Benton Twp. v. Rocky Ridge Dev., L.L.C.

[Cite as Benton Twp. v. Rocky Ridge Dev., L.L.C., 2020-Ohio-4162.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
Benton Township Court of Appeals No. OT-19-010
Appellee Trial Court No. 17CV64
v.
Rocky Ridge Development, LLC DECISION AND JUDGMENT
Appellant Decided: August 21, 2020
*****
Robert B. Casarona and James J. VanEerten, Ottawa County
Prosecuting Attorney, for appellee.
Matthew D. Harper, Brian P. Barger, Barry W. Fissel and
Christopher F. Parker, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Rocky Ridge Development, LLC (“Rocky Ridge”), appeals from
the March 1 and June 4, 2019 judgments of the Ottawa County Court of Common Pleas
granting summary judgment to appellee, Benton Township, and a permanent injunction
against Rocky Ridge; the February 23 and March 8, 2017 judgments granting temporary
and preliminary injunctions against Rocky Ridge; and the May 4, 2018 judgment denying
the motion of Rocky Ridge to dismiss the complaint. For the reasons which follow, we
affirm.
{¶ 2} On appeal, appellant asserts the following assignments of error:
FIRST ASSIGNMENT OF ERROR: Whether the Trial Court erred
in finding there was no conflict between local zoning ordinances and state
law by granting a temporary restraining order, preliminary injunction, and
permanent injunction against Rocky Ridge based on alleged violations of
the Benton Township Zoning Resolution (“BTZR”) even though the BTZR
is preempted by Ohio’s statewide general law authorizing Rocky Ridge to
beneficially reuse Drinking Water Treatment Material (“DWTM”),
consisting of spent lime from the City of Toledo’s water treatment plant?
SECOND ASSIGNMENT OF ERROR: Whether the Trial Court
erred in granting a temporary restraining order, preliminary injunction, and
permanent injunction against Rocky Ridge based on alleged violations of
the BTZR even though R.C. § 519.21 bars regulation of DWTM by the
Township?
THIRD ASSIGNMENT OF ERROR: Whether the Trial Court erred
in holding that Rocky Ridge’s beneficial reuse of DWTM violated any
provision of the BTZR?
2.
Factual Background
{¶ 3} The Benton Township Zoning plan approved in 1964 classified the area of
the now closed StoneCo quarry located on State Route 590 in Ottawa County, Benton
Township, Ohio, as “M-3 Manufacturing.” The current Benton Township Zoning
Resolution (hereinafter “BTZR”) was adopted effective September 2013. The M-3
classification permits “agriculture, heavy manufacturing, automobile service stations,
transport and trucking terminal, wholesale business, warehousing, topsoil removal,
manufacturing of lime, cement and chemical fertilizer, public service facility, accessory
uses & buildings.” BTZR Art. IV. StoneCo operated a quarry on the site until
December 17, 2014. Rocky Ridge now owns the quarry and undeveloped contiguous
property.
{¶ 4} Mark Messa, Director of Regional Planning for Ottawa County, testified the
property at issue in this case, the undeveloped property contiguous to the quarry, is
comprised of three parcels, one entirely zoned A-3, agricultural (Parcel No. 00402150-
1739-000, hereinafter “1739”), another to the east zoned primarily M-3, with
approximately one-third of the parcel zoned A-3 (Parcel No. 004013740-1724-000,
hereinafter “1724”), and a third parcel to the south, is zoned entirely A-3 (Parcel No.
00412500-1565-100, hereinafter “1565”).
{¶ 5} In 1988, StoneCo applied to expand its operation by having 33 additional
acres of its 200 acres rezoned from A-3 Agricultural to M-3 Manufacturing. An amended
request for rezoning 25 acres with an 8-acre buffer zone on the southern side of the
3.
quarry remaining as A-3 property to protect nearby residents was approved. The A-3
classification permits “single-family dwelling, agriculture, plan cultivation, forestry, farm
vacation enterprises, public uses, public service facilities, semipublic uses, stabling and
care of horses and ponies, accessory uses & buildings, farm pond/retention pond/
recreation pond, home office, garage sale, yard sale, barn sale.” BTZR Art. IV. The
quarry, which is entirely within the M-3 zoning, is not involved in the present action.
{¶ 6} This case involves the operation of Rocky Ridge to blend spent lime into the
soil on its A-3 zoned property. Limestone is used as a conditioner in the city of Toledo
water treatment plant and, afterward, is transferred to large lagoons where the solids
settle and the decanted water is discharged into state waters. The Ohio Environmental
Protection Agency (“OEPA”) has determined the remaining industrial waste solids
(known as “lime residuals” or hereinafter as “spent lime”) have a beneficial use as
general fill when mixed with soil. The OEPA has exclusive authority over the
determination of how and where solid and hazardous wastes may be disposed. R.C.
Chapter 3745. R.C. 6111.03(J) and 6111.46 empower the director of environmental
protection to oversee the disposal of industrial waste through a Land Application
Management Plan (“LAMP”) permit.
{¶ 7} On November 13, 2014, the OEPA granted a LAMP permit to Stansley
Industries, Inc., permitting the company to blend spent lime with soil and the use of the
blended mixture as general fill to increase elevation and improve drainage on its property.
