This article is updated Jan. 12 with comments from North American Diving Dogs.
Rocked by a court ruling that a barn on her property was built without proper permits, a Freedom Township business owner sees her options dwindling.
Twinsburg resident Michelle Filler, owner of Duke’s K9 Dash N’ Splash, located at 6948 State Route 303 in Freedom Township, said she bought the property in 2020 with the express purpose of building her business.
But the dog training facility quickly came under scrutiny by township zoning officials after a neighbor lodged complaints with the township and the county health department about sanitation issues.
A series of legal actions have culminated in a Dec. 6 ruling by Portage County Common Pleas Judge Laurie Pittman, upholding a township zoning appeals board ruling that a barn Filler wants to build does not qualify for an agricultural exemption and requires a permit.
The controversy over Duke’s primarily affects Filler, her neighbors and her customers. But the fallout over the neighbor dispute has stoked tensions in town hall, leading to turnover in the zoning inspector’s office and the township’s Board of Zoning Appeals. Many township residents have come out in support of Filler.
At issue in Common Pleas Court is Filler’s partially built barn. If it was to be used for agricultural purposes, Filler would simply be issued an agricultural exemption that allowed her to build the structure without a building permit. If it was to be used for commercial purposes, she would need to apply for a conditional use permit.
Filler, some township officials, and the county building department have all agreed at one time or another that the barn is agricultural: no conditional use permit needed. But when the township’s Board of Zoning Appeals reversed its own ruling that the building was in compliance, Filler headed to court.
After Pittman’s ruling, Filler said her only option is to go back to the township and request that the agricultural exemption be reinstated or to obtain a conditional use permit.
“After what we’ve been through for the past two and a half years, what do you think my chances are?” Filler asked with a laugh. “There is no option but to prevail. The alternative is losing everything we have. There is no Plan B.”
Are dogs like horses?
Filler said she opened Duke’s K9 Dash N’ Splash in May 2021, offering K9 swimming, as well as training in dock diving, air retrieval, hydro dash, agility, advanced dock diving, and more, in individual and group sessions. Her website also advertises competitions and events, though none are currently scheduled. The outdoor facility is open May through October.
Filler’s attorney, Warner Mendenhall, said Pittman’s order referred only to the barn’s use, not the business as a whole. But housing dogs in a barn is an agricultural use, he said.
Relying in part on a 2007 case that pitted a Brimfield resident against that township’s Board of Trustees, Mendenhall insisted that as long as the dogs on Filler’s property are boarded, cared for and exercised, the use is indeed agricultural and no different than horse farms that board, care, exercise and hold competitions.
“We are going to clarify that the use is agricultural,” he said. “There has been a lot of nonsense around this property, but they can only cite her if it is non-agricultural. Dog boarding is agricultural.”
Filler’s course forward will see her re-applying for the ag exemption and appealing a stop work order that the county building department issued in late 2022, Mendenhall said.
County Building Director Randy Roberts declined to comment for this article, citing the possibility of further litigation.
“Michelle is going to have dog boarding and training in the building, along with agricultural equipment and storage,” he predicted.
Though the fate of her still-roofless barn remains in legal limbo for now, Filler vowed that no one will stop Duke’s Dash N’ Splash.
“There are no permits or violations issued that would prevent us from continuing our outdoor activities so we will continue to operate as we always have,” she said. “They can’t stop you from using a building for agricultural purposes, so I can put my goats and my chickens and my straw in there.”
She added: “Somebody is going to have to prove that what we do, training and care and boarding of dogs is not an agricultural use in the state of Ohio. Nobody’s proven that.”
‘Runoff from the dog s***’
Filler said she had approached Township Trustee Jeff Derthick before she even bought the property in November 2020 because that purchase hinged on her being able to move Duke’s K9 Dash N’ Splash from Mantua Township to Freedom.
“We found out that because it was zoned residential commercial, we would be able to build our home, start our farm, and move our business,” she said.
Backed by assurance from the Portage County Prosecutor’s Office, Derthick, who was then acting as the township’s zoning inspector, assured Filler that she could do as she planned. No conditional use permit would be needed because Filler’s business counted as an agricultural use, he said.
Believing she would not need special permits to carry out her plans, Filler purchased the property and began to establish her business there.
It wasn’t long before Filler’s neighbor, Dorothy Maur, logged objections and found willing ears.
In July 2021, Maur told township trustees that the noise, traffic and sanitation issues from Filler’s business interfered with her lifestyle, and that heavy rains brought “runoff from the dog shit, the dog piss, and the people’s food” onto her property.
Though the two properties are side by side, Filler said Maur lives hundreds of feet away from where the dogs are, that everyone is required to clean up after their dogs, and that the property drains away from Maur’s land, not toward it. Filler also said she had built a large dirt mound between the two properties.
Maur lodged a complaint with the Portage County Health District in July 2021, saying Filler was holding large events on her property, but was only providing three porta-potties. Her complaint also stated that Filler had no sewer system on her property and that the only fresh water was an unpermitted well.
“How can this be allowed with current Covid numbers?” Maur asked in her complaint. “People spend the days there and last time they had food trucks.”
Maur urged health district staff to come to Filler’s property on the weekend of July 30, 2021, because a large event involving dog handling was scheduled.
Despite repeated attempts to reach her by phone, Maur could not be reached for comment.
Health inspection turns up minor issue
Township trustees, or at least Trustee John Zizka, who left office when his term expired Dec. 31, 2021, agreed with Maur. Without the knowledge or agreement of the other two Freedom trustees, one of whom was Derthick, Zizka lodged his own complaint with the health district, alleging that Filler’s facility included an illegal campground and pools.
Derthick said no complaint should have been filed unless all three trustees were in agreement and the issue had been discussed in open meeting.
