[Cite as Minerva Dairy, Inc. v. Minerva, 2025-Ohio-902.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: MINERVA DAIRY, INC. : Hon. William B. Hoffman, P.J. : Hon. Robert J. Montgomery, J. Plaintiff-Appellee : Hon. Kevin W. Popham, J. : -vs- : : Case No. 2024 CA 00097 VILLAGE OF MINERVA, OH : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2023CV00901
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 14, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
EDMOND J. MACK STEPHEN N. HAUGHEY Mack Law Co., LPA 301 E. Fourth Street Box 8276 Suite 3300 Canton, OH 44711 Cincinnati, OH 45202 Popham, J.
{¶1} Appellant The Village of Minerva (“Village”) appeals the May 30, 2024,
judgment entry of the Stark County Court of Common Pleas. Appellee is the Minerva
Dairy, Inc. (“Dairy”).
Facts & Procedural History
{¶2} The Dairy operates a pretreatment plant, and does so pursuant to a permit
that was issued by the Ohio Environmental Protection Agency (“EPA”) on August 31,
2015. In 2020, the Village asserted the Dairy released excessive quantities of Total
Suspended Solids (“TSS”) and Excessive Carbonaceous Biochemical Oxygen Demand”
(“CBOD”), and sought to disconnect the Dairy. After a show cause hearing was deferred,
the parties reached a settlement in August of 2020 to resolve the Dairy’s alleged non-
compliance. The Dairy paid the Village a fine of $140,000. The settlement agreement
also provided other details regarding reporting, calculation, and payment terms of
discharges that exceeded limitations. There was also language in the settlement
agreement regarding covenants not to sue or otherwise initiate any form of civil,
administrative, or judicial proceedings of any kind against the Dairy with respect to the
claims released.
{¶3} On March 21, 2023, the Dairy notified the Village and the EPA of
maintenance activities it was going to complete at the pretreatment facility. In response,
on March 23, 2023, James Williams (“Williams”), the Service Director for the Village,
issued a “Notice of Violation and Impending Revocation of Industrial Waste Permit and/or
Suspension/Disconnection of Service” (“NOV”) and “Notice of Show Cause Hearing on
Violation and Impending Revocation of Industrial Waste Permit and/or Suspension/Disconnection of Service and Assessment of Costs and Fines” to the Dairy.
Williams stated the documents served as written notice of the violations, pursuant to
Minerva Village Ordinance 921.16(a), and that the conduct of the Dairy justified either
revocation of the industrial waste permit under which the Dairy discharges from its
pretreatment system and/or suspension/disconnection of service. Williams asserted,
“data from analysis of samples of effluent from [the] Dairy pretreatment system has
documented that [the] Dairy has violated the TSS limitation on numerous occasions.”
Williams attached Exhibits A1 and A2, which appear to be Excel spreadsheets with dates
and numbers on them. The NOV also purported to impose “civil damages” and “daily
fines in the amount of $206,384.52.” The hearing notice stated a show cause hearing
was scheduled for April 5, 2023.
{¶4} The Dairy submitted a preliminary response on March 24, 2023, generally
denying the violations. Additionally, the Dairy stated its compliance manager needed time
to review the testing submitted by the Village in its NOV, and stated this would take “a
few weeks.” The Dairy also requested additional time to provide an opportunity for the
parties to meet and confer regarding the allegations in lieu of the show cause hearing.
On March 30, 2023, the Village issued an Amended Notice of Show Cause hearing,
rescheduling the hearing for April 11, 2023. The Village did not respond to the Dairy’s
request for a meeting prior to proceeding with the show cause hearing.
{¶5} The Dairy responded to the Village’s amended notice on April 7, 2023, again
requesting a meeting to discuss the issues and asking the Village to suspend the show
cause hearing. The CEO of the Dairy stated he would not be able to attend on April 11, 2023, and requested a continuance. Williams responded on April 10, 2023, denying the
request and stating the show cause hearing would go forward on April 11, 2023.
{¶6} The show caused hearing was held on April 11, 2023, and lasted less than
twenty-five minutes. At the beginning of the hearing, Williams was sworn in as the hearing
officer, but stated anyone testifying as a witness would be administered an oath at the
time they offered their testimony. Immediately after Williams called the hearing to order,
Venae Watts (“Watts”), the treasurer and secretary of the Dairy, asked if the Village would
continue the show cause hearing in order to have a meeting between the Village and the
Dairy. Williams denied the request. Watts then stated, “I would ask that you please give
me the time to gather my information. The information received this morning at 10:00
a.m., I didn’t have time to prep that with counsel. I ask to please be given that time.”
Williams stated they would have “some time limits” for her to “submit data.” Watts
responded, “So I would please ask that you give me time to have counsel, who was
unavailable to come today, short notice. I please ask that you allow me time to get
counsel to come to this hearing.” Williams denied her request, stating the Village provided
the Dairy with sufficient notice. Watts stated, “I did obtain counsel, they just were not able
to come. I ask that you please take consideration.”