On February 14, 2017, the OEPA modified and superseded the prior LAMP permit to add
4.
Rocky Ridge as a permittee and modified the conditions imposed on the operation by
specifying that the Rocky Ridge Benton Township property is the site on which the fill
operations are authorized.
{¶ 8} John Taddonio, the manager of business development and operations for
Rocky Ridge since November 2015, testified Rocky Ridge mined limestone at the quarry
in 2016 and 2017 and used the limestone for a road base to provide access around the
quarry. It also partially dewatered the quarry by pumping the water to a ditch alongside
State Route 590. Rocky Ridge began its blending operations under the LAMP in
approximately April 2016, on the land outside of the quarry by hauling in spent lime,
moving topsoil between the parcels as it mixed the soil with the spent lime, and returned
the blended soil to different locations on the property. Rocky Ridge anticipates taking
approximately a million cubic yards of the spent lime over a ten-year period. Taddonio
further testified that the Benton Township Trustees did not object to the blending
operations of Rocky Ridge after a tour of the property. They objected only to placement
of material in the quarry. Residents, however, began to question the blending operation.
{¶ 9} On July 22, 2016, Rocky Ridge submitted an application to the OEPA for
authorization for an Integrated Alternative Waste Management Plan (“IAWMP”) to allow
the disposal of spent lime into the closed StoneCo quarry. R.C. 3734.02(G) and Ohio
Adm.Code 3745-27-05(A)(4). Rocky Ridge intends to use the spent lime to fill the
quarry by placing the spent lime in blending areas where it would be dried, mixed,
compacted, and tested. After the quarry is filled, Taddonio testified, Rocky Ridge
5.
intends to have the entire property developed as a recreation area as part of its surface
mining reclamation plan approved by the Ohio Department of Natural Resources and
required by the surface mining permit and R.C. 1514.02. Benton Township, however,
argues the deed restrictions require that the quarry be converted into use as a recreational
lake. The OEPA found the initial application “incomplete and inadequate” because the
application lacked a blending of waste to soil set a ratio of 2/3 soil to 1/3 waste and an
offsite borrow source for the soil. Therefore, Rocky Ridge planned to construct a borrow
pit/pond on the north end of the property in order to continue the blending operation
under the LAMP permit.
{¶ 10} In late 2016, Taddonio started the process for construction of a 20-acre
pond on the southern parcel zoned A-3. He obtained approval of the County Health
Department, obtained a storm water discharge from the OEPA, and provided the Ottawa
County Engineer, Ronald Paul Lajti, Jr., with the proposed plans. Because it was a 20-
acre pond, Lajti checked with the Ohio Department of Natural Resources and the OEPA
as to whether this should be classified as a pond or whether the pond was actually a
borrow pit because the dirt was being used in the blending operation. He was never able
to receive a clear answer on the issue and, therefore, proceeded to review the permit as a
typical pond. Eventually, with the cooperation of Taddonio, who addressed specific
issues raised by Lajti, he approved the permit. Lajti passed the pond permit on to zoning
inspector Mike Reif for processing.
6.
{¶ 11} Joseph Helle, of Oak Harbor Aerial Imaging Resources, LLC, testified
Benton Township residents hired him in 2016 to take aerial photographs of the activities
on the property. Benton Township entered into evidence 22 photographs of the site taken
from November 2016, through January 2017. The photographs depict dump trucks
unloading material and creating piles in the operating area, which is the southern half of
Parcel Nos. 1739 and 1724 and south of the quarry boundaries. Mike Reif, a nearby
resident and Benton Township Zoning Inspector, testified he observed industrial or
manufacturing activity occurring in Parcel Nos. 1739 and 1724 and some activity
regarding the construction of a pond, all of which he confirmed were depicted in the
aerial photographs.
{¶ 12} In late 2016, Lajti received a complaint from a resident about the
operations on the Rocky Ridge property. The site was outside the county engineer’s
oversight, but when he received a ditch cleaning permit notice from the Ohio Public
Utilities regarding the ditch along State Route 590, Lajti contacted Taddonio who gave
Lajti a tour. Lajti confirmed that Rocky Ridge was discharging water to the appropriate
drainage area. While Lajti was on the site, he also observed Rocky Ridge was dumping
spent lime on the A-3 zoned property, but he did not discuss the zoning issue at that time.
{¶ 13} Lajti also became involved in a complaint regarding flooding on property
near the southern end of the Rocky Ridge site. Lajti recalled that flooding had occurred
on this property once before. However, Lajti could not recall there ever having been a
drainage swale along the side of the property where it was then flooded. His employees
7.
cleared debris found on the lid of the catch basin. Lajti testified he also met with
Taddonio to discuss whether an earth dike built along the southern side caused the
flooding. Taddonio proposed a solution that would drain the water and Rocky Ridge
removed the dike for use in the blending process. They also agreed that the flooding
could have been due to a combination of other factors such as the intense rainfall and
debris on the catch basin.
