This post was authored by Matthew Loescher, Esq.

Property owner Powlette filed a malicious prosecution suit against the township’s zoning code enforcement officer, Carlson, alleging that the officer engaged in intentional and malicious conduct by swearing to a second criminal complaint against the owner for operating a bed and breakfast without a conditional-use certificate after the original complaint against the owner was conditionally dismissed. The Court of Common Pleas, Montgomery County, granted the officer’s motion for judgment on the pleadings, and Powlette appealed.

After reviewing the pleadings, and construing all material accusations and all reasonable inferences therefrom in favor of Powlette, the court determined that the facts did not support a conclusion that Carlson acted manifestly outside the scope of his employment as the Deputy Director of Community Development and in his role as the Miami Township Zoning Inspector, or that he acted with a malicious purpose, in bad faith, or in a wanton or reckless manner. Here, Powlette’s property was zoned for agricultural use only, and “a ‘bed and breakfast’ was not a permitted use in an agricultural district.” Additionally, there was evidence from a July 9, 2018 BZA hearing, involving a “different issue,” that Powlette intended to operate a bed and breakfast on his property. After the conditional dismissal of the first complaint, at which time Powlette was ordered by the court to stop advertising for a bed and breakfast and not to operate a bed and breakfast on the property without a conditional use certificate, Powlette failed to comply with the advertising condition. Accordingly, the court held that Carlson acted at all times to enforce the Miami Township Zoning Resolution and was not outside the scope of his employment. As such, Carlson was entitled to statutory immunity.

Powlette v Carlson, 197 NE 3e 1 (OH App. 9/16/2022)