Miami Twp. Bd. of Trs. v. Weinle

174 N.E.3d 1270

MIAMI TOWNSHIP BOARD OF TRUSTEES, Kimberly Campbell, David Campbell, Richard Cox, William Keyer, Judith Lambert, Eric Schumann, Connie Weber, and Shirley Wheeler, Plaintiffs-Appellees,

v.Michael J. WEINLE, Michael Weinle Enterprises, Inc., Michael J. Auto Sales, and Weinle Motorsports, Defendants-Appellants.

NO. C-200238

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: July 2, 2021

Frost Brown Todd LLC, Ali Razzaghi, Benjamin Y. Yoder and Brodi J. Conover, West Chester, for Plaintiffs-Appellees.

Keating Muething and Klekamp, PLL, Joseph L. Trauth, Jr., Brian P. Muething Cincinnati, and Bradley R. Hoyt, for Defendants-Appellants.

OPINION.

Hendon, Judge.

{¶1} Defendants-appellants Michael J. Weinle, Michael Weinle Enterprises, Inc., Michael J. Auto Sales, and Weinle Enterprises ("Weinle"), appeal the trial court's issuance of an injunction against construction and operation of the Dirt Track.

I. Facts and Procedure

A. Miami Township's Request for an Injunction

{¶2} Over the course of two years, Weinle constructed a dirt racetrack ("Dirt Track") at Edgewater Sports Park next to a paved drag strip¹ which has existed at Edgewater Sports Park since 1954.

{¶3} In August 2019, the Miami Township Board of Trustees and several residents ("Miami Township") collectively filed a complaint against Weinle seeking a temporary restraining order ("TRO"), preliminary injunction, permanent injunction and other relief from the pending opening of the Dirt Track that month. The complaint stated that, with the Dirt Track being situated 250-500 feet from each of the plaintiffs-residents’ respective properties, operation of the track would bring an influx of traffic, noise, dust migration, lighting and other nuisances, which would cause irreparable harm to the residents. It claimed that the progress of construction of the Dirt Track, the date of the track's opening, and the schedule of events to come had been posted on the Dirt Track's website and Facebook pages.

{¶4} In August 2019, the trial court granted Miami Township's request for a TRO to temporarily enjoin Weinle from doing further construction or conducting operations on the track. During that hearing, counsel for Weinle stated that the Dirt Track was "built, practically," while Michael Weinle stated that the Dirt Track was not to open until September 2019.

{¶5} In October 2019, the parties agreed to an amended joint TRO whereby Weinle could continue construction and operation during specific hours, including operation and repair of motorized vehicles. The joint TRO further provided that "the action on the merits of Plaintiffs’ request for a permanent injunction shall be consolidated with an evidentiary hearing on Plaintiffs’ request for a preliminary injunction to be held on March 9-11, 2020."

B. The Hearing on Weinle's Motion to Dismiss

{¶6} In March 2019, the trial court held a hearing on Weinle's motion to dismiss for lack of subject-matter jurisdiction. Weinle argued that usage of the track had been limited since the TRO was issued six months prior, so there were no current nuisances and the matter should be continued for two or three months. Weinle further argued that the matter was not ripe because Miami Township's claims of nuisance were "future harms" that did not exist since Weinle had no current plans to open the track.

{¶7} Miami Township countered that the nuisance did not have to be present and ongoing in order for the court to exercise its equitable power. Miami Township argued that Michael Weinle's deposition, which had occurred in the prior week, reflected that Weinle was going to be running "tests and tunes" on Thursdays, that temporary stands, lighting and fence posts had been installed, and that Weinle intended to hold classes on the track. Weinle responded "we are very far from that."

{¶8} The trial court overruled Weinle's motion to dismiss.

C. The Trial

{¶9} In March 2020, the trial court consolidated the preliminary-injunction hearing with a trial on the merits for the permanent injunction pursuant to Civ.R. 65(B)(2). Miami Township's witnesses included the plaintiffs–three township residents, a township trustee, and the assistant fire chief–and two experts to testify about noise levels and air pollution.

{¶10} A few of the residents testified that he or she had attended least one dirt track drag race. The residents expressed that, based on their experiences, they were concerned about the level of dust migration, noises from the race cars, and increased traffic resulting from operations of the Dirt Track, and that such nuisances would affect their ability to enjoy activities inside and outside of their homes.