{¶ 14} At a meeting in late December 2016, Lajti, the zoning inspector, Reif,
Taddonio, and a township trustee met to discuss zoning issues and discovered Taddonio
was utilizing a tax auditor’s map which indicated that the entire parcel was zoned
industrial. The official township zoning map correctly shows the A-3 zoning. Lajti
testified the website from which Rocky Ridge obtained the auditor’s map included a
disclaimer that the actual township zoning map was held at the Regional Planning Office
of Ottawa County. Reif asserted that at this time Rocky Ridge became aware that the
property where the blending activities were occurring and the pond was being constructed
were zoned A-3, which was in violation of the township zoning resolution. Reif testified
Taddonio admitted to a zoning violation and they agreed the appropriate parties needed to
sort out the difference between the maps. Taddonio, however, denied admitting to a
violation but agreed the appropriate parties would need to determine the correct zoning.
{¶ 15} The zoning inspector testified township zoning resolution Sec. 706 governs
the construction of a pond. While Rocky Ridge met the two requirements of Sec. 706,
the zoning inspector had not approved the pond permit because of its size. The zoning
8.
application is now pending before the zoning board for administrative review. Reif
testified that when Taddonio submitted the application, he admitted that Rocky Ridge had
already started construction of the pond because they needed dirt for the blending
operation.
{¶ 16} Reif testified that he never received statements or plans regarding the
operations of Rocky Ridge in order to determine whether there were dangerous or
objectionable elements pursuant to zoning resolution Sec. 800.2. However, he had
observed certain zoning violations: “doing industrial work, hauling dirt, hauling
materials,” building dikes,” and digging holes to bury soil blended with the spent lime
along the M-3 zoned area into the A-3 zoned area and the A-3 buffer zone created in
1988. He further testified the zoning resolutions required a conditional use permit prior
to removing topsoil in an A-3 district and digging holes to place the spent lime violated
Sec. 1102(D) of the zoning resolution because it is an industrial activity on A-3 zoned
property. The BTZR defines “topsoil removal” as “where the top layer of soil is stripped
from the property with no intent to further develop the underlying property.” Reif never
observed Rocky Ridge removing topsoil off of the collective A-3 properties.
Furthermore, Reif acknowledged that farmers use lime on their fields and sometimes use
spent lime or reworked lime similar to the spent lime in this case.
{¶ 17} Reif instituted criminal charges against Rocky Ridge in October 2016,
because of the zoning violations and advised the director of the OEPA of the criminal
prosecutions filed against Rocky Ridge for zoning violations.
9.
Complaint for Injunctive and Declaratory Relief
{¶ 18} On February 23, 2017, Benton Township filed a complaint for injunctive
and declaratory relief against Rocky Ridge and Stansley Industries, Inc., c/o Custom
Ecology of Ohio, Inc. Benton Township asserted two claims for relief. First, Benton
Township sought a permanent injunction to prevent Rocky Ridge from violating the
terms of the LAMP permit and the BTZR, which endangered the public and environment
and/or created a nuisance. On August 7, 2018, Benton Township dismissed its nuisance
claim without prejudice.
{¶ 19} Second, Benton Township sought a permanent injunction to prevent Rocky
Ridge from continuing to violate the BTZR sections which require a valid zoning
certificate for the use of the quarry and surrounding property, digging a borrow pit under
the guise of creating a pond when the soil is actually being used for mixing with spent
lime, in violation of R.C. 519.23 and the BTZR endangering nearby residential property
with flooding and erosion damage and negative impacts on drinking water quality and
volume. Benton Township also sought declaratory judgment that the defendants must
comply with the BTZR. However, by the time of the preliminary injunction hearing,
Rocky Ridge had ceased digging in the area of the pond and the township indicated it was
not seeking an injunction regarding this activity because the approval of the pond was
being reviewed by the zoning board for administrative review.
{¶ 20} The trial court granted a temporary order on February 23, 2017, following a
non-evidentiary hearing, which enjoined Rocky Ridge and Stansley Industries, Inc.,
10.
“from operating in the township until and unless they are in compliance with the Benton
Township Resolution and the laws of the State of Ohio.” Immediately afterward, when
Rocky Ridge ceased its soil-blending operations, the OEPA issued a notice that Rocky
Ridge was in violation of the LAMP permit by failing to complete soil stabilization work
on the property as required by the National Pollutant Discharge Elimination System
permit issued in conjunction with the LAMP permit.
{¶ 21} The OEPA sought to intervene on March 1, 2017, to challenge whether
Benton Township was circumventing the jurisdiction of the Environmental Review
Appeals Commission (hereinafter “ERAC”) by challenging the LAMP permit. The trial
court ultimately denied the motion to intervene in its March 1, 2019 judgment. On
March 3, 2017, Rocky Ridge moved to dismiss the action and dissolve the temporary
restraining order based on the same jurisdictional argument, which the trial court
ultimately denied on May 4, 2018.
{¶ 22} Following a preliminary injunction hearing on March 7 and 8, 2017, the
trial court granted a temporary and preliminary injunction on March 8, 2017. At the
beginning of the hearing, the trial court acknowledged its limited jurisdiction and stated it
did not have authority to review OEPA decisions or the LAMP permit. Instead, the trial
court indicated the focus of the hearing would be whether there were zoning violations on
the A-3 parcels numbered 1739 and 1724 and whether the state law governing
environmental protection preempts the zoning resolutions. Benton Township stipulated it
was not asserting a claim of a violation of BTZR Secs.103.7 or 103.8.
