Ponds where anglers pay to catch fish are customers of fish farms, but are not aquaculture, an Ohio appeals court ruled, which allowed a Pickaway County township to shut down a couple  who secured an aquaculture permit.

After 10 years and three separate trips to the Fourth District Court of Appeals, the Scioto Township Zoning Inspector secured a permanent injunction and a nuisance designation against Puckett’s Pay Pond on Commercial Point Road near Ashville.

According to the Fourth District, the case appears to be the first in Ohio for a court to rule on the subject of aquaculture, and to determine whether a commercial pay lake can be considered engaging in aquaculture. Ohio first authorized aquaculture permits in 1995.

The appellate court’s decision affirms the ruling of a Pickaway County Common Pleas Court that granted the township summary judgment in November 2011. Because of contested issues regarding attorney fees and damages, the trial court’s final decision came in April 2014.

The Fourth District first considered Scioto Township’s actions against Robert and Berna Puckett in 2005, when the township board of zoning appeals denied Puckett’s Pay Pond a conditional-use permit to operate the commercial pay lake in an area zoned for agriculture. The Pucketts argued the land constituted a “public park,” which was an exemption for uses other than agriculture in the area where their home and business were located.

The appellate court ruled in favor of the township, determining that for-profit commercial operations do not qualify for the public park designation, and the Pucketts did not appeal.  Instead of closing, the Pucketts expanded and attempted ballot issues in 2006 and 2008 to win a conditional-use permit from local voters. Both ballot attempts failed.

In 2009, the township filed additional zoning violations against the Pucketts, who produced a state aquaculture permit and argued that aquaculture is a permissible agricultural use. The township disputed the claim, saying state laws require the permit before the fish-farming operation can start and that the Pucketts had operated the pond for years before getting the permit.

Both Scioto Township and neighbors of the Pucketts filed lawsuits in common pleas court and the cases were consolidated. The trial court sided with the neighbors and township in 2011. In March 2012, it granted a permanent injunction against the Pucketts, as well as the request to label the property a nuisance. At that time, the Pucketts appealed, but the Fourth District ruled the trial court had yet to rule on the claims for attorney fees and damages and sent it back. In April 2014, the court declined to award attorney fees, but fined the Pucketts $500. That ruling was appealed to the Fourth District.

Writing for the appellate court, Judge Matthew W. McFarland noted the state law defining aquaculture involves the “propagation and rearing of aquatic species in controlled environments” for the purpose of selling the fish to be consumed as food. And to have a permit, the operation must be for the primary operation of propagating and rearing the fish. Judge McFarland pointed to the testimony of Robert Puckett, who indicated he primarily bought the fish elsewhere and dumped them in to the pond for others to catch. He also testified he didn’t feed the fish so that they were hungry when anglers came to the pond to catch them. He also testified that he operated that way from the time he opened the pond in 2003, until after he got the aquaculture permit.

“In fact, other than dropping them in the ponds after he purchases them elsewhere, there is no ‘propagation’ or ‘rearing,’” Judge McFarland wrote.

The Pucketts objected to the expert testimony presented by Laura Tiu, who has a doctorate in aquaculture and has been employed by the Ohio Center for Aquaculture Research and Development at The Ohio State University South Center since 1998. Tiu testified that pay lakes are considered markets for aquaculture products, but are not aquaculture. Judge McFarland noted that since the court could not find any Ohio cases on aquaculture, it was reasonable for the trial court to rely on her testimony.

The Fourth District also found it was reasonable for the trial court to declare the pay pond an “abatable nuisance,” meaning there are reasonable methods for removing the nuisance, such as shutting down the operation.

“Further it has been stated that a nuisance may be merely a right thing in the wrong place, like a pig in the parlor, instead of the barnyard,” Judge McFarland wrote, quoting the U.S. Supreme Court’s 1926 Village of Euclid v. Amber Realty Co. decision.  He concluded that Puckett’s Pay Pond was precisely that: the right thing in the wrong place, in violation of the township’s zoning.

Judge Peter B. Abele of the Fourth District and Judge Patricia A. Delaney from the Fifth District, who sat on assignment, concurred in the decision.

Scioto Twp. Zoning Inspector v. Puckett, 2015-Ohio-1444
http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2015/2015-Ohio-1444.pdf
Civil Appeal From: Pickaway County Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 10, 2015

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