[Cite as Huth Ready Mix & Supply Co. v. Massillon, 2024-Ohio-5725.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
HUTH READY MIX AND SUPPLY JUDGES: COMPANY Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Plaintiff-Appellant Hon. Andrew J. King, J.
-vs- Case No. 2024 CA 00068 CITY OF MASSILLON
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2023 CV 00655
JUDGMENT: Affirmed in part; reversed in part
DATE OF JUDGMENT ENTRY: December 6, 2024
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
ADAM M. RUNKLE JUSTIN W. RICHARD STARKEY & RUNKLE, LLC LAW DIRECTOR 638 West Maple Street EDMOND J. MACK Hartville, Ohio 44632 ASSISTANT LAW DIRECTOR Two James Duncan Plaza, 2nd Floor Massillon, Ohio 44646 Stark County, Case No. 2024 CA 00068 2
Wise, J.
{¶1} Appellant City of Massillon appeals the May 7, 2024, decision of the Stark
County Court of Common Pleas reversing the decision of the Massillon City Council and
the Massillon Board of Zoning Appeals, which affirmed and upheld the cease-and-desist
order issued to Appellee Huth Ready Mix and Supply Company by the City of Massillon’s
Building Department Code Enforcement Division.
STATEMENT OF THE FACTS
{¶2} The facts and procedural history relevant to this appeal are as follows:
{¶3} Huth Ready Mix and Supply Company ("Huth") is a ready-mix concrete
plant in the City of Massillon ("Massillon") which has been in operation since 1959 and
pre-dated the City of Massillon adoption of a zoning code.
{¶4} On November 16, 2022, the zoning official for the City of Massillon issued
a cease-and-desist order to Huth, stating that the official had learned that second-hand
or waste concrete materials were being crushed and/or processed on Huth’s property
using a crushing machine. The order stated further that the breaking-up of concrete by
jackhammering or crushing was not a permitted use under the property's I-1 light industrial
zoning designation, nor was it a permitted prior non-conforming use, and ordered Huth to
immediately cease and desist said activities.
{¶5} On November 23, 2022, Huth filed a timely appeal of the zoning official's
cease-and-desist order with the City of Massillon’s Board of Zoning Appeals (“BZA”).
{¶6} On January 12, 2023, the BZA heard Huth’s appeal and voted unanimously
to deny the appeal and uphold the cease-and-desist order. Stark County, Case No. 2024 CA 00068 3
{¶7} The BZA's decision was memorialized with conclusions of fact during a
special meeting on February 23, 2023, with the passage of BZA Resolution 2023-2, which
was sent to Huth the following day.
{¶8} Huth filed a timely appeal of the BZA's decision to Massillon City Council.
{¶9} On March 20, 2023, Massillon City Council heard the appeal and voted to
uphold the decision of the BZA. Massillon City Council memorialized its decision and
supporting conclusions of fact with the passage of Resolution 4-2023, which was sent to
Huth on March 22, 2023.
{¶10} On April 11, 2023, Huth filed a Notice of Appeal pursuant to R.C. 2506,
appealing “Resolution Nov. [sic] 4-2023 adopted by the Massillon City Council on March
20, 2023, approving and affirming the decision of the Massillon Board of Zoning Appeals
in Case No. 2023-2 and denying the appeal”.
{¶11} On June 15, 2023, City of Massillon filed a motion to dismiss the
administrative appeal for lack of jurisdiction, arguing that Huth failed to serve the clerk of
Massillon City Council with the notice of appeal, and thus failed to properly perfect service,
thereby depriving the trial court of jurisdiction.
{¶12} On July 12, 2023, the trial court issued a Judgment Entry Granting
Defendant City of Massillon's Motion to Dismiss for lack of jurisdiction. The trial court
stated in its judgment entry that Huth failed to properly serve the City of Massillon, citing
R.C. §2505.07 and the Ohio Supreme Court case of Dudukovich v. Lorain Metropolitan
Housing Authority (1979), 58 Ohio St.2d 202, 203, in support of its decision.
{¶13} Huth appealed, and by opinion and judgment entry dated February 6, 2024,
this Court reversed. Huth Ready Mix & Supply Co. v. Massillon, 2024-Ohio-427 (5th Dist.). Stark County, Case No. 2024 CA 00068 4
{¶14} On remand, Huth's appeal proceeded as confined to the transcript without
additional evidence pursuant to R.C. §2506.03(A).
