a new hearing so that an

accurate record of testimony can be made.

{422} Pursuant to R.C. 2506.03, which deals with the

hearing of an appeal from an administrative decision, “[t}he

hearing of such an appeal shall proceed as in trial of a civil

action, but the court shall be confined to the transcript as filed

pursuant to section 2506.02 of the Revised Code unless it

appears, on the face of that transcript or by affidavit filed by

the appellant, that “[t}he transcript does not contain a report

of all evidence admitted or proffered by the appellant.”

{423} We have reviewed the transcripts and found that the

gaps are not so extensive that the gist of the arguments and

testimony cannot be ascertained. Franklin Twp. v. Marole

Cliff (1982), 4 Ohio App.3d 213, 216. See, also, BP Oil Co.

v. Dayton Bd. of Zoning Appeals (1996), 109 Ohio App. 3d

423, 436. Consequently, the second assignment of error is

overruled.

{424} Judgment affirmed.

YOUNG and POWELL, JJ., concur.

46a

APPENDIX 9

COURT OF COMMON PLEAS

BUTLER COUNTY, OHIO

CASE NO. CV2001 04 0714

[Filed December 6, 2005]

MICHAEL LORIZ, etal. — )

Plaintiff, )

)

Vv. )

)

CHARLES E. KELLER, )

et al. )

Defendants. )

)

(Judge McCracken)

DECISION

This matter came before the court for oral hearings on

various motions. The responses thereto filed by both the

plaintiffs and the defendants.

The first motion before the court is defendant’s “Motion

to Award Damages to Defendant against Plaintiff.” On April

11, 2003, this court upheld the decision of the Butler County

Board of Zoning Appeals which granted the defendants the

47a

right to operate a commercial hunting preserve known as

Quail Ridge Hunt Club. This mater was before the court

pursuant to an appeal of the BZA decision which was filed by

plaintiffs, Michael and Cara Loriz, pursuant to R.C. Sec.

2506.01 et seq “Administrative Appeals.” As part of this

appeal, the plaintiffs requested a stay of the BZA decision.

Now the defendants, having been successful, want damages.

Their request for damages is couched in terms of Civ. R.

65(B) which refers to preliminary injunctions and the granting

of damages. However, in this particular case this was not an

injunction but a stay granted pursuant to Sec. 2635 of the

Butler County Zoning Resolution. Although defendants

requested an appeal bond, that request was not approved by

the court and no bond was ever required to be posted.

The court finds that there is no provision for grant.ng

damages in regard to a “stay” where the applicant is

unsuccessful. Even if there was, the amount of damages is

limited to the amount of the bond. In this case, no bond was

required. Consulting Agency v. Kingsland, 69 O App. 3d 753

(1990).

Defendants’ Motion for Damages is therefore denied.

The second motion before the court was filed by the

plaintiffs to Order Withdrawal of John B. Connaughton as

counsel to defendants Keller and Simmons. Plaintiffs argue

that they intend to call Connaughton as a witness to testify

about his knowledge of the case and to testify about his

presence at the hunting club during which time a video was

made of some test shots and a decibel meter (to show noise

levels). Mr. Connaughton was not the only person present.

The court has reviewed the Disciplinary Rules DRS-

102(B) and finds that plaintiffs’ motion is premature. DR5-

48a

102(B) only requires an attorney to step down if it is apparent

that his testimony is or may be prejudicial to his client. At this

time, it is not clear whether this is the case. Plaintiffs also

take exception to Connaughton’s representation before the

BZA. However, his comments before the BZA were in the

form of argument and summation and cannot be considered as

testimony on behalf of his client, no matter how forceful they

might have been.

For these reasons, plaintiffs’ motion to order the

withdrawal of J.B. Connaughton as attorney for cefendants is

denied at this time.

The third motion before the court was filed on behalf of

the Butler County Commissioners and the members of the

Butler County Board of Zoning Appeals (BZA) to dismiss the

amended complaint which added them as party defendants. In

paragraphs 7 and 8 of the plaintiff's amended complaint, the

commissioners are identified only as having the authority to

appoint the members of the BZA and plaintiff claims that

because of this they are responsible for their actions. The

BZA is identified as having the power to enforce the zoning

resolution. In paragraph 29, the BZA is accusec of acting in

an arbitrary and capricious manner in the granting of the

conditional use permit to the defendants herein. No other

allegations are made against the commissioners and the BZA

in counts | through 5 of the amended complaint.

