Bd. of Twp. Trustees Sharon Twp. v. Zehringer

[Cite as Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE BOARD OF TOWNSHIP : JUDGES:
TRUSTEES SHARON TOWNSHIP :
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 11-CA-45
JAMES ZEHRINGER, DIRECTOR, :
OHIO DEPARTMENT OF :
AGRICULTURE :
:
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 11 CV 0060
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 28, 2011
APPEARANCES:
For Appellant: For Appellee:
DEAN HOLMAN MICHAEL DEWINE
Medina County Prosecutor Ohio Attorney General
TOM J. KARRIS JAMES R. PATTERSON
BRIAN M. RICHTER 8995 E. Main St.
72 Public Square Reynoldsburg, Ohio 43068
Medina, Ohio 44256
[Cite as Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885.]
Delaney, J.
{¶1} Plaintiff-Appellant the Board of Township Trustees of Sharon Township
(the “Board”) appeals the April 13, 2011 decision of the Licking County Court of
Common Pleas to dismiss the Board’s complaint for Declaratory Judgment.
Defendant-Appellee is James Zehringer, Director, Ohio Department of Agriculture.
STATEMENT OF THE FACTS AND CASE
{¶2} Ohio Revised Code 905.40 charges the Director, Ohio Department of
Agriculture (“ODA”) with the duty of promulgating rules for the regulation and storage
of fertilizer. Anhydrous ammonia is a nitrogen fertilizer. F. Bruce Simmons, the owner
of a farm in Medina County, Ohio, applied to the Ohio Department of Agriculture
(“ODA”) for approval to install a 12,000 gallon anhydrous ammonia storage tank
pursuant to Ohio Adm.Code 901:5-3.
{¶3} Ohio Adm.Code 901:5-3, Stationary Ammonia Systems, establishes the
process for which a stationary ammonia system may be constructed and operated.
Under Ohio Adm.Code 901:5-3-02, no person shall construct a new stationary
ammonia system before the ODA approves the location and design of the system; nor
shall a person operate a stationary ammonia system before the ODA approves the
system as to design, construction, and operation. Ohio Adm.Code 901:5-3-02(A)(1)
and (2). Ohio Adm.Code 901:5-3-03 to 901:5-3-14 delineate the established
specifications for a stationary ammonia system. If an ODA inspection determines the
location and construction of the stationary anhydrous ammonia system conforms to
the requirements, the ODA will issue a permit to operate the tank. Ohio Adm.Code
901:5-3-02(B).
Licking County, Case No. 11-CA-45 3
{¶4} In response to Simmons’s application, the ODA determined the location
of the anhydrous ammonia tank met the code requirements and issued a permit for
installation of the tank on the farm. The ODA agreed to give the Board of Township
Trustees, Sharon Township (“the Board”) prior notice of its final approval of the tank
before the tank could go into operation. The ODA gave the Board notice that it was
going to give final approval for the tank operation.
{¶5} On January 13, 2011, the Board filed a Declaratory Judgment action with
the Licking County Court of Common Pleas against the ODA. In its complaint, the
Board requested a temporary, preliminary, and permanent injunction. The Board
sought to enjoin the ODA “from approving and permitting the installation of new
permanent on-site storage tanks for anhydrous ammonia on farms and specifically the
Simmons’s tank until the ODA established regulations which would reasonably protect
the health, safety, and welfare of people and property which can be reasonably
foreseen to be exposed to the toxic and deadly effect of an uncontrolled release of this
dangerous material, anhydrous ammonia.” (Appellant’s Brief, p. 2-3). The ODA
agreed not to consider final approval of the operation of the Simmons’s tank during the
pendency of the trial court proceedings.
{¶6} On February 8, 2011, the ODA filed a Motion to Dismiss Complaint under
Civ.R. 12(B)(1) and (6). In its motion, the ODA argued 1) the Board lacked legal
standing as a matter of law and 2) the Complaint failed to state any legally recognized
claim for relief against the ODA.
{¶7} The trial court granted the ODA’s Motion to Dismiss Complaint on April
13, 2011. It first found the Board did not have standing to bring an action against the
Licking County, Case No. 11-CA-45 4
ODA because the injury the Board claimed, injury to the public and the Township if
there was an ammonia leak, was too speculative. It then found that the Board’s
argument that the ODA regulations for anhydrous ammonia were insufficient was not
based on any rule of law or procedure capable of judicial review.
{¶8} It is from this decision the Board now appeals.
ASSIGNMENTS OF ERROR
{¶9} The Board raises three Assignments of Error:
{¶10} “I. THE TRIAL COURT ERRED IN FINDING THAT THE INJURIES TO
THE BOARD OF TOWNSHIP TRUSTEES, SHARON TOWNSHIP WERE
INSUFFICIENT TO CONFER STANDING TO BRING THE SUIT AGAINST THE
DEFENDANT.