11.
{¶ 23} The trial court ultimately held in its March 8, 2017 order that digging cells
in the A-3 district and mixing the soil with spent lime and burying it in the cells does not
constitute a permitted use under BTZR. The trial court further concluded that the BTZR
does not provide a blanket prohibition of the LAMP permit activities in all classifications,
but it does prohibit these activities in A-3 districts. Therefore, the court issued a
preliminary injunction against Rocky Ridge, its affiliated companies, and individuals
acting on behalf of or in concert with these companies, which enjoined and restrained
them from operating in Benton Township unless they were in compliance with the BTZR.
Rocky Ridge timely appealed from this decision.
{¶ 24} While the case was pending in the trial court and prior to the preliminary
injunction hearing, Rocky Ridge and Stansley Industries, Inc., filed a writ of prohibition
in the Ohio Supreme Court, to prevent the trial judge from exercising jurisdiction over
the LAMP permit arguing it is within the exclusive jurisdiction of the OEPA. On
September 21, 2017, after the trial court had granted a preliminary injunction, the Ohio
Supreme Court granted the writ of prohibition in part to prevent the trial judge from
deciding any issues that properly belong within the exclusive jurisdiction of the ERAC
relating to the granting of the LAMP permit and Rocky Ridge’s compliance with the
LAMP permit. However, the Ohio Supreme Court denied the writ as to all claims
involving alleged violations of Benton Township’s local ordinances or allegations that
the operation is creating a public nuisance. State ex rel. Rocky Ridge Dev., L.L.C. v.
Winters, 151 Ohio St. 3d 39, 2017-Ohio-7678, 85 N.E.3d 717, ¶ 21.
12.
Permanent Injunction
{¶ 25} The township moved for summary judgment on November 30, 2018,
asserting Rocky Ridge cannot ignore the A-3 zoning classification governing the use of
portions of their property even when operating under an OEPA Lamp permit. Benton
Township narrowed its claim to whether Rocky Ridge was violating the BTZR by
(1) failing to obtain valid zoning certificates for the use of the A-3 zoned land for their
blending operation, which involved blending soil with spent lime and reburying the
blended soil in cells with heavy industrial equipment, trucking material throughout the
property, storing building materials, parking heavy industrial equipment, constructing
asphalted roads, installing drainage pipes and pumping water from the site, and changing
the elevation of the property in support of the blending operation, all of which will
permanently change the character and long-term use of the A-3 property without a
conditional use permit; and (2) removing topsoil with no further intent to develop the
underlying property.
{¶ 26} Rocky Ridge opposed the motion presenting several arguments:
(1) Benton Township cannot prohibit the LAMP operations, which specifically
authorized the blending operations to occur on the land at issue; (2) Benton Township has
repeatedly alleged the spent lime are industrial waste and relies on BTZR Sec. 103.7,
which prohibits the dumping of industrial waste in the township, and BTZR Sec. 103.8,
which prohibits landfills for solid waste disposal. Rocky Ridge further argues state law,
R.C. Chapter 6111, governs disposal of industrial waste and, therefore, these zoning
13.
resolutions are preempted by state law and are unenforceable; (3) the LAMP permit
covers all of the Rocky Ridge property and, therefore, unless every specific zoning
classification restriction yields to the authority of the OEPA, the resolutions block the
blending operation permitted by the OEPA; (4) R.C. 519.21 prohibits the township from
banning the use of any land for agricultural purposes and that blending spent lime with
the soil and the excavation and processing of topsoil are agricultural uses; (5) even if
Rocky Ridge was removing topsoil, the topsoil is not leaving Rocky Ridge’s property and
the removal is part of the development of the property; (6) Rocky Ridge is not engaged in
manufacturing on the A-3 parcels because it is not making a product and the nature of the
soil and spent lime do not change after blending; and (7) the injunction sought is
impermissibly vague.
{¶ 27} In reply, the township argues R.C. Chapter 519.24 creates a cause of action
for local zoning violations. It notes that in its motion for summary judgment it is not
challenging the LAMP permit and it is not seeking an injunction based on BTZR Secs.
103.7 or 103.8, which ban dumping or burying industrial waste in all zoning
classifications and prohibit landfills respectively. Furthermore, if the trial court found
either section is applicable and preempted, Benton Township asserts the trial court should
sever these provisions from the BTZR. Finally, Benton Township argues local zoning
ordinances are preempted only by general laws of the state which directly conflict. It
argues the BTZR and the state environmental regulations are complementary and
14.
independent of each other. Therefore, Rocky Ridge cannot simply ignore the BTZR even
if they have a LAMP permit.
{¶ 28} When ruling on the motion for summary judgment in its March 1, 2019
judgment, the trial court found that under the BTZR, the blending operation is a permitted
use in a M-3 district, but not in an A-3 district. Furthermore, the trial court found the
BTZR does not provide for a blanket prohibition of the LAMP permit activities. Finally,
the trial court found there was “clear and convincing evidence that a permanent
injunction is necessary to prevent irreparable harm.” Therefore, the trial court granted
summary judgment to Benton Township.
