OH Appeals Court Finds that Property Co-Owner Did Not Violate Zoning Ordinance by Having her Children Ride Their Dirt Bikes Behind her Home

This post was authored by Jennifer Autar, Jacob D. Fuchsberg Touro Law Center

On June 23, 2021, Defendant-Appellant Sulken was cited by Delhi Township Police for a misdemeanor zoning violation for having a dirt-bike track on a one-acre property she co-owns behind her house. Despite the fact that her sons used the parcel to ride their dirt bikes since 2016, it was not until 2018 when neighbors started complaining about the dirt track and the mounds.

The township sent Sulken a cease-and-desist letter from using the dirt track and removing the mounds from her property. However, she continued to have her children use the “worn-out” path to ride their bikes and prohibit them from riding after 9 pm to avoid any “…nuisance of the noise” issues. The municipal court found her guilty and sentenced her to a $100 fine plus court costs. Sulken appealed, and the court reversed the judgment and discharged Sulken from further prosecution.

The State alleged that Sulken’s use of the property creates an impermissible accessory use because the dirt bikes operated on a “parcel that was separate from the residence.” On appeal, Sulken challenged the sufficiency of the evidence because she was cited for a dirt-bike track, and the evidence at trial focused solely on the use of dirt bikes and the noise it created. Moreover, the State’s sole witness, Anthony S. Roach, tested that there were no illegal structures on Sulken’s property at the time of his inspection, and the dirt mounds did not require a zoning permit. As the State failed to show sufficient evidence to support Sulken’s conviction that riding the dirt bikes was an “accessory use” that violated the Delhi Zoning Resolution, the court found it unreasonable to interpret the resolution to “prohibit the riding of dirt bikes on the property .”

State of Ohio v. Sulken, 2022 WL 2543682 (OH App. July 8, 2022)

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