{¶15} On February 9, 2024, Huth filed its merit brief with the trial court assigning
three assignments of error. Massillon filed its response brief on March 14, 2024. Huth
replied on April 10, 2024.
{¶16} On April 17, 2024, Massillon learned that Huth had once again located a
concrete crushing machine on its property and commenced operations.
{¶17} On April 22, 2024, Massillon filed motions for temporary restraining order,
preliminary injunction, and permanent injunction with the trial court. Massillon further
requested immediate, expedited consideration.
{¶18} On April 23, 2023, the trial court overruled Massillon's motion for temporary
restraining order and scheduled a hearing on Massillon's motion for preliminary injunction
for May 3, 2024.
{¶19} On May, 1, 2024, Huth moved to continue the hearing citing a conflict with
a previously scheduled deposition in another matter. The trial court granted Huth's
requested continuance the following day and rescheduled the hearing on Massillon's
requested preliminary injunction to May 13, 2024.
{¶20} On May 7, 2024, the trial court rendered a final decision on the merits of
Huth's pending administrative appeal, accepting all three of Huth's assignments of error,
finding that "the decision of Massillon in upholding the cease and desist order in this case
was unconstitutional, illegal, arbitrary, capricious, unreasonable, and unsupported by the
preponderance of substantial, reliable and probative evidence on the whole record," and
reversing the "decision of Massillon in Resolution 4-2023" in its entirety. In a footnote, the Stark County, Case No. 2024 CA 00068 5
trial court further stated that, "[b]ased upon the Court's ruling with regard to the
Administrative Appeal, the Court finds Massillon's motion [for a restraining order,
preliminary injunction, and permanent injunction] - is moot."
{¶21} It is from this decision Appellant City of Massillon now appeals, raising the
following errors for review:
ASSIGNMENTS OF ERROR
{¶22} “I. THE TRIAL COURT COMMITTED ERROR BY REVERSING THE
DECISIONS OF CITY COUNCIL, THE BOARD OF ZONING APPEALS, AND THE
ZONING OFFICER AND SUBSTITUTING THE TRIAL COURT'S OWN JUDGMENT FOR
THAT OF THE RESPONSIBLE MUNICIPAL OFFICIALS.
{¶23} “II. THE TRIAL COURT COMMITTED ERROR BY DENYING
MASSILLON'S MOTION FOR TEMPORARY RESTRAINING ORDER WITHOUT ANY
LEGAL ANALYSIS, NOR REASONING, FOR DENYING THE MOTION.
{¶24} “III. THE TRIAL COURT COMMITTED ERROR BY DENYING
MASSILLON'S MOTION FOR A PRELIMINARY AND PERMANENT INJUNCTION AS
MOOT.”
R.C. §2506 Appeals
{¶25} R.C. §2506.04 sets forth the applicable standard of review for a court of
common pleas in an administrative appeal:
[T]he court may find that the order, adjudication, or decision is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported
by the preponderance of substantial, reliable, and probative evidence on
the whole record. Consistent with its findings, the court may affirm, reverse, Stark County, Case No. 2024 CA 00068 6
vacate, or modify the order, adjudication, or decision, or remand the cause
to the officer or body appealed from with instructions to enter an order,
adjudication, or decision consistent with the findings or opinion of the court.
The judgment of the court may be appealed by any party on questions of
law as provided in the Rules of Appellate Procedure and, to the extent not
in conflict with those rules, Chapter 2505 of the Revised Code.
{¶26} The Ohio Supreme Court further explained:
[W]e have distinguished the standard of review to be applied by
common pleas courts and courts of appeals in R.C. Chapter 2506
administrative appeals. The common pleas court considers the ‘whole
record,’ including any new or additional evidence admitted under R.C.
2506.03, and determines whether the administrative order is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported
by the preponderance of substantial, reliable, and probative evidence. See
Smith v. Granville Twp. Bd. of Trustees (1998), 81 Ohio St.3d 608, 612, 693
N.E.2d 219, * * * citing Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58
Ohio St.2d 202, 206–207, 12 O.O.3d 198, 389 N.E.2d 1113 * * *.
{¶27} Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147
(2000).