{¶ 29} In its June 4, 2019 final order, the trial court issued a permanent injunction
against Rocky Ridge to enjoin it from “digging of a borrow pit and/or construction of a
farm pond, spreading/burying/mixing waste, removing topsoil where such removal is a
conditional use, changing the drainage of the property, placing any material into the
waters of the state and/or otherwise violating the zoning laws of Benton Township.”
{¶ 30} Rocky Ridge appeals from the final judgment. We address the assignments
of error out of order and begin with the second assignment of error.
Second Assignment of Error
{¶ 31} In its second assignment of error, Rocky Ridge argues the trial court erred
in granting a temporary restraining order, preliminary injunction, and permanent
injunction when R.C. 519.21 bars local regulation which interferes with the disposal of
spent lime for an agricultural purpose. Although Rocky Ridge presented this argument in
15.
its memorandum in opposition and elicited testimony from the zoning inspector that lime
and spent lime have an agricultural purpose, the trial court never addressed the argument.
{¶ 32} R.C. 519.21 prevents a township from prohibiting the use of any land for
agricultural purposes. To establish that R.C. 519.21(A) applies, Rocky Ridge must
establish that it is using its property primarily for an agricultural purpose. Scioto Twp.
Zoning Inspector v. Puckett, 2015-Ohio-1444, 31 N.E.3d 1254, ¶ 12. R.C. 519.01 defines
the term “agriculture” as it is used in R.C. 519.02 to 519.25, as follows:
farming; ranching; algaculture meaning the farming of algae; aquaculture;
apiculture; horticulture; viticulture; animal husbandry, including, but not
limited to, the care and raising of livestock, equine, and fur-bearing
animals; poultry husbandry and the production of poultry and poultry
products; dairy production; the production of field crops, tobacco, fruits,
vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers,
sod, or mushrooms; timber; pasturage; any combination of the foregoing;
and the processing, drying, storage, and marketing of agricultural products
when those activities are conducted in conjunction with, but are secondary
to, such husbandry or production.
Generally, the determination of whether a specific activity qualifies as an agricultural
purpose is a question of fact. Bd. of Franklin Twp. Trustees v. Armentrout, 11th Dist.
Portage No. 2000-P-0082, 2001 WL 1602669, *2 (Dec. 14, 2001), quoting Allen Twp.
Bd. of Trustees v. Chasteen, 97 Ohio App. 3d 250, 257, 646 N.E.2d 542 (6th Dist.1994).
16.
{¶ 33} In the case before us, we find this assignment of error lacks merit because
the disposal of spent lime is not at issue in this case. The township asserts the zoning
classifications are designed to prevent the industrial aspects of the blending operation
(digging, hauling, mixing) on A-3 property because industrial activities are not permitted
on A-3 property. The township also seeks to stop Rocky Ridge from removing the
topsoil to be used in the blending process because the BTZR bans removal of topsoil
from A-3 property. Benton Township has not challenged the specific activity of burying
the spent lime/soil mixture.
{¶ 34} Therefore, we find the issue of whether burying spent lime mixed with soil
is an agricultural issue is not relevant to this case. We address the removal of topsoil
under the third assignment of error. Accordingly, we find appellant’s second assignment
of error not well-taken.
Third Assignment of Error
{¶ 35} In its third assignment of error, Rocky Ridge argues the trial court erred in
finding that Benton Township established by clear and convincing evidence that Rocky
Ridge violated the BTZR.
{¶ 36} Township trustees may seek an injunction, pursuant to R.C. 519.24, to
prevent a property owner within the township from violating a township zoning
resolution. Once the township establishes a violation by clear and convincing evidence,
the trial court exercises decision in determining whether to grant or deny injunctive relief.
R.C. 519.24; Spencer Twp. Bd. of Trustees. v. Dad’s Auto Parts, LLC, 6th Dist. Lucas
17.
No. L-09-1188, 2010-Ohio-2253, ¶ 21; Swan Creek Twp. v. Wylie & Sons Landscaping,
168 Ohio App. 3d 206, 2006-Ohio-584, 859 N.E.2d 566, ¶ 23. Because R.C. 519.24
provides a statutory remedy, the township is not required to establish the requirements for
an injunction under Civ.R. 65. Ghindia v. Buckeye Land Dev., L.L.C., 11th Dist.
Trumbull No. 2006-T-0084, 2007-Ohio-779, ¶ 19 (citations omitted). On appeal, we will
not reverse the trial court’s judgment absent a showing of an abuse of discretion. Garono
v. State, 37 Ohio St. 3d 171, 173, 524 N.E.2d 496 (1988), citing Perkins v. Village of
Quaker City, 165 Ohio St. 120, 133 N.E.2d 595 (1956), syllabus.
{¶ 37} Furthermore, we review the trial court’s granting of summary judgment de
novo. Doe v. Shaffer, 90 Ohio St. 3d 388, 390, 738 N.E.2d 1243 (2000), citing Grafton v.
