Surber v. Greenville Twp. Bd. of Trustees

[Cite as Surber v. Greenville Twp. Bd. of Trustees, 2026-Ohio-1305.]


                               IN THE COURT OF APPEALS OF OHIO
                                  SECOND APPELLATE DISTRICT
                                        DARKE COUNTY

 GEOFFREY SURBER                                         :
                                                         :    C.A. Nos. 2025-CA-11; 2025-CA-12
       Appellee/Cross-Appellant                          :
                                                         :    Trial Court Case No. 21-CV-475
 v.                                                      :
                                                         :    (Civil Appeal from Common Pleas
 GREENVILLE TOWNSHIP BOARD OF                            :    Court)
 TRUSTEES, ET AL.                                        :
                                                         :    FINAL JUDGMENT ENTRY &
       Appellants/Cross-Appellees                        :    OPINION

                                                 ...........

        Pursuant to the opinion of this court rendered on April 10, 2026, the judgment of the

trial court is reversed in part and affirmed in part.

        Costs to be paid by appellee/cross-appellant.

        Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.


                                        For the court,




                                        ROBERT G. HANSEMAN, JUDGE

LEWIS, P.J., and TUCKER, J., concur.
                                      OPINION
                        DARKE C.A. Nos. 2025-CA-11; 2025-CA-12


KATHLEEN F. RYAN and HANNA R. PUTHOFF, Attorneys for Appellants/Cross-Appellees
NICOLE L. POHLMAN, Attorney for Appellee/Cross-Appellant


HANSEMAN, J.

       {¶ 1} This is an administrative appeal brought pursuant to Chapter 2506 of the Ohio

Revised Code. It concerns a decision of the Greenville Township Board of Zoning Appeals

(“the Board”) finding that Geoffrey Surber, the owner of property located at 1468 Sater Street

in Greenville, Ohio (“the Property”), failed to obtain proper zoning permits for three buildings

he erected on the Property, identified as Buildings A, B, and C. Under the authority of

R.C. 2506.01(A), Surber filed an appeal from the Board’s decision in the Darke County

Common Pleas Court. After reviewing the matter, the trial court found that Building A was

properly permitted and that Buildings B and C were not. The trial court reversed the Board’s

decision as to Building A and affirmed the Board’s decision as to Buildings B and C.

       {¶ 2} Under the authority of R.C. 2506.04, appellants/cross-appellees, the Greenville

Township Board of Trustees et al. (“the Township”), initiated the instant appeal in this court.

The Township is appealing from the portion of the trial court’s judgment that reversed the

Board’s decision as to Building A. Appellee/cross-appellant, Surber, filed a cross-appeal,

challenging the portion of the trial court’s judgment that affirmed the Board’s decision as to

Buildings B and C. For the reasons outlined below, the trial court’s judgment is reversed as

to Building A and affirmed as to Buildings B and C.

                                     Preliminary Issues

       {¶ 3} On September 5, 2025, this court issued an order indicating that it would take

the following two issues under advisement and rule on them with the merits of this appeal:


                                               2
(1) whether the trial court lacked subject-matter jurisdiction over Surber’s administrative

appeal and (2) whether the Township lacked standing to file its appeal in this court. These

issues arose from Surber’s designation of the Board as the sole appellee in the notice of

appeal he filed with the trial court. The Township argues that it was improper for Surber to

designate the Board as the appellee in his notice of appeal and that the improper designation

divested the trial court of subject-matter jurisdiction over Surber’s administrative appeal.

Surber, on the other hand, maintains that the Township lacked standing to appeal the trial

court’s judgment because it was not named in the notice of appeal filed with the trial court.

According to Surber, the Board, as the sole appellee named in the notice of appeal, is the

only party that may appeal from the trial court’s decision as to Building A. We now address

these preliminary issues.

                              The Board Is Not a Proper Party

       {¶ 4} “‘In an appeal to the board of zoning appeals, the board does not become a

party to that appeal.’” Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-

Ohio-5610, ¶ 11 (4th Dist.), quoting A. Di Cillo & Sons, Inc. v. Chester Zoning Bd. of Appeals,

158 Ohio St. 302, 304-305 (1952); accord Rauch v. Jefferson Twp. Bd. of Zoning Appeals,

2016-Ohio-967, ¶ 7 (2d Dist.). “‘Just as a common pleas court is not a party in a case it

decides and may not appeal from a decision of a court of appeals that reverses the common

pleas’ decision, the board of zoning appeals is not a party to [an] appeal and has no standing

to appeal.’” (Bracketed text in original.) Safest Neighborhood at ¶ 11, quoting Parker v.

Swancreek Twp. Bd. of Zoning Appeals, 2005-Ohio-538, ¶ 4 (6th Dist.). Indeed, “‘a township

board of zoning appeals is not a person adversely affected by an order of the common pleas

court reversing one of its decisions, and thus may not institute an appeal to the court of

appeals in which the order of reversal of the common pleas court is challenged.’” Rauch at


                                              3
¶ 7, quoting Bd. of Zoning Appeals for Harrison Twp. v. Resident Home Assn. for the

Mentally Retarded of Greater Dayton, Inc., 1981 WL 2715, *2 (2d Dist. Mar. 6, 1981).

       {¶ 5} “[T]he proper party to appeal under R.C. Chapter 2506 is ‘the city, the city official

responsible for enforcing the zoning regulations, or other persons aggrieved by the court’s

decision.’” Safest Neighborhood at ¶ 11, quoting Sich v. Bd. of Zoning Appeals for the City

Middletown, 1984 WL 3386, *1 (12th Dist. July 16, 1984) (citing cases); accord Rauch at

¶ 7. In other words, “[i]n an appeal from the zoning board of appeals the aggrieved party

may be either the one whose permit was denied or the administrative officer, depending on

what the decision of the zoning board of appeals would be in the particular case. . . . [T]he

zoning board of appeals is not and cannot be a party.” Spencer v. Bd. of Zoning Appeals of

Perry Twp., 171 N.E.2d 914, 917 (5th Dist. 1960).

       {¶ 6} With the foregoing principles in mind, we next address whether Surber’s act of

improperly designating the Board as the sole appellee in his notice of appeal divested the

trial court of subject-matter jurisdiction over his administrative appeal and whether it affected

the Township’s standing to appeal the trial court’s decision.

              The Trial Court Was Not Divested of Subject-Matter Jurisdiction

       {¶ 7} “Although R.C. 2506.01 provides a party with the right to appeal a decision of

an administrative board, a common pleas court does not acquire subject-matter jurisdiction

over the appeal ‘unless and until the appeal is perfected.’” Safety 4th Fireworks, Inc. v.

Liberty Twp. Bd. of Trustees & Liberty Twp. Bd. of Zoning Appeals, 2019-Ohio-3435, ¶ 14

(12th Dist.), quoting AT&T Communications of Ohio, Inc. v. Lynch, 2012-Ohio-1975 ¶ 17.

