[Cite as Campbell v. Smith, 2011-Ohio-3002.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

SCOTT CAMPBELL, 

ZONING INSPECTOR, 

 PLAINTIFF-APPELLEE, CASE NO. 1-10-79 

 v. 

DAVID O. SMITH, ET AL., O P I N I O N 

 DEFENDANTS-APPELLANTS. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CV 2009 0510 

Judgment Affirmed 

Date of Decision: June 20, 2011 

 

APPEARANCES: 

Richard E. Siferd and Brian J. Vennekotter for Appellants 

Michael A. Rumer for Appellee 
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PRESTON, J. 

{¶1} Defendants-appellants, David and Marsha Smith (hereinafter “the 

Smiths”), appeal the Allen County Court of Common Pleas’ judgment entry 

permanently enjoining them from maintaining the nuisance at their property and 

ordering them to remove junk vehicles and other debris from their property. For 

the reasons that follow, we affirm. 

{¶2} This case concerns several zoning violations at 1601 Reservoir Road 

in Bath Township, Allen County, Ohio. (Sept. 13, 2010 Tr. at 7-8). Prior to 1986, 

Dick and Marcia Mauk owned the property and used it as the location for The 

Mauk Brothers, a business operated by Dick and Gene Mauk. (Sept. 13, 2010 Tr. 

at 96-97, 100). The property was zoned R-1, residential district, until 1984, when 

the Mauks made an application to have the property re-zoned to B-2, general 

business district, so the property could be used for the business. (Id. at 98-99). 

Sometime in 1983, bankruptcy proceedings were initiated, which involved the 

subject property. (Id. at 98). On July 29, 1986, the Smiths obtained the property 

from the bankruptcy trustee. (P’s Ex. 4); (Sept. 13, 2010 Tr. at 120). 

{¶3} In May 2004, plaintiff-appellee, Scott Campbell, the Bath Township 

Zoning Inspector, sent the Smiths a letter requesting that they clean up junk and 

debris on their property. (Id. at 72). Some marginal improvements to the property 
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were made, so Campbell sent another letter to the Smiths in March 2006 

requesting that they clean up junk and debris on their property. (Id.). 

{¶4} On June 3, 2006, Campbell wrote another letter to the Smiths 

indicating that “all debris, junk, vehicles, trailers, and general trash must be 

removed from the property as viewed from the road right away around all 

buildings and main residential structure” within thirty (30) days. (Ex. H); (Sept. 

13, 2010 Tr. at 93). Later in June 2006, Campbell turned the matter over to Allen 

County Sheriff’s Deputy Feldner for enforcement of the Zoning Resolution. (Sept. 

13, 2010 Tr. at 59, 73). Deputy Feldner contacted Mr. Smith in August 2006 and 

visited the property on August 16, 2006; however, Mr. Smith would not allow 

Deputy Feldner entrance into the fenced-in portion of the property. (Id. at 60-63). 

{¶5} On June 17, 2008, the Bath Township Trustees held a public hearing 

relative to the Smiths’ zoning violations and the storing of junk motor vehicles on 

their property. (Id. at 20). Mr. Smith was present at this hearing and asked the 

trustees for an extension until December 16, 2008 to clean up the property. (Id.). 

At the November 14, 2008 trustees’ meeting, Mr. Smith asked for and was granted 

a further extension until April 1, 2009. (Id.). 

{¶6} On April 21, 2009, the Bath Township Trustees passed resolution no. 

4-21-09-2 declaring the property at 1601 Reservoir Road a public nuisance and 
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authorizing the Bath Township Zoning Inspector to proceed with legal action to 

bring the property into compliance with the Zoning Resolution. (P’s Ex. 1). 

{¶7} On May 22, 2009, Campbell filed a complaint pursuant to R.C. 519.24 

seeking to permanently enjoin the Smiths from violating the Bath Township 

Zoning Resolution and maintaining the nuisance on their property. (Doc. No. 1). 

{¶8} On June 24, 2009, the Smiths filed a motion for an additional thirty 

(30) days to plead or otherwise respond to the complaint, which the trial court 

granted. (Doc. Nos. 5-6). 

{¶9} On July 23, 2009, the Smiths filed an answer denying the substantive 

allegations of the complaint and asserting, as an affirmative defense, that their 

property is a duly licensed junk yard. (Doc. No. 7). 

{¶10} On March 16, 2010, the Smiths filed a motion for summary 

judgment. (Doc. No. 12). On April 6, 2010, Campbell filed a memo in opposition. 

