[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
Free access — add to your briefcase to read the full text and ask questions with AI
[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
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