Subject to some inapplicable exceptions, administrative appeals under Chapter 2506

“proceed in accordance with the provisions of R.C. Chapter 2505,” which govern procedure

on appeal. AT&T at ¶ 9; R.C. 2506.01. Under R.C. 2505.07, a party wishing to appeal an


                                                4
administrative decision must perfect his or her appeal within 30 days after the administrative

body enters the decision being appealed from. R.C. 2505.04 provides, in relevant part, that

“[a]n appeal is perfected when a written notice of appeal is filed.” R.C. 2505.05 sets forth

what information must be designated in the notice of appeal and provides:

       The notice of appeal described in section 2505.04 of the Revised Code shall

       conform, in the case of an appeal of a final order, judgment, or decree of a

       court, with the Rules of Appellate Procedure or the Rules of Practice of the

       Supreme Court and shall designate, in the case of an administrative-related

       appeal, the final order appealed from and whether the appeal is on questions

       of law or questions of law and fact. In the notice, the party appealing shall be

       designated the appellant, and the adverse party, the appellee. In the case of

       an administrative-related appeal, the failure to designate the type of hearing

       upon appeal is not jurisdictional, and the notice of appeal may be amended

       with the approval of the appellate court for good cause shown.

       {¶ 8} The requirements in R.C. 2505.05 are “‘“not jurisdictional prerequisites and a

failure to comply with them does not defeat an appeal, as the notice of appeal may be

amended ‘for good cause shown.”’” Russell v. City of Dublin Planning & Zoning Comm.,

2007-Ohio-498, ¶ 18 (10th Dist.), quoting Moore v. City of Cleveland Civil Serv. Comm.,

11 Ohio App.3d 273 (8th Dist. 1983), quoting Woods v. Civil Service Comm., 7 Ohio App.3d

304, 305-306 (8th Dist. 1983). “‘Under R.C. 2505.04, the only jurisdictional requirement is

the filing of the notice of appeal.’” Id., quoting Woods at 305; accord Safety 4th Fireworks at

¶ 16 (the only act necessary to perfect an administrative appeal brought under R.C. 2506.01

is the timely filing of a notice of appeal); Transamerica Inc. v. Nolan, 72 Ohio St.3d 320

(1995), syllabus (“the only jurisdictional requirement for a valid appeal is the timely filing of


                                               5
a notice of appeal”—if there are “other defects in the notice of appeal, a court of appeals is

vested with discretion to determine whether sanctions, including dismissal, are warranted”).

Therefore, the “failure to specifically name the city [or township] as an appellee does not

invalidate the appeal or the trial court’s jurisdiction.” Russell at ¶ 19.

       {¶ 9} We also note that “‘R.C. 2505.05 has universally been liberally construed so as

not to deny an appeal on technical grounds. . . . Thus, if the notice of appeal substantially

informs all parties of the order and tribunal . . . from which the appeal is taken and to what

court the appeal is taken, so that no parties are prejudiced, then it is sufficient notice for

R.C. 2505.05.’” Russell at ¶ 24, quoting Moore at 275-276; accord Woods at 305 (naming

wrong party as appellee in contravention of R.C. 2505.05 was not a jurisdictional defect

inasmuch as appeal requirements should be “liberally construed so as not to deny an appeal

on technical grounds”). For example, the Seventh District Court of Appeals recognized that

it was improper for an appellant to name the board of zoning appeals as the sole appellee

in its notice of appeal, yet declined to dismiss the appeal based on that technical error,

stating:

       Although appellant should have named the zoning inspector in the appeal, this

       court will not dismiss the appeal on this technicality. The attorney representing

       the [Board of Zoning Appeals] is the same attorney that would be representing

       the zoning inspector. Likewise, the merit arguments asserted by the [Board of

       Zoning Appeals] are the same arguments that would be asserted by the zoning

       inspector. Furthermore, it is a common practice (even if it is a mistake) to name

       the board of zoning appeals in the appeal. Case captions of zoning appeals

       often indicate the boards of zoning appeals are named as the appellee, and in




                                                 6
       those cases there is no question or argument as to whether they are the proper

       party.

Broke Ass Phone v. Boardman Twp. Zoning Bd. of Appeals, 2019-Ohio-4918, ¶ 15

(7th Dist.) (citing cases).

       {¶ 10} In the instant case, even though Surber improperly named the Board as the

appellee in his notice of appeal, he subsequently filed pleadings that also identified the

Township and various Township officials as appellees in the action. See Plaintiff’s Notices

of Submission dated July 2, 2024 and November 1, 2024, and Joint Stipulation of Facts

(Jan. 21, 2025). Like Broke Ass Phone, legal counsel for the Board was the same legal

counsel who represented the Township and the various Township officials. See Notice of

Appearance of Counsel (Dec. 5, 2024). Therefore, the Township and Township officials were

necessarily informed of Surber’s appeal through their connection to the Board. Not only were

the Township and Township officials informed of the appeal, but they participated in the

appeal and asserted the same merit arguments as the Board. Moreover, we find it significant

that the trial court changed the case caption from “Geoffrey Surber v. Greenville Township

Board of Zoning Appeals” to “Geoffrey Surber v. Greenville Township Board of Trustees, et

al.,” the latter of which we used for this appeal under the authority of App.R. 3(D).

       {¶ 11} Because the Township and Township officials were substantially notified of

Surber’s appeal, which they participated in, we cannot say that they were prejudiced by

Surber improperly naming the Board as the sole appellee in his notice of appeal. There is

no basis to dismiss the appeal based on that technical defect. Moreover, there is no dispute

that Surber timely filed his notice of appeal within 30 days of the Board’s decision as required

by R.C. 2505.07, which is the sole jurisdictional requirement for perfecting his administrative

appeal. Accordingly, we find no jurisdictional error.


                                               7
              The Township Had Standing to Appeal the Trial Court’s Decision

       {¶ 12} “‘Standing’ is defined at its most basic as ‘[a] party’s right to make a legal claim

or seek judicial enforcement of a duty or right.’” (Bracketed text in original.) Ohio Pyro, Inc.

v. Ohio Dept. of Commerce, 2007-Ohio-5024, ¶ 27, quoting Black’s Law Dictionary (8th Ed.

2004). “‘Lack of standing . . . challenges a party’s capacity to bring an action, not the subject-

matter jurisdiction of the tribunal.’” Meddock v. Meddock, 2025-Ohio-1087, ¶ 14 (2d Dist.),

quoting Groveport Madison Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision, 2013-

Ohio-4627, ¶ 25. That said, “[s]tanding is certainly a jurisdictional requirement; a party’s lack

of standing vitiates the party’s ability to invoke the jurisdiction of a court—even a court of

competent subject-matter jurisdiction—over the party’s attempted action.” Bank of Am., N.A.

v. Kuchta, 2014-Ohio-4275, ¶ 22.