(Doc. No. 13). On April 13, 2010, the trial court denied the motion for summary 

judgment. (Doc. No. 16). 

{¶11} On September 13, 2010, the matter proceeded to a bench trial. On 

November 4, 2010, the trial court: permanently enjoined the Smiths from violating 

the Bath Township Zoning Resolution and resolution no. 4-21-09-2; permanently 

enjoined the Smiths from keeping the nuisance (to wit: the junk vehicles and other 

debris) on their property; ordered the Smiths to remove the junk vehicles and other 
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debris within sixty (60) days; and granted the township the authority to remove the 

junk vehicles and other debris from the property in the event the Smiths failed to 

comply with the court’s order. (Doc. No. 31). 

{¶12} On December 3, 2010, the Smiths filed a notice of appeal. (Doc. No. 

33). On December 7, 2010, the Smiths filed a motion to stay the trial court’s 

judgment. (Doc. No. 36). On December 28, 2010, the trial court stayed its 

judgment pending appeal. (Doc. No. 38). 

{¶13} The Smiths now appeal raising two assignments of error for our 

review. 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR 

BY ENFORCING THE ZONING RESOLUTION WHERE 

THE ZONING RESOLUTION IN QUESTION MUST BE 

STRICTLY CONSTRUED IN FAVOR OF THE LAND 

OWNER, AND IS PREEMPTED BY STATE LAW OR THERE 

WAS A PRIOR NON-CONFORMING USE OF THE 

PROPERTY. 

{¶14} In their first assignment of error, the Smiths argue that the trial court 

erred in its interpretation of the Bath Zoning Resolution. The Smiths further argue 

that state law governs this issue through the doctrine of preemption. Finally, the 

Smiths argue that the trial court erred by failing to find that their use of the land 

was a prior non-conforming use. We will address each of these arguments below. 
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A. Junk Yards Are Not Allowed Under Bath Zoning Resolution, 

Section 6.18.

{¶15} With respect to their first argument, the Smiths specifically argue 

that the Bath Township Zoning Resolution does not actually prohibit junk yards; 

rather, Section 6.18 permits junk yards if they “conform to the provisions of R.C. 

4737.05 to 4737.99 and 4738.01 to 4738.99.” They further argue that the Zoning 

Resolution should be strictly construed since it limits land use, and as such, their 

junk yard is permissible under Section 6.18 of the Zoning Resolution. 

{¶16} The interpretation of a zoning resolution presents a question of law 

reviewed de novo by an appellate court. See Berry v. Liberty Township Bd. of 

Zoning Appeals (Dec. 28, 1993), 3d Dist. No. 8-93-16, at *1. “Zoning Resolutions 

are in derogation of the common law and deprive a property owner of certain uses 

of his land to which he would otherwise be lawfully entitled.” Saunders v. Clark 

County Zoning Dept. (1981), 66 Ohio St.2d 259, 261, 421 N.E.2d 152, citing In re 

University Circle Inc. (1978), 56 Ohio St.2d 180, 184, 383 N.E.2d 139; Pepper 

Pike v. Landskroner (1977), 53 Ohio App.2d 63, 76, 371 N.E.2d 579. Therefore, 

Zoning Resolutions must be strictly construed in favor of the property owner, and 

the scope of the restrictions cannot be extended to include limitations not clearly 

prescribed. Saunders, 66 Ohio St.2d at 261, citing Davis v. Miller (1955), 163 

Ohio St. 91, 95, 126 N.E.2d 49; State ex rel. Ice & Fuel Co. v. Kreuzweiser
Case No. 1-10-79 

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(1929), 120 Ohio St. 352, 166 N.E. 228; State ex rel. Moore Oil v. Dauben (1919), 

99 Ohio St. 406, 124 N.E. 232, paragraph one of the syllabus. Nevertheless, “in 

determining the legislative intent of an ordinance, the provision to be construed 

should not be reviewed in isolation. Its meaning should be derived from a reading 

of the provision taken in the context of the entire ordinance.” In re University 

Circle Inc. (1978), 56 Ohio St.2d at 184, citations omitted. 

