[Cite as Litchfield Twp. Bd. of Trustees v. Nimer, 2012-Ohio-5431.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

LITCHFIELD TOWNSHIP BOARD OF 

TRUSTEES 

 Appellee 

 v. 

ABDALLA NIMER, et al. 

 Appellants 

C.A. No. 11CA0037-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF MEDINA, OHIO 

CASE No. 09CIV2309 

DECISION AND JOURNAL ENTRY

Dated: November 26, 2012 

 

BELFANCE, Presiding Judge. 

¶1 Appellants, Abdalla A. Nimer and Cathy Fobes Al-Nimer, appeal the order of the 

Medina County Court of Common Pleas that permanently enjoined them from using structures 

on their property for commercial purposes until they comply with the Litchfield Township 

Zoning Resolution. This Court affirms in part and reverses in part. 

I. 

¶2 The Nimers own property located at 9696 Crow Road and 9706 Crow Road in 

Litchfield Township. They also own Medina Meats, Inc., which processes and packages beef 

jerky, beef sticks and honey ham sticks for wholesale distribution. According to Mr. Nimer, they 

are one of the few remaining producers of beef jerky in the United States, and they operate on a 

large scale. The production and packaging is done at a processing facility located on 9706 Crow 

Road. That property is zoned for commercial use under the Litchfield Zoning Resolution, but 

the Nimers’ operation spills over onto the adjacent property at 9696 Crow Road, part of which is 
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zoned for commercial use and part of which is zoned for residential use. The portion of the 

property that is zoned for commercial use contains an existing building. In 2009, the Nimers 

modified that existing building by expanding it and adding an extension structure that connected 

the building to the beef jerky facility. They built an 80 foot by 120 foot pole barn on the 

residentially zoned portion of 9696 Crow Road. Mr. Nimer claimed an agricultural exemption 

for this building based upon his representation that the barn was for storing hay and cattle. In 

January 2010, the Nimers constructed an additional 30 foot by 60 foot building on the residential 

portion of 9696 Crow which Mr. Nimer referred to as a “cattle barn.” The Nimers did not fully 

comply with the Litchfield Township Zoning Resolution with respect to any of this activity, nor 

did they obtain necessary permits. Instead, they took the position that compliance with the 

zoning resolution was not required because their planned operations were an agricultural use of 

the property. 

¶3 Litchfield Township filed a complaint for a permanent injunction against the 

Nimers, and the case proceeded to a bench trial on the issue of whether they were exempt from 

the zoning resolution because of an agricultural use. The trial court decided that any agricultural 

use of the property was secondary to the meat processing business and granted the permanent 

injunction. The Nimers appealed. 

II. 

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING A PERMANENT INJUNCTION 

UPON THE ENTIRE LITCHFIELD PROPERTY WHERE THERE WAS A 

VIOLATION OF DEFENDANTS’/APPELLANTS’ RIGHT OF DUE 

PROCESS[.] 

¶4 The Nimers’ first assignment of error is that they were deprived of procedural due 

process because (1) not all of the buildings subject to the injunction were included in the 
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complaint, (2) notice of potential violations was sent only to Mr. Nimer and not to Mr. and Mrs. 

Nimer jointly, and (3) the property has since been transferred to a limited liability corporation. 

We disagree. 

¶5 “Before a protected liberty or property interest may be infringed, due process 

requires notice and an opportunity to be heard at a meaningful time and in a meaningful 

manner.” Bd. of Trustees of Columbia Twp. v. Albertson, 9th Dist. No. 01CA007785, 2001 WL 

1240135, *5 (Oct. 17, 2001), citing State v. Hochhausler, 76 Ohio St.3d 455, 459 (1996). Due 

process requires notice that is sufficient to permit a defendant to lodge objections. W. Chester 

Twp. Bd. of Trustees v. Speedway Superamerica, L.L.C., 12th Dist. No CA2006-05-104, 2007-

Ohio-2844, ¶ 43. It “is a flexible concept, and the procedures required vary as demanded by 

circumstances.” Riffe v. Ohio Real Estate Appraiser Bd., 130 Ohio App.3d 46, 51 (9th 

Dist.1998). 