       {¶ 13} As previously discussed, “the proper party to appeal under R.C. Chapter 2506

is ‘the city, the city official responsible for enforcing the zoning regulations, or other persons

aggrieved by the court’s decision.’” Safest Neighborhood, 2013-Ohio-5610 at ¶ 11

(4th Dist.), quoting Sich, 1984 WL 3386 at *1 (12th Dist.). The Supreme Court of Ohio has

explained: “When an appeal is filed from a decision of a . . . municipality’s board of zoning

appeals, . . . the municipality . . . is a party adverse to the appellant and is necessary to the

appeal.” Gold Coast Realty, Inc. v. Bd. of Zoning Appeals, 26 Ohio St.2d 37 (1971),

paragraph one of the syllabus. The Court also explained that “[w]here an adverse and

necessary party appears and participates in an appeal from a decision by a . . . municipal

board of zoning appeals, such party remains adverse and necessary in a further appeal to

the Court of Common Pleas under R.C. Chapter 2506, even though not named as such in

the appellant’s notice of appeal filed therein.” Id. at paragraph two of the syllabus. In other

words, the Supreme Court has “recognized the principle that, although adverse parties have


                                                8
not been named in the notices of appeal to common pleas courts, those parties remain

adverse and may appeal to a higher court.” Sich at *1, citing Gold Coast at paragraph two

of the syllabus.

       {¶ 14} In this case, the Township appeared and participated in Surber’s initial appeal

to the Board as an adverse, necessary party. The Township remained an adverse,

necessary party even though Surber did not identify the Township as a party in the notice of

appeal he filed with the trial court. The Township was represented by counsel during the trial

court proceedings and defended itself against Surber’s claims. When the trial court ruled

against the Township as to Building A, the Township became an aggrieved party with a right

to appeal the trial court’s ruling under the authority of R.C. 2506.04. It would be illogical to

allow Surber to rely on his own failure to designate the Township as a party in his notice of

appeal as a reason to find that the Township lacked standing to appeal the trial court’s ruling.

See generally Gold Coast at 39 (noting the defect relied upon the appellee . . . was “one

which it injected into the proceedings”). For the foregoing reasons, we find that the Township

had standing to file the instant appeal.

       {¶ 15} Having resolved the preliminary issues, we now discuss the facts and course

of proceedings that are relevant to the Township’s appeal and Surber’s cross-appeal.

                             Facts and Course of Proceedings

       {¶ 16} Surber purchased the Property in January 2019. The Property has an area of

15.2 acres. Approximately 11 of the acres is tillable farmland on which Surber grows either

corn or soybeans. Surber has a cooperation agreement with two other parties who help him

farm the Property. The Property is located in an I-1 Industrial Zoning District within the

Township.




                                               9
                                          Building A

        {¶ 17} In March 2019, Surber erected Building A on the Property. When Building A

was first erected, Surber used it for his personal storage. However, since October 2019,

Building A has operated as an automotive repair shop known as Dean’s Auto Service. There

is no dispute that the Township’s Zoning Resolution permits that use in an I-1 Industrial

District.

        {¶ 18} Prior to erecting Building A, Surber submitted a “Darke County Zoning Permit

Application Form” on March 15, 2019. Township’s Hearing Ex. A, at SURBER_002.1 On the

application form, Surber indicated that it was his intent to build a 48 x 72 foot building that

would be used as a garage. The bottom portion of the application form indicated that

Surber’s application was approved, that a commercial zoning permit for Building A was

issued on March 20, 2019, and that Surber had paid a $864 permit fee. For an unexplained

reason, the corresponding zoning permit placard was dated March 15, 2019. Id. at

SURBER_003.

        {¶ 19} Around the same time Surber applied for and received the commercial zoning

permit, Surber submitted a “Building Notice” advising the Darke County Auditor that the

erection of Building A had commenced on March 20, 2019. Township’s Hearing Ex. B. The

notice included an “Agricultural Use” certification. After the building notice was issued, the

Township refunded Surber the $864 permit fee.

                                      Buildings B and C

        {¶ 20} In the Spring of 2020, Surber erected Buildings B and C on the Property.

Surber used Building B for his personal farm office, which took up a majority of the building.


1. This citation refers to the Bates number stamped on the hearing exhibit, which is otherwise
unpaginated. The entirety of the Board’s hearing record is Bates-stamped SURBER_001
through SURBER_334.

                                              10
Surber kept all farm records, property management records, and equipment records for each

of his farms in the personal office space at Building B. Surber also rented out storage space

in Building B and stored some of his own “agricultural equipment” that he used to maintain

the Property. Building C, on the other hand, was exclusively used by Kraut Creek Natural

Feed Company (“Kraut Creek”), which is a non-GMO livestock feed manufacturer. There is

no dispute that Buildings B and C’s uses were permitted in an I-1 Industrial District.

       {¶ 21} Surber submitted a “Building Notice” for each building stating that the erection

of the buildings had commenced on April 23, 2019. Township’s Hearing Ex. D. Both building

notices included an “Agricultural Use” certification. Surber did not apply for any zoning

permits or pay any permit fee for Buildings B and C.

                    The Zoning Inspectors and Zoning Violation Notices

       {¶ 22} Curtis Yount is the zoning inspector who signed and approved the commercial

zoning permit for Building A and the building notices issued for Buildings A, B, and C. During

that time, Yount was the zoning inspector for Darke County. In that capacity, Yount also

served as the zoning inspector for several townships. There is no dispute that Yount served

as the Township’s zoning inspector until September 1, 2019. On that date, Scott Peele

became the Township’s new zoning inspector.

       {¶ 23} After Peele took over as the Township’s zoning inspector, the Township asked

Peele to review records from Darke County dating back to 2018 for the purpose of obtaining

agricultural exemption forms that were never provided to the Township. Peele obtained the

records, reviewed the agricultural exemptions that had been issued by Darke County, and

proceeded to investigate whether any properties did not comply with the size or use

requirements that would have been necessary to obtain an agricultural exemption. In doing




                                             11
so, Peele determined that Buildings A, B, and C had agricultural exemptions and that the

buildings did not comply with the use requirements.

       {¶ 24} On June 30, 2021, Peele, served Surber with a “Zoning Violation Notice”

stating that the Property was in violation of the Township’s Zoning Resolution because

Surber had failed to obtain zoning permits prior to erecting Buildings A, B, and C. Surber’s

Hearing Ex. 3. Peele served Surber with a “Second and Final Zoning Violation Notice” on

August 14, 2021, which restated the aforementioned violation and informed Surber of the

following:

       Finally, if you are relying on a Zoning permit issued by Curtis Yount, that

       reliance is misplaced. Under Ohio law, no property owner has the right to rely

       upon a zoning certificate that is issued in error or in violation of the zoning

       resolution (as decided by the Courts when interpreting ORC 519.17.)

       Townships retain the right to enforce their zoning resolutions under such

       circumstances, and Greenville Township intends to exercise that right.

       Moreover, approval of a Zoning Permit for an agriculturally exempt use does

       not allow the property owner to change uses to a non-exempt use that is

       otherwise illegal in a particular zoning district. (see Section 508 of the

       Greenville Township Zoning Resolution). To the extent any such Zoning

       Permit was issued for your property on the basis of the agricultural exemption,

       such Zoning Permit is hereby revoked.

Surber’s Hearing Ex. 4.