{¶17} The Bath Township Zoning Resolution was enacted in 1966 after 

voter approval on May 3, 1966, but the Zoning Resolution has since been 

amended several times, including on March 6, 1986 (eff. April 1986) and on 

August 15, 2006 (eff. September 2006). (Tr. at 70); (Exs. 2-3); (Campbell Aff. at 

¶2). Both the 1986 and 2006 versions of the Zoning Resolution divide the 

township into eleven (11) districts. (Exs. 2-3, Art. 6.0). Both versions of the 

Zoning Resolution then provide separate Articles governing each district setting 

forth specific permissible uses for land in those districts. (Exs. 2-3). Section 6.3 in 

both versions of the Zoning Resolution provides, in pertinent part, that “[n]o 

building shall be erected, converted, or altered, nor shall any * * * land be used 

except for a purpose permitted in the district in which the * * * land is located, 

except as hereinafter provided.” (Id.). Both versions of the Zoning Resolution also 

provide: “[a]ny use which is not specifically provided for nor specifically 

authorized by this Zoning Resolution shall be expressly prohibited unless such use 
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shall otherwise be authorized or permitted by the Board of Zoning Appeals, 

pursuant to the procedures contained herein.” (P’s Ex. 3, Section 7.5); (P’s Ex. 2, 

Section 7.6). Junk yards are not listed as permitted uses for any of the eleven 

districts in either version of the Zoning Resolution. (P’s Exs. 2-3). Nevertheless, 

Section 6.18 in both versions of the Zoning Resolution provides: “Junk Yards 

(Automotive Graveyards), Motor Vehicle Salvage: Junk yards shall conform to 

the provisions of Chapter 4737.01 to 4738.01 to 4738.99 of the Ohio Revised 

Code (license-fence-buffer).” (Id.) (emphasis in original). 

{¶18} The Smith’s interpretation of Section 6.18 is only tenable if it is 

inappropriately read in isolation. In re University Circle Inc., 56 Ohio St.2d at 184, 

citations omitted. The Zoning Resolution was drafted in such a way as to 

expressly provide for those uses that were permissible in each district, and the 

Zoning Resolution further provides that land shall not be used except as 

specifically provided therein. Interpreting Section 6.18 as the Smiths interpret it is 

not only contrary to the Zoning Resolution’s overall scheme but would lead to the 

absurd result that junk yards were permissible in all districts, including residential 

districts. “It is a cardinal rule of statutory construction that a statute should not be 

interpreted to yield an absurd result.” Mishr v. Poland Bd. of Zoning 

Appeals (1996), 76 Ohio St.3d 238, 240, 667 N.E.2d 365, citing State ex rel. 

Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 384, 439, 481 N.E.2d 
Case No. 1-10-79 

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632; Slater v. Cave (1853), 3 Ohio St. 80, 83-84. The Bath Township Zoning 

Inspector offered a reasonable interpretation of Section 6.18 when he averred that 

Section 6.18 exists to govern junk yards that were in operation prior to the passage 

of the original Zoning Resolution. (See Campbell Aff. at ¶9). Section 6.18 also 

applies to those junk yards that were established under prior versions of the 

Zoning Resolution that permitted junk yards in specific districts. For example, 

Campbell testified that junk yards were a permissible use of land in manufacturing 

districts in 1977. (May 17-18, 2010 Tr. at 91). Therefore, we do not interpret 

Section 6.18 as an authorization of junk yards in all districts in perpetuity, as the 

Smiths interpret it; but rather, as a requirement for the continued operation of junk 

yards that were already in existence prior to 1966, when the original Zoning 

Resolution was enacted, and junk yards that were established as permissible uses 

of land under prior versions of the Zoning Resolution. 

B. Bath Zoning Resolution Does Not Conflict With R.C. 4737.07.

{¶19} The Smiths next argue that townships may not prohibit junk yards 

since R.C. 4737.07 allows municipalities, but not townships, to prohibit junk 

yards. Since Allen County issued them a license to operate a junk yard pursuant to 

R.C. 4737.07, the Smiths argue that junk yards are a matter of state law, which 

preempts Bath’s Zoning Resolution. 
Case No. 1-10-79 

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{¶20} A township’s authority to enact zoning ordinances is not inherent, 

nor does it derive from a constitutional provision like municipalities; rather, the 

zoning power of a township is a police power delegated to the township by the 

General Assembly. Torok v. Jones (1983), 5 Ohio St.3d 31, 32, 91, 448 N.E.2d 

819; Yorkavitz v. Columbia Twp. Bd. of Trustees (1957), 166 Ohio St. 349, 142 

N.E.2d 655, paragraph one of the syllabus. See, also, Dsuban v. Union Twp. Bd. of 

Zoning Appeals (2000), 140 Ohio App.3d 602, 608, 748 N.E.2d 597. As such, 

“[t]he zoning authority possessed by townships in the state of Ohio is limited to 

that which is specifically conferred by the General Assembly.” Bd. of Bainbridge 

Twp. Trustees v. Funtime, Inc. (1990), 55 Ohio St.3d 106, 563 N.E.2d 717, 

paragraph one of the syllabus. 