¶6 The Nimers’ first argument is that the Township’s complaint did not reference a 

pole barn constructed on the property that had been in the process of renovation, yet the trial 

court ordered that with respect to “any buildings on the property including any buildings that 

have been constructed or were in the process of being constructed when the Township filed its 

complaint[,]” the Nimers “may not occupy or use any such buildings in any manner except for 

the keeping and feeding of animals * * * [and] [i]n particular they may not use such buildings for 

the processing of meat, the storage of meat products, or as an office.” The complaint specifically 

referenced the construction of a connecting structure between the structure located on the 

commercial portion of 9696 Crow Road and the existing meat processing facility, and broadly 

sought an injunction restraining construction and improvements on the subject properties. In 

March 2010, the parties appeared at a hearing during which the Township stated that it was 
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seeking injunctive relief as to any further construction activity on the entire property and further 

use of the buildings that had been constructed without a zoning certificate. 

¶7 Several months later, at trial, both the Township and the Nimers presented 

evidence related to the use of both buildings located on the residential portion of the property. 

The Township requested amendment to the complaint under Civ.R. 15(B) to conform to the 

evidence. Under these circumstances, the Nimers did not lack notice nor an opportunity to 

respond, as demonstrated by Mr. Nimer’s extensive testimony. 

¶8 The Nimers have also argued that the Township only sent notice of the zoning 

violations to Mr. Nimer’s attention rather than to Mr. and Mrs. Nimer. There is no dispute, 

however, that Mrs. Nimer was served with the complaint and that the Nimers had ample 

opportunity to defend the case. Similarly, they have argued that the trial court could not enjoin 

use of the subject property, which has since been consolidated into a single parcel and, according 

to the Nimers, transferred to a limited liability corporation. Although there was some testimony 

on this point at trial, Mr. Nimer also testified that the limited liability corporation is controlled by 

him and Mrs. Nimer and that the transfer was solely for the purpose of shielding their personal 

assets. In any event, it is clear that the Nimers had adequate notice and did, in fact, defend the 

case. 

¶9 The Nimers’ first assignment of error is overruled. 

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING A PERMANENT INJUNCTION 

UPON THE LITCHFIELD PROPERTY WHERE 

DEFENDANTS/APPELLANTS MET THEIR BURDEN OF PROOF TO SHOW 

THAT THE USE OF THE LITCHFIELD PROPERTY WAS AGRICULTURAL 

UNDER R.C. 519.01 AND 519.21[.] 
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¶10 In their second assignment of error, the Nimers argue that the trial court erred in 

granting a permanent injunction because they demonstrated that the use of the parcel was 

agricultural and therefore exempt from the township zoning resolution. We disagree. 

¶11 The Ohio Supreme Court has noted that, as a general rule, “[t]he grant or denial of 

an injunction is solely within the trial court’s discretion and, therefore, a reviewing court should 

not disturb the judgment of the trial court absent a showing of a clear abuse of discretion.” 

Garono v. State, 37 Ohio St.3d 171, 173 (1988). In this case, however, Mr. Nimer has argued 

that the evidence at trial established that the property at issue is agricultural. In other words, he 

has argued that the trial court’s conclusion in that respect is against the manifest weight of the 

evidence. Accordingly, this Court “weighs the evidence and all reasonable inferences, considers 

the credibility of witnesses and determines whether in resolving conflicts in the evidence, the 

[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the 

[judgment] must be reversed and a new trial ordered.” (Internal citations and quotations 

omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting Tewarson v. 

Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001). 

¶12 Although R.C. 519.02 grants townships the authority to adopt zoning resolutions, 

that authority is circumscribed by statute. See Bd. of Twp. Trustees of Bainbridge Twp. v. 

Funtime, Inc., 55 Ohio St.3d 106 (1990), paragraphs one and two of the syllabus. See also State 

ex rel. Schramm v. Ayres, 158 Ohio St. 30, 33 (“[T]ownships are creatures of the law and have 

only such authority as is conferred on them by law.”). Zoning resolutions are in derogation of 

the common law and deprive a property owner of certain otherwise lawful uses of his land. 