R.C.Section 303.04 requires the Board of County

Commissioners to appoint a zoning commission and R.C.

303.13 also requires the Board to appoint a Board of Zoning

Appeals.

R.C. 2744.02(A) classifies the functions of a political

subdivision as either governmental or proprietor and except

49a

for specified exceptions a political subdivision is not liable in

a civil action for damages. In this particular case, neither the

action of the commissioners nor the BZA fall into one of the

exceptions to liability. R.C. 2744.02(C) defines governmental

function as any function that is performed by a political

subdivision voluntarily or pursuant to legislative requirement.

The Court finds that the Butler County Commissioners in

appointing the members of the BZA were performing their

governmental function in that they were required by law to

appoint the members of the BZA.

With regard to the BZA, the Court also finds that they

were fulfilling a governmental function in that they were

performing a quasi-judicial function. See R.C.

2744.01(C)(2)(f). The Court finds after a review of the record

that the BZA hearing resembled a judicial proceeding in that

notice of the BZA proceedings were sent to both the plaintiff

and defendant, who were both represented by counsel. At the

hearing, the BZA also afforded both sides the opportunity to

present their positions with evidence regarding whether to

grant or deny the conditional use permit, and finally, a record

was made. This decision was eventually appealed pursuant to

R.C. 2506.01. (See Ikovich v. Steubonville, 144 Ohio App

325; Talbut v. Perrysburg, 72 O. Ap 3d 475.

The Court finds after a review of the pleadings and the

record, that both the Butler County Commissioners and the

BZA were fulfilling their governmental functions and are not

liable in a civil action for damages.

The motion of the defendants Butler County

Commissioners and the Butler County BZA is granted and

they are hereby dismissed as party defendants in the above-

captioned case.

50a

The fourth motion to be considered by the Court is the

Motion for Relief form Judgment filed pursuant to Civ. R.

60(B) by the plaintiffs. The plaintiffs allege that several

exhibits submitted into the Court record as part of (he original

administrative appeal from the BZA are missing and have

either been misplaced, lost, or were never provided to the

Court in the first place. For these reasons, the platatiffs assert

that they should be granted relief from judgment on the

grounds of mistake, inadvertence, excusable neglect or any

other reason justifying relief.

The judgment from which plaintiffs seek relief was

rendered by Judge William Stapleton on April 11, 2003.

(Judge Stapleton is now deceased). The plaintiffs contention

is that because the record is not clear whether Judge Stapleton

was provided these exhibits or had access to them, that his

judgment is faulty and should be re-heard. During this time

period, the plaintiff-appellants were represented by counsel

who filed extensive trial memorandum, both before Judge

Stapleton and also before the Court of Appeals in which he

recited the facts and made reference to these documents. If in

fact these documents were missing, and there is no way to

determine this, Judge Stapleton was made aware of them, and

if necessary could have requested that counsel supply them.

The Court finds that the plaintiffs have failed to establish

any of the five prongs of Civ. R. 60(B) and for this reason,

the Motion to Reconsider is hereby denied.

Enter this 4 day of December, 2005.

So Ordered,

/s/

William B. McCracken, Judge

APPENDIX 10

IN THE COURT OF COMMON PLEAS

BUTLER COUNTY, OHIO

Case No. CV05-07-2228°

[Filed July 6, 2005]

MICHAEL LORIZ, etal. _ )

Appellant )

)

Vv. )

)

Butler County Board of )

Zoning Appeals )

)

NOTICE OF APPEAL OF DECISION OF THE

ZONING BOARD OF APPEALS OF BUTLER

COUNTY, OHIO

The undersigned, Michael Loriz and Cara _ Loriz,

representing themselves as pro se appellants, hereby give

notice of their appeal to the Common Pleas Court of Butler

County, Ohio, from the final order, adjudication or decision

of the Zoning Board of Appeals of Butier County, Ohio,

rendered on the 9th day of June, 2005, in which it was

decided by Resolution and held that Charles E. Keller may

operate his commercial recreational facility at his property

located at 6508 State Road, Somerville, Ohio, 45064, 365

52a

days a year, from sunrise to sunset, and without any further

annual review by the Board. A copy of the Resolution is

attached hereto and marked Exhibit “A.”

