[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/.




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