“Therefore, such resolutions are ordinarily construed in favor of the property owner. 

Restrictions on the use of real property by ordinance, resolution or statute must be strictly 
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construed, and the scope of the restrictions cannot be extended to include limitations not clearly 

prescribed.” Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364, ¶ 19. In addition, 

exemptions from restrictive zoning provisions are to be liberally construed. Id. 

¶13 Under R.C. 519.21(A), townships cannot “prohibit the use of any land for 

agricultural purposes or the construction or use of buildings or structures incident to the use for 

agricultural purposes of the land on which such buildings or structures are located[]” or require a 

zoning certificate for such structures. “In other words, R.C. 519.21(A) provides two 

circumstances under which the use of a property is exempt from township zoning regulations: (1) 

the property is used for agricultural purposes or (2) the construction or use of buildings or 

structures on the property is incident to an agricultural use of the land.” Terry at ¶ 21. 

¶14 “Agriculture” is defined by R.C. 519.01: 

As used in section 519.02 to 519.25 of the Revised Code, “agriculture” includes 

farming; ranching; aquaculture; apiculture; horticulture; viticulture; animal 

husbandry, including, but not limited to, the care and raising of livestock, equine, 

and fur-bearing animals; poultry husbandry and the production of poultry and 

poultry products; dairy production; the production of field crops, tobacco, fruits, 

vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or 

mushrooms; timber; pasturage; any combination of the foregoing; and the 

processing, drying, storage, and marketing of agricultural products when those 

activities are conducted in conjunction with, but are secondary to, such 

husbandry or production.

(Emphasis added.) Applying the general definition of agriculture contained in R.C. 519.01, we 

must consider whether the Nimers’ property could be seen to have a use for agriculture in caring 

for livestock or in the processing, storage, and marketing of agricultural products. Terry at ¶ 23. 

The Beef Jerky Facility 

¶15 In its complaint, the Township sought a permanent injunction prohibiting the 

Nimers from continuing any construction activity on the commercially zoned portion of 9696 

Crow Road. This included the expansion of an existing building located in the commercially 
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zoned portion of 9696 Crow Road as well as the construction of an extension connecting this 

building to the beef jerky facility. The Nimers contend that because they are engaging in 

agriculture by virtue of their animal husbandry activities and because the beef jerky facility is 

engaged in the processing and marketing of agricultural products, the beef jerky facility is 

exempt as provided in R.C. 519.21(A). To qualify as “agriculture” pursuant to R.C. 519.01, 

however, the processing and marketing activity must be secondary to the animal husbandry. 

Terry, 130 Ohio St.3d 125, 2011-Ohio-3364, at ¶ 23. 

¶16 The Nimers’ business is producing beef jerky and beef sticks on a large scale, 

with annual gross revenues of approximately $6.2 million. Although they do have a small retail 

store on the Crow Road property, Mr. Nimer testified that most people do not know that it is 

there and that his business is overwhelmingly wholesale production for various distributors. Mr. 

Nimer testified that the processing business requires 400,000 pounds of beef hearts, which he 

purchases exclusively from outside sources, and almost one million pounds of meat per year, or 

approximately 1,187 cattle. Of that total, 39% of the meat and 100% of the beef hearts come 

from outside sources, while 71% of the meat comes from cattle that he purchases and initially 

raises on another property that he owns which he referred to as the Chatham farm. 

¶17 At trial, Mr. Nimer described the location of the cattle from the time he purchases 

them over the rest of their lifespan. Specifically, he testified that he buys the cattle from a 

vendor when they are between 800 and 900 pounds and maintains them at the Chatham farm 

until they grow to 1,000 pounds. Mr. Nimer consulted a specialist who helped him devise a plan 

so that he could ensure that his healthy cattle would not get ill from other diseased cattle. By 

keeping his cattle at the Chatham farm he could ensure that they were either disease-free or 

sufficiently free from antibiotics prior to being transported to Crow Road. According to the plan, 
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Mr. Nimer would take healthy cattle from the Chatham farm and bring them to Crow Road in 

small batches at which point he would care for them another 30 to 40 days until they attain a 

weight of about 1,200 pounds and are ready for slaughter. He anticipated that he would 

slaughter 30 cattle weekly while maintaining another 30 on the Crow Road property. 

