[Cite as Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885.]


                                       COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


THE BOARD OF TOWNSHIP                                :      JUDGES:
TRUSTEES SHARON TOWNSHIP                             :
                                                     :
                                                     :      Hon. William B. Hoffman, P.J.
                        Plaintiff-Appellant          :      Hon. Sheila G. Farmer, J.
                                                     :      Hon. Patricia A. Delaney, J.
-vs-                                                 :
                                                     :      Case No. 11-CA-45
JAMES ZEHRINGER, DIRECTOR,                           :
OHIO DEPARTMENT OF                                   :
AGRICULTURE                                          :
                                                     :
                                                     :
                       Defendant-Appellee            :      OPINION



CHARACTER OF PROCEEDING:                                 Appeal from the Licking County Court of
                                                         Common Pleas, Case No. 11 CV 0060


JUDGMENT:                                                AFFIRMED



DATE OF JUDGMENT ENTRY:                                  December 28, 2011



APPEARANCES:

For Appellant:                                              For Appellee:

DEAN HOLMAN                                                 MICHAEL DEWINE
Medina County Prosecutor                                    Ohio Attorney General

TOM J. KARRIS                                               JAMES R. PATTERSON
BRIAN M. RICHTER                                            8995 E. Main St.
72 Public Square                                            Reynoldsburg, Ohio 43068
Medina, Ohio 44256
[Cite as Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885.]


Delaney, J.

        {¶1} Plaintiff-Appellant the Board of Township Trustees of Sharon Township

(the “Board”) appeals the April 13, 2011 decision of the Licking County Court of

Common Pleas to dismiss the Board’s complaint for Declaratory Judgment.

Defendant-Appellee is James Zehringer, Director, Ohio Department of Agriculture.

                           STATEMENT OF THE FACTS AND CASE

        {¶2} Ohio Revised Code 905.40 charges the Director, Ohio Department of

Agriculture (“ODA”) with the duty of promulgating rules for the regulation and storage

of fertilizer. Anhydrous ammonia is a nitrogen fertilizer. F. Bruce Simmons, the owner

of a farm in Medina County, Ohio, applied to the Ohio Department of Agriculture

(“ODA”) for approval to install a 12,000 gallon anhydrous ammonia storage tank

pursuant to Ohio Adm.Code 901:5-3.

        {¶3} Ohio Adm.Code 901:5-3, Stationary Ammonia Systems, establishes the

process for which a stationary ammonia system may be constructed and operated.

Under Ohio Adm.Code 901:5-3-02, no person shall construct a new stationary

ammonia system before the ODA approves the location and design of the system; nor

shall a person operate a stationary ammonia system before the ODA approves the

system as to design, construction, and operation. Ohio Adm.Code 901:5-3-02(A)(1)

and (2).       Ohio Adm.Code 901:5-3-03 to 901:5-3-14 delineate the established

specifications for a stationary ammonia system. If an ODA inspection determines the

location and construction of the stationary anhydrous ammonia system conforms to

the requirements, the ODA will issue a permit to operate the tank. Ohio Adm.Code

901:5-3-02(B).
Licking County, Case No. 11-CA-45                                                      3


       {¶4} In response to Simmons’s application, the ODA determined the location

of the anhydrous ammonia tank met the code requirements and issued a permit for

installation of the tank on the farm. The ODA agreed to give the Board of Township

Trustees, Sharon Township (“the Board”) prior notice of its final approval of the tank

before the tank could go into operation. The ODA gave the Board notice that it was

going to give final approval for the tank operation.

       {¶5} On January 13, 2011, the Board filed a Declaratory Judgment action with

the Licking County Court of Common Pleas against the ODA. In its complaint, the

Board requested a temporary, preliminary, and permanent injunction.            The Board

sought to enjoin the ODA “from approving and permitting the installation of new

permanent on-site storage tanks for anhydrous ammonia on farms and specifically the

Simmons’s tank until the ODA established regulations which would reasonably protect

the health, safety, and welfare of people and property which can be reasonably

foreseen to be exposed to the toxic and deadly effect of an uncontrolled release of this

dangerous material, anhydrous ammonia.”         (Appellant’s Brief, p. 2-3).   The ODA

agreed not to consider final approval of the operation of the Simmons’s tank during the

pendency of the trial court proceedings.