{¶11} “II. THE TRIAL COURT ERRED IN FINDING THAT THE BOARD OF
TOWNSHIP TRUSTEES, SHARON TOWNSHIP FAILED TO STATE A CLAIM UPON
WHICH RELIEF CAN BE GRANTED WHEN THE CLAIM IS THAT THE
REGULATIONS OF THE OHIO DEPARTMENT OF AGRICULTURE ARE
UNREASONABLE BY INSUFFICIENTLY PROTECTING THE HEALTH, SAFETY,
AND WELFARE OF THE CITIZENS OF SHARON TOWNSHIP AND THE GENERAL
PUBLIC AND DOES THEREBY IMPOSE AN UNDUE BURDEN UPON THE
PLAINTIFF BY COMPELLING IT TO TAKE EXTRAORDINARY MEASURES TO
FULFILL ITS DUTIES TO PROTECT THE SAFETY OF THE CITIZENS OF SHARON
TOWNSHIP.
{¶12} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, BY
DISMISSING THE WITHIN ACTION WHEN AS A MATTER OF LAW, THE PLAINTIFF
Licking County, Case No. 11-CA-45 5
HAS STANDING AND A CLAIM UPON WHICH RELIEF MAY BE GRANTED AND
THEREBY NOT AFFORDING THE PLAINTIFF AN OPPORTUNITY TO BE HEARD
ON QUESTIONS OF FACT.”
II.
{¶13} We address the Board’s second Assignment of Error first because it is
dispositive of this appeal. The Board argues the trial court erred in finding their
complaint for declaratory judgment fails to state a claim upon which relief may be
granted. We disagree.
{¶14} This matter is before the court upon a Motion to Dismiss pursuant to
Civ.R. 12(B)(6). Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de
novo. Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551
N.E.2d 981 (1990). A motion to dismiss for failure to state a claim upon which relief
can be granted is procedural and tests the sufficiency of the complaint. State ex rel.
Hanson v. Guernsey County Board of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d
378 (1992). Under a de novo analysis, we must accept all factual allegations of the
complaint as true and all reasonable inferences must be drawn in favor of the
nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).
{¶15} The Board’s declaratory judgment action requested the trial court to
declare the ODA’s current regulations concerning anhydrous ammonia unreasonable,
as they do not provide sufficient protection for the health, safety, and welfare of the
citizens of Sharon Township. The Board alleges anhydrous ammonia is a highly toxic
substance and the ODA regulations promulgated under R.C. 905.40 are insufficient to
protect the public if there was a release of the chemical into the atmosphere. The
Licking County, Case No. 11-CA-45 6
complaint further requested temporary and permanent injunctive relief to enjoin the
ODA from approving the use of, or continuing the use of, any permanent anhydrous
ammonia storage tank on farms until regulations were put into place to protect the
citizens of Sharon Township.
{¶16} We previously stated the purpose of declaratory relief in Osnaburg Twp.
Zoning Inspector v. Eslich Environmental Inc., 5th Dist. No. 2008CA00026, 2008-Ohio-
6671, ¶45:
{¶17} “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. Ohio Environmental 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.
Motorists Mut. 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.”
{¶18} With the purpose of declaratory relief in consideration, we review the
Civ.R. 12(B)(6) motion to dismiss.
{¶19} The General Assembly vested the Director of the ODA with the authority
to adopt and enforce uniform rules concerning the use of anhydrous ammonia. R.C.
905.40 states:
Licking County, Case No. 11-CA-45 7
{¶20} “The director of agriculture may promulgate, adopt, and enforce uniform
rules:
{¶21} “(A) Governing the storing and handling of fertilizers;
{¶22} “(B) For safety in design, construction, location, installation, or operation
of equipment for storing, handling, transporting, and utilizing anhydrous ammonia, or
other solutions for use as agricultural fertilizers;
{¶23} “(C) To prohibit the reselling or reuse of such containers without
authorization by the owner thereof;
{¶24} “(D) Requiring that guaranteed analysis be stated in a form other than
that defined in section 905.31 of the Revised Code when another form will not impose
an economic hardship on manufacturers, distributors, and users of fertilizer by reason
of conflicting labeling requirements among the states.”
{¶25} The regulations for the use of Stationary Ammonia Systems are found in
Ohio Adm.Code 901:5-3.
{¶26} R.C. 905.501 prohibits any local regulation of fertilizers. The statute
states, “[n]o political subdivision shall regulate the registration, packaging, labeling,
sale, storage, distribution, use, or application of fertilizer, or require a person licensed
or registered under sections 905.31 to 905.99 of the Revised Code to obtain a license
or permit to operate in a manner described in those sections, or to satisfy any other
condition except as provided by a statute or rule of this state or of the United States.”
