DocketNumber: Nos. 2006 CA 00153 and 2006 CA 00172.
Citation Numbers: 2007 Ohio 2086
Judges: WISE, P. J.
Filed Date: 4/30/2007
Status: Precedential
Modified Date: 7/6/2016
{¶ 3} Appellee Republic Services of Ohio LLC (hereinafter "Republic"), is the owner of certain real property in Pike Township, Stark County, Ohio, upon approximately 100 acres of which it operates a licensed sanitary landfill (Countywide Landfill). At the time Republic acquired said property (1984), it was zoned R-1 and R-2, and the landfill operated under a conditional use permit. In 1991, Pike Township Board of Trustees (hereinafter "Pike") amended its zoning resolution to conditionally permit sanitary landfills in I-1 or I-2 districts only. At that time, Republic's operation was a prior non-conforming use. In 1996, Pike rezoned all of Republic's property (575 acres) to General I-2. In 2000, Pike amended its Zoning Resolution again, placing limits and restrictions on sanitary landfills.
{¶ 4} In May 2004, Republic applied for an expansion of its conditionally permitted use to increase its operating size from one hundred (100) acres to two hundred fifty-eight (258) acres. The Pike Township Board of Zoning Appeals (hereinafter "BZA"), after public hearing, denied Republic's application on July 14, 2004. In its findings of fact for so doing, the BZA stated that the evidence did not support certain portions of the Zoning Resolution. Four (4) of the six (6) portions cited were new provisions adopted in 2000. *Page 3
{¶ 5} Republic filed an appeal, upon law and fact, of the BZA's decision, pursuant to R.C. 2506, on August 10, 2004. That case, 2004-CV-02656, was assigned to Judge Lioi. On August 12, 2004, Republic filed a Complaint for Declaratory Judgment, Mandamus and Other Relief against Pike Township, the Pike Township Board of Trustees, and the Pike Township Zoning Inspector (hereinafter collectively "Pike"). That Complaint, the underlying case at bar, 2004-CV-02705, was assigned to Judge Sinclair. The Complaint prayed for declaratory judgment that 1) Republic's use of the Property, including the Expansion Area, for the Countywide facility is a public utility and therefore exempt from the Township Zoning Resolution under Ohio Revised Code Section
{¶ 6} Republic also sought an order directing and requiring the Township Zoning Inspector to issue or cause to be issued any zoning certificates required for the *Page 4 expansion of the Countywide facility on the Property in the event the Court granted declaratory relief as described above.
{¶ 7} Finally, Republic also sought a writ of mandamus compelling the Township to immediately commence appropriation proceedings to determine the amount of compensation due Republic for the permanent or temporary taking of the Expansion Area portion of the Property.
{¶ 8} On September 13, 2004, Appellee Pike filed their Answer denying Republic's claims.
{¶ 9} On September 28, 2004, after giving proper legal notice of a special meeting to discuss pending litigation with counsel, Pike and counsel did so in executive session. As a result of extensive negotiations between counsel for the parties, a settlement was reached and that settlement was approved in public session.
{¶ 10} In the Spring of 2006, during discovery in this case, its was found that, unknown to Pike or its counsel, the doors to the Stark County Office Building are locked at 5:00 p.m. Pike did not return to public session until after 6:00 p.m.