{¶21} “[T]he General Assembly cannot be held to have delegated to 

township officials the authority to adopt zoning resolutions which are in 

contravention of general laws previously enacted by the General Assembly.” 

Yorkavitz, 166 Ohio St. at 351. Consequently, “[a] zoning ordinance, rule or 

resolution which violates an explicit statutory command of the General Assembly 

is clearly preempted and is therefore invalid and unenforceable.” Newbury Twp. 

Bd. of Trustees v. Lomak Petroleum (1992), 62 Ohio St.3d 387, 583 N.E.2d 302, 

paragraph one of the syllabus. “The test to determine whether a conflict exists 

between a township’s zoning resolution and a general law of the state is ‘whether 
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the ordinance permits or licenses that which the statute forbids or prohibits, and 

vice versa.”’1 Am. Outdoor Advertising Co., L.L.C. v. Franklin Twp. Bd. of Zoning 

Appeals, 177 Ohio App.3d 131, 2008-Ohio-3063, 894 N.E.2d 78, ¶16, quoting 

Fondessy Ents., Inc. v. Oregon (1986), 23 Ohio St.3d 213, 492 N.E.2d 797, 

paragraph two of the syllabus. Whether a local zoning resolution conflicts with 

the general laws of Ohio is a question of law we review de novo. See Smith 

Family Trust v. Hudson Bd. of Zoning and Building Appeals, 9th Dist. No. 24471, 

2009-Ohio-2557, ¶10; State ex rel. O’Connor v. Davis (2000), 139 Ohio App.3d 

701, 704, 745 N.E.2d 494. 

{¶22} R.C. 4737.07 provides, in pertinent part: 

No person shall operate and maintain a junk yard outside of a 

municipality * * * without first obtaining a license to do so from 

the county auditor of the county in which such junk yard is 

located or in which such junk yard is to be established. * * * If, 

after January 1, 1964, a junk yard is established within one 

thousand feet of the nearest edge of the right of way of a state or 

county highway or within three hundred feet of the nearest edge 

of the right of way of a township road, it shall be so located that 

the view thereof from such road is obscured by natural objects 

or a fence. If the yard is so obscured, the person operating or 

maintaining it shall be issued a license. * * * 

* * * If a junk yard is established after November 18, 1969, 

within one thousand feet of the nearest edge of the right of way 

 

1

 We note that this conflict test was developed by the Ohio Supreme Court in its jurisprudence relating to 

potential conflicts between a municipality’s ordinance and state law, not a township Zoning Resolution and 

state law; nevertheless, this same test has been applied by The Court of Appeals in cases dealing with the 

latter as well. See, e.g., Osnaburg Twp. Zoning Inspector v. Eslich Environmental, Inc., 5th Dist. No. 

2008CA00026, 2008-Ohio-6671, ¶55; Center Twp. Bd. of Twp. Trustees v. Valentine (Nov. 9, 2000), 6th 

Dist. No. WD-99-065, at *2; Am. Outdoor Advertising Co., L.L.C., 2008-Ohio-3063, at ¶16. 
Case No. 1-10-79 

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of an interstate or primary highway, it shall be so located that 

the view thereof from such highway is obscured by natural 

objects or a fence. If the yard is so obscured, the person 

operating or maintaining it shall be issued a license under this 

section. Nothing contained in this section shall be construed to 

relieve any person of his duty to comply with the provisions of 

ordinances enacted by municipal corporations regulating or 

prohibiting junk yards, including requirements to obtain a 

license under municipal ordinances. The requirement to obtain 

a license from the municipality under this section shall be in 

addition to regulations imposed and licenses required under 

municipal ordinances. No license shall be issued unless such 

yard accords with the provisions of this section. * * * 

{¶23} R.C. 519.02, on the other hand, “gives a local board of township 

trustees the authority to regulate land use within the township confines, and the 

power to divide the area into such districts or zones as the board determines are 

proper.” Lomak Petroleum, 62 Ohio St.3d at 390; Funtime, 55 Ohio St.3d at 107. 

“A township’s power to regulate may include the power to exclude a use.” 