{¶7} Williams entered the March 23, 2023, NOV into the record, along with
Exhibits A-1 and A-2. Williams stated, “support for the calculation of all civil damages”
would be “entered into the record.” Williams also stated the letters received from the
Dairy in April would be made part of the record. Williams then asked Watts if she “had
anything to say at this time.” Watts responded, “I would like to say that I don’t have
counsel at this moment here with me for representation. And I ask again that you please – I’m now point on this; that you please give me time to have counsel available to be
present and to review the information with my counsel that has been retained and is
unavailable to attend tonight * * *.” Williams denied her request, again stating the Dairy
received sufficient notice of the hearing and asked if “anyone had any questions.” Watts
stated, “I don’t have a lawyer present, I don’t believe I should proceed until I have
representation with me.”
{¶8} Williams gave a brief summary, listing the number of alleged violations the
Dairy had in each month (January, February, and March 2023). After this brief summary,
the mayor stated, “Is that it?” Williams stated, “Okay, that concludes the show cause
hearing.” He stated the “matter would be taken under advisement by the Service Director
[himself] and a written determination will be rendered with copies provided to the Village
Council and respondent. The record will be kept open for a period of one week.” The
meeting was then adjourned. On April 18, 2023, the Dairy sent a letter to the Village. In
the letter, the Dairy explained it had been working with the EPA, but had not heard from
them with regard to new permits. Further, the Dairy stated it “continues to have concerns
regarding potential sample analysis inaccuracies as previously reported with the sampling
data and information provided to the Village * * *.”
{¶9} On April 25, 2023, Williams issued a “Report and Recommendations of
Village Service Director” (“Report”). Williams identified a series of instances where the
effluent from the Dairy revealed levels of TSS and CBOD in excess of the limitation set
forth in the permit, the latest violation listed as March 4, 2023.
{¶10} In the “Conclusions” portion of the Report, Williams stated that “based on
personal experiences from previous visits (issues with the Minerva Dairy effluent discharge) and photos of the Dairy’s secondary clarifier dated March 22, 2023, the
Minerva Dairy operates its secondary clarifier with an excessively large sludge blanket
with less than a foot, usually only inches, of clear water prior to discharge over the weirs.”
Williams then included citations from the Environmental Resources Training Center
(about the sludge blanket), the Water Environment Federation (sludge blanket
appropriate depths), and the EPA (proper sludge blanket depths). Williams concluded
the Dairy was either intentionally disposing of solid waste from its pretreatment plant into
the publicly owned treatment works system (“POTW”), or it was being operated in an
incompetent manner.
{¶11} In the “Recommendation” portion of the document, Williams stated the Dairy
“failed to demonstrate good cause in order to avoid disconnection of service to the
Village’s POTW.” Williams recommended the Village revoke authority for the Dairy to
discharge to the POTW and provide notice accordingly, and also impose fines and costs
as stated in the March 23, 2023, NOV.
{¶12} On the same day as Williams issued the report (April 25, 2023), Village
Council entered into executive session to discuss the Report. When the regular meeting
resumed after the executive session, Village Council voted to approve the Report, and
voted to assess fines and damages against the Dairy. There is nothing in the record
demonstrating the Dairy was given notice of the April 25th executive session or meeting.
Rather, Williams sent a letter to the Dairy on April 27, 2023, notifying them: Village
Council approved the Report, the Dairy’s Industrial Waste Permit was revoked, the Dairy’s
authority to discharge at the POTW was terminated, and costs/fines were assessed by
Village Council (“Disconnection Order”). Williams attached his Report to the letter, along with an invoice detailing the costs and fines. The Dairy paid $100,000 to prevent the
imminent closure of the business after their receipt of the letter.
{¶13} The Dairy filed an administrative appeal with the Stark County Common
Pleas Court on May 19, 2023. The administrative record was filed on June 23, 2023. On
June 26, 2023, the Village filed a motion for emergency relief from stay, arguing the Dairy
continued to violate the wastewater permits. The trial court denied the motion for
emergency relief, but ordered the parties to meet with the EPA within fourteen days and
ordered the Dairy to take any necessary steps as ordered by the EPA. The Dairy met
with the EPA on July 20, 2023.
{¶14} On August 7, 2023, the Dairy moved the trial court for a de novo hearing
pursuant to R.C. 2506.03. The Village filed a memorandum in opposition, arguing the
administrative record contained all pertinent matters, and a de novo hearing was
unnecessary. The trial court granted the Dairy’s motion for a de novo hearing. Though
the de novo hearing was originally set in September of 2023, it was continued several
times while the trial court held status conferences and settlement conferences, and
ultimately was re-scheduled for April 30, 2024.