Ohio Edison Co., 77 Ohio St. 3d 102, 105, 671 N.E.2d 241 (1996). Applying the
requirements of Civ.R. 56(C), we uphold summary judgment when “the moving party is
entitled to judgment as a matter of law” because “there is no genuine issue as to any
material fact” and “reasonable minds can come to but one conclusion, and that conclusion
is adverse to the party against whom the motion for summary judgment is made, who is
entitled to have the evidence construed most strongly in his favor.” Harless v. Willis Day
Warehousing Co., Inc., 54 Ohio St. 2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 38} In this case, the trial court found the BTZR prohibited the blending
operation and removal of the topsoil in the A-3 district. As noted before, the A-3
classification under the BTZR permits “single-family dwelling, agriculture, plan
cultivation, forestry, farm vacation enterprises, public uses, public service facilities,
18.
semipublic uses, stabling and care of horses and ponies, accessory uses & buildings, farm
pond/retention pond/ recreation pond, home office, garage sale, yard sale, barn sale.”
BTZR, Article IV. Furthermore, this section requires that a land owner obtain a
conditional use permit for topsoil removal in an A-3 district. Topsoil removal is defined
as: “[a]ny activity where the top layer of soil is stripped from the property with no intent
to further develop the underlying property.” BTZR Art. II. A zoning certificate must be
obtained for a “[c]hange in use of land to a use of a different classification.” BTZR Sec.
1102(d).
{¶ 39} Rocky Ridge first argues the removal of topsoil is a use of land for an
agricultural purpose and cannot be regulated pursuant to R.C. 519.21 and Armentrout,
11th Dist. Portage No. 2000-P-0082, 2001 WL 1602669, at *2 (removal of topsoil for
resale is an agricultural use).
{¶ 40} As discussed under Rocky Ridge’s second assignment of error, we find
R.C. 519.21 is not applicable and the Armentrout decision is distinguishable from the
case before us. In that case, the topsoil was removed from the area where a pond was
being dug and was sold. Thus, the soil was being removed as part of the development of
the land. In the case before us, claims regarding the pond were dropped pending the
administrative process. Remaining at issue in this case is only the issue of whether
Benton Township can regulate the removal of topsoil from the A-3 property without such
development. Here, the topsoil is being removed from an area on A-3 property to be
altered, amended, and reburied in another area.
19.
{¶ 41} To establish that R.C. 519.21(A) applies, Rocky Ridge must establish that
it is using its property primarily for an agricultural purpose. Scioto Twp. Zoning
Inspector v. Puckett, 2015-Ohio-1444, 31 N.E.3d 1254, at ¶ 12 (4th Dist). Here, Rocky
Ridge is using the property for the blending operation and disposal of industrial waste.
Because the removal of the topsoil furthers those operations, we cannot find the removal
of topsoil under those conditions to be an agricultural purpose. Therefore, we conclude
that Benton Township is not restricted by R.C. 519.21(A) from prohibiting topsoil from
being removed from an A-3 property.
{¶ 42} Rocky Ridge also argues that it did not violate the BTZR prohibition
against removing topsoil because the topsoil never leaves the property except in the pond
area as part of the development of the property. This argument is premised on an
assumption that the contiguous parcels of the A-3 parcels must be viewed as one because
Rocky Ridge owns all of them. First, we find there is no provision under the BTZR that
permits zoned parcels to be considered collectively if owned by the same party and,
therefore, agree with the trial court that moving topsoil from one agricultural property to
another is prohibited. Second, regardless of whether moving topsoil from one A-3
property to another violates the BTZR, we find that excavating cells of soil, blending it
with spent lime and reburying the mixture has the same effect as removing the topsoil.
The “cells” or pits dug for the blending process are made with heavy equipment and, after
the blending process, there is no evidence that the topsoil is not returned to the surface
20.
level. The function of the zoning resolution is to preserve the agricultural use of the land
and the blending operation clearly violates this purpose.
{¶ 43} Furthermore, we reject the argument that Rocky Ridge is developing the
land by incorporation of the spent lime into the soil. Avoiding the issues relating to the
pond, which Benton Township excluded from its claims, the incorporation of the spent
lime into the soil is clearly not part of any development of the land. While Reif testified
that adding a certain quantity of lime to soil has an agricultural benefit, there was no
evidence presented that this blending operation which incorporates a large concentration
of spent lime, and which increases the elevation of the property, improves the agricultural
nature of the property.
{¶ 44} Finally, Rocky Ridge argues that the trial court erred in finding that the
blending operation is industrial work on A-3 property. The zoning inspector testified that
the heavy industrial nature of the work was the use of heavy equipment to haul, dump,
dig, blend, and bury the spent lime/soil mixture. While the BTZR does not define
industrial work, it provides that general industrial work is limited to M-1 zones, restricted
industrial work to M-2 zones, and heavy industrial work to M-3 zones. Therefore, we
must apply the common meaning for the term. “Industrial” means “relating to an
industry,” which means “a distinct group of productive or profit-making enterprises.”
https://www.merriam-Webster.com/dictionary/industrial (accessed July 20, 2020).