                       Surber’s Appeals to the Board and Trial Court

       {¶ 25} After receiving the zoning violation notices, Surber filed an appeal with the

Board. On October 28, 2018, the Board held a hearing on Surber’s appeal. Counsel for


                                             12
Surber and counsel for the Township, along with Peele, Yount, and several Board members,

attended the hearing. The respective counsel for the parties and the Board members

questioned Peele and Yount about the commercial zoning permit and the building notices

that Yount had issued for the Property.

       {¶ 26} During the hearing, Yount indicated that he had approved the three building

notices containing the “Agricultural Use” notation for the purpose of issuing Surber

“ag[ricultural] permits” for Buildings A, B, and C. Board Hearing Tr. 37-38. Yount confirmed

that he had issued those “permits” to Surber. Id. at 38. Yount told the Board that “[i]t was

county policy that if a landowner came to me and asked for an ag[ricultural] permit, they

were entitled. As long as they signed the permit, I was not to ask questions and that was

policy.” Id.

       {¶ 27} Peele explained to the Board that what Yount had issued to Surber was an

agricultural exemption, not a “permit.” Board Hearing Tr. 18-19. An agricultural exemption

exempts property from a township’s zoning regulations; therefore, when property has an

agricultural exemption, no zoning permits are required. See R.C. 519.21(A). An agricultural

exemption can be obtained if the property is used for agricultural purposes or if the

construction or use of buildings or structures on the property is incident to an agricultural

use of the land. Id. Peele advised the Board that Yount had issued agricultural exemptions

for Buildings A, B, and C, even though the buildings were not used for an agricultural

purpose. Peele advised the Board that Surber was in violation of the Township’s Zoning

Resolution because he needed to obtain zoning permits for all three buildings.

       {¶ 28} In response, Surber argued that Buildings B and C were being used for

agricultural purposes, and therefore they were properly under an agricultural exemption and

required no zoning permits. As for Building A, Surber claimed that he was in compliance with


                                             13
the Township’s Zoning Resolution because he had obtained a commercial zoning permit for

Building A in March 2019.

       {¶ 29} Peele argued that the commercial zoning permit for Building A had been

nullified or canceled due to Surber’s claim of an agricultural use for that building and his

request for a refund of the $864 permit fee. Surber denied requesting a refund of the permit

fee but confirmed receiving the refund from the Township. During the Board hearing, Surber

never argued that Building A had an agricultural use, and his counsel advised the Board that

Surber would pay the permit fee for Building A.

       {¶ 30} After the hearing, the Board found that Surber did not have proper zoning

permits for all three buildings and ordered him to get the required permits within 30 days.

Under the authority of R.C. 2506.01, Surber filed in the trial court an administrative appeal

from the Board’s decision. The trial court considered the transcript of the Board’s

proceedings, which included several exhibits. In addition, the trial court considered several

post-hearing depositions, which were taken of Surber, Peele, the chairman of the Board,

and three Township trustees. The trial court also considered an affidavit from Board member

Gary B. Zechar despite previously sustaining the Township’s motion to strike the affidavit

from the record.

       {¶ 31} After reviewing the evidence, the trial court reversed the Board’s decision as

to Building A. The trial court found that there was nothing in the record indicating that Surber

had ever represented that Building A had an agricultural use, that Yount had ever

determined that Building A qualified for an agricultural exemption, or that the commercial

zoning permit issued for Building A was premised on an unlawful agricultural exemption.

The trial court found that the commercial zoning permit issued for Building A in March 2019

was valid and that the Board’s finding that Surber had failed to obtain a zoning permit for


                                              14
Building A was not supported by a preponderance of substantial, reliable, and probative

evidence in the record.

      {¶ 32} In contrast, the trial court affirmed the Board’s decision as to Buildings B and

C. The trial court found that these buildings did not have an agricultural use and that they

were not incidental to an agricultural use under R.C. 519.21(A). As a result, the trial court

found that the Township lacked authority to grant agricultural exemptions for Buildings B and

C and that Yount had acted outside of his authority as zoning inspector when he issued the

exemptions. Accordingly, the trial court determined that the agricultural exemptions issued

by Yount for Buildings B and C were nullities and void as a matter of law. The trial court

agreed with the Board’s findings that Buildings B and C were not properly permitted. In so

holding, the trial court declined to apply the doctrine of equitable estoppel as to Surber’s

reliance on Yount’s representations.

      {¶ 33} Under the authority of R.C. 2506.04, the Township now appeals from the trial

court’s decision reversing the Board’s decision as to Building A, and it asserts a single

assignment of error for review. Under the same authority, Surber cross-appeals from the

trial court’s decision affirming the Board’s decision as to Buildings B and C, and he raises

three assignments of error for review.

                     Standard of Review for Chapter 2506 Appeals

      {¶ 34} In appeals brought under R.C. Chapter 2506, the common pleas court “must

weigh the evidence in the record, and whatever additional evidence may be admitted

pursuant to R.C. 2506.03, to determine whether there exists a preponderance of reliable,

probative and substantial evidence to support the agency decision.” Dudukovich v. Lorain

Metro. Hous. Auth., 58 Ohio St.2d 202, 207 (1979). “However, review of the trial court’s

decision by a court of appeals is ‘“more limited in scope.”’” Siebenthaler Co. v. Beavercreek


                                             15
Twp. Bd. of Zoning Appeals, 2009-Ohio-6595, ¶ 35 (2d Dist.), quoting Henley v. Youngstown

Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147 (2000), quoting Kisil v. Sandusky, 12 Ohio

St.3d 30, 34 (1984). “R.C. 2506.04 gives the court of appeals reviewing authority of the

common pleas court decision only on ‘questions of law.’” (Emphasis deleted.) Reed v.

Rootstown Twp. Bd. of Zoning Appeals, 9 Ohio St.3d 54, 59 (1984). However, “‘[w]ithin the

ambit of “questions of law” for appellate court review would be abuse of discretion by the

common pleas court.’” Siebenthaler at ¶ 35, quoting Kisil at 34, fn. 4. Therefore, “[a]part from

deciding purely legal issues, the court of appeals can determine whether the court of

common pleas abused its discretion, which in this context means reviewing whether the

lower court abused its discretion in deciding that an administrative order was or was not

supported by reliable, probative, and substantial evidence.” Shelly Materials, Inc. v. City of

Streetsboro Planning & Zoning Comm., 2019-Ohio-4499, ¶ 17, citing Boice v. Ottawa Hills,

2013-Ohio-4769, ¶ 7.

       {¶ 35} “A trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary.” State v. Darmond, 2013-Ohio-966, ¶ 34, citing

State v. Adams, 62 Ohio St.2d 151, 157 (1980). “[M]ost instances of abuse of discretion will

result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990). “A decision is unreasonable if there

is no sound reasoning process that would support that decision.” Id.

       {¶ 36} Applying these standards, we consider the parties’ assignments of error. We

first address the Township’s single assignment of error and then address Surber’s three

assignments of error on cross-appeal.