{¶15} Prior to either party presenting any evidence or witnesses at the April 30,
2024, hearing, the trial court expressed its concerns about the lack of the sworn evidence
or testimony in the administrative record. The trial court informed the parties that it viewed
the appeal as containing two issues: (1) whether the Disconnection Order was
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence (including any due
process issues), and (2) whether the Disconnection Order and/or Minerva Village Ordinance Chapter 921 were unconstitutional as applied to the Dairy. The parties both
agreed the trial court’s interpretation of the two issues was correct.
{¶16} At the suggestion of counsel for the Village, the parties and the trial court
agreed that both the Village and the Dairy would have fourteen days in which to submit
their briefs on the first issue, i.e., whether the Disconnection Order was unconstitutional,
illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of the
substantial, reliable, and probative evidence. The trial court stated if it upheld the
Disconnection Order, it would set another date for an evidentiary hearing so the Dairy
could present evidence on its constitutional claims.
{¶17} On May 10, 2024, the Village filed a motion to dismiss for lack of jurisdiction
and mootness. In the motion, the Village stated, “the administrative order from which this
appeal was taken has been rescinded” because, on May 9, 2024, Williams issued a
“Recission of Report and Recommendations of the Village Service Director.” The Village
argued the trial court lacked jurisdiction for any review under Chapter 2506 and the
administrative appeal to the trial court was moot. The Village also stated in its motion
that it would issue a new show cause order to the Dairy.
{¶18} The Dairy filed its brief to reverse the Disconnection Order on May 17, 2024,
arguing why the Disconnection Order was unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by a preponderance of substantial, reliable, and probative
evidence, and in violation of the Dairy’s due process rights. In their brief, the Dairy
argued: the Village failed to comply with its own ordinance in issuing the Disconnection
Order; the Disconnection Order was unsupported by substantial, reliable, or probative
evidence because no witnesses were put under oath at the hearing, no witnesses were directly examined or cross-examined at the hearing, and no evidence was properly
introduced at the hearing; the hearing was not fair and impartial; and the Dairy was denied
due process. In their brief, the Dairy also argued the trial court should reverse and vacate
the Disconnection Order rather than remand the matter back to the Village.
{¶19} The Dairy also filed a separate memorandum in opposition to the Village’s
motion to dismiss, arguing the Village did not have jurisdiction to unilaterally rescind the
Disconnection Order during the pendency of the administrative appeal to the trial court.
{¶20} The Village filed a reply in support of its motion to dismiss on May 24, 2024.
In its reply, the Village stated, “while appellant has elected to submit a brief addressing
the purported merits of this appeal, there exists no determination subject to review under
the standard of R.C. Chapter 2506” because “the administrative order from which this
appeal was taken has been rescinded.” Further, that there was “no basis for the court to
decide any questions posed by appellant in its brief.” Because the Village chose to focus
solely on the mootness/lack of jurisdiction issues contained in its motion to dismiss, the
Village never submitted a brief in support of its argument that the Disconnection Order
was not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a
preponderance of the substantial, reliable, and probative evidence.
{¶21} The trial court issued a judgment entry on May 30, 2024, addressing the
merits of the Dairy’s administrative appeal. The trial court noted that the Village did not
address any R.C. 2506 issues and “ignored” the agreement by the parties and the court
at the April 30th hearing to submit briefs addressing the R.C. 2506 issues. The trial court
found the Disconnection Order was arbitrary and capricious because the proceedings
lacked due process and fundamental fairness. The trial court also found the Village failed to comply with its own rule of law pursuant to Village Ordinance Chapter 921 and,
because of this lack of due process, the decision was arbitrary, capricious, and
unsupported by the preponderance of substantial, reliable, and probative evidence.
Finally, the trial court found, in considering the whole record, the decision of the Village
was unsupported by a preponderance of reliable, substantial, and probative evidence
because there was no sworn testimony at the hearing, the Report contained factual
assertions not contained in the NOV or mentioned at the show cause hearing, and the
Dairy disputed the accuracy of the information and testing provided by the Village.
{¶22} The trial court also denied the Village’s motion to dismiss. The trial court
cited the holding of the Supreme Court of Ohio that, “it is well established that in the
absence of express statutory authority to the contrary, once a decision of an
administrative board is appealed to the court, the board is divested of its inherent
jurisdiction to reconsider, vacate, or modify that decision.” Baltimore Ravens, Inc., v. Self-
Insuring Employers Evaluation Bd., 2002-Ohio-1362; Lorain Edn. Assn. v. Lorain City
School Dist. Bd. of Edn., 46 Ohio St.3d 12 (1989). Thus, the trial court found Williams’
alleged “rescission” was in violation of Supreme Court precedent.
{¶23} Further, the trial court found Williams’ alleged “rescission” was incomplete
and did not make the matter moot because it did not address the $100,000 the Dairy paid
to avoid disconnection. The trial court reversed and vacated the Disconnection Order,
and ordered the Village to return the fines paid by the Dairy. The trial court also released
the funds in escrow to the Dairy.