¶18 Mr. Nimer uses an outside business for slaughtering although he hoped to bring 

the slaughtering to Crow Road while maintaining the “continuous cycle” of rotating mature cows 

onto the Crow Road property for 30-40 days before slaughter and processing. Mr. Nimer also 

indicated that he would continue to purchase all of the beef hearts used in the production from 

outside sources. Mr. Nimer also testified that he wished to build several additional buildings on 

the residentially zoned portion of the Crow Road property so that he could begin to raise pigs 

and process the meat for producing honey ham sticks. He indicated that he was currently 

producing honey ham sticks at the beef jerky facility, but this was very tedious because all of the 

equipment had to be cleaned and special precautions taken so as to ensure that the production of 

beef products and ham sticks were completely separate. Mr. Nimer also planned to raise the pigs 

at the Chatham farm and transport them in batches over to the Crow Road property for additional 

growth prior to slaughter. As of the date of trial, there were 21 head of cattle on the Crow Road 

property. Thus, according to his plan, Mr. Nimer anticipated caring for approximately 60 head of 

cattle at any one time and an unspecified number of pigs while maintaining the remainder at the 

Chatham farm. 

¶19 In light of the evidence, we conclude that the beef jerky business does not 

constitute “agriculture” within the meaning of R.C. 519.01. It is clear that the care of livestock 

constitutes agriculture as defined in R.C. 519.01, and Mr. Nimer demonstrated that he is 

engaging in agriculture by caring for cattle on his property. In addition, the processing and 
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marketing of the beef products could fall within the definition of agriculture if it were secondary 

to the care of the cattle. Here, however, it is apparent that the marketing and processing 

operation on the property is not secondary to the care of the livestock that occurs on the Crow 

Road property. In this respect, we note that it is particularly significant that, at the time of trial, 

Mr. Nimer was caring for only 21 heads of cattle on the Crow Road property. However, 

according to his own testimony, his processing and operation entails thousands of pounds of 

meat as well as beef hearts that Mr. Nimer does not raise or care for on the land. 

Use of Buildings on the Land 

¶20 As noted above, a township has no power to prohibit the “use of buildings or 

structures incident to the use for agricultural purposes of the land on which such buildings or 

structures are located[.]” R.C. 519.21(A). In this case, there are four structures at issue, two that 

are located on the commercial portion of the Crow Road property and two that are located on the 

residentially zoned portion. 

¶21 The township sought an injunction prohibiting Mr. Nimer from engaging in 

further construction activity on an existing building and an extension that connected this building 

to the Medina Foods Plant. The evidence adduced at trial demonstrated that the building and the 

extension are used for the beef jerky business and not used in conjunction with the care of the 

cattle. As we have concluded that the beefy jerky operation does not constitute agriculture, it 

cannot be said that the use of the building and extension are incident to an agricultural use. 

¶22 The township also sought a permanent injunction as to two structures located on 

the residential portion of 9696 Crow Road. The first was a pole barn that measures 80 by 120 

feet and the second was an 80 by 60 foot structure referred to as a cattle barn. According to Mr. 

Nimer, he told Eric Noderer, the township zoning inspector, that he planned to use the 80 by 120 
10 

 

foot pole barn structure as a hay barn and submitted a form describing its agricultural use to that 

effect. As noted above, Mr. Nimer testified he planned to turn it into a pork processing facility 

similar to the existing beef processing facility. He also planned to build two more buildings the 

same size that would attach to the existing structure and be part of the same processing facility. 

With respect to the current use of the structure, Mr. Noderer testified that while he had not been 

permitted inside, the exterior made it appear that it was presently being used or prepared for 

office space. On cross-examination, Mr. Nimer testified that the structure had been partially 

drywalled and fitted with rough plumbing and electrical wiring sufficient to process pork. Mr. 