                                              16
                           The Township’s Assignment of Error

       {¶ 37} Under its assignment of error, the Township is challenging the trial court’s

reversal of the Board’s decision as to Building A. The Township claims that the trial court

abused its discretion when it found that there was not a preponderance of reliable, probative,

and substantial evidence supporting the Board’s decision finding that Building A was not

properly permitted. We agree with the Township.

       {¶ 38} As a preliminary matter, we note that the parties do not dispute that Surber

used Building A to operate an automotive repair shop. There is also no dispute that such

use is permitted in an I-1 Industrial District. The trial court found that in March 2019, Yount

executed and approved a commercial zoning permit for Building A. The record supports that

finding and there appears to be no dispute that the commercial zoning permit issued by

Yount was the proper permit for Building A.

       {¶ 39} The Township, however, argues that the commercial zoning permit obtained

by Surber became void as a result of Surber claiming an agricultural exemption on Building A

and obtaining a refund of the $864 permit fee. The trial court found that there was nothing

in the record indicating that Surber had ever made the representation that the use of

Building A was agricultural, that Yount had ever determined Building A qualified for an

agricultural exemption, or that the commercial zoning permit issued for Building A was

premised on an unlawful agricultural exemption. Upon review, we cannot reconcile these

findings with the evidence in the record.

       {¶ 40} During his 2024 deposition, Surber specifically testified that he had requested

Yount to “permit” Building A as agricultural before he started erecting Building A. Specifically,

Surber testified:

       My conversations with Curtis [Yount] consist of that I told him ahead of time,


                                               17
       maybe three weeks, a month prior, to building Building A, that I wanted to get

       an ag[ricultural] permit, and he said yeah, we’ll get it. And I called him maybe

       a week or two before that, before this date, and said we need to get an

       ag[ricultural] permit. Okay. And then the Amish crew had started – showed up

       and started erecting the building.

Surber Dep. Tr. 37.

       {¶ 41} Surber’s testimony added that despite asking for an agricultural “permit,” Yount

had him complete a commercial zoning permit, which he questioned Yount about:

       I noticed it when I signed, I said why does it say commercial, and he just said

       – and then there’s a fee too, and I remember him – when I said something

       about the commercial, he said well, you’re just going to pay money because it

       will smooth things over with the trustees.

Id. at 38.

       {¶ 42} Surber said that on the day he had completed the commercial zoning permit

form for Building A, he had indicated to Yount that he wanted “to do ag[ricultural] use at the

property.” Id. at 40. Surber testified that “while we were [completing the commercial zoning

permit form], I was emphatic that this is agricultural, and [Yount] said yes.” Id.

       {¶ 43} Surber also testified to signing the “Building Notice” that notified the Darke

County Auditor that Building A had an “Agricultural Use.” Surber Dep. Tr. 41; Township’s

Hearing Ex. B. The “Building Notice” was signed and approved by Yount on March 20, 2019.

Throughout Surber’s deposition testimony, he clearly indicated that he had sought and

obtained an agricultural exemption for Building A.

       {¶ 44} Surber’s deposition testimony is consistent with Yount’s statements at the

Board hearing. During the hearing, Yount indicated that he had approved the three building


                                              18
notices for Buildings A, B, and C in order to secure an “ag[ricultural] permit,” i.e., an

agricultural exemption for Surber. Board Hearing Tr. 37-38. As noted above, Yount said at

the hearing that “[i]t was county policy that if a landowner came to me and asked for an

ag[ricultural] permit, they were entitled. As long as they signed the permit, I was not to ask

questions and that was policy.” Id. at 38.

       {¶ 45} We recognize that Surber never claimed during the Board hearing or in this

appeal that Building A has an agricultural use or that he wanted Building A to qualify for an

agricultural exemption. But Surber’s deposition testimony and Yount’s statements at the

Board hearing clearly established that Surber had in fact requested and obtained an

agricultural exemption for Building A in March 2019.

       {¶ 46} The record also established that Surber sought a refund of the $864 fee that

he had paid for the commercial zoning permit. During the Board hearing, Surber denied

requesting a refund of the permit fee. Yet at his deposition, Surber stated the following

regarding the fee, which he incorrectly described as an “agricultural permit fee”:

       [W]hen I went to acquire the ag[ricultural] permit for Building A, [Yount]

       charged me the eight hundred sixty-four dollar fee, and I asked him why do

       I have to pay for an ag[ricultural] permit fee. I don’t think anyone else has

       had to do that. He said, well, it will just smooth things over with the trustees.

       I said okay. So I paid the fee.

              Then I think it was somewhere May, June 2019 I e-mailed Matt Kolb

       a copy of the Ohio Revised Code because I began asking around, has

       anybody paid for an ag[ricultural] permit, and I remember I had some

       conversations with [Yount], did Justin Hines pay for an ag[ricultural] permit,

       did Jeremy Edger pay for an ag[ricultural] permit, Shaun Thornhill, and


                                               19
       started going through the list, and nobody had paid for an ag[ricultural]

       permit ever before me and I didn’t understand why I was unique in that

       respect.

              So then that caused me to research around. I found the Ohio Revised

       Code and e-mail it to Kolb, then presented I think around a June—May,

       June meeting of the trustees, which I believe you have the audio for, and

       discussed the permit. And I say that there was – I think Curis Yount was

       there discussing it. I say that you guys should consult your legal counsel

       before you do anything on it, that way everybody is on the same page. I

       remember saying something along those lines, paraphrasing. . . .

              ...

              The product of that conversation was them consulting their legal

       counsel and then I believe they got a legal opinion, which is in your

       evidence, and then later—months later refunded me the fee.

Surber Dep. Tr. 49-50.

       {¶ 47} Surber’s testimony about the permit fee is consistent with Peele’s version of

events. At the Board hearing, Peele explained that the permit fee was refunded because

Surber had asked for a refund due to him claiming an agricultural exemption for Building A.

Board Hearing Tr. 49-50. Peele explained that Surber “went to the prosecuting attorney for

a ruling, since he was then claiming it was an agricultural, so we were told that we needed

to give . . . back the money if it was going to be used for agricultural.” Id. at 77.

       {¶ 48} During his deposition, Peele similarly testified that Surber had applied for the

appropriate commercial zoning permit for Building A and paid the permit fee, but then he

had asked for the permit to be rescinded and for an agricultural exemption to be issued


                                               20
instead. Peele Dep. Tr. 32-33. Peele testified that when Surber had asked for the permit fee

to be refunded, the Township went to “the Prosecutor’s Office, and they told the Township

that they needed to refund the money if [Surber] was requesting an ag[ricultural] instead of

the commercial permit.” Id. at 31. Peele also explained that the refund of the permit fee and

Surber’s claimed agricultural use voided the commercial zoning permit that Surber had

previously obtained for the building. Id. at 33, 37-38; Board Hearing Tr. 56.

       {¶ 49} While the record supports Surber’s representation that the prosecutor’s office

had told the Township to refund him the permit fee, Surber’s claim that the refund did not

come at his behest is disingenuous given his deposition testimony. It is clear from his

testimony that he researched the matter and contacted various officials in order to have the

$864 permit fee refunded to him because of his claim that Building A was agricultural.

