[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Rocky Ridge Dev., L.L.C. v. Winters, Slip Opinion No. 2017-Ohio-7678.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2017-OHIO-7678
THE STATE EX REL. ROCKY RIDGE DEVELOPMENT, L.L.C., ET AL. v. WINTERS,
                                            JUDGE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Rocky Ridge Dev., L.L.C. v. Winters, Slip Opinion
                                   No. 2017-Ohio-7678.]
Prohibition—Writ sought to prevent judge from ruling in case seeking declaratory
        judgment and injunction—Writ granted as to issues over which
        Environmental Review Appeals Commission has exclusive jurisdiction—
        Writ denied as to all claims involving township’s local ordinances or
        allegations of public nuisance.
    (No. 2017-0321—Submitted June 6, 2017—Decided September 21, 2017.)
                                      IN PROHIBITION.
                                    ________________
        Per Curiam.
        {¶ 1} Relators, Rocky Ridge Development, L.L.C., and Custom Ecology of
Ohio, Inc., d.b.a. Stansley Industries, Inc., seek a writ of prohibition against
                             SUPREME COURT OF OHIO




respondent, Ottawa County Common Pleas Court Judge Bruce Winters. We grant
the writ in part.
                                   I. Background
        {¶ 2} On November 13, 2014, the Ohio Environmental Protection Agency
(“OEPA”) approved a Land Application Management Plan (“LAMP”) permitting
Stansley to use spent lime in a soil blend as general fill to increase elevation and
improve drainage on its property. The permit was issued “[p]ursuant to the
authority of the Director under ORC Chapter 6111,” which governs water pollution.
OEPA issued a second LAMP permit on February 14, 2017, expressly modifying
and superseding the first. The new permit added Rocky Ridge as a permittee,
modified certain conditions that OEPA had imposed on the operation, and specified
the property on which the fill operations were authorized.
        {¶ 3} On February 23, 2017, Benton Township filed a complaint for
declaratory and injunctive relief against Rocky Ridge and Stansley in Ottawa
County Common Pleas Court. Benton Township alleged that the companies were
violating the terms of the LAMP, were in violation of Benton Township local
zoning ordinances and state law, and were creating a public nuisance.
        {¶ 4} On February 23, 2017, Judge Winters issued a temporary restraining
order against Rocky Ridge and Stansley. The order enjoined them “from operating
in Benton Township until and unless they are in compliance with the Benton
Township Zoning Resolution and the laws of the State of Ohio.” Specifically, the
actions prohibited by the temporary restraining order


        include[] but [are] not limited to the digging of a borrow pit and/or
        constructing a farm pond, spreading, burying or mixing of waste,
        removing topsoil where such removal is a conditional use, changing
        the drainage of the property, placing any material into waters of the




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                                January Term, 2017




       state and/or otherwise violating the zoning laws of Benton
       Township.


       {¶ 5} On March 6, 2017, Rocky Ridge and Stansley (collectively, “Rocky
Ridge”) commenced this original action for a writ of prohibition against Judge
Winters. This court denied their motion for an emergency stay and issued an
expedited alternative writ. 148 Ohio St.3d 1422, 2017-Ohio-902, 71 N.E.3d 295.
This court imposed an expedited briefing schedule, id., which the parties modified
by agreement. The matter is now fully briefed.
                                 II. Legal analysis
       {¶ 6} A writ of prohibition is an extraordinary remedy that is granted in
limited circumstances “with great caution and restraint.” State ex rel. Corn v.
Russo, 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). There are three elements
necessary for a writ of prohibition to issue: the actual or imminent exercise of
judicial power, the lack of authority for the exercise of that power, and the lack of
an adequate remedy in the ordinary course of law. State ex rel. Elder v. Camplese,
144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. But if the trial judge’s
lack of jurisdiction is patent and unambiguous, prohibition will lie notwithstanding
the availability of an adequate remedy by way of appeal. State ex rel. Vanni v.
McMonagle, 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 6.
       {¶ 7} Rocky Ridge’s demand for a writ of prohibition rests upon two
concepts. The first is exclusive original subject-matter jurisdiction: a writ of
prohibition will issue to prevent a trial court from exercising jurisdiction over
matters expressly delegated to an administrative agency. See State ex rel. Dir.,
Ohio Dept. of Agriculture v. Forchione, 148 Ohio St.3d 105, 2016-Ohio-3049, 69
N.E.3d 636, ¶ 29 (writ of prohibition issued because the director of agriculture has
exclusive jurisdiction to seize or quarantine dangerous wild animals). Rocky Ridge
contends that prohibition is appropriate in this case because the matters before




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                             SUPREME COURT OF OHIO




