The state’s second district court of appeals on Friday vacated the judgement of the Miamisburg Municipal Court, concluding that the trial court “should not have permitted amendment of the dates in the complaint not contemplated by the events intended to be reflected in the refiled complaint.”
In its ruling, it said that the trial court erred in finding Powlette guilty of violating Miami Twp. zoning for unlawfully using his property as a bed and breakfast without a required conditional use certificate during the charged time period.
Accordingly, the Ohio Second District Court of Appeals found the trial court erred in allowing the prosecutor to amend the complaint to include offense dates past the date included in the court filing.
The appeals court also found the evidence was insufficient to demonstrate he used the property as a bed and breakfast because “intent is not operating.”
The court’s ruling is not a 100 percent vindication for Powlette.
It dismissed three of his claims including that he was denied due process, that the zoning code was “vague” and that the trial court abused its discretion by finding that Miami Twp. could regulate his having a bed and breakfast because his activity was agritourism not subject to local regulation.
Powlette, who builds houses for a living, told this news outlet Monday that he was happy with the ruling and that the township’s planner, Alex Carlson, “swore out an affidavit I was running a bed and breakfast with absolutely no evidence.”
He said he plans on filing a suit against against Miami Twp., Carlson, and the trustees for malicious prosecution, defamation, slander, libel, mental anguish and possibly more.
Administrator Ron Hess said the township had no comment pending a review of the decision.
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