{¶28} As an appellate court, however, our standard of review to be applied in an
R.C. §2506.04 appeal is “more limited in scope.” Kisil v. Sandusky, 12 Ohio St.3d 30, 34
(1984). “This statute grants a more limited power to the court of appeals to review the
judgment of the common pleas court only on ‘questions of law,’ which does not include Stark County, Case No. 2024 CA 00068 7
the same extensive power to weigh ‘the preponderance of substantial, reliable and
probative evidence,’ as is granted to the common pleas court.” Id. at fn.4. See, also,
Health Management, Inc. v. Union Twp. Bd. of Zoning Appeals, 118 Ohio App.3d 281,
285 (1997). “It is incumbent on the trial court to examine the evidence. Such is not the
charge of the appellate court.” Lorain City School Dist. Bd. of Edn. v. State Emp. Relations
Bd., 40 Ohio St.3d 257, 261 (1988).
{¶29} Ultimately, the standard of review for appellate courts in a Section 2506
zoning appeal is whether the common pleas court abused its discretion in making its
determinations pursuant to R.C. 2506.04. See Weber v. Troy Twp. Bd. of Zoning Appeals,
2008-Ohio-1163, ¶ 13 (5th Dist.); Powers v. City of Rocky River Bd. of Zoning Appeals,
8th Dist. Cuyahoga No. 70439, (Nov. 7, 1996). Thus, the standard of review for appellate
courts in this context is “designed to strongly favor affirmance.” Frazeysburg v. Stokes,
2018-Ohio-4153, ¶ 17 (5th Dist.), citing Cleveland Clinic Foundation v. Cleveland Board
of Zoning Appeals, 2014-Ohio-4809.
{¶30} These standards permit reversal only when the common pleas court errs in
its application or interpretation of the law or its decision is unsupported by a
preponderance of the evidence as a matter of law. Cleveland Clinic Foundation, supra,
at ¶ 30.
I.
{¶31} In its first assignment of error, Appellant City of Massillon argues the trial
court erred in granting Huth’s administrative appeal. We disagree.
{¶32} R.C. §2506.04 grants a limited power to this Court to review the judgment
of the trial court. Keeping within the limited scope of review, we look to the record to Stark County, Case No. 2024 CA 00068 8
review the judgment of the common pleas court only on questions of law. Reviewing the
record for an abuse of discretion, and without weighing the evidence, this Court is required
to limit the scope of inquiry to only whether the trial court abused its discretion when it
ruled in favor of Huth and against the Massillon BZA and the City of Massillon. Upon
review, we find the trial court did not abuse its discretion.
{¶33} Huth’s property and its operations pre-existed Massillon’s zoning code.
James Johnson, the Code Enforcement Officer for Massillon, testified that despite the
effects on neighboring properties, upon implementation of Massillon’s zoning, Massillon
zoned Huth’s property as I-1 Light Industrial. Mr. Johnson further testified that concrete
plants coming into Massillon today would have to be placed in an area zoned I-2. (Id. at
p. 16). In describing the difference between an I-1 and I-2 district, Mr. Johnson testified,
*** [Normally, cement concrete plants would be in an I-2 area. Huth
is existing non-conforming. This crushing of the concrete is a new operation
that they wish to implement, whether it be on a periodic basis or
permanently. It cannot meet the I-1 zoning, it just cannot do it. Abutting
those residential areas, it can’t it can’t do it, they can’t even meet the existing
I-1 because there is no wall, there is no fence. A fence would not stop what
they are doing, it would not stop the noise. I do not know if a wall would or
would not but those requirements are not even in place going back to that.
I want to read you the intent of an I-2, the I-2 district is so structured
to permit the manufacturing, processing and compounding of semi finished
or finished products from raw materials as well as from previously prepared
material. Again I remind you that Huth is existing non-conforming this is a Stark County, Case No. 2024 CA 00068 9
new operation and I refer to the last page here, 11 of 12, or the last two
pages what is a non-conforming use in an existing area. You surely can
read the intent for yourself and the intent is there, the intent of the Zoning
Ordinance to permit legal non-conforming lots or structures or uses to
continue until they are removed, but not to encourage their survival. So the
idea of adding a new operation and brining in all this equipment with with
[sic] that is creating the concerns of the residents and violating the zoning
laws and the other ordinances, the intent of the I-1 existing non-conforming
is not to do that. Its [sic] just to keep it as safe as possible so, um, you can
read on in section C, such uses declared by the Zoning Committee to be
incompatible with permitted uses in the districts involved. It is further intent
of the Zoning Ordinance that nonconformities shall not be enlarged upon,
expanded or extended nor be used as grounds for adding or other
structures for adding structures of uses prohibited elsewhere in the same
district. So in other words going back to where Huth expanded over the
years here with change of ownership and that and adding this new
operation, that is not permitted under existing non-conforming rules.
