Property use fight continues

Continued coverage

The Dayton Daily News has covered the dispute between the Grays and Clearcreek Twp. for the past year and will continue to cover this and other property rights disputes in the Miami Valley.

A Warren County family continues to battle Clearcreek Twp. officials over the use of the back section of their property.

Howard and Lisa Gray want a judge to rule that they should get a key to the gate at the back of their property. The gate prevents them from the three-acre commercial property, where they and their son Michael operated two businesses before a December 2012 ruling in Warren County Common Pleas Court. The land is off Pennyroyal Road and across the county line in Montgomery County.

Since last year, the Grays have been barred from the property, unless they are willing to make an appointment with Jeff Palmer, the township’s zoning official, to open the gate.

“It’s just so frustrating,” Howard Gray said last week. “Why should I have to call, wait for him, when I own the property?”

The case sparked nationwide attention. Jill Mead, a township lawyer said she was the subject of death threats about the case.

ExploreWarren County Common Pleas Court Judge James Flannery ordered the Grays to put up a fence and gate, culminating legal action taken by the township. The township claimed the Grays were violating township regulations by using the residential driveway to access the commercial property.

In 2004, Palmer advised Gray on how to move forward with plans to develop the commercial property. Palmer began taking steps to regulate the Grays after neighbors complained about noise and dust related to the businesses.

During the legal proceeding, Flannery expressed sympathy for the Grays, but declined to award them any compensation, citing Ohio law. Gray said he was ordered to pay a $500 fine for contempt of court for failing to comply with Flannery’s previous rulings, as well as court costs and the township’s legal fees.

While the gate remains locked, Gray said he is renting commercial space in Miamisburg. The previous storage tenants moved out.

This year, the Grays renewed the legal battle after the township Board of Zoning Appeals (BZA) granted them a variance in July from the township code to access the commercial property.

“Everybody thinks the case is over,” Gray said. “We thought the next day they would come down and open the gate.”

Instead the Grays appealed because the township set conditions on the variance. The Grays are required to install a paved 20-foot driveway capable of handling 7,500 pound fire equipment, speed bumps limiting travel to 15 mph, an access control gate and a new sign, all “at the applicant’s sole expense.”

Gray’s lawyers claim the township board went beyond their legal authority by setting conditions on the variance.

“Admittedly this is a gray area of the law,” lawyer Kenneth Hung, representing the Grays, said.

The township’s lawyers counter that the Grays aren’t entitled to access to the property, because of their appeal.

“Since Defendants challenge the entirety of the BZA’s decision, the variance is currently ineffective,” lawyer Kevin Lantz said in a Sept. 9 filing.

Palmer referred questions to Lantz, who did not respond.

Next week, Hung said the two sides are expected to file an entry with the courton a motion to set aside Flannery’s order and provide the Grays with a key. He said Flannery ruled partly in both sides’ favor, but declined to comment on specifics.

Gray wants the township to at least compromise on the conditions — for example settling for partial pavement of the drive. This would cut dust problems for neighbors, but allow the Grays to postpone finishing the drive to the rear of the property.

“That way we could generate an income,” he said. “We want to be neighborly.”