{¶24} The Village appeals the May 30, 2024, judgment entry of the Stark County
Court of Common Pleas and assigns the following as error: {¶25} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT THE
VILLAGE’S DECISION THAT ENFORCED SUBSTANTIAL, UNCONTESTED
VIOLATIONS OF THE VILLAGE’S PRETREATMENT ORDINANCE WAS NOT
SUPPORTED BY A PREPONDERANCE OF EVIDENCE, AND ARBITRARY,
CAPRICIOUS, AND UNREASONABLE.
{¶26} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT
THE VILLAGE FAILED TO COMPLY WITH THE PROCEDURES IN ITS
PRETREATMENT ORDINANCE, AND THAT THE DAIRY WAS ENTITLED TO A DE
NOVO HEARING. IN THE ALTERNATIVE, IT ABUSED ITS DISCRETION IN NOT
FINDING THAT THE NONCOMPLIANCE WAS DE MINIMUS, DID NOT PREJUDICE
THE DAIRY, OR WAS WAIVED.
{¶27} “III. THE TRIAL COURT ERRED IN FINDING THAT THE DAIRY HAD
CONSTITUTIONAL DUE PROCESS RIGHTS BEYOND THE PROCEDURAL RIGHTS
AFFORDED BY THE VILLAGE’S PRETREATMENT ORDINANCE.
{¶28} “ IV. THE TRIAL COURT ERRED IN VACATING THE VILLAGE’S
DECISION AFTER FINDING NONCOMPLIANCE WITH THE PROCEDURES IN THE
PRETREATMENT ORDINANCE, RATHER THAN HOLDING A DE NOVO HEARING OR
REMANDING THE DECISION FOR THE VILLAGE TO HOLD THE HEARING.”
Standard of Review
{¶29} In an appeal of an administrative decision, R.C. 2506.04 sets forth the
applicable standards of review for the court of common pleas and appellate court. It
provides: [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,
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 2506 of the Revised Code.
{¶30} The Supreme Court of Ohio has construed the language of R.C. 2506.04
and distinguished the standards of review to be applied by courts of common pleas and
courts of appeals when reviewing administrative decisions. Henley v. Youngstown Bd. of
Zoning Appeals, 90 Ohio St.3d 142 (2000). In Henley, the Court stated, “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 the substantial, reliable, and probative evidence.” Id., citing Smith v.
Granville Twp. Bd. of Trustees, 81 Ohio St.3d 608 (1998), further citation omitted. The
court may not simply substitute its judgment for that of the Village. Id. Instead, it must
weigh the evidence and determine if a preponderance of substantial, reliable, and
probative evidence supports the administrative decision. Id. If it does not, it may affirm,
reverse, vacate, or modify the decision, or remand the cause to the body appealed from with instructions to enter an order, adjudication, or decision consistent with the findings
or opinion of the court. Id.
{¶31} An administrative appeal proceeds as it would in the trial court in a civil
action and, while it is not de novo, it often resembles a de novo proceeding. Kisil v. City
of Sandusky, 12 Ohio St.3d 30 (1984). The difference is that a common pleas court
weighs the evidence but gives the administrative decision deference. Id. It does not
substitute its judgment for that of an administrative board unless it first finds that there is
not a preponderance of reliable, probative, and substantial evidence to support the
administrative decision. Id.
{¶32} The standard of review to be applied by the court of appeals, however, is
“more limited in scope.” Id. Courts of appeals may review the judgment of the common
pleas court only on “questions of law,” which does not include the same power to weigh
“the preponderance of substantial, reliable and probative evidence, as is granted to the
common pleas court.” Id. “It is incumbent on the trial court to examine the evidence.
Such is not the charge of the appellate court. * * * The fact that the court of appeals, or
this court, might have arrived at a different conclusion than the administrative agency is
immaterial. Appellate courts must not substitute their judgment for those of an
administrative agency or a trial court absent the approved criteria for doing so.” Lorain
City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257 (1988).
I. & II.
{¶33} In its brief, the Village argues its first and second assignments of error
together. Accordingly, we will address the first and second assignments of error together. {¶34} We initially note that, because the Village failed to file a brief regarding the
R.C. 2506 issues in the case as its counsel suggested at the April 30th hearing, the Village
never made the arguments contained in Assignments of Error I or II to the trial court. “A
failure to raise an issue during an administrative appeal before the common pleas court
operates as a waiver of the party’s right to assert the issue for the first time to an appellate
court.” State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276 (1993); Gross Builders
v. City of Tallmadge, 2005-Ohio-4268 (9th Dist.); Marks v. Aurora Bd. of Zoning Appeals,
2016-Ohio-5182 (11th Dist.). However, even if we were to consider the Village’s
arguments, we find no error in the trial court’s determinations.
