Township spends over $13,000 on Surber


By Ryan Berry

GREENVILLE — In December, the Daily Advocate ran a story with details concerning a lawsuit filed by Geoff Surber against Greenville Township and their refusal to release information per his Freedom of Information Act (FOIA) request and what he believed was a violation of the Open Meetings law. That lawsuit, amongst two other issues are pending in the court system.

The Daily Advocate requested the cost of legal fees relating to actions against or defending against Surber. On Friday, Feb. 3, the Daily Advocate received its FOIA request. The township has $13,157.82 in expenses directly related to Surber. The total cost the township is seeking in zoning fees is $11,044.80.

According to the invoices, the township began seeking outside legal advice on July 6, 2021, through Breidenstein Legal Services. The timing of the legal advice corresponds with a zoning violation notice sent to Surber regarding his property on Sater Street near Ohio Street, just outside the Greenville city limits. The property is surrounded by city limits and is essentially a township island in the city. According to Surber’s complaint, the zoning violation notice came over a year after his permits were approved by the previous zoning inspector. Building A was approved in March 2019 and buildings B and C were approved in November 2019. The notice was received in June 2021 after the buildings had been erected.

The zoning violation notice ordered Surber to take down his buildings down or apply for a zoning permit for the buildings. Because Surber maintains the buildings on the property are agricultural and were initially approved as agricultural, he believes is exempt from needing a zoning permit. The township argued the buildings are not agricultural. The lot is zoned for industrial use, but section 303.21 of the Ohio Revised Code allows agricultural buildings in any zoned district without the need for a zoning permit. There are some exceptions in section B, but they do not apply in this situation.

Surber originally paid the zoning permit fee for the smaller of the three structures on the property, but when it was shown the auto service building fell within the uses of agriculture in the Ohio Revised Code, the fee was returned to Surber. The fee for that building was $1,382.40.

“(A) Except as otherwise provided in division (B) of this section, sections 303.01 to 303.25 of the Revised Code do not confer any power on any county rural zoning commission, board of county commissioners, 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, including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture, and no zoning certificate shall be required for any such building or structure.”

Surber subsequently appealed the township zoning inspector’s decision to the Greenville Township Zoning Board of Appeals. This is when the township began racking up legal bills. The first invoice from Breidenstein Legal Services had an August invoice in the amount of $38. According to the invoices, no more legal fees were acquired until September when the township spent $1,216. September’s legal fees, which were invoiced in October. In October, the township spent $5,035 with Breidenstein Legal Services, LLC. That invoice was billed on Nov. 1, 2021.

The increase in fees correlates with the appeal that was heard by the township’s Zoning Board of Appeals on Oct. 28, 2021. The appeals board ultimately sided with the township’s zoning inspector and affirmed that decision. This meeting is also the basis for Surber’s Open Meetings violation complaint. He pointed out in his court filing the township Zoning Board of Appeals met for an hour behind closed doors before hearing his case. He believes this was an unpublished meeting. He also stated the appeals board met in executive session but did not give a reason approved by the Ohio Revised Code for going into executive session.

In November, the township spent $532, which was billed in December. The December legal expenses amounted to $1,482. In January, the township spent another $1,539. It was toward the beginning of 2022 that Surber filed an appeal with the Court of Common Pleas, which has still not been heard.

The work Breidenstein Legal Services provided the township in February was $323.

The township then switched law firms and have since been employing Wood & Lamping Attorneys at Law for their services. From January through September 2022, the township’s fees have been $3,030.82.

In a statement released by the township they claim they have been working with “multiple legal firms to update our zoning practices. I am attaching the legal fees that are specific to Mr. Surber.”

The legal fees may continue to pile up as the appeal of the zoning board of appeal’s decision continues to move through the system. The most recent court document shows a conference call was held on Feb. 17, 2023, with Nicole Pohlman, attorney for the plaintiff (Suber) and Kathleen Ryan, attorney for the defendant (township) copied on the notice. Ryan is an attorney with Wood & Lamping.

“As far as the recent suit filed by Mr. Surber against the Township, we are utilizing the Darke County Prosecutor’s Office. Margaret Hayes is handling this action. There will be no direct cost to the Township,” according to the statement. The “recent suit” is the lawsuit filed against the township for what Surber believes is a violation of the FOIA and Open Meetings law.

The statement did not address the other two lawsuits, the appeal and a lawsuit asking for a Declaratory Judgment and Other Relief regarding the township’s actions regarding the property. In total, three lawsuits remain before the court.

To contact Daily Advocate Editor Ryan Berry, email [email protected].

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