Appellants also ask that a Stay of Proceedings be enforced

by the Board of Zoning Appeals, staying the expanded

operation of the subject commercial recreational facility. If the

Board refuses to do so, appellants ask that sucli a Stay be

ordered by the Court in accordance with Section 26.35 of the

Butler County, Ohio Zoning Resolution which states:

An appeal shall stay all proceedings in furtherance of

the action appealed from, unless the Zoning Iiaspector

certifies to the Board, after notice of appeals shall

have been filed with him, that by reason of facts stated

in the certificate a stay would, in his opinion, cause

imminent peril to life or property. In such case,

proceedings shall not be stayed otherwise than by an

order which may, on due cause be granted by the

board on application after notice to the Zoning

Inspector, or by judicial order.

Respectfully submittec,

/s/

MICHAEL H. LORIZ,

Pro Se Counsel/Plaintiff

PO Box 923; 11 Marc Street

Shelter Island, NY 11964-0923

/s/ .

CARA F. LORIZ

Pro Se Counsel/Plaintiff

PO Box 923; 11 Marc Street

Shelter Island, NY 11964-0923

53a

APPENDIX 11

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Case No. 06-3427

[Filed July 13, 2006]

MICHAEL HANNING LORIZ: ~

CARA FRANCKE LORIZ

Plaintiffs-Appellants,

JOHN B. CONNAUGHTON, et al

)

v. )

)

Defendants-Appellees. )

)

MOTION FOR PRELIMINARY INJUNCTION

PENDING APPEAL

The Plaintiffs-Appellants move this Court for an

injunction pending appeal pursuant to Federal Rule of

Appellate Procedure 8. In accordance with that Rule,

Plaintiffs-Appellants filed an initial motion in the District

Court on April 6, 2006. The District Court has not acted.

With no assurance from the District Court clerk that the

motion will be adjudicated before the end of the appeal

period, action by the District Court appears to be

impracticable.

54a

Plaintiffs-Appellants ask this Honorable Court to enjoin

the irreparable harm created by an unconstitutional taking

acknowledged by the District Court in its appealed decision.

Beginning September 1, 2006 (absent injunction), another

season of shooting operations will be commenced by the

Defendants-Appellees, and lead shot trespass onto our

property (and onto the local watershed) wil] continue.

Opposition counsel was previously noticed of the instant

motion by way of the District Court filing of April 6, 2006,

as well as in our Second Reply in Support of Motion to

Reconsider, mailed June 29, 2006. That motion challenges an

extension of time granted to the Defendant-Appellees by the

clerk, a delay in briefing that heightens the nzed for the

injunction.

Respectfully submitted,

/s/

/s/ __

MICHAEL H. LORIZ

CARA F. LORIZ

Pro Se Plaintiffs-Appetlants

11 Marc Street

P.O. Box 923

Shelter Island, NY 11964

5Sa

MEMORANDUM IN SUPPORT

Plaintiffs-Appellants (hereinafter, the Loriz family) ask the

Court to enjoin shooting operations by Defendants Keller,

Keller, Simmons and Ridge Wind Quail Hunts LLC

(hereinafter, the Shooters) that result in lead shot trespass as

illegally and unconstitutionally authorized by Defendant -

Stephen Gray (the State) and the County (Defendants

Steenken, Bevington, Salman, Zboril, Filpot, Daniel’,

Turner, Gates, Balsinger, J. Fox, M. Fox, Jolivette, Furmon,

Dwyer, Jones and Piper).

The District Court ruling under appeal found that shooting

operations authorized by the State and County substantiate a

taking of the Loriz family property (R.75). We urgently

request this Court to enjoin the permitting, licensing, and

operation of shooting range, dog training and field trial

activities on the property of Charles and Christopher Keller

~during the pendency of the appeal of our case in the Sixth

Circuit. We specifically ask for an injunction against the

County conditional use permit (BZA Resolution No. 01-26C)

and all State Division of Wildlife permits and licenses for

shooting activities of any kind on the Keller property.