{¶35} In this case, the trial court made three separate determinations to support
its decision. It found the Disconnection Order was (1) arbitrary and capricious because
the proceedings lacked due process and fundamental fairness; (2) arbitrary, capricious,
and unsupported by the preponderance of substantial, reliable, and probative evidence
because the Village failed to comply with its own ordinance; and (3) in considering the
whole record, the decision was unsupported by the preponderance of reliable, substantial,
and probative evidence.
{¶36} R.C. 2506.04 permits courts of common pleas to determine whether an
administrative decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative evidence on the
whole record. “These grounds for reversal are set forth in a disjunctive list, so each
ground must be read to have a distinct meaning.” Shelly Materials, Inc. v. City of
Streetsboro Planning & Zoning Comm., 2019-Ohio-4499, ¶ 12. Thus, the “presence of
any one of the six grounds listed in R.C. 2506.04 will therefore by itself justify a court of common pleas’ reversal of an administrative order.” Id. “In other words, courts may
reverse administrative orders, for example, by finding them illegal; there is no need to find
that any other ground for reversal in R.C. 2506.04 applies.” Matthews v. Springfield-Clark
CTC Bd., 2023-Ohio-1304, ¶ 21 (2nd Dist.).
{¶37} The Village makes separate arguments in its first and second assignments
of error.
Trial Court Overlooked or Misrepresented Facts
{¶38} The Village contends the trial court committed error in finding the Village
failed to follow the procedures in its own ordinance and in finding the Village did not afford
the Dairy due process. The Village argues the trial court overlooked or misrepresented
facts when concluding that the Disconnection Order was arbitrary and capricious.
{¶39} The trial court concluded the Disconnection Order was arbitrary and
capricious because the proceedings lacked due process and fundamental fairness. The
Village cites to specific statements in the trial court’s judgment entry in which the Village
believes the trial court “misrepresented” the facts. However, these statements cited by
the Village do not reflect the entirety of the trial court’s analysis, and are only small
sections or excerpts of the trial court’s entry. We find the specific findings of fact the trial
court utilized in its analysis determining the Disconnection Order was arbitrary and
capricious to be supported by the record.
{¶40} The factual determinations the trial court made in finding the Disconnection
Order was arbitrary and capricious are as follows: Watts repeatedly asked for counsel
throughout the hearing; Watts received pertinent information only a few hours before the
hearing; Watts was provided no description of what would be taking place at the hearing except it was being called to order; Watts was not asked to give an opening statement,
present exhibits, or call any witnesses; Watts was not advised of any right to cross-
examine witnesses; the only exchange Williams had with Watts was to deny her requests
for a meeting and counsel; Williams offered self-serving statements; Williams introduced
evidence that was not offered to Watts to review; there was no sworn testimony provided
by any witness on behalf of the Village at hearing; Williams was never sworn in as a
witness and his conclusory statements were not subject to cross-examination; Williams
acted as the prosecutor, judge, and jury all in one; the hearing lasted only twenty-five
minutes; the Report prepared by Williams after the hearing contained a host of new factual
contentions and conclusions regarding the Dairy’s operations that were not mentioned in
the NOV or raised during the hearing; it appears the new factual contentions were
discussed by Williams and Council during executive session, without notice to the Dairy
to refute any of the assertions; and the Disconnection Order contains no sound reasoning
to support the conclusion.
{¶41} This Court is mindful that its scope of review is limited to questions of law.
Pay N Stay Rentals, LLC, v. City of Canton, 2020-Ohio-1573 (5th Dist.). “Within the ambit
of questions of law for appellate-court review is whether the common pleas court abused
its discretion” in making its factual determinations. City of Independence v. Office of the
Cuyahoga Cty. Executive, 2014-Ohio-4650, ¶ 14. In examining each one of the factual
findings made by the trial court as listed above, we find the trial court did not abuse its
discretion in making these determinations, as they accurately reflect the information
contained in the administrative record, including the transcript. {¶42} The Village also argues the trial court committed error in finding “the
undisputed evidence confirms the Village failed to comply with its own rule of law pursuant
to Village Ordinance Chapter 921 in numerous respects.” The ordinance at issue is
contained in the Codified Ordinances of Minerva, Ohio, specifically, Ordinance 921.16,
which is entitled “Public and Private Sewers; Use Regulations and Connections –
Enforcement.” The pertinent sections of the ordinance provide as follows:
(a) Whenever the Service Director finds that any industrial user has
violated, or is violating provisions of this chapter * * * the Service Director
shall serve upon such industry a written notice, either personally, by certified
mail or by electronic mail, stating the nature of the violation. Within ten days
of receipt of such notice, the industry shall respond personally or in writing
to the Service Director advising him or her of its position with respect to the
allegations. Thereafter, and if deemed necessary by the Service Director,
the parties shall meet to ascertain the veracity of the allegations and, if
necessary, establish a plan for the correction thereof.