{¶ 11} On September 29, 2004, seven weeks after the action was commenced, the Court entered a Settlement Agreement/Settlement Agreement/Consent Judgment, executed by both Republic and Pike, finding and declaring that the Township Zoning Resolution provisions governing the issuance of conditional use permits for solid waste disposal facilities to the Property that precluded its use for an expanded solid waste disposal facility "are invalid as applied to the Property," and that Republic "is entitled to expand its facility to its full capacity of 258 acres" (Settlement Agreement/Consent Judgment, ¶ 1); ordering the zoning inspector to issue a zoning certificate for that *Page 5 expansion (Id., ¶ 2); ordering Republic to contribute an amount that could exceed $10,000,000, depending on the level of participation by the federal government, for the construction of a ramp and alternate roadway intended to redirect traffic to and from the Property (Id., ¶¶ 3-4); limiting the hours of operation for the facility (Id., ¶ 6); noting that Republic's claims for damages against the Township were withdrawn (Id., ¶ 7); and declaring that the Settlement Agreement/Settlement Agreement/Consent Judgment "resolves all remaining claims by . . . Republic against the Township." (Id.). The Court retained jurisdiction to enforce the terms of the Settlement Agreement/Settlement Agreement/Consent Judgment (Id., ¶ 9), and the parties expressly waived their appeal rights. (Id., ¶ 10).
{¶ 12} Nine days after the Settlement Agreement/Settlement Agreement/Consent Judgment was entered, on October 8, 2004, Appellant asked the Court to vacate the Settlement Agreement/Settlement Agreement/Consent Judgment and to permit him to intervene in the action as a party defendant/respondent.
{¶ 13} On October 29, 2004, Appellant filed a Notice of Appeal of said Settlement Agreement/Settlement Agreement/Consent Judgment Entry, which was dismissed sua sponte by this Court on December 2, 2004 (Case No. 2004CA00331). On January 5, 2005, Judge Sinclair denied Appellant's Motion to Intervene. On January 13, 2005, Appellant's Civ.R. 60(B) Motion to Vacate was also denied. The Appellant filed a Notice of Appeal on February 7, 2005, Case No. 2005CA00045.
{¶ 14} This Court reversed and remanded Case No. 2005CA00045. In its December 19, 2005 Nunc Pro Tunc Opinion, this Court stated at Paragraph 53 et seq: *Page 6
{¶ 15} "We are not addressing the prior order of the trial court which denied the motion to intervene as untimely as such case had been closed, but, rather, this appeal is from the court's decision to deny the intervention motion and thereby the 60(b) motion on the basis of Judge Lioi's ruling in Common Pleas Case No. 2004CV02656, which decision we have reversed in the companion appeal in 2004CA00395.
{¶ 16} "As the basis for the ruling denying intervention has been reversed on appeal, this case is remanded to the trial court for a determination on the merits of Appellant Charton's motion to intervene and, if granted, his 60(B) motion.
{¶ 17} "This case is reversed and remanded for appropriate procedure in accordance therewith."
{¶ 18} Judge Sinclair permitted Charton to intervene as a party defendant/respondent and vacated the 2004 Consent Decree. Charton filed his Answer, Counterclaim as to Republic, and Cross-Claims to Pike. On March 13, 2006, Republic filed an Amended Complaint (having received leave to do so from the Court). This Complaint added a new allegation: that by the very terms of Pike's 2000 Zoning Resolution, Republic was entitled to fully expand its operations into the Expansion Area.
{¶ 19} The appropriate answers, etc. were filed. Extensive depositions and other discovery were conducted. Circumstances and the enactment of new legislation (R.C.
{¶ 20} Following the procedures of R.C.
{¶ 21} After a daylong hearing on March 31, 2006, in which Republic and Pike made statements through counsel, and Charton was permitted to call witnesses and present other evidence, Judge Sinclair ordered briefs on the fairness and reasonableness of the settlement agreement between Republic and Pike. On May 12, 2006, Judge Sinclair issued a Judgment Entry finding "based upon all the evidence presented" that the proposed agreement is fair and reasonable and approved it. On May 23, 2006, the Settlement Agreement/Settlement Agreement/Consent Judgment was filed, as to Republic and Pike. Other matters not determined, which pertained to allegations contained in Charton's counterclaim and cross-claim, were addressed by *Page 8 dispositive motions filed by Republic and Pike. The non-oral hearing on June 9, 2006 on those motions has been stayed by Charton's June 5, 2006 appeal.