' These first six defendants are Butler County Board of Zoning

Appeals members and when referred to as a group separately from

the other County Defendants are named “the BZA.”

56a

APPENDIX 12

RELEVANT STATUTORY PROVISIONS INVOLVED

TITLE 28. JUDICIARY AND JUDICIAL

PROCEDURE

PART IV. JURISDICTION AND VENUE

CHAPTER 81. SUPREME COURT

- 28 U.S.C. § 1257

§ 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the highest court

of a State in which a decision could be had, may |e reviewed

by the Supreme Court by writ of certiorari where the validity

of a treaty or statute of the United States is drawn in question

or where the validity of a statute of any State is drawn in

question on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States, or where

any title, right, privilege, or immunity is specially set up or

claimed under the Constitution or the treaties or statutes of, or

any commission held or authority exercised under, the United

States.

(b) For the purposes of this section, the term “highest court

of a State” includes the District of Columbia Court of

Appeals.

S7a

TITLE 25. COURTS -- APPELLATE

CHAPTER 2506. APPEALS FROM ORDERS OF

ADMINISTRATIVE OFFICERS AND AGENCIES

O.R.C. § 2506.04

§ 2506.04. Finding and order of 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.

TITLE lL. STATE GOVERNMENT

CHAPTER 163. APPROPRIATION OF PROPERTY

O.R.C. § 163.05

§ 163.05. Petition for appropriation

An agency which has met the requirements of section

163.04 of the Revised Code, may commence proceedings in

a proper court by filing a petition for appropriation of each

parcel or contiguous parcels in a single common ownership,

58a

or interest or right therein. The petition of a private agency

shall be verified as in a civil action and all petitions shall

contain:

(A) A description of each parcel of land or interest or right

therein sought to be appropriated, such as will permit ready

identification of the land involved;

(B) In the case of a private agency, a statemert that such

appropriation is necessary, and, in the case of a public

agency, a copy of the resolution of the public agency to

appropriate;

(D) A statement of the estate or interest sought to be

appropriated;

(E) The names and addresses of the owners, so far as they can

be ascertained;

(F) A statement showing requirements of section 163.04 of

the Revised Code have been met;

(G) A prayer for the appropriation;

(H) In the event of an appropriation where the agency would

require less than the whole of any parcel containing a

residence structure and the required portion would remove a

garage and sufficient land that a replacement garage could not

be lawfully or practically attached, the appropriaiion shall be

for the whole parcel and all structures.

in the event of the appropriation of less than the fee of any

parcel or of a fee in less than the whole of any parcel of

59a

property, the agency shall either make available to the owner

or shall file in the office of the county engineer, a description

of the nature of the improvement or use which requires the

appropriation, including any specifications, elevations, and

grade changes already determined at the time of the filing of

the petition, in sufficient detail to permit a determination of

the nature, extent, and effect of the taking and improvement.

A set of highway construction plans shall be acceptable in

providing such description for the purposes of the preceding

sentence in the appropriation of land for highway purposes.

O.R.C. § 163.09

§ 163.09. Valuation of property taken; how determined

(A) If no answer is filed pursuant to section 163.08 of the

Revised Code, and no approval ordered by the court to a

settlement of the rights of all necessary parties, the court, on

motion of a public agency, shall declare the value of the

property taken and the damages, if any, to the residue to be as

set forth in any document properly filed with the clerk of the

court of common pleas by the public agency. In all other

cases, the court shall fix a time, within twenty days from the

last date that the answer could have been filed, for the

assessment of compensation by a jury.