       {¶6} On February 8, 2011, the ODA filed a Motion to Dismiss Complaint under

Civ.R. 12(B)(1) and (6). In its motion, the ODA argued 1) the Board lacked legal

standing as a matter of law and 2) the Complaint failed to state any legally recognized

claim for relief against the ODA.

       {¶7} The trial court granted the ODA’s Motion to Dismiss Complaint on April

13, 2011. It first found the Board did not have standing to bring an action against the
Licking County, Case No. 11-CA-45                                                  4


ODA because the injury the Board claimed, injury to the public and the Township if

there was an ammonia leak, was too speculative.        It then found that the Board’s

argument that the ODA regulations for anhydrous ammonia were insufficient was not

based on any rule of law or procedure capable of judicial review.

      {¶8} It is from this decision the Board now appeals.

                             ASSIGNMENTS OF ERROR

      {¶9} The Board raises three Assignments of Error:

      {¶10} “I. THE TRIAL COURT ERRED IN FINDING THAT THE INJURIES TO

THE    BOARD     OF    TOWNSHIP       TRUSTEES,      SHARON         TOWNSHIP   WERE

INSUFFICIENT TO CONFER STANDING TO BRING THE SUIT AGAINST THE

DEFENDANT.

      {¶11} “II. THE TRIAL COURT ERRED IN FINDING THAT THE BOARD OF

TOWNSHIP TRUSTEES, SHARON TOWNSHIP FAILED TO STATE A CLAIM UPON

WHICH RELIEF CAN BE GRANTED WHEN THE CLAIM IS THAT THE

REGULATIONS       OF    THE    OHIO     DEPARTMENT        OF   AGRICULTURE      ARE

UNREASONABLE BY INSUFFICIENTLY PROTECTING THE HEALTH, SAFETY,

AND WELFARE OF THE CITIZENS OF SHARON TOWNSHIP AND THE GENERAL

PUBLIC AND DOES THEREBY IMPOSE AN UNDUE BURDEN UPON THE

PLAINTIFF BY COMPELLING IT TO TAKE EXTRAORDINARY MEASURES TO

FULFILL ITS DUTIES TO PROTECT THE SAFETY OF THE CITIZENS OF SHARON

TOWNSHIP.

      {¶12} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, BY

DISMISSING THE WITHIN ACTION WHEN AS A MATTER OF LAW, THE PLAINTIFF
Licking County, Case No. 11-CA-45                                                    5


HAS STANDING AND A CLAIM UPON WHICH RELIEF MAY BE GRANTED AND

THEREBY NOT AFFORDING THE PLAINTIFF AN OPPORTUNITY TO BE HEARD

ON QUESTIONS OF FACT.”

                                          II.

      {¶13} We address the Board’s second Assignment of Error first because it is

dispositive of this appeal.   The Board argues the trial court erred in finding their

complaint for declaratory judgment fails to state a claim upon which relief may be

granted. We disagree.

      {¶14} This matter is before the court upon a Motion to Dismiss pursuant to

Civ.R. 12(B)(6). Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de

novo. Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228, 551

N.E.2d 981 (1990). A motion to dismiss for failure to state a claim upon which relief

can be granted is procedural and tests the sufficiency of the complaint. State ex rel.

Hanson v. Guernsey County Board of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d

378 (1992). Under a de novo analysis, we must accept all factual allegations of the

complaint as true and all reasonable inferences must be drawn in favor of the

nonmoving party. Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).

      {¶15} The Board’s declaratory judgment action requested the trial court to

declare the ODA’s current regulations concerning anhydrous ammonia unreasonable,

as they do not provide sufficient protection for the health, safety, and welfare of the

citizens of Sharon Township. The Board alleges anhydrous ammonia is a highly toxic

substance and the ODA regulations promulgated under R.C. 905.40 are insufficient to

protect the public if there was a release of the chemical into the atmosphere. The
Licking County, Case No. 11-CA-45                                                      6


complaint further requested temporary and permanent injunctive relief to enjoin the

ODA from approving the use of, or continuing the use of, any permanent anhydrous

ammonia storage tank on farms until regulations were put into place to protect the

citizens of Sharon Township.