Machnics v. Sloe, 11th Dist. No. 2004-G-2554, 2005-Ohio-935, ¶51, appeal not 

allowed by Machnics v. Sloe, 106 Ohio St.3d 1484, 2005-Ohio-3978, 832 N.E.2d 

737, citing E. Fairfield Coal Co. v. Booth (1957), 166 Ohio St. 379, 382, 143 

N.E.2d 309. 

{¶24} As an initial matter, we note that Bath Township’s Zoning 

Resolution does not forbid or prohibit what R.C. 4737.07 permits or licenses on its 

face. Section 6.18 of the Bath Township Zoning Resolution provides that “[j]unk 

yards shall conform to the provisions of Chapter 4737.01 to 4738.01 to 4738.99 of 
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the Ohio Revised Code (license-fence-buffer).” (P’s Exs. 2-3). Nevertheless, the 

Smiths assert that the conflict results because the Zoning Resolution no longer 

permits the establishment of new junk yards even though R.C. 4737.07 permits the 

licensure of junk yards. This argument lacks merit. 

{¶25} The Ohio Attorney General has previously concluded that the duties 

of the county auditor to license junk yards in Chapter 4737 does not conflict with a 

township’s ability to prohibit junk yards by adopting zoning resolutions under 

Chapter 519. 1969 Ohio Atty.Gen.Ops. No. 69-136. The opinion provides, in 

pertinent part: 

 There is nothing in Chapter 4737, Revised Code, which 

expressly refers to or conflicts with the provisions of Chapter 

519, Revised Code. Considering the duties of the county auditor, 

it becomes apparent that the licensing power of the county 

auditor is designed basically as a revenue measure. In effect, the 

county auditor’s licensing power presents an independent 

condition precedent to the establishment of a junk yard, which is 

in no way affected by a township’s capacity to prohibit junk 

yards in certain areas by adopting Zoning Resolutions. 

 It consequently becomes clear that the county auditor is 

authorized to issue a license for a junk yard under Chapter 

4737, supra, if the application is proper, regardless of the 

existence of a township Zoning Resolution forbidding junk yards 

in the area described in the application. The responsibility lies 

with the applicant to ensure that there are no other restrictions 

which might prevent the establishment of the junk yard. 

 * * * [A] township’s zoning regulation of junk yards does 

not conflict with a county auditor’s power to license junk yards. 

Therefore, it is clear that the township’s power to control junk 

yards through their Zoning Resolution is not affected by the 
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licensing power granted to county auditors in Chapter 4737, 

supra. 

 * * * [A] township’s zoning authority under Chapter 519, 

Revised Code, is not inconsistent with the requirement under 

Section 4737.07, Revised Code, of a license issued by the county 

auditor prior to the establishment of a junk yard. The county 

auditor’s licensing power, with respect to junk yards, and the 

township’s zoning authority are mutually independent and 

separately enforceable. 

{¶26} We agree with the Ohio Attorney General’s conclusion that a county 

auditor’s duty to license operators of junk yards found under R.C. 4737.07 is not 

in conflict with a township’s authority to prohibit junk yards through local zoning 

resolutions enacted pursuant to Chapter 519. Rather, the landowner’s compliance 

with local zoning regulations and state licensing present two independent criteria 

for the establishment of a junk yard. See Set Products, Inc. v. Bainbridge Twp. Bd. 

of Zoning Appeals (1987), 31 Ohio St.3d 260, 265, 510 N.E.2d 373, citing 

Hulligan v. Bd. of Zoning Appeals (1978), 59 Ohio App.2d 105, 392 N.E.2d 1272. 

See, also, Machnics, 2005-Ohio-935, at ¶55 (“* * * although the state of Ohio has 

preempted the field of licensure regarding the regulation of motor vehicle dealers, 

no legal authority exists which suggests that a township is precluded from 

prohibiting commercial motor vehicle sales as part of its land use plan.”). 

{¶27} The Ohio Attorney General’s position is further supported by the fact 

that Title 47 governs licensure or certification of occupations and professions—not 

land use. R.C. 4701 to 4709. In fact, R.C. 4737.07 begins with “[n]o person shall 
Case No. 1-10-79 

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operate or maintain a junk yard * * *”. R.C. 4737.07’s plain language read in the 

context of Title 47 as a whole leads us to conclude that the license issued under 

that section is a junk yard operator’s license, which enables the person to operate a 

junk yard, not a license for the use of the land as a junk yard. Accepting the 

Smiths’ argument leads to the absurd result that any person issued a license under 

Title 47, whether it be an accountant or a pawn broker, would likewise be able to 

open up a place of business to practice their occupation or profession 

notwithstanding local zoning. Nothing would prevent the establishment of such 

places of business, including junk yards, from being located in residential areas. 

