December 23, 2004

Shattuck appeal denied by BZA

By Lauren Heaton

In a sometimes emotional hearing on Dec. 15, the Village Board of Zoning Appeals denied an appeal by Jim Shattuck, who asked the board to issue his auto repair business, Jim’s Service and Towing, nonconforming use status under the Village Zoning Code.

Lee Huntington, chairwoman of the BZA, and board members Ted Donnell, John Butz and Deborah Wilson voted to deny the appeal. Paul Ford was absent.

Shattuck was seeking a legal nonconforming use to use in his defense of criminal charges, issued by the Village, that he was operating a junkyard in violation of the Village Zoning Code, said his attorney, Richard Boucher.

Boucher said the BZA’s decision neither helps nor hurts Shattuck’s criminal case, which is pending in Xenia Municipal Court. A hearing is scheduled for Jan. 20. Shattuck said he is contesting allegations that he was operating a junkyard on the day he was charged.

Shattuck has just over a month to appeal the BZA’s denial in Greene County Common Pleas Court, an option he and his attorney are considering.

Maintaining his business’s current zoning status does not prohibit Shattuck from continuing to do business as usual, Boucher said.

“I don’t think this decision will have an impact one way or the other, though if we’d had a nonconforming use it would have been an additional defense available to us,” he said.

Huntington, Donnell and Wilson denied Shattuck’s appeal because three previous court decisions had found him guilty of running a junkyard in violation of the Zoning Code.

Their position supported Village Planner Phil Hawkey’s decision last month to deny Shattuck’s request for legal nonconforming use. Hawkey’s decision led to last week’s hearing.

Butz also voted to deny Shattuck’s appeal but argued that Shattuck is not operating a junkyard in violation of the code and therefore did not need the Village to approve his business as a nonconforming use.

The hearing was formatted like a tribunal, with the two attorneys presenting their sides to the BZA, acting as the arbitrator.

Boucher argued that Shattuck began his business in 1982, when, he said, the Village had neither an ordinance prohibiting junkyards nor an exact definition of a junkyard. Since then Shattuck has continued to operate his auto and motorized equipment repair and towing business in the exact same manner, with the exception that he stopped selling gasoline in 1994, Boucher said.

In 1987, Shattuck spent $6,000 to erect a fence around the inoperable vehicles on his property, which Kent Bristol, who was the Village manager at the time, told him would bring his business into compliance with the law.

“Shattuck’s purpose is not to store, keep or salvage material or to keep an auto graveyard…. His primary purpose is keeping an auto repair business,” Boucher said. “It’s not right, fair or, I believe, legal to deny him a nonconforming use…and your denial may very well put him out of business,” he told the BZA.

Village Solicitor John Chambers painted a slightly different picture. Shattuck was cited into the Village Mayor’s Court in 1984 and into Xenia Municipal Court in 1986 and 1997 and found guilty all three times of operating a junkyard in violation of the Village Zoning Code. If Shattuck wanted to prove otherwise, Chambers said, under the res judicata principle that prevents courts from retrying old cases, he would have had to present his arguments at one of his prior hearings.

“It would be wrong for the board to grant the request because of res judicata and wrong to say [Shattuck’s] not operating a junkyard,” Chambers said.

Boucher countered Chambers’s argument by saying his client’s convictions occurred in a criminal court, whose findings would not apply to res judicata in the civil matters arbitrated by the BZA. But Chambers said that the principle did apply because Shattuck violated a zoning code, not a criminal code.

A dozen villagers attended the hearing, some testifying in favor and others against the way the business operates.

El’girtha Ryder, who lives near the business, became emotional in her defense of Shattuck. She said that he has always provided a necessary service for the community, and the cars on his lot, including two of her own, are a part of the business.

Neighbor Arnold Pence and Doug Roberts asserted that Shattuck was not running a junkyard because he does not sell used parts from inoperable vehicles.

Neighbors Becky Campbell and Catherine LaPalombara, however, complained that the business was an eyesore in the neighborhood as well as for those coming into town from the south on U.S. 68. They also voiced concern for possible groundwater contamination from fluid leaking from the junk vehicles stored behind Shattuck’s fence.

After the hearing, Shattuck was uncertain what was going to happen to his business, but said he intended to continue doing what he’s been doing for years.

“I’m sick and hungry right now, but I’m just trying to do my job,” he said, “and I’m not ready to give it up yet.”