***
(e) If the violation is not corrected by timely compliance, the Service Director
may order an industrial user who causes a violation or allows an
unauthorized discharge to show cause before the Service Director why the
proposed enforcement action should not be taken. A written notice shall be
served on the offending party specifying the time and place of a hearing to
be held by the Service Director regarding the violation and directing the
industrial user to show cause, before the Service Director, why the proposed enforcement action should not be taken. The notice of hearing
shall be served personally or by registered certified mail (return receipt
requested) at least fifteen days before the hearing.* * * The Service Director
shall conduct the hearing and take the evidence. At any public hearing,
testimony must be under oath and recorded stenographically.* * * After the
Service Director has reviewed the evidence, an order may be issued by the
Village to the industrial user responsible for the violation directing that,
following a specified time period, the sewer service be discontinued unless
adequate treatment facilities, devices, or other related appurtenances shall
have been installed * * *.
(g) The Village may recover civil damages for any expense, loss or damage,
including attorneys’ fees, court costs, court reporter’s fees, and any other
expense of litigation, occasioned by a user’s violation of these regulations *
* *.”
{¶43} The trial court found the Village did not comply with these sections because:
the Village failed to meet with the Dairy despite repeated requests by the Dairy to meet;
the Village never afforded the Dairy any parameters for “timely compliance”; the first
notice of hearing gave the Dairy only thirteen days’ notice rather than the required fifteen
days’ notice and the second notice of hearing gave the Dairy only twelve days’ notice
rather than the required fifteen days’ notice; the show cause hearing was not conducted
in public as required; no sworn testimony was provided by anyone at the show cause
hearing as required; and nothing in either (e) or (g) provides Williams the authority to
impose the “civil damages” provided for in (g) in an order issued under (e). {¶44} We again find the trial court did not abuse its discretion in making these
factual findings because the factual findings accurately reflect the information contained
in the record. We also find the trial court did not commit error in its legal conclusion. “An
administrative agency cannot ignore its own rules.” In re Application of Columbus S.
Power Co., 2011-Ohio-2383, ¶ 35, quoting State ex rel. Kroger Co. v. Morehouse, 74
Ohio St.3d 129 (1995); Anderson v. City of Vandalia, 2005-Ohio-118 (2nd Dist.) (if BZA
fails to comply with its code in reaching its recommendation, then code provisions are
superfluous and we presume drafters of the code did not intend to create superfluous
provisions).
{¶45} While the Village offers various explanations as to why their actions were
not strictly in compliance with the ordinance, these explanations were never offered to the
trial court. Further, we find the trial court’s determination that, in the aggregate, the
multiple instances of the Village’s failure to follow its ordinance resulted in a lack of due
process to the Dairy, not to be an abuse of discretion.
{¶46} Additionally, the Village makes arguments as to why due process was met
in this case because the Dairy obtained knowledge about the procedures contained in the
ordinance in the previous 2020 case that the Dairy should have applied in this case, and
how difficult it was for the Village to arrange the schedules of nine elected officials and/or
employees to attend the hearing and pay for a court reporter. However, with regards to
due process, what knowledge the Dairy may or may not have gained in the previous case
is not relevant to this case, as the inquiry as to whether due process exists depends on
the facts of each case. Ohio Assn. of Public School Emp., AFSCME, AFL-CIO, v.
Lakewood City School Dist. Bd. of Edn., 68 Ohio St.3d 175 (1994). Further, the law focuses on whether the Dairy had a meaningful opportunity to be heard and was afforded
fundamental fairness, not how difficult it was for the administrative body to organize
attendance at the hearing.
{¶47} In arguing the trial court “overlooked facts,” the Village essentially asks this
Court to weigh the evidence, which is not the role of this Court. We have reviewed the
record, not to weigh the evidence, but to ensure there was appropriate evidence for the
court of common pleas’ decision. Based upon the record, we cannot say the trial court
abused its discretion by determining the proceedings lacked due process and
fundamental fairness, thus rendering the Disconnection Order arbitrary and capricious.
De Minimus / Waiver
{¶48} The Village contends the procedures contained in its ordinance that it failed
to follow, including not conducting the hearing public and not giving the Dairy fifteen days’
notice individually for each hearing, were either de minimis or not objected to by the Dairy.
As to the Village’s argument about waiver, the Village did not notify the Dairy in any of the
correspondence or NOV that the show cause hearing would not be public. When Watts
appeared at the hearing, she repeatedly requested a continuance to obtain and/or have
counsel present at the show cause hearing. With regards to the argument that the lack
of compliance with its ordinance was de minimis, it is clear from the trial court’s judgment
entry that it did not find these two issues were the sole reasons for its determination.
