A sign at the entrance to PennyRoyal Self Storage. Howard and Lisa Gray had permission to use their residential driveway in Warren County to get to garages and storage facilities on the Montgomery County portion of their land….Still the couple is facing contempt of court charges and civil fines for the third time in a five-year dispute over continued access with Clearcreek Township officials, responding to complaints from neighbors. Image: Jim Witmer
middletownjournal.com | Dec 1, 2012
By Lawrence Budd
CLEARCREEK TWP., Warren County — The six-year dispute between Clearcreek Twp. and Howard and Lisa Gray shows just how complicated, combative and costly local land use issues can become.
The Grays obtained permission from a Clearcreek Twp. official to use their residential driveway in Warren County to get to buildings on the Montgomery County portion of their land. The buildings house the Grays’ storage and landscaping businesses.
But following complaints from neighbors, Clearkcreek Twp. ordered the couple to stop using the driveway to access their commercial area. A judge subsequently issued an order to that effect.
The Grays say they have no other feasible way to get to that land, and they now face contempt of court charges and nearly $100,000 in potential fines for resisting court orders.
“We are just confounded,” Lisa Gray said. “I am just very saddened.”
Said attorney Jill Mead in a court filing Monday on behalf of Clearcreek Twp.: “We realize that, several years ago, (the Grays) were given bad advice. That in no way excuses their current behavior, which is to continuously ignore and, in fact, thumb their noses at the court’s orders.”
Michael and Howard Gray stand in front of a sign prohibiting the use of their driveway to get to to garages and storage buildings on a section of their land in Montgomery County. Lawrence Budd
The Grays live at 2248 Pennyroyal Road, west of Ohio 741 on the extreme northern edge of Warren County in Clearcreek Twp., a traditionally rural community where home-based businesses are common and generally accepted. Their commercial land in Montgomery County’s Miami Twp. is just inside a special commercial zone established in anticipation of development around the new Interstate 75 interchange at Austin Boulevard.
Homes, some on multi-acre lots, surround the Grays’ land on the east, south and west. Commercial properties and a church border the Grays’ land to the north.
In 2004, the Grays say they invested about $300,000 in the garages and storage buildings on about three acres of their land in Montgomery County after receiving assurance from Clearcreek Twp. Planning and Zoning Director Jeff Palmer that access would be permitted via the long driveway leading off Pennyroyal Road to their home.
In 2006, after complaints from neighbors about noise, dirt and traffic, the township notified the Grays they would have to quit using the driveway to get to their commercial buildings. The Grays had added a landscaping business, worsening traffic and noise problems, according to the township.
During this time, the township’s population exploded, doubling to nearly 40,000 residents between 2000 and 2010, according to the U.S. Census.
In 2009, the township filed a lawsuit in Warren County, asking the court to deny the Grays access to their Montgomery County land via the driveway.
The township determined the Grays’ businesses failed to qualify as a home business in part because equipment involved in the business is stored outside the Gray’s home, one of two residences on the couple’s Warren County land, Mead said.
“The township’s policy is that legitimate home occupations are acceptable. If a commercial enterprise is being run on a residential property and does not qualify as a home occupation, it is unacceptable. Generally speaking, the township responds to complaints,” Mead said in an email.
Since 2005 Clearcreek Twp. officials have responded to 18 inquires about business operations in residential areas, according to township records.
Disputes goes to court
The Grays continued to use the driveway and filed counterclaims against Palmer and the township. They also failed to fully comply with orders issued by Warren County Common Pleas Judge James Flannery.
With reservations, Flannery issued the first in a series of rulings last year that prohibited the Grays from accessing their commercial property via the driveway. Flannery also rejected the Grays’ request for compensation for loss of the driveway’s use.
“If the court had equitable power to grant the relief sought by the Grays, it would do so. However, the court has taken an oath to enforce the law as written and not to legislate different results based solely on sympathy towards the affected parties,” Flannery wrote in a March 2011 ruling.
Flannery ruled the Grays were not entitled to compensation because they sought, but were denied, a variance by the township zoning board to continue using the driveway.
Orders call for the Grays to pay for a fence and entry system controlling access to the Montgomery County tract and assist the township in moving out about 50 storage tenants.
The judge also ordered the Grays to take down a sign advertising the storage business. The Grays complied, but installed another sign in protest.
“Is this America? Clearcreek Twp. and their courts have closed our family business after they approved it six years ago. Our American Dream has been turned into an American Red Tape Nightmare,” the sign reads.
Instead of paying the township to hire a contractor to build the fence, Howard Gray hired his own contractor.
“What’s the difference on the fence? It’s going to be locked,” he said.
Since then, Flannery and lawyers for the township and the Grays have worked out agreements to close the driveway at the Montgomery County line and clear the storage units. Still, the Grays are resisting in word and deed.
“I’ve been here since 2004,” Gray said. “They’re actually taking my land.”
The Grays could access the property by negotiating an easement or purchasing land from private landowners on the Montgomery County side, but an agreement seems unlikely due to the distance to a road.
The Grays’ lawyer, Andrew George, said the Grays deserve compensation.
“All of this stems from a government mistake. It’s up to the government to fix that,” George said.
Possible fines, costs
This week, Mead urged Flannery to find the Grays in contempt of court, which could trigger as much as $97,000 in fines.
Mead is the third lawyer to represent the township and Palmer in the dispute. Mead took the case in July and has billed the township $7,500 through Nov. 6. County prosecutors and lawyers retained through township insurance provided other representation at no additional charge.
If they comply, the Grays are expected to cover most or all of Mead’s fees, the cost of the fence and other expenses. Those costs total more than $13,000.
No hearing has been scheduled on the township’s contempt-of-court request against the Grays.