{¶ 22} It is from this Judgment of the Common Pleas Court that Appellant Fred Charton now appeals and brings this matter to the Court of Appeals for review, setting forth the following assignments of error for our consideration:
{¶ 24} "II. THE TRIAL COURT ERRED IN EXERCISING JURISDICTION AND IN ENTERING JUDGMENT APPROVING AND ADOPTING THE STIPULATED SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT ENTERED INTO BETWEEN REPUBLIC SERVICES OF OHIO II, LLC AND PIKE TOWNSHIP TRUSTEES IN THE INSTANT DECLARATORY JUDGMENT ACTION, BECAUSE OF THE EXISTENCE OF AN ALREADY PENDING PRIOR CASE IN STARK COUNTY COMMON PLEAS COURT INVOLVING THE SAME UNDERLYING FACTS AND ISSUES THE EXISTENCE OF WHICH CASE VESTED PRIMARY *Page 9 JURISDICTION IN THE TRIAL COURT PRESIDING IN THE PREVIOUSLY FILED CASE UNDER PRINCIPLES OF PRIMARY JURISDICTION AND ALSO UNDER THE RULES OF THE STARK COUNTY COMMON PLEAS COURT.
{¶ 25} "III. THE TRIAL COURT ERRED IN EXERCISING JURISDICTION AND IN ENTERING JUDGMENT APPROVING AND ADOPTING THE STIPULATED SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT ENTERED INTO BETWEEN REPUBLIC SERVICES OF OHIO II, LLC AND PIKE TOWNSHIP TRUSTEES IN THE INSTANT DECLARATORY JUDGMENT ACTION, BECAUSE SAID TRIAL COURT FAILED TO GIVE CONSIDERATION TO AND TO HEAR AND DETERMINE THE THRESHOLD ISSUE AND DEFENSE RAISED BY APPELLANT — FRED CHARTON OF FAILURE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES ON THE PART OF THE PLAINTIFF WHEN THE CIRCUMSTANCES ESTABLISHED BY THE RECORD DEMONSTRATE PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES AND THE APPLICABILITY OF SUCH DEFENSE.
{¶ 26} "IV. THE TRIAL COURT ERRED IN EXERCISING JURISDICTION AND IN ENTERING JUDGMENT APPROVING AND ADOPTING THE STIPULATED SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT ENTERED INTO BETWEEN REPUBLIC SERVICES OF OHIO II, LLC AND PIKE TOWNSHIP TRUSTEES IN THE INSTANT DECLARATORY JUDGMENT ACTION (WITHOUT HEARING AND DETERMINING THE MATERIAL ISSUES UNDERLYING THE ACTION UPON THEIR MERITS), BECAUSE THE SETTLEMENT *Page 10 AGREEMENT/CONSENT JUDGMENT IN QUESTION IS CLEARLY ULTRA VIRES AND BEYOND THE SUBJECT MATTER JURISDICTION OF THE TRIAL COURT.
{¶ 27} "V. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING JUDGMENT APPROVING AND ADOPTING THE STIPULATED SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT JOINTLY SUBMITTED BY REPUBLIC SERVICES OF OHIO II, LLC AND PIKE TOWNSHIP TRUSTEES, WITHOUT EVER CONSIDERING, HEARING AND DETERMINING THE MATERIAL MERITS ISSUES UNDERLYING THE ACTION; AND IN ALLOWING JUST TWO (2) PARTIES TO THE SUBJECT LITIGATION TO SUBMIT AND OBTAIN APPROVAL OF SAID SETTLEMENT AGREEMENT/CONSENT JUDGMENT WHICH IN CONTENT AND EFFECT PURPORTS TO RESOLVE THE PRINCIPAL MERITS ISSUES IN THE ACTION AND TO GRANT THE PLAINTIFF ALL OF THE RELIEF REQUESTED AND DESIRED IN ITS COMPLAINT (AND ACQUIESCED IN AND/OR JOINED BY THE TRUSTEES) IN COMPLETE DISREGARD OF THE EXISTENCE AND OPPOSITION OF THE INTERVENING DEFENDANT/ APPELLANT — FRED CHARTON WHO BY HIS PLEADINGS AND ARGUMENTS HAD PLACED ALL OF THE MERITS ISSUES IN BONA FIDE DISPUTE AND WHO HAD A RIGHT TO TRIAL AND DETERMINATION OF SUCH ISSUES UPON THE MERITS.