Rather, the trial court found the aggregate effects of the Village’s failure to follow its own
ordinance resulted in a decision that was arbitrary and lacked due process. We find no
abuse of discretion in the trial court’s determination, particularly when the Village failed to
present either of these arguments (waiver/de minimis violations) to the trial court. Alleged Failure to Afford the Village’s Decision a Presumption of Validity
{¶49} The Village argues the trial court failed to afford the Village’s decision a
presumption of validity and, because the Dairy failed to dispute the violations, the trial
court’s finding that the Disconnection Order was not supported by a preponderance of the
reliable, substantial, and probative evidence was an abuse of discretion.
{¶50} As this Court has previously stated, “deference to the administrative
decision is built in into R.C. 2506.04.” TS Tech USA Corp. v. City of Pataskala Bd. of
Zoning Appeals, 2024-Ohio-5534, ¶ 40 (5th Dist.); Okey v. City of Alliance Planning
Comm., 2019-Ohio-2390 (5th Dist.) (simply because a trial court reverses an
administrative order does not lead to the conclusion the court erroneously shifted the
burden). At both the April 30th hearing and in its judgment entry, the trial court correctly
set forth its standard of review, and cited the correct statute that includes the deference
required. The trial court’s conclusion that there was not a preponderance of the evidence
to support the administrative decision does not negate the deference it afforded.
{¶51} The Village also contends the trial court ignored the fact that the Dairy did
not dispute the violations. The Village reasons that because the Dairy did not dispute the
violations, there was competent and credible evidence to support the Disconnection
Order. In a R.C. 2506.04 appeal, the court of common pleas is required “to assess the
credibility of the witnesses as well as the probative character of the evidence, and to
determine the weight to be given that evidence.” Fulmer v. W. Licking Joint Fire Dist.,
2014-Ohio-82, ¶ 16 (5th Dist.). The Supreme Court of Ohio has defined “reliable,”
“probative,” and “substantial” as follows: “[r]eliable evidence is dependable; that is, it can
be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. (2) Probative evidence is evidence that tends to prove the issue in
question; it must be relevant in determining the issue. (3) Substantial evidence is
evidence with some weight; it must have importance and value.” Bartchy v. State Bd. of
Edn., 2008-Ohio-4826, ¶ 39. The trial court reviewed the whole record, as is reflected in
its judgment entry. A review of the evidence did not convince the trial court that the
Disconnection Order was supported by a preponderance of the reliable, substantial, and
probative evidence.
{¶52} We have reviewed the record, not to weigh the evidence, but to ensure there
was appropriate evidence for the court of common pleas’ decision. Despite the Village’s
contention that the trial court substituted its judgment for that of the Village and/or the
Service Director, there is evidence in the record to support the trial court’s decision. There
was no sworn testimony at the hearing. The Report prepared by Williams contained
factual assertions and descriptions of violations that were never mentioned or described
either at the hearing or in the NOV. Specifically, as to the Village’s assertion that the
Dairy never disputed the violations, the Dairy’s March 24, 2023, response denied the
violations and stated its compliance manager needed time to review the testing results
allegedly obtained by the Village. In an April 18th letter, the Dairy stated it “continues to
have concerns regarding potential sample analysis inaccuracies as previously reported *
* *.” Thus, it is clear the Dairy did dispute the violations. The trial court did not abuse its
discretion as a matter of law when it found there was not a preponderance of reliable,
probative, and substantial evidence to support the Village’s decision. Substantial and Impactful Violations
{¶53} Lastly, the Village contends that, even if it failed to give the Dairy due
process, the show cause order was proper because of the “substantial and impactful”
violations of the ordinance. The Village cites the Dairy’s previous violations and also cites
alleged violations the Dairy had for several months after the administrative hearing was
held and the appeal in this case was filed. We find this argument to be not well-taken.
The 2020 violations were resolved through a settlement agreement that was signed by
all parties. Further, the Village did not invoke any of the procedures in Ordinance
921.16(d), which provides that the “Service Director may, for good cause, immediately
suspend the treatment services of an industrial user when it appears that an actual or
threatened discharge presents an imminent danger to the public health and welfare * * *.”
Finally, any alleged violations after the April 2023 Disconnection Order are not at issue in
this appeal. Thus, the trial court did not abuse its discretion in finding the Dairy was
entitled to due process.
{¶54} The Village’s first and second assignments of error are overruled.
III.
{¶55} In its third assignment of error, the Village contends the trial court abused
its discretion in finding the Dairy had constitutional due process rights beyond the
procedural rights afforded by Village Ordinance 921.16. The Village argues the Dairy has
no due process rights beyond the procedural requirements contained in Ordinance
921.16 because the EPA discharge permit does not “convey any property rights” and
discharge to a local sewer is a privilege, not a right. {¶56} Because the Village failed to file a brief in regard to any R.C. 2506 issues,
the Village did not raise either of these arguments in its administrative appeal to the trial
court. “A failure to raise an issue during an administrative appeal before the common
pleas court operates as a waiver of the party’s right to assert the issue for the first time to
an appellate court.” State ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276 (1993);
Gross Builders v. City of Tallmadge, 2005-Ohio-4268 (9th Dist.). Further, we found in the
first two assignments of error that the Village did not comply with its own ordinance, and
thus the Dairy did not receive due process.