(B) When an answer is filed pursuant to section 163.08 of the

Revised Code and any of the matters relating to the right to

make the appropriation, the inability of the parties to agree,

or the necessity for the appropriation are specifically denied

in the manner provided in that section, the court shall set a

day, not less than five or more than fifteen days from the date

the answer was filed, to hear those matters. Upon those

matters, the burden of proof is upon the owner. A resolution

or ordinance of the governing or controlling body, council, or

60a

board of the agency declaring the necessity for the

appropriation shall be prima-facie evidence of that necessity

in the absence of proof showing an abuse of discretion by the

agency in determining that necessity. If, as to any or all of the

property or other interests sought to be appropriated, the court

determines the matters in favor of the agency, the court shall

set a time for the assessment of compensation by the jury

within twenty days from the date of the journalization of that

determination. An order of the court in favor of the agency on

any of the matters or on qualification under section 163.06 of

the Revised Code shall not be a final order for purposes of

appeal. An order of the court against the agency on any of the

matters or on the question of qualification under section

163.06 of the Revised Code shall be a final order for purposes

of appeal. If a public agency has taken possession prior to

such an order and such an order, after any appeal, is against

the agency on any of the matters, the agency shal) restore the

property to the owner in its original cundition or respond in

damages, which may include the items set forth in division

(A)(2) of section 163.21 of the Revised Code, recoverable by

civil action, to which the state consents.

Revised Code, and none of the matters set forth in division

(B) of this section is specifically denied, the cou:t shall fix a

time within twenty days from the date the answer was filed

for the assessment of compensation by a jury.

(D) If answers are filed pursuant to divisions (B) and (C) of

this section, or an answer is filed on behalf of fewer than all

the named owners, the court shall set the hearing or hearings

at such times as are reasonable under all the circumstances,

but in no event later than twenty days after the issues are

joined as to all necessary parties or twenty days after rule

therefor, whichever is earlier.

6la

(E) The court, with the consent of the parties, may order two

Or more cases to be consolidated and tried together, but the

rights of each owner to compensation, damages, or both shall

be separately determined by the jury in its verdict.

(F) If an answer is filed under section 163.08 of the Revised

Code with respect to the value of property appropriated under

section 307.08, 504.19, 6101.181 [6101.18.1], 6115.221

{6115.22.1], 6117.39, or 6119.11 of the Revised Code as the

result of a public exigency, the burden of proof with respect

to that value is on the party or parties to the appropriation

other than the property owners.

O.R.C. § 163.17

§ 163.17. Interest payable on verdict

Where the agency has the right to take possession of the

property before the verdict upon payment into court of a

deposit, and a portion of said deposit may be withdrawn

immediately by the owner, the amount of the verdict which

exceeds the portion of the deposit withdrawable shall be

subject to interest from the date of taking to the date of actual

payment of the award.

Where the agency has no right to take possession of the

property before the verdict, if the award is not paid to the

owner or deposited in court within twenty-one days after

journalization of the verdict, interest thereafter shall accrue,

except that where the owner appeals, interest shall not accrue

until the agency takes possession.

If the owner appeals and Is granted a larger award, interest

shall be paid on the additional amount awarded from the date

62a

of taking — session to the date of actual paymen: or date of

deposit w.. mmediate right of withdrawal.

If the agency wishes to appeal, it may require.the deposit

to remain with the court pending final disposition of the case

provided it pays interest on the final award from date of

taking possession to the date the money is actually paid or

made available to the owner; provided, the owner may

withdraw the entire award upon posting an appropriate refund

bond set by the court; and provided, that where a building or

other structure is taken, the court may, on application of the

owner, permit the owner to withdraw a reasonable portion of

the award allocable to the building without giving bond.

If the amount of any deposit actually withdrawn by the

owner exceeds the final award from which no appeal is or can

be taken, then the owner at the time of entry of judgment on

such award shall refund at once to the court for the account of

the agency the amount of such excess plus interest on such

excess-from the date of withdrawal of such exc2ss until the

date of such refund, and upon the failure of the owner to

make such refund, the agency shall be entitled to a money

judgment against the owner.

Except for cases involving the department of

transportation, interest as provided for in this section shall be

at the rate of interest for judgments as set forth in section

1343.03 of the Revised Code. In a case involving the

appropriation of property by the department of transportation,

and the department is the sole public agency seeking to

appropriate property in the case, interest as provided for in

this section shall be at the per annum rate of either the interest

rate as defined and established in division (E) of section

5703.47 of the Revised Code, or ten per cent, whichever is

less.