{¶ 28} "VI. THE TRIAL COURT ERRED IN FINDING THAT §
{¶ 29} "VII. THE TRIAL COURT FINDING AND DETERMINATION THAT THE SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT IN QUESTION ENTERED INTO BETWEEN REPUBLIC SERVICES OF OHIO II, LLC AND PIKE TOWNSHIP TRUSTEES WAS "FAIR AND REASONABLE" WAS ERRONEOUS BY VIRTUE OF BEING AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND RECORD IN THE INSTANT CASE AND ALSO BECAUSE THERE WERE CIRCUMSTANCES UNDER WHICH THE TRUSTEES WERE OR SHOULD HAVE BEEN DISQUALIFIED FROM ACTING UPON THE SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT AND BECAUSE THE SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT WAS OTHERWISE CONTRARY TO LAW.
{¶ 30} "VIII. THE TRIAL COURT'S DETERMINATIONS AND ACTIONS IN APPROVING AND ENTERING THE SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT IN QUESTION ENTERED INTO BETWEEN REPUBLIC SERVICES OF OHIO II, LLC AND PIKE TOWNSHIP TRUSTEES WAS ERRONEOUS AND CONTRARY TO LAW BECAUSE THE SETTLEMENT AGREEMENT/ SETTLEMENT AGREEMENT/CONSENT JUDGMENT IN QUESTION *Page 12 IN BOTH ITS LANGUAGE AND EFFECT IS INVALID, VOID AND A NULLITY DUE TO THE SAME BEING CONTRARY TO FUNDAMENTAL PUBLIC POLICIES RENDERING AGREEMENTS TO CIRCUMVENT AND NOT ENFORCE LAWFULLY ADOPTED STATUTES AND REGULATIONS VOID AND OF NO EFFECT.
{¶ 31} "IX. THE TRIAL COURT ERRED IN APPROVING AND ADOPTING THE SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT BETWEEN REPUBLIC SERVICES OF OHIO H, LLC AND PIKE TOWNSHIP TRUSTEES BECAUSE SAID SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT IS CONTRARY TO ESTABLISHED OHIO CASE LAW AND PRINCIPLES PROHIBITING TOWNSHIP TRUSTEES FROM TAKING OR PARTICIPATING IN ANY ACTION OR LITIGATION DESIGNED TO OVERTURN OR NULLIFY QUASI-JUDICIAL ZONING DECISIONS MADE BY A TOWNSHIP BOARD OF ZONING APPEALS APPOINTED BY SAID TRUSTEES TO INDEPENDENTLY AND OBJECTIVELY DETERMINE ZONING ISSUES PROPERLY BEFORE SAID BOARD OF ZONING APPEALS.
{¶ 32} "X. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN APPROVING AND ENTERING THE SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT IN QUESTION BETWEEN REPUBLIC SERVICES OF OHIO II, LLC AND THE PIKE TOWNSHIP TRUSTEES, BECAUSE SAID SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT WAS A RE-ADOPTION OR RE-AFFIRMATION OF A PREVIOUS SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT WHICH WAS INITIALLY ENTERED INTO BETWEEN REPUBLIC SERVICES OF OHIO *Page 13 II, LLC AND PIKE TOWNSHIP TRUSTEES IN VIOLATION OF THE OHIO OPEN MEETING LAWS AND ALSO UNDER CIRCUMSTANCES DISQUALIFYING THE TOWNSHIP TRUSTEES FROM ACTING UPON SUCH SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT, WHICH CIRCUMSTANCES RENDERED BOTH THE INITIAL SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT AND ALSO THE REAFFIRMED SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT NOW ON APPEAL FATALLY TAINTED AND NOT REDEEMED OR CURED BY THE RE-PROCESSING AND RE-ADOPTION OF SAID SETTLEMENT AGREEMENT/ SETTLEMENT AGREEMENT/CONSENT JUDGMENT.
