Trans Rail America, Inc. v. Hubbard Township

{¶ 44} With regard to appellant's first assignment of error, I concur with the majority's conclusion that appellant did not properly effectuate the 1983 zoning resolution, and therefore, it was of no force and effect. Accordingly, the trial court properly declared that the 1954 "industrial" zoning designation was applicable to the subject property.

{¶ 45} Unlike the majority, however, I believe that the trial court exceeded its authority by declaring that "a C DD facility would be permitted on a property zoned ``industrial,'" because there was no evidence that the court examined the applicable zoning regulation before making its decision. Based upon the law and the record, the only reasonable conclusion is that the trial court predicated its decision upon the assumption of a state license or permit that has not been, and may not ever be, issued. Because this preemptory action is impermissible within the context of a declaratory judgment action, I respectfully dissent.

{¶ 46} The majority stresses that "nothing in this opinion or in the judgment of the trial court grants Trans Rail a carte blanche to begin operating a C DD facility." Unquestionably, the majority and lower court judgment give Trans Rail carte blanche to ignore and circumvent compliance with Hubbard's 1954 zoning. There is nothing "simple" about this judicial derogation of township zoning authority.

{¶ 47} While the trial court correctly reached the conclusion that the 1954 zoning resolution applied to Trans Rail's property, it concluded that "under the ``Industrial' Classification, Plaintiff would be permitted to operate a C DD facility on the property upon obtaining a licensefor the same from the proper state authorities."

{¶ 48} The trial court reached this conclusion, notwithstanding the fact that Trans Rail's counsel admitted that Trans Rail had applied for a license to operate a C DD facility pursuant to R.C. Chapter 3714, but that such license "has not been issued."

{¶ 49} R.C. Chapter 3714 is a general law governing the licensing and regulation of C DD facilities throughout the state of Ohio. Sheffield v. Rowland (1999), 87 Ohio St.3d 9, 11, 716 N.E.2d 1121. The Supreme Court of Ohio has held that when the requirements of R.C. Chapter 3714 are met and a license is issued thereunder, any zoning regulation that prohibits the operation of such a facility is in "direct conflict," and thus, "the state regulation prevails." Id. at 12-13, 716 N.E.2d 1121. The trial court, by concluding that Trans Rail would be permitted to operate a C DD facility "upon obtaining a license from proper state authorities," unwittingly brings the preemption issue into play when the zoning-compliance issue itself has never been raised or examined under the 1954 amendment.

{¶ 50} In the instant matter, we have determined that appellee's property is governed by the 1954 amendment to the zoning resolution. The relevant portion of that resolution states as follows:

{¶ 51} "In ``Industrial' Districts there shall be permitted all buildings, structures and uses permitted in any of the other districts and all other buildings, structures and uses except the following which are specificallyprohibited:

{¶ 52} "1. Any process of assembly, manufacture or treatment constituting a nuisance by reason of smoke, odor, dust or noise * * *.

{¶ 53} "* * *

{¶ 54} "4. Junk yards * * * or dissembly plants and the storage of secondhand materials for sale except entirely within a solid enclosure and not within two hundred (200') feet of any traveled highway." (Emphasis added.)

{¶ 55} Under these terms, Trans Rail would arguably be prohibited from operating a C DD facility under Hubbard Township's 1954 zoning resolution absent state licensure. As such, I agree with the Twelfth District's conclusion in Clarke, as adopted by the majority, that "local zoning does play a pivotal role in the installation and chartering of [solid waste disposal and sanitary landfill] facilities." Clarke v. Warren Cty. Bd. of Commrs., 12th Dist. No. CA2005-04-048, 2006-Ohio-1271, 2006 WL 689039, ¶ 27. However, the majority's opinion conveniently ignores the fact that it is only "[o]nce the Ohio EPA has grantedapproval" for the operation of a CD D facility that the court can determine which provisions of local zoning "do not conflict with the environmental laws and regulations approved by the state." (Emphasis added.) Id.

{¶ 56} Unfortunately, Trans Rail offered no evidence that it made any application or inquiry to township zoning authorities regarding the operation of a CD D facility on the subject property under either an "industrial" or "heavy industrial" designation, nor has it offered any proof that such application would be denied under the terms of the 1954 zoning amendment. Before the C DD facility can begin installation, not operation, Trans Rail must first apply to Hubbard for a zoning certificate and then, or contemporaneously therewith, apply to the appropriate licensing and regulatory authorities. Unfortunately, this process has been taken out of the Township's hands by the trial court.

{¶ 57} The majority concludes that the issues of state licensing and preemption of local zoning "are not before the court." I agree. That is precisely why the lower court did not have authority to determine that Trans Rail's demolition facility would be an authorized use under Hubbard's 1954 zoning resolution. The issue is not preemption, butcompliance. Since Trans Rail has not applied to Hubbard for a zoning certificate, the trial court did not have authority to adjudicate zoning compliance. Trans Rail should be treated like "all other zoning classification determination cases in the history of our state." Such treatment requires the proposed user to apply to the township for confirmation of zoning compliance. Historically, trial judges have not been imbued with this zoning power.

{¶ 58} While the statute governing declaratory judgment actions "grants the general authority to test the construction of a law, there must exist a justiciable issue for declaratory relief to ensue." State ex rel. Bolin v. OhioEnvironmental Protection Agency (1992),82 Ohio App.3d 410, 415, 612 N.E.2d 498. In order to grant declaratory relief, there must exist "``a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.'" Bilyeu v. MotoristsMut. Ins. Co. (1973), 36 Ohio St.2d 35, 37, 65 O.O.2d 179,303 N.E.2d 871, quoting Aetna Life Ins. Co. v. Haworth (1937), 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617.

{¶ 59} In the instant matter, only one justiciable issue exists. The trial court properly determined, by means of a declaratory judgment action, which version of the township zoning amendment was valid. The extent of the trial court's authority ends there.

{¶ 60} Simply put, the trial court cannot declare that a C DD facility may be operated on the property without having considered the preemption issue, and the preemption issue is not ripe for the court's consideration until such time as a state license or permit to operate the C DD facility has actually been issued.

{¶ 61} As to Trans Rail's rights under the 1954 zoning as applied to its property, the issue of zoning compliance is, likewise, not ripe, because the township raised Trans Rail's failure to exhaust its administrative remedies as an affirmative defense, and there is no evidence that Trans Rail made an application or submitted its plans to the township for its administrative zoning review. See Clagg v.Baycliffs Corp. (1998), 82 Ohio St.3d 277, 281,695 N.E.2d 728 ("When * * * the affirmative defense of failure to exhaust administrative remedies is applicable and has been timely raised and maintained, a court will deny declaratory * * * relief); see, also, Warwick v.DeWitt (Jan. 15, 2002), 4th Dist. No. 01CA2613,2002 WL 59667, at *2.

{¶ 62} I agree with the majority that "local zoning does play a pivotal role in the installation of these [landfill] facilities." The majority's decision, however, deprives Hubbard Township of the opportunity to play that pivotal role by allowing Trans Rail to circumvent the local zoning-review process. For that reason, I disagree with the majority on this issue.

{¶ 63} For these reasons, I would affirm the trial court's judgment with regard to its determination of the applicable zoning designation, but I would reverse and remand with regard to the zoning-compliance and preemption issues.