      {¶16} We previously stated the purpose of declaratory relief in Osnaburg Twp.

Zoning Inspector v. Eslich Environmental Inc., 5th Dist. No. 2008CA00026, 2008-Ohio-

6671, ¶45:

      {¶17} “While the statute governing declaratory judgment actions ‘grants the

general authority to test the construction of a law, there must exist a justiciable issue

for declaratory relief to ensue.’ State ex rel. Bolin v. Ohio Environmental Protection

Agency (1992), 82 Ohio App.3d 410, 415, 612 N.E.2d 498.               In order to grant

declaratory relief, there must exist ‘a real and substantial controversy admitting of

specific relief through a decree of a conclusive character, as distinguished from an

opinion advising what the law would be upon a hypothetical state of facts.’ Bilyeu v.

Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35, 37, 65 O.O.2d 179, 303 N.E.2d 871,

quoting Aetna Life Ins. Co. v. Haworth (1937), 300 U.S. 227, 241, 57 S.Ct. 461, 81

L.Ed. 617.”

      {¶18} With the purpose of declaratory relief in consideration, we review the

Civ.R. 12(B)(6) motion to dismiss.

      {¶19} The General Assembly vested the Director of the ODA with the authority

to adopt and enforce uniform rules concerning the use of anhydrous ammonia. R.C.

905.40 states:
Licking County, Case No. 11-CA-45                                                           7


         {¶20} “The director of agriculture may promulgate, adopt, and enforce uniform

rules:

         {¶21} “(A) Governing the storing and handling of fertilizers;

         {¶22} “(B) For safety in design, construction, location, installation, or operation

of equipment for storing, handling, transporting, and utilizing anhydrous ammonia, or

other solutions for use as agricultural fertilizers;

         {¶23} “(C) To prohibit the reselling or reuse of such containers without

authorization by the owner thereof;

         {¶24} “(D) Requiring that guaranteed analysis be stated in a form other than

that defined in section 905.31 of the Revised Code when another form will not impose

an economic hardship on manufacturers, distributors, and users of fertilizer by reason

of conflicting labeling requirements among the states.”

         {¶25} The regulations for the use of Stationary Ammonia Systems are found in

Ohio Adm.Code 901:5-3.

         {¶26} R.C. 905.501 prohibits any local regulation of fertilizers.     The statute

states, “[n]o political subdivision shall regulate the registration, packaging, labeling,

sale, storage, distribution, use, or application of fertilizer, or require a person licensed

or registered under sections 905.31 to 905.99 of the Revised Code to obtain a license

or permit to operate in a manner described in those sections, or to satisfy any other

condition except as provided by a statute or rule of this state or of the United States.”

         {¶27} The Board states the current ODA regulations do not permit the Board to

fulfill its duties as required by R.C. 505.37. R.C. 505.37(A) states in pertinent part,

“[t]he board of township trustees may establish all necessary rules to guard against
Licking County, Case No. 11-CA-45                                                         8


the occurrence of fires to protect property and lives of citizens against damage and

accidents * * *.” The Board’s request for declaratory relief is based on the argument

the ODA regulations are insufficient to prepare the emergency responders of Sharon

Township to react to an ammonia leak and to protect the citizens of Sharon Township

from an ammonia leak. The Board contends R.C. 905.40 places a mandatory duty

upon the ODA to implement reasonable rules for the regulation of anhydrous ammonia

so that the Board can meet its duties under R.C. 505.37.

       {¶28} Upon our de novo review of the Board’s arguments, we agree with the

trial court’s conclusion the Board’s action fails to state a claim capable of relief. As the

trial court noted, the Board does not allege the ODA regulations were adopted in

violation of R.C. Chapter 119.       The Board does not assert the regulations are

unconstitutional. The Board’s argument is the ODA has failed to meet its statutory

duty under R.C. 905.40 to promulgate rules because the administrative regulations are

insufficient to protect the citizens of Sharon Township from the dangers of an

ammonia leak.