But filed it was, prompting the Portage County Health District to obtain a search warrant to inspect Filler’s property. Along for the ride were the health district’s stormwater inspector, plumbing inspector, and the agency’s environmental health director and deputy director.
The Portage County Sheriff’s Office also contributed personnel, as did the county building department, said Becky Lehman, the health district’s Director of Health Education and Promotion.
Lehman said the Portage County Health District does not issue violations. She noted that the search revealed a private water system Filler had constructed without a permit, but added that the matter had since been resolved. Filler says the matter was as simple as obtaining a permit for a hose connected to her camper, which she did.
On Sept. 15, 2021, Laura Chartier, who was then the zoning inspector for Freedom Township, presented Filler with two zoning violations, one stating that she did indeed need a conditional use certificate and one regarding her signage.
In December 2021, Roberts, the county building director, said his department had not issued any violations.
Township gives Duke’s the all clear
During a Jan. 6, 2022, trustee meeting, Derthick reiterated that Filler was not in violation of any zoning codes. All three trustees agreed and sent Filler a letter to that effect. Later that same evening, the trustees terminated Chartier as zoning inspector and authorized Derthick to once again serve as acting zoning inspector.
On Feb. 16, Maur approached the township Zoning Commission, telling them that she had spoken with staff at North American Diving Dogs, which is the American Kennel Club and the Continental Kennel Club’s official organization of diving dogs. She told the commission NADD was not renewing Filler’s contract and stated that Filler needed that contract to run her business.
All this time, Filler continued her plans to build the barn. As the time for breaking ground neared, Filler approached newly appointed Zoning Inspector Louis Mincek, who told her that no permit would be needed because the building would be agricultural in nature, Filler said.
Filler completed the township’s required agricultural exemption form, and on March 25 received an agricultural exemption certificate from Mincek. That document was followed by an April 4 notice from the county that the structure was an agricultural building, and any use other than those specified would require permits.
Filler broke ground for her barn later that month, only to learn that Zizka’s objections continued. Zizka, by then a former trustee, said in an interview with The Portager that he told the new board of trustees he disagreed with Mincek’s decision — a decision that was based on Derthick’s advice from Assistant County Prosecutor Brett Bencze.
“I’m a citizen of the county, a citizen of Freedom Township,” Zizka said. “I’ve lived out here over 50 years. This is a gross injustice. I’ve been involved in township activities for over 30 years. I would fight for anything that I thought was contrary to our zoning resolution.”
The township’s current board of trustees, newly seated in January 2022 with the exception of Derthick, has turned its back on a long-time township resident in favor of Filler, who lives in Summit County, Zizka said.
“I support Mrs. Maur’s actions 100%,” he said. “She has fought a one-person battle to get this situation rectified. Mrs. Filler needs to obtain a zoning certificate from Freedom Township.”
Zizka insisted he is not against what Filler is doing and that he does not hate dogs.
“My only concern was that she comply with zoning and getting a proper zoning certificate. I’ve said that publicly numerous times,” he said.
Maur appealed Mincek’s decision to issue Filler the agricultural exemption certificate, and on May 3 the township’s Board of Zoning Appeals voted 3-2 to repeal Filler’s exemption certificate for the barn.
The next month Freedom trustees voted unanimously to remove one of the three BZA members who had supported Maur, and attempted to remove a second member who had also supported her, alleging they had violated due process procedures regarding Filler’s case.
Future of Duke’s is uncertain
Filler shook her head as she envisioned filing for the conditional use permit she’d been repeatedly told she didn’t need, and hoping for approval. The irony is not lost on her.
“I am not a quitter. I started my own organization in March of 2022, International Dog Sports, to be our sanctioning dog diving organization. Right now we have 23 facilities and 2,000 registered dogs,” Filler said.
But the stress of worrying she will lose her business, not to mention her life savings, is incalculable, she said.
Far from being an issue that has divided the township, Derthick said it is more a case of two neighbors not agreeing.
“Other than Mrs. Maur, I haven’t had any residents call me to complain about it,” he said. “I’ve had more people call me in support of it. Most people don’t know what the big to-do over the dog training facility is.”
Contributing to the hot-button issue is the State of Ohio’s support for agricultural tourism. The real question, Derthick said, is whether training a dog is any different than training a horse.
“The state wants their farmers to be in business. Is a dog a companion animal or is it an agricultural animal? It’s a real bad gray area that nobody wants involved with,” he said.
All this time, Filler said her anxiety and legal costs skyrocketed. She said she has so far spent over $25,000 in legal fees, and that Maur’s communications with NADD had led the sanctioning body to not renew her contract, leading to another $80,000 in lost income.
Debra Markwardt, president of North American Diving Dogs, emailed The Portager to say Maur’s communications were not the reason the contract wasn’t renewed. “Michelle Filler’s contract was not renewed because Michelle would not comply to the NADD Rules & Regulations and the NADD Facility Agreement,” she wrote. She added that all of NADD’s partners are commercial businesses with permits, not agricultural facilities. Asked what specific policies Filler did not comply with, Markwardt declined to answer any more questions.
Filler vowed she will pursue a lawsuit against current and former township employees and board volunteers, and against at least one township resident.
“There’s multiple ethics violations, multiple civil rights violations, several instances of tortious interference, and harassment,” she said.
Filler said she has also filed trespassing charges against Maur, whom she alleges was filming activity on her property even after Portage County sheriff’s deputies told her not to cross the boundary line.
Staff at the Portage County Sheriff’s Office confirmed that deputies had repeatedly advised Maur to stay off Filler’s property, and that Filler’s criminal trespass charge against Maur was filed on Dec. 19. That complaint is under review at the county prosecutor’s office, sheriff’s office staff said.