Judge Winters fall within the exclusive statutory jurisdiction of the Environmental
Review Appeals Commission (“ERAC”).
       {¶ 8} Alternatively, Rocky Ridge relies on the concept of preemption: a
municipal ordinance must yield to a state statute if the ordinance is an exercise of
the police power, the state statute is a general law, and the ordinance is in conflict
with the statute. State ex rel. Morrison v. Beck Energy Corp., 143 Ohio St.3d 271,
2015-Ohio-485, 37 N.E.3d 128, ¶ 15. According to Rocky Ridge, the general state
statutory scheme for OEPA regulation of natural resources preempts the conflicting
local ordinances.
                      A.      Exclusive statutory jurisdiction
       {¶ 9} ERAC “has exclusive original jurisdiction over any matter that may,
under this section, be brought before it.” R.C. 3745.04(B). The question is, what
matters may be brought before ERAC? This court has issued a writ of prohibition
to prevent a common pleas court from exercising jurisdiction over an action for
declaratory and injunctive relief regarding the OEPA director’s application of
certain regulations to the plaintiff’s foundry. State ex rel. Williams v. Bozarth, 55
Ohio St.2d 34, 36-37, 377 N.E.2d 1006 (1978). We noted that under R.C. 3745.04,
ERAC has exclusive jurisdiction to review an action of the OEPA director. Id. at
37. “Action” is defined in R.C. 3745.04(A) as including the issuance of a permit.
       {¶ 10} Without question, some of the allegations in the Benton Township
complaint directly challenge the wisdom of the LAMP permit and therefore fall
squarely within the jurisdiction of ERAC. For example, the township claims that
the LAMP was issued to an improper party, that Rocky Ridge is violating the
express terms of the LAMP, and that Rocky Ridge is conducting operations in
violation of state law. These allegations all directly challenge the validity of the
LAMP or Rocky Ridge’s compliance with the LAMP and so fall under ERAC’s
exclusive jurisdiction. Warren Molded Plastics, Inc., v. Williams, 56 Ohio St.2d




                                          4
                                      January Term, 2017




352, 384 N.E.2d 253 (1978) (common pleas court lacked jurisdiction to hear
constitutional challenge to OEPA director’s regulation).
         {¶ 11} Judge Winters patently and unambiguously lacks jurisdiction to
consider these matters, and so we hereby issue a writ of prohibition as to these
allegations.
                         B. Preemption of local zoning ordinances
         {¶ 12} The underlying lawsuit alleged that Rocky Ridge has violated the
Benton Township Zoning Resolution in at least four1 ways:
(1)      The Zoning Resolution requires a zoning certificate from the Board of
         Zoning before removing topsoil from an A-3 Agricultural area. Part of the
         Rocky Ridge property is zoned A-3, and operations have commenced
         without the required permit.
(2)      A conditional permit is also required before using property zoned M-3
         Manufacturing for waste disposal. Rocky Ridge has commenced waste
         disposal on M-3 Manufacturing property without a permit.
(3)      Section 103.7 of the Benton Township Zoning Resolution forbids dumping
         or spreading of sewage or industrial waste within the jurisdiction. Rocky
         Ridge has disposed of industrial waste at its property.2
(4)      Section 103.8 of the Zoning Resolution forbids landfills for solid-waste
         disposal or other waste material within the jurisdiction. Rocky Ridge has
         disposed of solid waste on its property.
Rocky Ridge asserts that state law preempts all these local ordinances, meaning
that ERAC has exclusive jurisdiction and Judge Winters has no jurisdiction.3

1
  Paragraph 51 of the complaint charges Rocky Ridge with violating seven additional sections of
the Zoning Resolution, but the complaint provides no explanation of the nature of the violations.
2
  Benton Township withdrew its claims based on Section 103.7 at the hearing on the temporary
restraining order.
3
  It is notable that the original LAMP expressly provided that “[i]ssuance of this permit does not
relieve Stansley of the duty to comply with all applicable federal, state, and local laws, ordinances,
and regulations, except as specifically exempted herein.” But when OEPA issued the modified




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                                 SUPREME COURT OF OHIO




        {¶ 13} The doctrine of preemption under state law is narrower than its
federal counterpart. State law is preempted when Congress intends federal law to
occupy the field, even if there is no direct conflict between the state and federal
rules. See Crosby v. Natl. Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct.
2288, 147 L.Ed.2d 352 (2000). Under state law, by contrast, a local ordinance is
preempted only when a general law of the state directly conflicts with it. Morrison,
143 Ohio St.3d 271, 2015-Ohio-485, 37 N.E.3d 128, at ¶ 24. “A conflict exists if
‘the ordinance permits or licenses that which the statute forbids and prohibits, or
vice versa.’ ” Id., quoting Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519
(1923), paragraph two of the syllabus.
        {¶ 14} Assuming (without deciding) that Benton Township’s zoning
regulations are preempted, we nevertheless decline to grant a writ of prohibition on
that basis, because preemption does not create a jurisdictional defect in the trial
court. By way of example, Morrison, our most recent pronouncement on state/local
preemption, was not a prohibition case. Rather, the trial court ruled on the
enforceability of the local ordinances, and the case proceeded through the normal
avenues of appeal on the merits. Likewise, the cases cited in Morrison regarding
home-rule preemption were not prohibition cases. See, e.g., Mendenhall v. Akron,
117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255 (certified question of state law
stemming from federal action challenging city’s use of traffic cameras); State ex
rel. Mill Creek Metro. Park Dist. Bd. of Commrs. v. Tablack, 86 Ohio St.3d 293,
714 N.E.2d 917 (mandamus action against county officials).
        {¶ 15} We hold that in a case alleging preemption of local zoning
ordinances due to conflict with state law, the trial court has jurisdiction to determine
whether such a conflict exists. Preemption is not a question committed to the