       {¶ 50} In sum, the evidence established that Surber initially obtained the proper

commercial zoning permit for Building A and paid the permit fee. But Surber voided the

permit by having Yount execute and approve an agricultural exemption for Building A and

by requesting a refund of the permit fee, which the Township provided. There was a

preponderance of reliable, probative, and substantial evidence supporting the Board’s

decision finding that Building A was not properly permitted. It was unreasonable and thus

an abuse of discretion for the trial court to find otherwise.

       {¶ 51} The Township’s assignment of error is sustained.

                            Surber’s First Assignment of Error

       {¶ 52} Under his first assignment of error, Surber argues that the trial court erred by

finding that Buildings B and C did not qualify for an agricultural exemption under R.C. 519.21.

We disagree.




                                               21
       {¶ 53} As a preliminary matter, we note that the Supreme Court of Ohio has explained

that “Ohio townships have no inherent or constitutionally granted police or zoning power.”

Terry v. Sperry, 2011-Ohio-3364, ¶ 18, citing Yorkavitz v. Bd. of Columbia Twp. Trustees,

166 Ohio St. 349 (1957). “‘Accordingly, the zoning authority possessed by townships in the

state of Ohio is limited to that which is specifically conferred by the General Assembly.’” Id.,

quoting Bd. of Bainbridge Twp. Trustees v. Funtime, Inc., 55 Ohio St.3d 106, 108 (1990).

       {¶ 54} “R.C. 519.02 authorizes township trustees, in the interest of the public health

and safety, to adopt resolutions limiting the size and location of buildings and other

structures and the uses of land for trade, industry, residence, recreation, or other purposes.

That power, however, is limited by R.C. 519.21.” (Footnote omitted.) Id. at ¶ 20

       {¶ 55} As relevant to this case, R.C. 519.21(A) provides that “sections 519.02 to

519.25 of the Revised Code confer no power on any township zoning commission, board of

township trustees, or board of zoning appeals to prohibit the use of any land for agricultural

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

agricultural purposes of the land on which such buildings or structures are located, . . . and

no zoning certificate shall be required for any such building or structure.” Accordingly,

“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; accord Miami Twp. Bd. of Trustees v. Powlette, 2022-Ohio-

3459, ¶ 16 (2d Dist.).

       {¶ 56} The resolution of this matter is dependent on determining whether Buildings B

and C were buildings used for agricultural purposes or their construction or use was incident

to an agricultural use of the land. This is a factual determination that is within the province


                                               22
of the trial court. Gainer v. Cavanaugh, 2021-Ohio-2173, ¶ 40 (5th Dist.), citing Siebenthaler,

2009-Ohio-6595 (2d Dist.), and State v. Huffman, 20 Ohio App.2d 263 (3d Dist.); accord

Powlette at ¶ 19; Board of Twp. Trustees v. Schwab, 2000 WL 296077, *4 (3d Dist. Mar. 22,

2000).

         {¶ 57} “In order to qualify as an agricultural use or incident to an agricultural use there

must be sufficient evidence that the item in controversy is used for agriculture or the structure

use must be ‘directly and immediately related to agricultural use. It must be either usually or

naturally and inseparably dependent upon agricultural use.’” Schwab at *4, quoting Huffman

at 269; accord Gainer at ¶ 41-42. This analysis “requires a review of the principal or dominant

use of the structure.” Gainer at ¶ 55. “[T]he primary use of a building must be agricultural

before its use can be deemed incidental to the agricultural use of the land.” Shalersville Twp.

Bd. of Trustees v. Hawkins, 2016-Ohio-2801, ¶ 21 (11th Dist.).

         {¶ 58} For purposes of township zoning statutes, R.C. 519.01 defines “agriculture” to

include the following:

         [F]arming; ranching; algaculture meaning the farming of algae; aquaculture;

         apiculture; horticulture; viticulture; animal husbandry, including, but not limited

         to, the care and raising of livestock, equine, and fur-bearing animals; poultry

         husbandry and the production of poultry and poultry products; dairy

         production; the production of field crops, tobacco, fruits, vegetables, nursery

         stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms;

         timber; pasturage; any combination of the foregoing; and the processing,

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

         are conducted in conjunction with, but are secondary to, such husbandry or

         production.


                                                 23
       {¶ 59} The Ninth District Court of Appeals held that a beef jerky business did not

constitute “agriculture” within the meaning of R.C. 519.01. Litchfield Twp. Bd. of Trustees v.

Nimer, 2012-Ohio-5431, ¶ 19 (9th Dist.). While the court found that the care of livestock on

the property at issue constituted agriculture as defined in the statute, it concluded that the

activity was secondary to the marketing and processing of beef jerky at the property. Id.

Significantly, the property maintained only 21 head of cattle, but the beef jerky operation

involved thousands of pounds of meat brought in from other farms. In other words, the meat

used for the beef jerky production was obtained from cattle that were not raised or cared for

at the property. Id. The court noted that the processing and marketing of the beef products

could have fallen within the definition of agriculture if those operations had been secondary

to the care of the cattle, but that was not the case, as the processing and marketing of the

beef products were the primary operations. Id.

       {¶ 60} The Eleventh District Court of Appeals found an agricultural exemption did not

apply to additions to a residence that were going to be used to breed and raise dogs.

Concord Twp. Trustees v. Hazelwood Builders, Inc., 2005-Ohio-1791 (11th Dist.). The trial

court concluded that the agricultural exception was inapplicable because the building’s use

was not incidental to agriculture, as “the primary purpose of the residence was residential

living, and breeding and raising dogs was an ancillary use.” Id. at ¶ 42. On appeal, the

Eleventh District found that the trial court’s determination was supported by competent,

credible evidence and noted that the structure in question was primarily designed for

residential living and that only a small portion of it would be used for the dogs. Id. at ¶ 43.

       {¶ 61} The Eleventh District Court of Appeals also found that an agricultural

exemption did not apply to a landscaping service that sold nursery stock and compost under

circumstances where the nursery stock was not grown on the property but was instead


                                               24
shipped in, planted on the property for a brief period, and then shipped out when sold or

used in a landscaping job. State ex rel. Fox v. Orwig, 1995 WL 787459, *3-4 (11th Dist. Sept.

15, 1995). The court found that the compost was not derived from material found on the

property, but rather it was created from waste, leaves, and other byproducts of the

landscaping business. Id.

                                            Building B

       {¶ 62} In this case, the record established that Surber used Building B as his personal

farm office, and that a “majority of the building” was used for that purpose. Surber Dep. Tr.

18. Surber kept all of his farm records, property management records, and equipment

records for each of his farms in the personal office space in Building B. The remainder of

the building was rented out for personal storage space on a month-to-month basis. Surber

also claimed that he used part of Building B to store some of his own “agricultural equipment”

that he used to maintain the Property, i.e., to “cut the grass, weeds, [and] clean up

everything.” Board Hearing Tr. 31. Surber also claimed that he had a “commercial lavender

operation” in front of Building B. Id. at 30.