{¶34} (T. at 15)
{¶35} Mr. Johnson also testified that the crushing of concrete was not specifically
addressed or prohibited by the zoning code.
{¶36} Huth presented testimony from Adam Brosnahan, the owner of Huth Ready
Mix as well as a construction company, and Matt Bachtel, owner of Bachtel Excavation. Stark County, Case No. 2024 CA 00068 10
Each of these witnesses testified that they deal in concrete and aggregate on a daily
basis.
{¶37} During his testimony, Mr. Brosnahan explained that his decision to crush
the excess concrete, instead of continuing to build mountains of excess concrete on the
property was a cost analysis decision:
Concrete has never been crushed on our property before and that’s
because the previous owner didn’t choose to, um, I however, chose to
because I plan on being in business for a long time and you cannot just
continue to build mountains. You just can’t do it. It’s unusable, so we made
a usable product that we sold back, it creates taxes, I mean you know whats
[sic] going on over here. I mean, you have to do something with it. Every
ready mix plant at least in Ohio this goes on they're directly involved with
the processing of concrete whether it’s first hand in my case, second hand
in other cases. It’s being crushed You can drive into Canton and you can
see it at multiple facilities. So it happens. I understand it didn’t happen here
before Adam but it it’s [sic] necessary and that’s what we're doing.
***
Well it’s extremely costly for our trucks to say leave the plant loaded
with a live material so it’s gonna go to a job site, after that job site, it’s gonna
have leftovers that’s still in the truck. So logistically coming right back to the
plant and getting ridding [sic] of it, unloading it and going to another job
we’re not loosing [sic] time. If I sent that truck to another facility to dump
then you're losing time which is gonna drive my cost up and we're in a very Stark County, Case No. 2024 CA 00068 11
competitive market in Stark County. So yeah it would be detrimental to what
we do.
{¶38} (T. at 24)
{¶39} He further explained his decision to process the pre-existing concrete,
stating:
Well here’s where we're at, so two years ago, I made the call to
decide to process what we had. Ok, and that’s when we had like a literal
mountain where concrete was dumped on top of itself over time. So big
equipment came in to process it. Beaver came in, we had two 80,000 pound
excavators with hydraulic hammers to put the material in to a size that can
go through a processing plant. That’s where all this started. When then
when we're done we cleaned it up. We processed about 61,000 tons plus
or minus of material that was sold. Then we were done and all the
equipment moves off site. And then we spend the next year and half or so
getting you know we had leftovers coming back. So we just processed it
again. Um I think they [sic] was about six weeks till they were all done. And
we processed about 13,500 tons of material. So it’s not something that
needs to go on every day. Ah the first time it was big, there was a lot to do
there. And now I mean they were there, I’d have to go look exactly how long
they were there but if they were there for three to five weeks. I’d also like to
say that in those pictures you see of the crushing equipment and there’s
dust around it, that that’s all in the initial set-up. Everyone shows up at the
very beginning cause [sic] they call immediately. Equipment comes in on Stark County, Case No. 2024 CA 00068 12
low boys and they are immediately down there complaining. Because its
different and I get it, but you gotta give it a change [sic]. The Health
Department shows up, they say Adam everything’s ok, this is fine, you're
fine; they're setting up. You’re gonna create a little dust, you’re gonna make
a little noise and you're gonna get set up and that’s fine. Then your work
pretty well dustless. EPA comes down, I mean we have all, you see it, its
[sic] all permitted. With the EPA, the Health Department, its above board.
We operate every day and try to above board. We water our roads, we water
the streets, we do whatever we can to make it as friendly to our neighbors
as possible. Not everybody can be pleased. And I apologize for that.
{¶40} (T. at 24)
{¶41} Mr. Brosnahan testified that he has not changed the footprint of the
property. (T. at 23). He further testified that the crushing of concrete is customary at every
ready mix plant in Ohio. (T. at 119).