LAMP, it imposed a duty to conduct activities “in compliance with all applicable state and federal
laws and regulations pertaining to environmental protection,” deleting the reference to local
ordinances and regulations.




                                                6
                                 January Term, 2017




exclusive jurisdiction of ERAC, as Rocky Ridge assumes. We therefore deny the
requested writ as to any claims based on violations of the Benton Township Zoning
Resolution.
                                    C. Nuisance
         {¶ 16} Lastly, Benton Township’s complaint alleges that operations at the
site are causing various nuisances by, among other things, excavating the land down
to bedrock, thereby endangering groundwater and well water, spilling industrial
waste onto roadways (creating slippery and hazardous road conditions), and
causing erosion and flooding on adjacent properties
         {¶ 17} Here again, Rocky Ridge asserts that ERAC has exclusive
jurisdiction to consider these complaints. But we see no statutory support for that
claim.
         {¶ 18} To the contrary, the Revised Code expressly preserves the traditional
authority of the common pleas courts to hear nuisance suits.


                [R.C. Chapter 3734, governing solid and hazardous wastes,]
         does not abridge rights of action or remedies in equity, under
         common law, or as provided by statute or prevent the state or any
         municipal corporation or person in the exercise of their rights in
         equity, under common law, or as provided by statute to suppress
         nuisances or to abate or prevent pollution.


R.C. 3734.10. Citing that statute, we have affirmed that political subdivisions may
seek injunctive relief against licensed waste facilities “in the narrow areas of
nuisance and pollution prevention and abatement.” Atwater Twp. Trustees v. B.F.I.
Willowcreek Landfill, 67 Ohio St.3d 293, 296, 617 N.E.2d 1089 (1993).
         {¶ 19} This is not to suggest that the law of nuisance will always and
automatically enable localities to circumvent the jurisdiction of ERAC or shut down




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                                SUPREME COURT OF OHIO




state-licensed facilities. At least one intermediate appellate court has held that
although a political subdivision may seek an injunction in common pleas court
when a solid-waste-disposal facility creates a nuisance by violating the terms of its
permit, it cannot seek relief if the facility is acting within the terms of its permit,
even if in doing so the facility creates what the political subdivision deems to be a
nuisance. Bates v. GSC Principals, 6th Dist. Lucas No. L-07-1185, 2008-Ohio-
2211, ¶ 18, 21. In other words, at least in the view of the Sixth District, the common
pleas court lacked jurisdiction because a licensed facility acting within the scope of
its permit, by definition, cannot be a nuisance.
       {¶ 20} The viability of the Bates distinction is beyond the scope of this case.
Rocky Ridge has not proved that the nuisances alleged by Benton Township are the
unavoidable consequence of normal licensed operations. We are therefore not
compelled to decide whether that is a legally relevant distinction. For present
purposes, it is sufficient to say that Judge Winters does not patently and
unambiguously lack jurisdiction to determine whether the alleged nuisances are a
result of permissible operations or a consequence of Rocky Ridge breaching the
conditions in its LAMP, that Rocky Ridge has an adequate remedy by way of appeal
from any decision he renders, and that a writ of prohibition as to the nuisance claims
is not proper on this record.
                                    III. Conclusion
       {¶ 21} For the foregoing reasons, we hereby grant a limited writ of
prohibition to prevent Judge Winters from deciding any issues that properly belong
to ERAC, such as the wisdom or propriety of issuing the LAMP or Rocky Ridge’s
compliance with the LAMP. However, we deny 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.
                                                                  Writ granted in part
                                                                   and denied in part.




                                           8
                               January Term, 2017




       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
                              _________________
       Eastman & Smith, Ltd., Reginald S. Jackson Jr., Barry W. Fissel, Matthew
D. Harper, and Brian P. Barger, for relator Rocky Ridge Development, L.L.C.
       Goranson, Parker & Bella Co., L.P.A., and Christopher F. Parker, for relator
Custom Ecology of Ohio, Inc., d.b.a. Stansley Industries, Inc.
       James J. VanEerten, Ottawa County Prosecuting Attorney; and Baker &
Hostetler, L.L.P., Richard M. Knoth, James H. Rollinson, and Douglas L. Shively,
for respondent.
                              _________________




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