       {¶ 63} Upon review, we find that the trial court did not abuse its discretion by finding

that there was a preponderance of reliable, probative, and substantial evidence in the record

supporting the trial court’s findings that Building B was not used for an agricultural purpose

and that its use was not incident to an agricultural use of the land. It is clear from the record

that Building B was predominantly used for Surber’s personal office and that the remaining

parts of the building were used for personal storage. These uses do not fit under the

definition of “agriculture.” Accordingly, they are not primarily and directly related to an

agricultural use.




                                                25
       {¶ 64} Although Surber claimed that he used part of Building B to store agricultural

equipment, the record indicates that the equipment was not used to farm the Property or

produce crops, but rather to mow, weed, and clean up the area. Furthermore, it is clear that

the storage of agricultural equipment was an ancillary use, which again means that the use

of Building B was not primarily and directly related to an agricultural use.

       {¶ 65} As for Surber’s commercial lavender operation, Surber never explained how

Building B was used in the operation. Surber simply indicated that the lavender operation

was located in front of Building B. There is nothing in the record indicating that the use of

Building B was directly and immediately related to the lavender operation. Like the storage

of agricultural equipment, Surber’s commercial lavender operation was an ancillary use.

                                          Building C

       {¶ 66} Surber testified that Building C was exclusively used by Kraut Creek, which is

an organization that sells non-GMO livestock feed. Surber’s testimony confirmed that Kraut

Creek sourced its feed from another farm and that none of its feed was sourced from the

Property. In other words, Kraut Creek in no way utilized the agricultural resources on the

Property to produce its feed. The record indicates that Kraut Creek simply used Building C

to process, store, and distribute the feed. Surber claimed that there were chickens in a grass

area near Building C, but nothing in the record indicates that Building C was used to farm

chickens or eggs. Rather, Surber indicated that Building C was “filled with livestock feed and

supplies.” Board Hearing Tr. 31.

       {¶ 67} Upon review, we find that the trial court did not abuse its discretion by finding

that there was a preponderance of reliable, probative, and substantial evidence in the record

to support the trial court’s findings that Building C was not used for an agricultural purpose

and that its use was not incident to an agricultural use of the land. “[T]he processing, drying,


                                              26
storage, and marketing of agricultural products” falls under the definition of agriculture in

R.C. 519.01 “when those activities are conducted in conjunction with, but are secondary to,

such husbandry or production.” (Emphasis added.) R.C. 519.01. Similar to Litchfield and

Orwig, the evidence in this case established that the processing, storage, and distribution of

Kraut Creek’s feed, an agricultural product, in Building C was not secondary to the feed’s

production. Rather, it was the primary use of Building C, as the feed was sourced from

another farm and none of the feed was sourced from the Property. Because Building C did

not have a use that was primarily and directly related to an agricultural use of the land, its

use was also not incidental to an agricultural use. See Hawkins, 2016-Ohio-2801 at ¶ 21

(11th Dist.) (“the primary use of a building must be agricultural before its use can be deemed

incidental to the agricultural use of the land”).

       {¶ 68} A preponderance of reliable, probative, and substantial evidence supported

the trial court’s finding that Surber’s uses for Buildings B and C were not agricultural or

incidental to an agricultural use of the land. The trial court did not abuse its discretion by

concluding that Buildings B and C did not qualify for an agricultural exemption under

R.C. 519.12.

       {¶ 69} Surber’s first assignment of error is overruled.

                           Surber’s Second Assignment of Error

       {¶ 70} Under his second assignment of error, Surber contends that the trial court

erred by failing to apply the doctrine of equitable estoppel with regards to its decision

regarding Buildings B and C. Surber claims that he relied on Yount’s approval of his

proposed uses for Buildings B and C as qualifying for agricultural exemptions and that there

was no dispute that Yount had authority to issue such exemptions for the Township.




                                               27
       {¶ 71} “‘[T]he doctrine of equitable estoppel precludes a party from asserting certain

facts where the party, by his conduct, has induced another to change his position in good

faith reliance upon the party’s conduct.’” State Farm Mut. Auto. Ins. Co. v. Ingle, 2008-Ohio-

6726, ¶ 32 (2d Dist.), quoting Turner Liquidating Co. v. St. Paul Surplus Lines Ins. Co.,

93 Ohio App.3d 292, 295 (9th Dist. 1994). “To successfully raise a claim of equitable

estoppel, the party asserting the estoppel must have relied on conduct of the other party in

such a manner as to change his position for the worse, and that reliance must have been

reasonable in that the party claiming estoppel did not know and could not have known that

the other party’s conduct was misleading.” Northridge Local Schools Bd. of Education v.

Montgomery Cty. Bd. of Revision, 2022-Ohio-495, ¶ 26 (2d Dist.), citing Shampton v.

Springboro, 2003-Ohio-1913, ¶ 34.

       {¶ 72} “It is well established that the doctrine of equitable estoppel is inapplicable

against a political subdivision when the political subdivision is engaged in a governmental

function.” Northridge at ¶ 27, citing Hortman v. Miamisburg, 2006-Ohio-4251, ¶ 25, and Ohio

State Bd. of Pharmacy v. Frantz, 51 Ohio St.3d 143, 145-146 (1990). This is because the

government cannot be estopped from its duty to protect the public welfare, and because to

hold otherwise would grant a right to violate the law. Frantz at 146. “If a government agency

is not permitted to enforce the law because the conduct of its agents has given rise to an

estoppel, the interest of all citizens in obedience to the rule of law is undermined.” Id., citing

Heckler v. Community Health Serv. of Crawford Cty., Inc., 467 U.S. 51, 60 (1984).

       {¶ 73} Some courts have found that this is merely a general rule that may or may not

apply depending on the facts of the case. See Cleveland Skydiving Ctr., Inc. v. Troy Twp.

Bd. of Zoning Appeals, 2025-Ohio-2808, ¶ 46 (11th Dist.), citing City of Oxford v. Day,




                                               28
1998 WL 117167 (12th Dist. Mar. 16, 1998). However, the Supreme Court of Ohio indicated

otherwise in Hortman when it stated the following:

      This court has held, “It is well-settled that, as a general rule, the principle of

      estoppel does not apply against a state or its agencies in the exercise of a

      governmental function.” Ohio State Bd. of Pharmacy v. Frantz (1990), 51 Ohio

      St.3d 143, 145-146, 555 N.E.2d 630. See, also, Sekerak v. Fairhill Mental

      Health Ctr. (1986), 25 Ohio St.3d 38, 25 OBR 64, 495 N.E.2d 14, and Besl

      Corp. v. Pub. Util. Comm. (1976), 45 Ohio St.2d 146, 150, 74 O.O.2d 262, 341

      N.E.2d 835. The Hortmans claim that because this court has inserted the

      words “generally” or “as a general rule” when discussing the principles of

      estoppel, this case may be the exception to that general rule. We disagree and

      hold that the doctrines of equitable estoppel and promissory estoppel are

      inapplicable against a political subdivision when the political subdivision is

      engaged in a governmental function. Sun Refining & Marketing Co. v. Brennan

      (1987), 31 Ohio St.3d 306, 31 OBR 584, 511 N.E.2d 112; State ex rel.