{¶42} Matt Bachtel testified that he had been in the construction industry for thirty
years and that other local concrete facilities, including Diano Concrete and Reliable Redi-
Mix, crush leftover concrete on-site at their facilities. (T. at 119).
{¶43} Based on the record before it, the trial court found that the crushing of
concrete was “an activity that is incidental to, or customarily found in connection with the
operation of Huth’s business, regardless of when the activity began to occur, and any
determination otherwise is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by a preponderance of substantial, reliable, and probative evidence and
must be reversed.” (May 7, 2024 Judgment Entry at 10). Stark County, Case No. 2024 CA 00068 13
{¶44} Upon review, we find that the evidence before the trial court supported its
decision and find no abuse of discretion by the trial court.
Cease and Desist Order
{¶45} The original cease and desist order of November 16, 2022, stated “ [o]ur
office has learned that second-hand or waste concrete materials are currently being
crushed and/or processed …” and ordered Huth to “immediately cease and desist all
activities and operations involving the jack hammering, crushing of used concrete
materials related to the recycling of second-hand concrete materials …” (T. at 117).
{¶46} Mr. Johnson testified that he assumed that the concrete being crushed by
Huth was waste concrete, meaning construction debris material. (T. at 118). He admitted,
however, that he did not know where the concrete came from. Id.
{¶47} Mr. Brosnahan testified that Huth Ready Mix does not accept used or
second-hand concrete from third parties. (T. at 118).
{¶48} Based on the record, we find the Cease and Desist Order was based on
erroneous information as Huth was not processing “second-hand or waste concrete
material.”
Zoning Change from I-1 to I-2
{¶49} In its decision, the trial court found, based upon the Chief Zoning
Inspector’s own testimony, that because Huth’s operations have historically had
external effects on the neighboring properties, it should be zoned as I-2 Heavy Industrial,
and therefore when Massillon adopted a zoning ordinance, it incorrectly classified Huth’s
property as I-1 Light Industrial. Stark County, Case No. 2024 CA 00068 14
{¶50} Upon review, while cognizant of the testimony of the Chief Zoning Officer
for the City of Massillon wherein he stated that Huth should have been zoned I-2 when it
was grandfathered in under Massillon’s zoning code (T. at 17), we find that the Common
Pleas Court is without authority to change the zoning classification for Huth. Such remains
the function of the legislature. “[Z]oning, per se, is exclusively a legislative matter, and the
changing of a parcel of real property from one use classification to another use
classification can only be done by the legislative body.” Mobil Oil Corp. v. City of Rocky
River, 38 Ohio St.2d 23, 31 (1974). “The zoning of property is a function of local
administrative and legislative authority and is not a function of the judicial branch of
government.” G.S.T. v. Avon Lake (1978), 59 Ohio App.2d 84. “It is not the function of
the trial court to establish the zoning classification regarding any particular property or
district. This function is, and historically has been, the sole preserve of the municipal entity
within whose territorial jurisdiction the property lies. Id. at 86.
{¶51} See also Humble Oil v. City of Akron, unreported, Ninth Dist. No. 5607,
decided July 28, 1965; Willott v. Beachwood (1964), 175 Ohio St. 557, and Curtiss v.
Cleveland (1959), 170 Ohio St. 127.
{¶52} We therefore reverse that portion of the trial court’s decision finding that the
City of Massillon incorrectly classified Huth’s property as I-1 Light Industrial and changing
the zoning classification to I-2 Heavy Industrial.
{¶53} The remainder of Appellant’s first assignment of error is overruled. Stark County, Case No. 2024 CA 00068 15
II., III.
{¶54} In its second and third assignments of error, Appellant argues the trial court
erred in denying its motions for a temporary restraining order and motion for a preliminary
or permanent injunction. We disagree.
{¶55} The trial court herein found that the City of Massillon’s motions for a
Temporary Restraining Order, Preliminary Injunction and/or Permanent Injunction were
moot based on its decision reversing the decision of the BZA and the City of Massillon.
{¶56} This Court likewise finds said Motions to be moot based on our decision
upholding the decision of the Common Pleas Court.
{¶57} Appellant’s second and third assignments of error are overruled.
{¶58} For the reasons stated in the foregoing opinion, the judgment of the Stark
County Court of Common Pleas is affirmed in part and reversed in part.
By: Wise, J.
Gwin, P.J., and
King, J., concur.
JWW/kw 1202