63a

TITLE 1. STATE GOVERNMENT

CHAPTER 163. APPROPRIATION OF PROPERTY

DISPLACED PERSONS

O.R.C. § 163.54

§ 163.54. Additional payments for dwelling owned and

occupied a minimum of 180 days

(A) In addition to payments otherwise authorized by sections

163.51 to 163.62 of the Revised Code, the head of the

displacing agency shall make an additional payment not to

exceed twenty-two thousand five hundred dollars to any

displaced person who is displaced from a dwelling actually

owned and occupied by him for not less than one hundred

eighty days prior to the initiation of negotiations for the

acquisition of the property. Such additional payment shall

include the following elements:

(1) The amount, if any, which when added to the

acquisition cost of the dwelling acquired by the displacing

agency, equals the reasonable cost of a comparable

replacement dwelling.

(2) The amount, if any, which will compensate the

displaced person for any increased interest costs and other

debt service costs which the person is required to pay for

financing the acquisition of a comparable replacement

dwelling. This amount shall be paid only if the dwelling

acquired by the displacing agency was encumbered by a

bona fide mortgage which was a valid lien on the dwelling

for not less than one hundred eighty days prior to the

initiation of negotiations for the acquisition of the

dwelling.

64a ene

(3) Reasonable expenses incurred by the displaced person

for evidence of title, recording fees, and other closing

costs incident to the purchase of the replacement dwelling,

but not including prepaid expenses.

(B) The additional payment authorized by this section shall be

made only to a displaced person who purchases ard occupies

a replacement dwelling which is decent, safe, and sanitary not

later than the end of the one-year period beginning on the date

on which he receives from the displacing agency final

payment of all costs of the acquired dwelling, or 9n the date

on which the displacing agency’s obligation under division

(B)\(3) of section 163.56 of the Revised Code is met,

whichever is later, except that the displacing azency may

extend the period for good cause. If the period is. extended,

the payment under this section shall be based on the costs-of

relocating the person to a comparable replacement dwelling

within one year after the displaced person receives from the

displacing agency final payment of all costs of the acquired

dwelling.

O.R.C. § 163.55

§ 163.55. Additional payments for dwelling occupied a

minimum of 90 days

(A) In addition to amounts otherwise authorized by sections

163.51 to 163.62 of the Revised Code, the head of a

displacing agency shall make a payment to or for any

displaced person displaced from any dwelling no: eligible to

receive a payment under section 163.54 of the Revised Code

which dwelling was actually and lawfully occupied by such

displaced person for not less than ninety days prior to the

initiation of negotiations for acquisition of such dwelling, or

in any case in which displacement is not a direct result of

65a

acquisition, not less than ninety days prior to such other event

as the head of the lead agency shall prescribe. The payment

shall consist of the amount necessary to enable the displaced

person to lease or rent for a period not to exceed forty-two

months, a comparable replacement dwelling, but not to exceed

five thousand two hundred fifty dollars. At the discretion of

the head of the displacing agency, a payment under this

division may be made in periodic installments. Computation

of a payment under this division to a low-income displaced

person shall take into account the person’s income.

(B) Any person eligible for a payment under division (A) of

this section may elect to apply the payment to a down

payment on, and other incidental expenses pursuant to, the

purchase of a decent, safe, and sanitary replacement dwelling.

The person may, under criteria established by the head of the

displacing agency, be eligible under this division for the

maximum payment allowed under division (A) of this section,

except that, in the case of a displaced homeowner who has

owned and occupied the displacement dwelling for at least

ninety days but not more than one hundred eighty days

immediately prior to the initiation of negotiations for the

acquisition of such dwelling, the payment shall not exceed the

payment the person would otherwise have received under

section 163.54 of the Revised Code had the person owned and

occupied the displacement dwelling one hundred eighty days

immediately prior to the initiation of the negotiations.

O.R.C. § 163.61

§ 163.61. Reimbursement to owner for incidental expenses

The head of a state agency, as soon as practicable after the

date of payment of the purchase price or the date of deposit in

court of funds to satisfy the award of compensation in a

66a

condemnation proceeding to acquire real property, whichever

is the earlier, shall reimburse the owner, to the extent the

head of such agency considers fair and reasonable, for

expenses he necessarily incurred for:

(A) Transfer taxes, and similar expenses incidental to

conveying such real property to the state agency;

(B) Penalty costs for prepayment of any preexisting recorded

mortgage entered into in good faith encumbering such real

roperty;

property ,

are allocable to a period subsequent to the date of vesting title

in the state or state agency, or the effective date of possession

of such real property by the agency, whichever isthe earlier.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.