       {¶29} R.C. 905.40 states, “the director of agriculture may promulgate, adopt,

and enforce uniform rules.” (Emphasis added.) The Board contends this language is

mandatory. The ODA states this language is discretionary. When assessing statutory

language, it is necessary to consider the intent of the General Assembly.

“Determining this intent requires us to read words and phrases in context and construe

them in accordance with rules of grammar and common usage.” State ex rel. Russell

v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, 856 N.E.2d 966, ¶ 11. The Ohio

Supreme Court stated in Natl. City Bank v. Beyer, 89 Ohio St.3d 152, 729 Ohio N.E.2d
Licking County, Case No. 11-CA-45                                                      9

711 (2000): “’[U]sage of the term ‘may’ is generally construed to render optional,

permissive, or discretionary the provision in which it is embodied.’ (Emphasis added.)

State ex rel. Niles v. Bernard (1978), 53 Ohio St.2d 31, 34, 7 O.O.3d 119, 120–121,

372 N.E.2d 339, 341.” (Emphasis sic.) In this case, we find the use of the word “may”

is discretionary in nature, rather than mandatory.

       {¶30} Administrative rules are designed to accomplish the ends sought by the

legislation enacted by the General Assembly. State ex rel. Am. Legion Post 25 v.

Ohio Civ. Rights Comm., 117 Ohio St.3d 441, 2008-Ohio-1261, 884 N.E.2d 589, ¶14

citing Carroll v. Dept. of Adm. Servs., 10 Ohio App.3d 108, 110, 460 N.E.2d 704 (10th

Dist. 1983). “Rules promulgated by administrative agencies are valid and enforceable

unless unreasonable or in conflict with statutory enactments covering the same

subject matter.” Id. citing State ex rel. Curry v. Indus. Comm., 58 Ohio St.2d 268, 269,

389 N.E.2d 1126 (1979).

       {¶31} In this case, the ODA has promulgated administrative regulations for the

use of anhydrous ammonia. However, the Board’s contention is the rules are not

sufficient to protect the citizens of Sharon Township from a possible ammonia leak.

Within the parameters of established statutory regulations and case law, this Court

cannot find support for the Board’s claims the ODA is in violation of its statutory duty

to promulgate rules for the use of anhydrous ammonia. In a declaratory judgment

action there must exist a real and substantial controversy that is capable of admitting

specific and conclusive relief. If the Board’s request for declaratory relief is taken to

its logical conclusion, it would be tantamount to judicial legislation.
Licking County, Case No. 11-CA-45                                                     10


      {¶32} We can find no justiciable controversy and therefore the Board has failed

to state a claim that is capable of relief. We find no error in granting the ODA’s motion

to dismiss under Civ.R. 12(B)(6).

      {¶33} The Board’s second Assignment of Error is overruled.

                                           I.

      {¶34} The Board argues in its first Assignment of Error the trial court erred in

its determination that the Board lacked standing to pursue its claims against the ODA.

Based on our disposition of the second Assignment of Error, we find it unnecessary to

reach the first Assignment of Error.

                                           III.

      {¶35} The Board’s third Assignment of Error is a reiteration of the first and

second Assignments of Error.        For the reasons stated in the first and second

Assignments of Error, we overrule the Board’s third Assignment of Error.

      {¶36} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.

Hoffman, P.J. and

Farmer, J. concur.


                                        HON. PATRICIA A. DELANEY



                                        HON. WILLIAM B. HOFFMAN



                                        HON. SHEILA G. FARMER
[Cite as Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885.]


              IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT

THE BOARD OF TOWNSHIP                                :
TRUSTEES SHARON TOWNSHIP                             :
                                                     :
                                                     :
                        Plaintiff-Appellant          :
                                                     :
-vs-                                                 :    JUDGMENT ENTRY
                                                     :
JAMES ZEHRINGER, DIRECTOR,                           :
OHIO DEPARTMENT OF                                   :
AGRICULTURE                                          :
                                                     :
                                                     :    Case No. 11-CA-45
                       Defendant-Appellee            :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                                 HON. PATRICIA A. DELANEY



                                                 HON. WILLIAM B. HOFFMAN



                                                 HON. SHEILA G. FARMER