Rocky Ridge asserts that it was not engaged in “manufacturing” because it does not do
anything to change the spent lime and merely mixes it with soil. However, we agree
21.
with the trial court’s finding that a commercial operation to dispose of industrial waste
qualifies as industrial activity and is at least an M-1 activity.
{¶ 45} Therefore, we find appellant’s third assignment of error not well-taken.
First Assignment of Error
{¶ 46} On appeal, Rocky Ridge asserts in its first assignment of error that the trial
court erred in finding the township zoning ordinances did not conflict with state law
when the trial court issued a temporary restraining order and preliminary and permanent
injunctions against Rocky Ridge. The company argues state law which authorized the
OEPA to grant a LAMP permit to Rocky Ridge to conduct the blending operation on its
entire property preempts any Benton Township Zoning Resolutions which interfere with
the approved beneficial use of spent lime.
{¶ 47} First, Rocky Ridge argues the trial court erred by failing to find that BTZR
Art. I, Secs. 103.7 and 103.8 apply to this case and are preempted by state law because
Sec. 103.7 bans the activities state law permits through the LAMP permit and Sec. 103.8
is inapplicable and even it were applicable, also bans landfills throughout the township
contra to R.C. Chapter 3734.
{¶ 48} The trial court never specifically addressed this issue. Instead, the trial
court found the “Benton Township Zoning regulations do not provide a blanket
prohibition of the activity authorized by the LAMP and engaged in by [Rocky Ridge.]”
{¶ 49} In its complaint, Benton Township initially asserted a claim under BTZR
Art. I, Secs. 103.7 and 103.8. However, it expressly withdrew this argument during the
22.
preliminary injunction hearing and relies entirely upon a claim based on its authority
under R.C. 519.24 to adopt zoning resolutions regarding the use of land “for the purpose
of protecting and promoting public health, safety, morals, comfort, and general welfare.”
BTZR Sec. 101. We reject the argument that Benton Township cannot abandon this
claim. Therefore, we find the issue of whether these sections are preempted by general
state law and, therefore, are void and unenforceable is no longer an issue in this case.
{¶ 50} Alternatively, Rocky Ridge also argues that Benton Township must utilize
Section 103.7 to ban the blending operation because it is the only section in the BTZR
that regulates the activity. We disagree. Benton Township is not limited to a single basis
for challenging the operations of Rocky Ridge when other resolutions arguably apply.
{¶ 51} Therefore, we find the trial court did not err in failing to address whether
these two resolutions conflict with state law.
{¶ 52} Second, Rocky Ridge argues on appeal that allowing Benton Township to
utilize zoning laws to prevent Rocky Ridge from conducting the operation permitted
under the LAMP permit operates as a ban of an activity permitted under state law. It
argues, therefore, that the A-3 zoning classification is preempted because it operates to
prohibit what Ohio statewide environmental laws permit.
{¶ 53} Having found the trial court did not err in finding that the BTZR prohibits
the blending operation and removal of topsoil on A-3 property, we now consider whether
the BTZR as it operates with respect to this property in light of the LAMP permit
conflicts with a general state law and, therefore, is preempted.
23.
{¶ 54} A township’s authority to adopt and enforce zoning regulations is directly
granted to it by the General Assembly through R.C. Chapter 519. R.C. 519.02(A).
Pursuant to R.C. 519.02, a board of township trustees can adopt a comprehensive zoning
plan to protect the public health, safety and morals. Set Products, Inc. v. Bainbridge
Twp. Bd. of Zoning Appeals, 31 Ohio St. 3d 260, 265, 510 N.E.2d 373 (1987); BTZR Art.
I, Sec. 101. The purpose of local zoning is to control land usage in a particular area
relating to the development of the community. Families Against Reily/Morgan Sites v.
Butler Cty. Bd. of Zoning Appeals, 56 Ohio App. 3d 90, 93-96, 564 N.E.2d 1113 (12th
Dist.1989).
{¶ 55} The General Assembly can expressly prohibit application of local zoning
when it desires to do so and has, for example, in the case of hazardous waste facilities
approved by the OEPA. R.C. 3734.05(E). Where there is no express preemption,
however, courts have held that local zoning ordinances which do not conflict with the
general state laws and regulations are enforceable. Atwater Twp. Trustees v. B.F.I.
Willowcreek Landfill, 67 Ohio St. 3d 293, 617 N.E.2d 1089 (1993), paragraph three of
syllabus (“township may enforce its anti-nuisance zoning resolution against the operator
of a solid waste disposal site”); Set Products, Inc. (a surface mine permit does not
preempt local zoning ordinances); Osborne v. Leroy Twp., 11th Dist. Lake No.
2014-L-008, 2014-Ohio-5774, ¶ 39 (state law regulating oil and gas activities includes
construction and maintenance of roads, but it does not preempt local zoning resolutions
prohibiting the storage of road materials). The issue of whether a conflict exists is a
24.
question of law, which we review de novo. Id. at ¶ 35. Because both the authority of the
township board of trustees to enact zoning laws and the OEPA to oversee the disposal of
industrial waste are granted by the General Assembly, we presume the local zoning laws
do not conflict with environmental laws and OEPA regulations. Hulligan v. Columbia
Twp. Bd. of Zoning Appeals, 59 Ohio App. 2d 105, 107-108, 392 N.E.2d 1272 (9th
Dist.1978).