As previously observed, “[i]t is a cardinal rule of statutory construction that a 

statute should not be interpreted to yield an absurd result.” Poland Bd. of Zoning 

Appeals, 76 Ohio St.3d at 240, citing Wells, 18 Ohio St.3d at 384; Slater v. Cave

(1853), 3 Ohio St. at 83-84. Stated in simple terms, the fact that one has a license 

to practice a profession or occupation is a separate requirement distinct from 

zoning regulations governing the location of the place wherein one may practice 

that profession or occupation. 

{¶28} The logical result of the Smiths’ argument is also antithetical to the 

General Assembly’s delegation of its power to townships under Chapter 519 to 

manage the use of land within their unincorporated territory. Nevertheless, the 

Smiths argue that the General Assembly did not provide townships the ability to 
Case No. 1-10-79 

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prohibit junk yards in R.C. 4737.07, like it did for municipalities. While it is true 

that the General Assembly provided that a person who obtains a junk yard license 

under R.C. 4737.07 must still comply with ordinances enacted by municipal 

corporations regulating or prohibiting junk yards, we are not persuaded that the 

General Assembly intended junk yards to be exempt from township zoning by 

virtue of its silence in R.C. 4737.07 alone. Had the General Assembly intended to 

limit a township’s authority to prohibit junk yards, it could have done so in 

Chapter 519, as it has done with other items of public concern, such as: outdoor 

advertising, agriculture, public utilities, railroads, liquor sales, oil and gas 

production, telecommunication towers, permanently sited manufactured homes, 

and small wind farms. R.C. 519.20-213. Furthermore, the fact that the General 

Assembly allowed municipalities to regulate and prohibit junk yards through 

zoning ordinances indicates the General Assembly’s intent to permit local control 

over the location of junk yards. 

{¶29} The Smiths rely heavily upon Sheffield v. Rowland (1999), 87 Ohio 

St.3d 9, 716 N.E.2d 1121 to support their preemption argument. We, however, 

find this case distinguishable from Sheffield. Sheffield involved the establishment 

of a construction and demolition debris facility licensed and regulated pursuant to 

Revised Code Chapter 3714. Id. at 9-12. Chapter 3714 appears in Title 37, which 

governs Health, Safety, and Morals, not the licensure of professions and 
Case No. 1-10-79 

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occupations, like Title 47 wherein Chapter 4737 appears. The regulations in 

Chapter 3714 are much more comprehensive than that found in Chapter 4737, 

manifesting the General Assembly’s concern for state-wide uniformity. Eastlake v. 

Ohio Bd. of Bldg. Standards (1981), 66 Ohio St.2d 363, 369, 422 N.E.2d 598. For 

example, R.C. 3714.051 requires a permit to install new construction and 

demolition debris facilities, and R.C. 3714.06(A) requires that the facility annually 

renew an operation license, which is issued by the board of health or the Director 

of Environmental Protection. Sheffield, 87 Ohio St.3d at 11. The license 

application is site-specific and must include accompanying plans, specifications, 

and information regarding the facility and its operations. Id., citing R.C. 

3714.06(A). Chapter 3714 also has various provisions concerning the inspection 

of such facilities, enforcement orders, suspension and revocation of the license, 

and makes violations of Chapter 3714 second degree misdemeanors. See R.C. 

3714.08, .10, .12, .13, .99. Chapter 4737, on the other hand, contains no similar 

application process for the installation of new junk yards—evidence that the 

installation of junk yards was to be in accordance with local regulation. Although 

Chapter 4737 does provide for semi-annual inspections of junk yards and 

revocation of the license upon various violations (R.C. 4737.10), the regulations 

found in Chapter 4737 are far less comprehensive than in Chapter 3714. 
Case No. 1-10-79 