      Chevalier v. Brown (1985), 17 Ohio St.3d 61, 17 OBR 64, 477 N.E.2d 623.

Hortman at ¶ 25.

      {¶ 74} This court has followed the Supreme Court’s holding in Hortman on multiple

occasions. See, e.g., Northridge, 2022-Ohio-495 at ¶ 27 (2d Dist.); State ex rel. Clearcreek

Assoc. Ltd. v. Montgomery Cty., 2025-Ohio-486, ¶ 18 (2d Dist.); Burks v. Dayton Pub.

Schools Bd. of Edn., 2023-Ohio-1227, ¶ 44 (2d Dist.). Therefore, we again find that the

doctrine of equitable estoppel is “inapplicable against a political subdivision when the

political subdivision is engaged in a governmental function.” Hortman at ¶ 25.




                                             29
        {¶ 75} In this case, there is no dispute that the Township is a political subdivision.

See R.C. 2744.01(F). It is also well established that the enforcement of zoning ordinances

is a governmental function. See Colerain Twp. Bd. of Trustees v. Bench Billboard Co., 2020-

Ohio-4684, ¶ 22 (1st Dist.); Ghindia v. Buckeye Land Dev., L.L.C., 2007-Ohio-779, ¶ 36-38

(11th Dist.); Petitti v. Plain Twp. Bd. of Zoning Appeals, 2003-Ohio-6849, ¶ 23 (5th Dist.).

Therefore, the trial court correctly declined to apply the doctrine of equitable estoppel to this

case.

        {¶ 76} Although not discussed by the trial court, we also find that the equitable

doctrine of laches does not apply. Surber essentially raised a laches defense before the trial

court when he argued that Peele did not issue the zoning violation notice until over two years

after Building A had been erected and a year and a half after Buildings B and C had been

erected. Surber claimed that there was “no reasonable explanation for why the Township

would delay issuing a violation notice to [him], allowing him to not only erect the buildings,

but also allowing him to believe that he had taken all of the right steps to erect and operate

said buildings for well over a year.” Reply Brief of Surber (Apr. 11, 2025), p. 8.

        {¶ 77} “‘The elements of laches are (1) unreasonable delay or lapse of time in

asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or

constructive, of the injury or wrong, and (4) prejudice to the other party.’” State ex rel. Ascani

v. Stark Cty. Bd. of Elections, 83 Ohio St.3d 490, 493 (1998), quoting State ex rel. Polo v.

Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145 (1995); accord Blankenship v.

Blackwell, 2004-Ohio-5596, ¶ 19.

        {¶ 78} Like the doctrine of equitable estoppel, the equitable doctrine of laches may

not be applied to prevent local governments from enforcing a zoning regulation. See Frantz,

51 Ohio St.3d at 146; Bd. of Trustees v. Buchs, 1986 WL 3817, *2, fn. 1 (9th Dist. Mar. 26,


                                               30
1986) (“laches does not preclude the enforcement of a zoning resolution” ). Furthermore,

Surber’s laches claim only references the Township’s unreasonable delay without

specifically arguing how he was prejudiced by the delay. Prejudice cannot be inferred from

a mere lapse of time. State ex rel. Chavis v. Sycamore City School Dist. Bd. of Edn., 71 Ohio

St.3d 26, 35 (1994).

       {¶ 79} Surber’s second assignment of error is overruled.

                            Surber’s Third Assignment of Error

       {¶ 80} Under his third assignment of error, Surber claims that the trial court erred by

striking the affidavit of Gary B. Zechar from the evidentiary record.

       {¶ 81} A trial court’s decision to grant or overrule a motion to strike evidence is within

its sound discretion and will not be overturned on appeal absent a showing of abuse of

discretion. Diller v. Miami Valley Hosp., 2017-Ohio-9051, ¶ 62 (2d Dist.). “A trial court abuses

its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

Darmond, 2013-Ohio-966 at ¶ 34, citing Adams, 62 Ohio St.2d at 157. “[M]ost instances of

abuse of discretion will result in decisions that are simply unreasonable, rather than

decisions that are unconscionable or arbitrary.” AAAA Ents., Inc., 50 Ohio St.3d at 161. “A

decision is unreasonable if there is no sound reasoning process that would support that

decision.” Id.

       {¶ 82} In the affidavit in question, Zechar averred that he had attended the Board’s

hearing on Surber’s appeal and that 30 minutes prior to the hearing, he and the other Board

members met with Peele and discussed Peele’s position on the matter. Zechar averred that

he had felt pressured by Peele to find that Surber was in violation of the Township’s Zoning

Resolution. Zechar further averred that because Surber had obtained zoning permits from

Yount and because Yount was the Township’s authorized zoning inspector during the


                                               31
relevant time period, he believed the Board’s decision finding that Buildings A, B, and C

were not properly permitted was unreasonable and unsupported by the record. Brief of

Surber (Mar. 7, 2025), Exhibit A.

       {¶ 83} In ruling on Surber’s appeal, the trial court noted that it had sustained the

Township’s motion to strike Zechar’s affidavit. The trial court, however, also stated that it

“assume[d] arguendo, that the Affidavit was admitted as evidence” and that the court had

“reviewed the contents of the Affidavit and the references to it by Appellant’s counsel.”

(Emphasis in original.) Decision, Order and Entry (May 1, 2025), p. 12. Despite striking the

affidavit, the record indicates that the trial court considered it when ruling on Surber’s

administrative appeal. In doing so, the trial court found that the information in the affidavit

did not impact its decision.

       {¶ 84} Under these circumstances, even if we were to assume that the trial court had

abused its discretion by striking the affidavit, the record indicates that any such error would

have been harmless. Harmless error is “[a]ny error, defect, irregularity, or variance which

does not affect substantial rights” and “shall be disregarded.” Crim.R. 52(A). In other words,

“[h]armless error is any error that does not affect the outcome of the case and, thus, does

not warrant a judgment overturned or set aside.” State v. Haynes, 2004-Ohio-3514, ¶ 16

(11th Dist.), citing State v. Brown, 2003-Ohio-5059, ¶ 25, and Crim.R. 52(A).

       {¶ 85} In this case, any error in striking Zechar’s affidavit would have been harmless

error because the trial court did in fact consider the contents of the affidavit when ruling on

Surber’s administrative appeal. Furthermore, we agree with the trial court that the

information in the affidavit in no way impacted the outcome of the proceeding.

       {¶ 86} Surber’s third assignment of error is overruled.




                                              32
                                         Conclusion

       {¶ 87} Having sustained the Township’s assignment of error and having overruled

Surber’s assignments of error on cross-appeal, the judgment of the trial court is reversed in

part and affirmed in part. Specifically, the judgment of the trial court reversing the Board’s

decision as to Building A is reversed, and the judgment of the trial court affirming the Board’s

decision as to Buildings B and C is affirmed.

                                       .............

LEWIS, P.J., and TUCKER, J., concur.




                                                33