{¶ 56} Through enactment of R.C. Chapter 3745 the General Assembly
established the environmental protection agency to administer the law pertaining in
pertinent part to the “disposal and treatment of solid wastes, * * * industrial waste, and
other wastes.” R.C. 3745.01. The goal of the OEPA is to “[p]romulgate and put into
execution a long term comprehensive plan and program to conserve, protect, and enhance
the air, water, and other natural resources of the state” and to “[p]revent and abate
pollution of the environment for the protection and preservation of the health, safety,
welfare, and property of the people of the state.” R.C. 3745.011(A) and (B). The
General Assembly also created ERAC, which has exclusive jurisdiction over the orders
of the director of the OEPA. R.C. 3745.04(B); State ex rel. Rocky Ridge Development,
L.L.C., 2017-Ohio-7678, 151 Ohio St.3d, 85 N.E.3d 717, at ¶ 9.
{¶ 57} Therefore, R.C. Chapter 3745 is a general law intended for the state,
through the Ohio EPA, to preempt and solely occupy the licensing and regulating the
disposal of environmental wastes. Osnaburg Twp. Zoning Inspector v. Eslich
Environmental, Inc., 5th Dist. Stark No. 2008CA00026, 2008-Ohio-6671, ¶ 52-54, citing
25.
Village of Sheffield v. Rowland, 87 Ohio St. 3d 9, 11, 716 N.E.2d 1121 (1999); Clarke v.
Bd. of County Commrs. of Warren County, 12th App. No. CA2005-04-048, 2006-Ohio-
1271, ¶ 27, quoting Families Against Reily/Morgan Sites v. Butler Cty. Bd. of Zoning
Appeals, 56 Ohio App. 3d 90, 94, 564 N.E.2d 1113 (12th Dist.1989). However, permits
issued by the OEPA regarding solid waste disposal and sanitary landfill facilities have
been found to be subject to local zoning resolutions which do not conflict with state
environmental laws and regulations because the two laws serve different purposes.
Newbury Twp. Bd. of Twp. Trustees v. Lomak Petroleum (Ohio), Inc., 62 Ohio St. 3d 387,
391-392, 583 N.E.2d 302 (1992); Clarke; Dome Energicorp. v. Zoning Bd. of Appeals,
Olmsted Township, 8th Dist. Cuyahoga No. 50554, 1986 WL 7716, *3 (July 10, 1986);
City of Garfield Hts. v. Williams, 10th Dist. Franklin Nos. 77AP-449 to 77AP-484, 1977
WL 200442, *4 (Sept. 29, 1977).
{¶ 58} The test for determining whether a conflict exists between a township’s
zoning resolution and R.C. Chapter 3714 is “whether the ordinance permits or licenses
that which the statute forbids and prohibits, and vice versa.” Fondessy Enterprises, Inc.
v. Oregon, 23 Ohio St. 3d 213, 492 N.E.2d 797 (1986), paragraph two of the syllabus; and
Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 (1923), paragraph two of
the syllabus. Therefore, zoning laws which ban what general state laws allow are invalid
and unenforceable. Center Twp. Bd. of Twp. Trustees v. Valentine, 6th Dist. Wood No.
WD-99-065, 2000 WL 1675511, *2 (Nov. 9, 2000); Perry v. Providence Twp., 63 Ohio
App.3d 377, 380-381, 578 N.E.2d 886 (6th Dist.1991).
26.
{¶ 59} In the case before us, the BTZR sections relied upon do not ban blending
operations on all land classifications within the township. Benton Township argues the
blending operation is an industrial activity and, therefore, can only be conducted on the
M-3 property. Rocky Ridge argues that because the LAMP permit allows the blending
operation on all of its property, the BTZR sections which would prohibit the operations
on A-3 property conflict with state law. We reject the argument of Rocky Ridge.
{¶ 60} The overall purpose of the OEPA is oversee the “disposal and treatment of
solid wastes, * * * industrial waste, and other wastes.” R.C. 3745.01. The issuance of
the LAMP permit is the process through which the OEPA ensures the disposal of wastes
complies with national standards and controls the disposal of wastes which will enter
state waters for the protection of the health of people. In this case, through the LAMP
permit, the OEPA determined how spent lime could be disposed of as a beneficial use as
general fill. Thus, the state law only governs how wastes are disposed and whether a
particular waste can be disposed of in a beneficial manner. While the LAMP permit
allows the use of the blended spent lime/soil mixture as general fill on this agricultural-
zoned property, there is no statute which requires that this type of general fill be placed
on agricultural-zoned property. Thus the LAMP permit governs proper disposal of the
spent lime, while the BTZR zoning classifications and restrictions regulate land use for
the health, welfare, and safety of the community. Therefore, we conclude that there is no
conflict between the BTZR sections at issue and general state law. Appellant’s first
assignment of error is not well-taken.
27.
{¶ 61} Having found that the trial court did not commit error prejudicial to
appellant and that substantial justice has been done, the judgments of the Ottawa County
Court of Common Pleas are affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Thomas J. Osowik, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
28.