A court dispute between two neighbors has led to a November referendum for German Township residents.
German Township trustees have placed an issue on the November 5 ballot that will ask its approximately 2,294 eligible voters whether to amend the township’s zoning resolution to allow landscaping businesses to operate as a conditional use in an agricultural district.
The referendum was prompted by resident John Baker, who is involved in a court dispute with his neighbor, Eric Nolen, about whether he is running a landscaping business at his home, which is zoned agricultural. German Township is a rural and agricultural area made up of approximately 8,400 residents and located west of Miami Township, east of Preble County and north of Warren County.
The legal dispute between the two neighbors dates back to 2011 and both parties are currently awaiting a Montgomery County Common Pleas Magistrate to make a decision relating to a possible violation of a court approved agreement that was made between the parties last year.
The township was one of the defendants in one of the civil lawsuits and has had to pay approximately $2,300 to fight it, according to Bob Rohrbach Jr., the township’s fiscal officer.
The township will pay more money for the referendum on the Nov. 5 ballot.
Putting the issue on the ballot could cost the township around $2,400, since it has two voting precincts, according to Steve Harsman, deputy director of the Montgomery County Board of Elections.
“We have to do this by law,” said Randy Benson, township president. “Personally, I think it’s a waste of taxpayers’ money.”
But Baker disagrees.
“That’s small change compared to the impact it will have on the property values, if they allow a light industrial business in the agricultural area,” Baker said.
Baker of 14941 Ohio 725, sought the referendum after township trustees voted in March to approve a change to its zoning resolution language to include landscaping businesses as conditional use for its agricultural district. The trustees approved the change after holding two public hearings, Benson said. The county’s planning staff also recommended that the change be made to the resolution, according to the Jan. 10 meeting minutes of the county’s Planning Commission.
The minutes said Lawrence Weissman, the county’s planner, “indicated that almost all of the township is zoned agriculture and there are existing commercial landscape businesses in the agriculture district.”
Still, the resolution cannot be changed unless residents approve the vote on Nov. 5.
The ballot issue also asks residents if the zoning resolution should remove language that deals with outdoor storage, such as junk, wood, lumber, excessive brush, building materials, parking of inoperative or unlicensed motor vehicles or similar items of property unless specifically permitted by the specific zoning district regulations.
Baker filed his referendum petition on March 26, five months after he filed a civil lawsuit against the township and Nolen, who owns a landscaping business called Valley Contracting, LLC. The lawsuit was dismissed without prejudice - meaning that the lawsuit could be filed again - by a Montgomery County Common Pleas Court Magistrate in June.
Baker, a business program management consultant, alleged in his lawsuit that Nolen was operating his business out of his home at 14991 Ohio 725 by using it as a staging ground for employees and construction vehicles and equipment to work at sites elsewhere. The lawsuit also claimed that Nolen uses his property as a dumping ground for metal scrap, yard waste, aggregate materials and other waste.
Baker alleges that Nolen is in violation of the township’s zoning rules and his actions are inconsistent with the principal or accessory permitted uses within an agricultural district.
“They are completely in compliance with the township zoning resolution the township zoning inspector has so ruled,” said Nolen’s attorney Gary Leppla. “His business location is his job site, where he does the work.”
Baker’s lawsuit also alleged that he made multiple complaints to Laurie Rohrbach, the township’s zoning inspector and accused the trustees of not following through with enforcement action of the zoning resolution.
While township trustees were dealing with the lawsuit, they found out from the Montgomery County Prosecutor’s Office that there is case law that suggests that landscaping businesses are not accepted for agricultural use, according Laurie Rohrbach, township zoning inspector and relative of Bob Rohrbach.
“We didn’t address landscaping businesses in our zoning code,” Laurie Rohrbach said. “We’ve always assumed that it was agricultural because it is dealing with dirt and rock.”
In the meantime, Nolen and Baker are waiting for a court magistrate to rule on whether Baker and his wife Laura were in contempt of court, following a civil lawsuit the Nolens filed against the Bakers in November of 2011. Eric Nolen and his wife Kellie have accused the Bakers, John Baker in particular, of allegedly committing ongoing harrassment that includes unauthorized photography of their property, according to Nolen’s attorney Gary Leppla.
“We were instructed by our attorneys to take pictures,” Baker said of the photos he took. “In order to show that there were zoning violations, we had to show the types of truck and equipment that were on the property.”
The Nolens also claimed that the Bakers were in contempt for violation of an agreed order in the manner of “harassment of business and personal guests, causing and threatening harm, and inappropriate communication…”
The Nolens’ 2011 lawsuit claims that John Baker reneged on an agreement they had made about putting a new fence between their two properties. The Nolens alleged that Baker tore down the fence, which they had built, without their permission.
The courts consolidated the Nolens’ civil lawsuit and Baker’s November lawsuit, according to Leppla.
“That’s all false,” Baker said. “This is a last effort by them to try to get back at us because their case was dismissed by the court.”