{¶ 33} "XI. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ITS ACTION IN BIFURCATING AND SEPARATING THE DETERMINATION OF WHETHER THE PROPOSED SETTLEMENT AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT BETWEEN REPUBLIC SERVICES OF OHIO II, LLC AND THE PIKE TOWNSHIP TRUSTEES WAS A FAIR AND REASONABLE SETTLEMENT AGREEMENT AND IN MAKING SUCH DETERMINATION INDEPENDENTLY AND SEPARATE FROM CONSIDERATION AND DETERMINATION OF THE UNDERLYING MERITS OF THE INSTANT DECLARATORY JUDGMENT ACTION REGARDING THE ISSUES OF WHETHER THE CONDITIONAL USE PERMIT REQUIREMENTS OF PIKE TOWNSHIP ZONING CODE ARE LAWFUL, CONSTITUTIONAL AND ENFORCEABLE.
{¶ 34} "XII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING AND DETERMINING THAT THE PROPOSED SETTLEMENT *Page 14 AGREEMENT/SETTLEMENT AGREEMENT/CONSENT JUDGMENT BETWEEN REPUBLIC SERVICES OF OHIO II, LLC AND PIKE TOWNSHIP TRUSTEES WAS FAIR AND REASONABLE AND IN APPROVING AND ADOPTING THE SAME WHEN THE PIKE TOWNSHIP BOARD OF ZONING APPEALS (WHICH IS THE BODY DULY DESIGNATED TO DETERMINE THE APPROPRIATENESS OF ALLOWING A CONDITIONAL USE PERMIT FOR EXPANSION OF COUNTYWIDE LANDFILL) HAD ALREADY AFTER TWO (2) FULL EVENINGS OF EVIDENTIARY HEARINGS MADE DETERMINATION THAT EXPANSION OF THE LANDFILL WOULD ADVERSELY EFFECT THE SURROUNDING PROPERTIES AND ENVIRONMENT TO A DEGREE REQUIRING DENIAL OF A CONDITIONAL USE PERMIT FOR EXPANSION OF THE LANDFILL, WHICH PRIOR DETERMINATION IS ENTITLED TO RES JUDICATA AND/OR COLLATERAL ESTOPPEL EFFECT IN THE INSTANT PROCEEDINGS.
{¶ 35} "XIII. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN MAKING RULINGS DENYING THE ADMISSION INTO EVIDENCE AND EXCLUDING FROM CONSIDERATION A NUMBER OF OPINIONS OF THE PLAINTIFF — FRED CHARTON'S EXPERT WITNESS RETAINED IN THIS CASE, WHICH OPINIONS WERE BASED UPON APPROPRIATE AND ADEQUATE FOUNDATION AND WERE MATERIAL AND RELEVANT TO THE ISSUES IN THIS ACTION."
{¶ 37} Appellant argues that no actual controversy existed between Republic and Pike Township.
{¶ 38} A declaratory judgment action challenges the existing zoning ordinance's overall constitutionality as applied to a particular parcel of land. Karches v. City of Cincinnati (1988),
{¶ 39} The Amended Complaint filed by Republic alleged that (1) the Township's zoning regulations were invalid and unconstitutional as applied to the subject property, (2) that Countywide is a public utility exempt from zoning regulations, and (3) that state law preempts the Township's attempt to eliminate any additional or new sanitary landfills. Additionally, Republic also sought compensation in excess of $50 million dollar for a regulatory taking.
