[Cite as Cherry Lane Dev., L.L.C. v. Walnut, C & DD, L.L.C., 2012-Ohio-3558.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                                    :      JUDGES:
CHERRY LANE DEVELOPMENT,                            :      W. Scott Gwin, P.J.
LLC, et al.,                                        :      Sheila G. Farmer, J.
                                                    :      Julie A. Edwards, J.
                     Plaintiffs-Appellants          :
                                                    :      Case No. 2011CA00046 &
-vs-                                                :               2011CA00048
                                                    :
                                                    :
WALNUT, C & DD, LLC, et al.,                        :      OPINION

                  Defendants-Appellees




CHARACTER OF PROCEEDING:                                     Civil Appeal from Fairfield County
                                                             Court of Common Pleas Case No.
                                                             09CV774

JUDGMENT:                                                    Dismissed

DATE OF JUDGMENT ENTRY:                                      August 3, 2012

APPEARANCES:

For Plaintiffs-Appellants                                    For Defendants-Appellees Jerry
                                                             Mock, Barbara Mock, and Walnut C &
                                                             DD, LLC

TODD D. PECHAR                                               D. JOE GRIFFITH
DANIEL J. FRUTH                                              CARRIE SNOKE LOTT
CHARLES M. ELSEA                                             Dagger, Johnston, Miller,
Stebelton, Aranda & Snider                                   Ogilvie & Hampson
109 N. Broad Street, Suite 200                               144 East Main Street
Lancaster, Ohio 43130                                        P.O. Box 667
                                                             Lancaster, Ohio 43130
For Defendants-Appellants
Walnut Township, et al.              MICHAEL A. CYPHERT
                                     Walter & Haverfield, LLP
STEVEN A. DAVIS                      The Tower at Erieview
Crabbe, Brown & James, LLP           1301 East Ninth Street, Suite 3500
111 South Broad Street, Suite 209    Cleveland, Ohio 44114-1821
Lancaster, Ohio 43130

LAURA MACGREGOR COMEK                For Amicus Curiae State of Ohio
Crabbe, Brown & James, LLP
500 South Front Street, Suite 1200   MICHAEL DEWINE
Columbus, Ohio 43215                 Attorney General of Ohio

                                     ROBERT C. MOORMANN
                                     Counsel of Record
                                     NICHOLAS J. BRYAN
                                     Assistant Attorneys General
                                     30 East Broad Street, 17th Floor
                                     Columbus, Ohio 43215
[Cite as Cherry Lane Dev., L.L.C. v. Walnut, C & DD, L.L.C., 2012-Ohio-3558.]


Edwards, J.

        {¶1}    Appellants, Walnut Township, the Walnut Township Zoning Commission,

Ralph Reeb, Ralph Zollinger, Allen Dupler, Pauline Ety and Walter Gabriel (collectively

“Walnut Township”) appeal a judgment of the Fairfield County Common Pleas Court

finding Walnut Township Zoning Resolution 15-08 to be in conflict with Ohio law (Case

No. 2011CA00046). Appellants Cherry Lane Development, LLC, Ronald DiPaolo and

Irene Dipaolo (collectively “DiPaolos”) appeal the same judgment (Case No.

2011CA00048). Appellees are Walnut C&DD, LLC, Barbara S. Mock and Jerry L. Mock

(collectively “Mocks”).         Case No. 2011CA00046 and Case No. 2011CA00048 are

consolidated for purposes of opinion only.

                                   STATEMENT OF FACTS AND CASE

        {¶2}    The Mocks own 65.9 acres in Walnut Township.                    Cherry Lane owns

property lying north of and contiguous to the Mocks’ property.                  Ronald and Irene

DiPaolo are members of Cherry Lane Development, LLC.

        {¶3}    In February of 2008, the Mocks applied to the township to change the

zoning of their property from I-1 (light industrial) to I-2 (general industrial). The Walnut

Township Zoning Commission set the matter for public hearing on March 6, 2008. The

DiPaolos attended the hearing with their attorney. At the hearing, the Mocks explained

that they were currently operating a roll-off trash container business, a stone yard and a

recycling business on their property, and wanted to split off three lots and sell them to

businesses that needed I-2 zoning in order to operate on the property. The DiPaolos

objected to the rezoning, notified the Commission that the Mocks had contacted the

EPA that week about constructing a demolition landfill, and presented a petition
Fairfield County App. Case No. 2011CA00046 & 2011CA00048                             3


containing 27 signatures of neighboring landowners who opposed the rezoning. The

DiPaolos believed that the Mocks were attempting to have their property rezoned in

order to construct a construction and demolition debris (C&DD) landfill next to the

Cherry Lane Development, which would diminish the value of the DiPaolos’ property.