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{¶30} Most significantly, Chapter 3714 also provides several limitations on 

the location of construction and demolition debris facilities akin to those 

limitations that otherwise would have been provided for through local zoning. For 

example, a license may not be issued for a construction and demolition debris 

facility that is located within the boundaries of a one-hundred-year flood plain or 

within the boundaries of a sole source aquifer. R.C. 3714.03(B)(1)-(2). Licenses 

may also not be issued when the “horizontal limits of construction demolition 

debris placement at the new facility are proposed to be located”: (1) within 100 

feet of a perennial stream or a category 3 wetland; (2) within 100 feet of the 

facility’s property line; (3) within 500 feet of a residential or public water supply 

well, subject to a few exceptions; (4) within 500 feet of a state or federal park, 

national recreation area, or land purchased for those purposes but not designated 

as such; (5) within 500 feet of any natural area, state wildlife area, nature preserve, 

or national wildlife refuse; (6) within 500 feet of a lake or reservoir of one acre or 

more that is connected to ground water; (7) within 500 feet of a state forest; (8) 

within 500 feet of a state historic landmark; and (9) within 500 feet of an occupied 

dwelling unless written consent is provided by the dwelling owner. R.C. 

3714.03(C)(1)-(9). The only marginally similar requirement found in R.C. 

4737.07 is the requirement of a fence or natural boundary around the perimeter of 

the junk yard to obscure its view. The absence of statutory limitations on the 
Case No. 1-10-79 

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location of junk yards, like those enacted in Chapter 3714 with respect to 

construction and demolition debris facilities, is further indication that the General 

Assembly intended to allow the location of junk yards to be determined by local 

regulation. 

{¶31} For all these reasons, we conclude that R.C. 4737.07 and the Bath 

Township Zoning Resolution do not conflict with one another; and therefore, R.C. 

4737.07 does not preempt the local Zoning Resolution. The license issued 

pursuant to R.C. 4737.07 is a separate requirement for the operation of a junk yard 

apart from local zoning. A landowner who owns land in a township and who 

wishes to establish a junk yard must: (1) determine that a junk yard is an 

acceptable use of his/her property under the township’s zoning resolution (or 

secure a variance or conditional use permit for the junk yard if provided by the 

zoning resolution); and (2) obtain a license to operate the junk yard under R.C. 

4737.07. See 1969 Ohio Atty.Gen.Ops. No. 69-136. 

C. The Smiths’ Use of their Property is not a Pre-existing Nonconforming Use

{¶32} Finally, the Smiths argue that the use of their property is a prior nonconforming use and should be allowed under R.C. 713.15 and Article 7 of the 

Zoning Resolution. R.C. 519.19 provides, in pertinent part: “[t]he lawful use of * 

* * any land * * *, as existing and lawful at the time of enactment of a Zoning 
Case No. 1-10-79 

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Resolution or amendment thereto, may be continued, although such use does not 

conform with such resolution or amendment * * *.” In order to qualify as a preexisting, nonconforming use under R.C. 519.19, the landowner must demonstrate 

by a preponderance of the evidence that the use of the property existed at the time 

of the effective date of the zoning change, and that the use was lawful at the time it 

was established. Loy v. Liberty Twp. Bd. of Trustees, 3d Dist. No. 5-02-60, 2004-

Ohio-1391, quoting Castella v. Stepak (May 14, 1997), 9th Dist. No. 96CA0057, 

at *1, citing Pschesang v. Terrace Park (1983), 5 Ohio St.3d 47, 448 N.E.2d 1164, 

syllabus. 

{¶33} The Smiths argue that the junk yard is a prior non-conforming use 

since the property had junk on it before he purchased it in 1986. That argument 

lacks merit. The previous owner, Janet Mauk, denied leaving scrap metal on the 

property and testified that she had never seen the scrap metal on the property as 

photographed in defense exhibits A and B. (Id. at 104, 106). Mauk testified that 

all of the business materials were taken from the property by a partner that bought 

out their share of the business. (Id. at 102). Smith, on the other hand, testified that 

the scrap metal photographed in defense exhibits A and B was on the property 

when he purchased it. (Id. at 118-20). He further testified that his brother 

purchased a junk bulldozer from the Mauks on this same property in 1980, but 

Mrs. Mauk denied ever having any equipment on the property. (Id. at 118-19); 
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(101). The testimony at trial also demonstrated that the property in question was 

zoned R-1, residential district, until 1984, when the township granted the Mauks’ 

application to the have the property re-zoned to B-2, general business district, so 

their construction business could be established on the property. (Sept. 13, 2010 

Tr. at 85-86, 97-99). The Smiths’ property is currently classified as B-2, general 

business district, and junk yards were not permitted uses in B-2 general business 

districts under the 1986 Zoning Resolution or the 2006 Zoning Resolution, 

currently in effect. (Id. at 77); (P’s Exs. 2-3, Art. 15). 