Nimer testified that the structure was not currently being used for any purpose other than to store 

some machinery. 

¶23 The trial court determined that the Nimers could use the two buildings located on 

the residential portion of the land for the keeping and feeding of animals and the storage of feed, 

however, they could not use the buildings for the processing and storage of meat products or as 

an office. Considering this testimony, and particularly in light of Mr. Nimer’s own testimony 

that he planned to use this structure to expand his commercial operations, the trial court did not 

err granting an injunction which allowed Mr. Nimer to use the buildings in a manner consistent 

with his agricultural use of the land but prohibited Mr. Nimer from using it in furtherance of his 

beef jerky business which, as noted above, does not constitute agriculture as defined in R.C. 

519.01. 

¶24 To summarize, the care of the cattle constitutes agriculture. However, the meat 

processing business does not fall within the definition of “agriculture” under R.C. 519.01 

because it is not “in conjunction with, but secondary to” the care of livestock. Similarly, the 

structures located on the commercial portion of the Crow Road property at issue are not subject 
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to the agricultural exemption set forth in R.C. 519.21(A) for buildings “incident to the use for 

agricultural purposes[.]” The buildings located on the residential portion of the Crow Road 

property are exempt from zoning to the extent that their use is incident to the care of the cattle. 

¶25 The trial court’s decision that the Nimers’ use of the property and buildings at 

issue was nonagricultural is not against the manifest weight of the evidence because the meat 

processing activities on Crow Road are not “agriculture” as defined in R.C. 519.01 and the use of 

the buildings on the Crow Road property for meat processing are not incident to an agricultural 

use on the land so as to exempt them from zoning. The Nimers’ second assignment of error is, 

therefore, overruled in that respect. To the extent that the trial court enjoined all uses of the 

buildings on the Nimers’ property, whether agricultural or not, other than “the keeping and 

feeding of animals” or “the storage of feed,” however, the scope of the injunction is overbroad, 

and the second assignment of error is sustained in that respect. 

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRED IN GRANTING A PERMANENT INJUNCTION 

UPON THE ENTIRE LITCHFIELD PROPERTY WHERE LITCHFIELD’S 

ENFORCEMENT OF THE ZONING RESOLUTION VIOLATED 

DEFENDANTS’/APPELLANTS’ RIGHT OF EQUAL PROTECTION UNDER 

THE LAW[.] 

¶26 The Nimers’ third assignment of error is that the trial court erred by enjoining the 

use of their property when other similarly situated properties were not required to comply with 

the Litchfield Township Zoning Resolution. 

¶27 Although the Nimers made this argument in the trial court, they did so with only 

passing and conclusory reference to the persons who, according to them, are being treated 

differently by Litchfield Township. Specifically, testimony on the issue was limited to Mr. 

Nimer’s own belief about the nature of the agricultural exemptions applied to the properties and 
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the zoning inspector’s suspicion that the agricultural use of those properties might be secondary 

to commercial uses. There is no evidence in the record establishing that there are properties 

similarly situated to the Crow Road property at issue or that they are, in fact, being treated 

differently. Without such a record, it is impossible for this Court to determine the merits of the 

Nimers’ equal protection argument, and their third assignment of error is overruled. 

III. 

¶28 The Nimers’ first and third assignments of error are overruled. Their second 

assignment of error is sustained in part. The judgment of the Medina County Court of Common 

Pleas is affirmed in part and reversed in part, and this matter is remanded to the trial court for 

proceedings consistent with this opinion. 

Judgment affirmed in part, 

reversed in part, 

and cause remanded. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 
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 Costs taxed equally to both parties. 

 

 EVE V. BELFANCE 

 FOR THE COURT 

CARR, J. 

DICKINSON, J. 

CONCUR.

APPEARANCES:

THEODORE J. LESIAK, Attorney at Law, for Appellants. 

DEAN HOLMAN, Prosecuting Attorney, and TOM J. KARRIS and BRIAN RICHTER, 

Assistant Prosecuting Attorneys, for Appellee.