      {¶4}   At the conclusion of the hearing, the Commission chose not to make a

recommendation because it had not yet received the Regional Planning Commission’s

recommendation. The Zoning Commission tabled the matter until it’s April 3, 2008,

meeting.

      {¶5}   The Regional Planning Commission met on April 1, 2008, for a public

hearing on the Mocks request for rezoning. The DiPaolos were present at this meeting

and voiced their objections.     The Regional Planning Commission recommended

approval of the zoning change.

      {¶6}   The Zoning Commission met on April 3, 2008, read the Regional Planning

Commission’s recommendation into the record, and passed a motion recommending

that the Board of Trustees adopt the zoning change.

      {¶7}   On April 8, 2008, the Walnut Township Trustees met in regular session,

received the recommendation of the Zoning Commission and set a public hearing for

April 22, 2008. The trustees convened as planned on April 22, 2008, but rescheduled

the hearing for May 6, 2008, because the notices publicizing the hearing failed to

comply with R.C. 519.12(F).      Notice of the May 6, 2008, hearing was mailed to

neighboring property owners, including Cherry Lane Development, and published in the

newspaper.
Fairfield County App. Case No. 2011CA00046 & 2011CA00048                                 4


       {¶8}     At the May 6, 2008, hearing, the DiPaolos once again vehemently

objected to the zoning change. The township trustees approved the zoning change in

Resolution 15-08.

       {¶9}     On December 11, 2008, Walnut C&DD, LLC, a company owned by the

Mocks, obtained a site specific license to operate a C&DD facility on their property from

the Fairfield Department of Health, acting on behalf of the Ohio Environmental

Protection Agency. Such a facility is permissible in an area zoned I-2, but not in an area

zoned I-1. The license has been renewed yearly.

       {¶10} The DiPaolos brought the instant action on June 11, 2009, in the Fairfield

County Common Pleas Court challenging the procedure used by the Township in

adopting the zoning change. They sought a declaration that the new Zoning Resolution

was null and void, and a writ of mandamus ordering the township to enforce the old

Zoning Resolution with respect to the Mocks’ property.           They also sought both

preliminary and permanent injunctions to prevent the Mocks from constructing a C&DD

facility on their property and to prevent the township and its agents from issuing licenses

or permits in accordance with Resolution 15-08.

       {¶11} The Mocks filed counterclaims against the DiPaolos and cross-claims

against the Township. They further filed third party complaints against the trustees

individually.

       {¶12} On April 26, 2010, the trial court found that Resolution 15-08 was null and

void because the township failed to comply with R.C. 519.12 and its own Zoning

Resolution in adopting the change.
Fairfield County App. Case No. 2011CA00046 & 2011CA00048                              5


       {¶13} The Mocks moved the trial court for leave to amend their cross-claim

against the Township to state a claim for declaratory relief as to whether the Mocks may

operate a C&DD on the property pursuant to a state license. The court granted the

motion on March 24, 2011. Both parties filed motions for summary judgment. On

August 26, 2011, the trial court sustained the Mocks’ motion for summary judgment,

declaring that the Walnut Township Zoning Resolution as applied to the portion of the

Mocks property covered by the 2011 C&DD license was invalid and could not be

enforced, as state law preempted the zoning ordinance.

       {¶14} Walnut Township appeals the August 26, 2011, judgment, assigning the

following errors:

       {¶15} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT

WHEN IT DETERMINED THAT THE WALNUT TOWNSHIP ZONING RESOLUTION

CONFLICTS WITH OHIO REVISED CODE CHAPTER 3714 BECAUSE DEFENDANT

WALNUT STIPULATED THAT A C&DD FACILITY COULD BE LOCATED IN THE

TOWNSHIP’S I-2 INDUSTRIAL DISTRICT WHEN IT APPROVED THE REZONING.

       {¶16} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT

WHEN IT DETERMINED THE WALNUT TOWNSHIP ZONING RESOLUTION (IN

WHOLE) WAS INVALID AS APPLIED TO THE SUBJECT PROPERTY.