{¶ 40} Accordingly, appellants sufficiently pled an actual controversy between the parties, and thus, they have stated a claim for declaratory judgment. Furthermore, we find that an actual controversy came into existence in the instant case when the Pike BZA denied Republic's application for a conditional use permit. *Page 16
{¶ 41} Appellant Charton further argues that the trial court was divested of jurisdiction in the instant case based on the rule of primary jurisdiction due to the fact that Republic filed a R.C. 2506 administrative appeal from the BZA's denial of its application prior to commencing the instant action.
{¶ 42} Upon review of this argument, we find said argument to be unpersuasive.
{¶ 43} The jurisdictional priority rule provides that, "`[a]s between [state] courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all tribunals, to adjudicate upon the whole issue and to settle the rights of the parties.'" State ex rel.Dannaher v. Crawford (1997),
{¶ 44} The jurisdictional priority rule applies if the claims in both cases are sufficiently similar, in that each of the actions "`comprises part of the "whole issue" that *Page 17
is within the exclusive jurisdiction of the court whose power is legally first invoked.'" Lagoons Point, supra, at ¶ 26, citing State ex rel.Racing Guild, supra, at 56,
{¶ 45} Appellant's reliance on the jurisdictional priority rule in this case is misplaced. Here, Appellee filed two distinct cases in the same court seeking different relief. In the first case, appellee was appealing the decision of the Pike Township BZA denying its application for a conditional use permit. In this case the trial court was limited to a determination of whether the decision of the BZA prohibiting such use of the subject property "had a reasonable relationship to the legitimate exercise of the police power of the township."Karches, supra.
{¶ 46} In the case sub judice, which was a declaratory judgment action, Appellee challenged the constitutionality of the zoning resolution as applied to the subject property.
{¶ 47} "Moreover, the jurisdictional priority rule contemplates cases pending in two different courts of concurrent jurisdiction-not two cases filed in the same court. See B-Dry System, supra (cases filed in Greene and Montgomery County Common Pleas Courts); Lagoons Point, supra (cases filed in Cuyahoga and Lake County Common Pleas Courts)". Fenner v.Kinney, Franklin County App 02AP-749, 2003-Ohio-989. *Page 18
{¶ 48} Here the Stark County Common Pleas Court clearly had subject matter jurisdiction to resolve the declaratory judgment issues raised in the complaint, although consolidation of this case with the earlier filed, but still pending R.C. 2506 Administrative Appeal action, may have been justified based upon principles of judicial economy. Nevertheless, the jurisdictional priority rule does not apply under the circumstances presented.
{¶ 49} Appellant next argues that the trial court did not have jurisdiction because Appellee had failed to exhaust all administrative remedies.
{¶ 50} A declaratory judgment action challenges the existing zoning ordinance's overall constitutionality. Karches v. City ofCincinnati (1988),
{¶ 51} "The constitutionality of a zoning ordinance may be attacked in two ways. An appeal from an administrative zoning decision can be taken pursuant to R.C. Chapter 2506. In addition, or in the alternative, a declaratory judgment action pursuant to R.C. Chapter 2721 can be pursued." Karches v. City of Cincinnati (1988),
{¶ 52} We therefore find appellant's argument as to failure to exhaust administrative remedies not well-taken. *Page 19
{¶ 53} Lastly, in support of his contention that the trial court did not have jurisdiction in this matter, Appellant argues that the Settlement Agreement/Consent Judgment was ultra vires.
{¶ 54} More specifically, Appellant argues that the action taken by the trial court was "essentially legislative and not judicial in nature." (Appellant's brief at 25).
{¶ 55} Upon review, we find R.C.
{¶ 56} R.C. §
{¶ 57} Notwithstanding any contrary provision in another section of the Revised Code, section
{¶ 58} We therefore find that the trial court had authority pursuant to R.C.