{¶27} The Board states the current ODA regulations do not permit the Board to
fulfill its duties as required by R.C. 505.37. R.C. 505.37(A) states in pertinent part,
“[t]he board of township trustees may establish all necessary rules to guard against
Licking County, Case No. 11-CA-45 8
the occurrence of fires to protect property and lives of citizens against damage and
accidents * * *.” The Board’s request for declaratory relief is based on the argument
the ODA regulations are insufficient to prepare the emergency responders of Sharon
Township to react to an ammonia leak and to protect the citizens of Sharon Township
from an ammonia leak. The Board contends R.C. 905.40 places a mandatory duty
upon the ODA to implement reasonable rules for the regulation of anhydrous ammonia
so that the Board can meet its duties under R.C. 505.37.
{¶28} Upon our de novo review of the Board’s arguments, we agree with the
trial court’s conclusion the Board’s action fails to state a claim capable of relief. As the
trial court noted, the Board does not allege the ODA regulations were adopted in
violation of R.C. Chapter 119. The Board does not assert the regulations are
unconstitutional. The Board’s argument is the ODA has failed to meet its statutory
duty under R.C. 905.40 to promulgate rules because the administrative regulations are
insufficient to protect the citizens of Sharon Township from the dangers of an
ammonia leak.
{¶29} R.C. 905.40 states, “the director of agriculture may promulgate, adopt,
and enforce uniform rules.” (Emphasis added.) The Board contends this language is
mandatory. The ODA states this language is discretionary. When assessing statutory
language, it is necessary to consider the intent of the General Assembly.
“Determining this intent requires us to read words and phrases in context and construe
them in accordance with rules of grammar and common usage.” State ex rel. Russell
v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 11. The Ohio
Supreme Court stated in Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 729 Ohio N.E.2d
Licking County, Case No. 11-CA-45 9
711 (2000): “’[U]sage of the term ‘may’ is generally construed to render optional,
permissive, or discretionary the provision in which it is embodied.’ (Emphasis added.)
State ex rel. Niles v. Bernard (1978), 53 Ohio St.2d 31, 34, 7 O.O.3d 119, 120–121,
372 N.E.2d 339, 341.” (Emphasis sic.) In this case, we find the use of the word “may”
is discretionary in nature, rather than mandatory.
{¶30} Administrative rules are designed to accomplish the ends sought by the
legislation enacted by the General Assembly. State ex rel. Am. Legion Post 25 v.
Ohio Civ. Rights Comm., 117 Ohio St.3d 441, 2008-Ohio-1261, 884 N.E.2d 589, ¶14
citing Carroll v. Dept. of Adm. Servs., 10 Ohio App.3d 108, 110, 460 N.E.2d 704 (10th
Dist. 1983). “Rules promulgated by administrative agencies are valid and enforceable
unless unreasonable or in conflict with statutory enactments covering the same
subject matter.” Id. citing State ex rel. Curry v. Indus. Comm., 58 Ohio St.2d 268, 269,
389 N.E.2d 1126 (1979).
{¶31} In this case, the ODA has promulgated administrative regulations for the
use of anhydrous ammonia. However, the Board’s contention is the rules are not
sufficient to protect the citizens of Sharon Township from a possible ammonia leak.
Within the parameters of established statutory regulations and case law, this Court
cannot find support for the Board’s claims the ODA is in violation of its statutory duty
to promulgate rules for the use of anhydrous ammonia. In a declaratory judgment
action there must exist a real and substantial controversy that is capable of admitting
specific and conclusive relief. If the Board’s request for declaratory relief is taken to
its logical conclusion, it would be tantamount to judicial legislation.
Licking County, Case No. 11-CA-45 10
{¶32} We can find no justiciable controversy and therefore the Board has failed
to state a claim that is capable of relief. We find no error in granting the ODA’s motion
to dismiss under Civ.R. 12(B)(6).
{¶33} The Board’s second Assignment of Error is overruled.
I.
{¶34} The Board argues in its first Assignment of Error the trial court erred in
its determination that the Board lacked standing to pursue its claims against the ODA.
Based on our disposition of the second Assignment of Error, we find it unnecessary to
reach the first Assignment of Error.
III.
{¶35} The Board’s third Assignment of Error is a reiteration of the first and
second Assignments of Error. For the reasons stated in the first and second
Assignments of Error, we overrule the Board’s third Assignment of Error.
{¶36} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.
Hoffman, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER
[Cite as Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE BOARD OF TOWNSHIP :
TRUSTEES SHARON TOWNSHIP :
:
:
Plaintiff-Appellant :
:
-vs- : JUDGMENT ENTRY
:
JAMES ZEHRINGER, DIRECTOR, :
OHIO DEPARTMENT OF :
AGRICULTURE :
:
: Case No. 11-CA-45
Defendant-Appellee :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. SHEILA G. FARMER