{¶11} Judith Lambert stated that she shares a property line with the Dirt Track and that, ever since Weinle had cleared trees away, she could clearly see the track from her yard. David Campbell, an experienced dirt track race car driver, testified that his property is about 230 feet away from the Dirt Track. Campbell's wife, Kim, expressed her concerns regarding how the level of dust that comes with dirt track racing will affect her asthma and her garden.

{¶12} Brien Lacey, the assistant fire chief, testified that smaller events at the existing drag strip cause traffic issues in the drag strip's direct vicinity, while larger events cause traffic to be backed up for nearly a mile in each direction and had impeded the fire department's ability to provide services in emergencies. He further testified that he has called the Hamilton County Sheriff's Office to control the traffic so the fire department could exit the drag strip. Lacey also testified that he saw bleachers for dirt track spectators had been set up.

{¶13} Eric Zwerling, a professor and director of the Rutgers University Noise Technical Assistance Center, testified as to measurements which he had taken at other local dirt racetracks using distances similar to those at issue in this case. Zwerling concluded that the sound level from a dirt racetrack at one-half of a mile away is 70 to 80 decibels–25 decibels higher, and six times louder, compared to the background noise when no dirt track racing is happening. He stated that, where the background sound exceeds 74 decibels, a person standing 19 inches away from another would not hear their raised voice. Zwerling based his research on values provided by the United States Environmental Protection Agency ("EPA")–which are widely accepted in his field and are the bases for many local and municipal noise ordinances (which generally limit noises to 60-65 decibels).

{¶14} Stephen Szuleck, an environmental scientist and director of the Rutgers University Air Pollution training programs, testified that he used the AP42 formula provided by the EPA to determine emission factors of particulate matter of unpaved roadways. Szuleck discussed the difference between vehicles which spin wheels while undergoing rapid acceleration on a paved road versus such acceleration on an unpaved road. Szuleck used data that he obtained while doing research at other local dirt track races. He concluded that, based on the typical four-hour duration of a race and the number of laps made, a typical dirt track race would create between 220-6000 pounds of particulate matter over the course of a mile within the four-hour time period. Szuleck testified that these levels significantly exceed the EPA's permissible emission limit even for PM2.5 fine inhalable particles.

{¶15} In June 2020, the trial court entered a judgment in favor of Miami Township. The court found that Miami Township had proven by clear and convincing evidence that the Dirt Track was an intentional action, and an absolute private nuisance, which would interrupt use and enjoyment of the nearby residents’ private property. The court concluded that the anticipatory nuisance would cause irreparable harm, thus a permanent injunction enjoining construction and operation of the Dirt Track was the "appropriate choice to restore balance." The court enjoined any operation or further construction of the Dirt Track.

D. The Appeal

{¶16} Weinle maintains that the Dirt Track is "very-much-incomplete," in that $250,000 worth of work needed to be done in order to get the property ready for commercial racing, and $1 million was needed to make it a first-class facility. Weinle further argues that Miami Township only argued potential effects that the track would have on the residents.

{¶17} Miami Township argues that Michael Weinle's own testimony during his deposition, in addition to continued construction and updates posted on the Dirt Track's website and social media, show that Weinle still intended to open and operate commercial racing.

1. Subject-Matter Jurisdiction

{¶18} Weinle maintains that the matter was moot at trial because the Dirt Track did not open in August 2019 as anticipated. Weinle asserts that since the track did not open and remained incomplete, and there was no concrete schedule for the races, the immanency of opening and operating the track no longer existed. Miami Township counters that Weinle argues that the issue was moot only because the TRO enjoined Weinle from his anticipated opening in August 2019.

{¶19} Weinle argues the matter was not ripe because Miami Township could not pinpoint what the anticipatory nuisance would be, and the nuisance may not materialize. Miami Township asserts the matter is ripe under the anticipatory-nuisance standard, which is not required to materialize in order for a court to consider the claims.

2. Clear and Convincing Evidence – Anticipatory Nuisance

{¶20} Weinle contends that plaintiffs’ evidence was not "convincing." He argues that the plaintiffs were not able to clearly and convincingly show that the track would have been completed or how the track would be operated. He further argues that the trial court "failed to faithfully apply" the portion of the anticipatory standard under Gustafson v. Cotco Ent., Inc. , 42 Ohio App.2d 45, 328...