{¶ 59} Based on the foregoing, we find that the trial court was not divested of jurisdiction to consider and approve the Consent Agreement in this matter.
{¶ 60} Appellant's first, second, third and fourth Assignments of Error are overruled.
{¶ 62} Specifically, Appellant argues that it was error for the trial court to approve the Settlement Agreement/Consent Judgment over his objections and without determining the case on the merits and further argues that the approval of such Settlement Agreement/Consent Judgment is unsupported by the record and contrary to law because such is not fair and reasonable.
{¶ 63} Initially, we find that R.C. §
{¶ 64} Furthermore, we find that the Settlement Agreement/Consent Judgment addressed and settled only those matters between Republic and Pike Township and while Appellant Charton was permitted to intervene in this matter, he does not have the power to prevent to Settlement Agreement/Consent Judgment.
{¶ 65} "While intervenor is entitled to present evidence and have its objections heard at hearing on whether to approve consent decree, it does not have power to block *Page 21
decree merely by withholding its consent." Local No. 93, Intern. Assn ofFirefighters, AFL-CIO C.L.C. v. City of Cleveland,
{¶ 66} We further find that the Settlement Agreement/Consent Judgment did not dispose of Appellant Charton's independent counterclaims of nuisance (against Republic) or Sunshine Law violation (against Pike Township), which remain pending. Neither did the Settlement Agreement/Consent Judgment impose any duties or obligations on Appellant Charton.
{¶ 67} Appellant Charton raises issues of objectivity and bias on the part of the trustees based on instances where Countywide Landfill paid for tickets to a Cleveland Indians baseball game and a golf outing one or two years prior to filing the application for expansion.
{¶ 68} The approval of a settlement agreement rests in the sound discretion of the trial court. In order to find an abuse of that discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983),
{¶ 69} In addition to conducting a full evidentiary hearing in this matter, during which Appellant Charton cross-examined each of the three trustees with regard to the instant issues, the trial court reviewed copies of all depositions, the transcript from the public hearing and all relevant documentation prior to approving the Settlement Agreement/Consent Judgment.
{¶ 70} Additionally, the trial court made it clear the Settlement Agreement/Consent Judgment it was approving was not the same as the 2004 Consent Decree which it had previously vacated. *Page 22
{¶ 71} Based on the foregoing, we do not find that the trial court abused its discretion approving the Settlement Agreement/Consent Judgment.
{¶ 72} Appellant's fifth, seventh and tenth assignments of error are overruled.
{¶ 74} As the Ohio Supreme Court has explained, the legislature enacted R.C. §
{¶ 75} In this case, Appellant never notified the Attorney General of his constitutional challenge in accordance with R.C. §
{¶ 76} Appellant's sixth assignment of error is overruled.
{¶ 78} Appellant argues that the Settlement Agreement/Consent Judgment in this case amounted to "contract zoning", was an abdication of the Township's zoning authority and was against public policy.
{¶ 79} Upon review, we find that in the case sub judice, the Township entered into an agreement to settle a zoning dispute pursuant to the authority granted to it by R.C. §
{¶ 80} Appellant's eighth assignment of error is overruled.
{¶ 82} For the same reasons as set forth in Assignment of Error XIII, we find that the Pike Township Board of Trustees had the authority pursuant to R.C. §
{¶ 83} Appellant's ninth assignment of error is overruled.
{¶ 85} The trial court is free to order separate trials of separate issues whenever it will further convenience, avoid prejudice, or be conducive to expedition and economy. A trial court is in the best position to ascertain whether a bifurcation of the issues is necessary and that court, therefore, has broad discretion in doing so.Fairfield Commons Condominium Assoc. v. Stasa (1985),
{¶ 86} The decision of whether or not to bifurcate the proceedings * * * is a matter within the sound discretion of the trial court. Sheets v.Norfolk S. Corp. (1996),
{¶ 87} As stated above, an abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or capricious. Blakemore v. Blakemore (1983),
{¶ 88} Appellant's arguments fail to show an abuse of discretion.