{¶34} Even if the trial court found that the Mauks had left scrap metal on 

the property from their construction business and previously had an inoperable 

bulldozer as Smith testified, that does not mean their property was used as a “junk 

yard” or “scrap metal processing facility” as those terms are defined in R.C. 

4737.05(B) and (D). Furthermore, even if these acts transformed the Mauks’ use 

of the property into a junk yard, the Smiths failed to demonstrate that the Mauks’ 

use of the property as a junk yard was lawful under the then-existing Zoning 

Resolution. At least since March 6, 1986, and prior to the Smiths’ ownership, the 

property has been zoned B-2 general business district, where junk yards are not 

permitted uses. (P’s Exs. 3-4); (Sept. 13, 2010 Tr. at 120). Therefore, the Smiths 

also cannot demonstrate that their use of the property as a junkyard was lawful, 

and as such, it is not a pre-existing non-conforming use as a matter of law. R.C. 
Case No. 1-10-79 

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519.19; Loy, 2004-Ohio-1391, quoting Stepak 9th Dist. No. 96CA0057, at *1, 

citing Pschesang, 5 Ohio St.3d 47, syllabus. 

{¶35} For all these reasons, the Smiths’ first assignment of error is 

overruled. 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT COMMITTED REVERSIBLE ERROR 

BY GRANTING RELIEF BEYOND THE RELIEF 

REQUESTED BY A PARTY AND EXPRESSLY TRIED TO 

THE COURT. 

{¶36} In their second assignment of error, the Smiths argue that the trial 

court erred by ordering that he remove all debris from their property since the 

Township Zoning Inspector brought the action under R.C. 505.173(A) and (C) to 

remove junk motor vehicles alone from the property. The Smiths argue that the 

trial court erroneously granted a remedy beyond that provided in R.C. 505.173(B). 

We disagree. 

{¶37} Civ.R. 15(B) provides, in pertinent part: 

When issues not raised by the pleadings are tried by express or 

implied consent of the parties, they shall be treated in all 

respects as if they had been raised in the pleadings. * * * Failure 

to amend as provided herein does not affect the result of the trial 

of these issues. 

Throughout the course of this litigation, the zoning inspector sought more than 

merely the removal of the junk cars stored on the Smiths’ property pursuant to 
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R.C. 505.173(B). In his June 3, 2006 letter, the zoning inspector indicated that the 

Smiths must remove “all debris, junk, vehicles, trailers, and general trash” from 

their property. (D’s Ex. H). Furthermore, the zoning inspector’s complaint sought 

a permanent injunction enjoining the Smiths “from violating the Zoning 

Resolution of Bath Township, Ohio and/or maintaining a nuisance on the 

premises at 1601 Reservoir Road * * *.” (Doc. No. 1) (Emphasis added). In his 

memorandum contra to the Smiths’ motion for summary judgment, the zoning 

inspector asserted that he initiated this action “to compel the removal of junk or 

inoperable motor vehicles.” (Doc. No. 13) (Emphasis added). In both opening and 

closing arguments, the zoning inspector stated that the case was about junk 

vehicles and common law nuisance, generally, and sought an order enjoining the 

Smiths from storing “junk motor vehicles, junk, construction debris, or any other 

materials prohibited by the Bath Township Zoning Resolution.” (Sept. 13, 2010 

Tr. at 2); (Doc. No. 29). Aside from the zoning inspector’s filings and his letter, it 

is also clear that the Smiths were aware that the zoning inspector was alleging that 

their use of the property constituted a nuisance for purposes of trial. (See 

Campbell Depo. at 21) (Q: “Now, in your complaint you indicate that the property 

is a nuisance. Can you explain that, why it’s a nuisance?”). 

{¶38} Since the zoning inspector raised the issue of common law nuisance 

throughout the proceedings and at trial, it is treated as if it had been specifically 
Case No. 1-10-79 

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raised in the pleadings. Civ.R. 15(B). Furthermore, we find that the Smiths have 

waived this issue for purposes of appeal by litigating this matter in the trial court. 

As such, we cannot conclude that the trial court erred by enjoining the Smiths 

from keeping “other debris” on their property as the Smiths argue. 

{¶39} The Smiths’ second assignment of error is, therefore, overruled. 

{¶40} Having found no error prejudicial to the appellants herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

ROGERS, P.J. and WILLAMOWSKI, J., concur. 

/jlr