       {¶17} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND FACT

WHEN IT DETERMINED THAT THE DEFENDANT C&DD LANDFILL WAS IN

COMPLIANCE WITH THE PERMIT ISSUED BY THE OHIO EPA.

       {¶18} “IV. THE TRIAL COURT ERRED BY DENYING DEFENDANTS WALNUT

TOWNSHIP’S MOTION TO STAY PROCEEDINGS PENDING APPEAL.”
Fairfield County App. Case No. 2011CA00046 & 2011CA00048                                 6


        {¶19} The DiPaolos appeal the same judgment, assigning the following errors:

        {¶20} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS AUGUST

26, 2011 JUDGMENT ENTRY GRANTING DEFENDANTS’, JERRY MOCK, ET AL.,

MOTION FOR SUMMARY JUDGMENT BECAUSE NO CONFLICT EXISTS BETWEEN

THE WALNUT TOWNSHIP ZONING ORDINANCE AND THE GENERAL LAWS OF

OHIO.

        {¶21} “II. THE TRIAL COURT ERRED AS A MATER OF LAW IT [SIC] ITS

AUGUST 26, 2011 JUDGMENT ENTRY OVERRULING DEFENDANTS’, WALNUT

TOWNSHIP, ET AL., MOTION FOR SUMMARY JUDGMENT BECAUSE NO

CONFLICT EXISTS BETWEEN THE WALNUT TOWNSHIP ZONING ORDINANCE

AND THE GENERAL LAWS OF OHIO.

        {¶22} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN ITS

AUGUST 26, 2011 JUDGMENT ENTRY DISMISSING AS MOOT PLAINTIFFS’

PETITION FOR A WRIT OF MANDAMUS BECAUSE CHAPTER 3714 OF THE

REVISED CODE DOES NOT RELIEVE LOCALITIES FROM ENFORCING ZONING

ORDINANCES THAT DO NOT CONFLICT WITH THE GENERAL LAWS OF OHIO.”

        {¶23} Appellees have filed a motion to dismiss both appeals as moot, arguing

that due to the failure of appellants to obtain a stay, the landfill has been constructed

and is in operation. While we agree that the appeals are both moot, we find them to be

moot for different reasons than those urged by appellees. In Case No. 11CA00049, we

found that the trial court erred in its April 26, 2010, judgment declaring Resolution 15-08

to be null and void. Accordingly, we reinstated the resolution, pursuant to which the

Mocks property is zoned I-2, general industrial. Because a C&DD landfill is permitted in
Fairfield County App. Case No. 2011CA00046 & 2011CA00048                              7


an area zoned I-2, the zoning resolution as applied to the portion of the Mocks property

covered by the C&DD license issued by the State of Ohio is not in conflict with state

law.   The assignments of error in both cases are therefore rendered moot by our

decision in Case No. 11CA00049.

       {¶24} The appeal is dismissed.




By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                                  ______________________________



                                                  ______________________________



                                                  ______________________________

                                                              JUDGES

JAE/0501
[Cite as Cherry Lane Dev., L.L.C. v. Walnut, C & DD, L.L.C., 2012-Ohio-3558.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


CHERRY LANE DEVELOPMENT, LLC,
et al.,                                               :
                                                      :
                         Plaintiffs-Appellees         :
                                                      :
                                                      :
-vs-                                                  :       JUDGMENT ENTRY
                                                      :
WALNUT C & DD, LLC, et al.,                           :
                                                      :
                    Defendants-Appellants             :       CASE NO. 2011CA00046




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Fairfield County Court of Common Pleas is dismissed. Costs assessed to

appellants.




                                                          _________________________________


                                                          _________________________________


                                                          _________________________________

                                                                           JUDGES
              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


CHERRY LANE DEVELOPMENT, LLC,
et al.,                                     :
                                            :
                     Plaintiffs-Appellees   :
                                            :
                                            :
-vs-                                        :       JUDGMENT ENTRY
                                            :
WALNUT C & DD, LLC, et al.,                 :
                                            :
                  Defendants-Appellants     :       CASE NO. 2011CA00048




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

appeal of the Fairfield County Court of Common Pleas is dismissed. Costs assessed to

appellants.




                                                _________________________________


                                                _________________________________


                                                _________________________________

                                                             JUDGES