{¶ 89} Appellant's eleventh assignment of error is overruled.
{¶ 91} Appellant argues that the issues in the instant case were barred by the doctrine of res judicata based on the previous decisions of the Pike Township BZA, which he argues were binding.
{¶ 92} Upon review, we find that the decision referred to by Appellant made by the BZA in the instant case occurred prior to the enactment of R.C. §
{¶ 93} Additionally, we find that the administrative appeal of the decision of the BZA is still pending and therefore is not res judicata.
{¶ 94} Appellant's twelfth assignment of error is overruled. *Page 26
{¶ 96} The admission or exclusion of evidence rests in the sound discretion of the trial court. State v. Sage (1987),
{¶ 97} At the hearing in this matter, the trial court sustained the objections of Appellee Republic and either did not allow Professor Weinstein to answer certain questions or limited his ability to respond and explain the reasons for his opinions.
{¶ 98} Upon review of the record, we find that Professor Weinstein, upon inquiry, conceded that he was not admitted to practice law in Ohio and that he was testifying as a "planner." (3/31/06 T. at 192, 120). He further conceded that while he had visited Countywide and reviewed various applications for zoning permits and zoning changes, the Township's Zoning Map, and the 2000 Zoning Resolution, he had not viewed the *Page 27 entire Township or examined its Zoning Map in detail and that it was conceivable that there were germane documents that he had not seen. (Id., at 93-98, 142). Weinstein also acknowledged that he had been retained just ten days before the hearing and that he had not seen the zoning resolution that was in effect when the conditional zoning certificate for Countywide was first approved or the Settlement Agreement/Consent Judgment itself until they were handed to him by Republic's counsel during his deposition just two days before the hearing. (Id. at 142). He further acknowledged that although he was opining as to the validity of the BZA's decision, he had not actually read the transcript of the BZA's hearing transcript. (Id., at 120-121). Additionally, he acknowledged that although he was opining as to the detrimental effects of Countywide based on such things as water runoff, he did not know whether water runoff was an issue at Countywide. (Id., at 124-125). At this point, Weinstein admitted that "I can not have an opinion about a fact which I do not know. . . ." (Id.). Finally, Weinstein acknowledged that during his deposition he had testified that he was unable to give an opinion as to whether the Settlement Agreement/Consent Judgment was "fair and reasonable" because it was not a standard with which he had experience as a planner. (Id. at 134). Weinstein then testified, however, that he had changed his mind and that he did have an opinion. (Id.).
{¶ 99} The Trial Court properly excluded Weinstein's opinions as irrelevant, beyond the scope of his expertise, as calling for legal conclusions, or based on improper questions.
{¶ 100} The Trial Court also properly excluded Weinstein's testimony concerning whether there had been a regulatory taking, whether the Township's counsel's advice *Page 28 was legally sound, whether Countywide was a public utility, and whether state law preempted the Township's zoning regulations because, in addition to Weinstein lacking sufficient information to render an opinion, these matters called for a legal opinion for which Weinstein lacked the requisite expertise. (Id., at 106, 110-111 114-115).
{¶ 101} The Trial Court further properly excluded Weinstein's opinion on whether a regulatory taking had occurred because the form of the question was improper.
{¶ 102} Upon review, based on the foregoing, we find the trial court did not abuse its discretion by not admitting portions of Professor Allen Weinstein's testimony into evidence.
{¶ 103} Appellant's thirteenth assignment of error is overruled.
{¶ 104} For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is hereby affirmed.
*Page 29Wise, P. J. Edwards, J., and Boggins, J., concur.
Local Number 93, International Ass'n of Firefighters v. ... , 106 S. Ct. 3063 ( 1986 )
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