{¶57} As to whether the Dairy has any general due process rights beyond
Ordinance 921.16, both the Supreme Court of the United States and the Supreme Court
of Ohio have held that the Fourteenth Amendment to the U.S. Constitution and Section
16, Article I of the Ohio Constitution, require that administrative proceedings comport with
due process. Mathews v. Eldridge, 424 U.S. 319 (1976); Doyle v. Ohio Bur. of Motor
Vehicles, 51 Ohio St.3d 46 (1990). “At its core, due process insists on fundamental
fairness, and the requirement to conduct a hearing implies that a fair hearing must occur.”
State ex rel. Ormet Corp. v. Indus. Comm., 54 Ohio St.3d 102 (1990).
{¶58} This Court has stated a party is entitled to procedural due process in an
administrative appeal, which includes reasonable notice and a meaningful opportunity to
be heard, in order to ensure the fairness of the hearing. Quinton v. Delaware Cty. Bd. of
Revision, 2024-Ohio-6034, ¶ 12 (5th Dist.); Sharp on Behalf of Sharp v. Ohio Dept. of Job
& Family Services, 2019-Ohio-5397, ¶ 51 (5th Dist.), citing Ohio Assn. of Public School
Emp., AFSCME, AFL-CIO v. Lakewood City School Bd. of Edn., 68 Ohio St.3d 175 (1994). The trial court utilized the language previously used by this Court in its due
process discussion and determination.
{¶59} In support of the second portion of its argument, the Village cites to one
Pennsylvania federal civil rights case, Perano v. Arbaugh, 2011 WL 1103885 (E.D. Pa.
2011). The judge in that case stated, “permits generally are not recognized as property
interests under Pennsylvania law, and instead are classified as mere privileges.” We do
not find this authority persuasive, as it is factually distinguishable from the instant case
and deals specifically with Pennsylvania law, not Ohio law. The most notable factual
distinction is that, in this case, the Disconnection Order assesses civil penalties and fines
in the amount of approximately $190,000, which is more than simply a decision on
whether the Dairy can or cannot discharge to the sewer. Additionally, there is a
protectable property interest under the Due Process Clause due to the plain language
contained in the Minerva Ordinances (“due notification” and “just cause” is required for
revocation or suspension of a POTW permit).
{¶60} Based on the foregoing, appellant’s third assignment of error is overruled.
IV.
{¶61} In its fourth assignment of error, the Village argues the trial court committed
error in vacating the Village’s decision rather than holding a de novo hearing or remanding
the decision for the Village to hold a hearing after curing the due process issues.
{¶62} We review the determination by the trial court to affirm, reverse, vacate, or
modify the order, adjudication, or decision, or remand the cause under an abuse of
discretion standard. Glass City Academy, Inc. v. City of Toledo, 2008-Ohio-6391 (6th
Dist.). Further, we review the trial court’s decision to allow or deny the introduction of additional evidence pursuant to R.C. 2506 under an abuse of discretion standard. Ney v.
Schley, 2021-Ohio-1848 (5th Dist.). An abuse of discretion connotes more than an error
of law or judgment; rather, it implies the court’s attitude was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶63} We initially note that, because the Village failed to file a brief regarding the
R.C. 2506 issues in the case, the Village never made the argument to the trial court that
if the trial court found the Disconnection Order violated the Dairy’s right to due process,
the trial court should either hold a de novo hearing or remand the case back to the Village
to hold the show cause hearing after complying with due process. “A failure to raise an
issue during an administrative appeal before the common pleas court operates as a
waiver of the party’s right to assert the issue for the first time to an appellate court.” State
ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276 (1993); Gross Builders v. City of
Tallmadge, 2005-Ohio-4268 (9th Dist.).
{¶64} However, even if we were to consider the Village’s arguments, we find no
error in the trial court’s action of vacating the order rather than holding a de novo hearing
or remanding it to the Village.
De Novo Hearing by the Trial Court
{¶65} It appears in their fourth assignment of error, the Village attempts to argue
both: (1) the trial court should not have granted the Dairy’s motion for de novo hearing
and (2) the trial court committed error in not holding a de novo hearing if it found the
Dairy’s due process rights were violated.
{¶66} As to the trial court’s granting of the Dairy’s motion for a de novo hearing,
the Village asserts, “under these circumstances, there was no denial of constitutional due process and thus no grounds to find that a de novo hearing was justified.” Further, “at
most, supplementation of the record” would be justified, rather than a de novo hearing.
The Village also attempted to incorporate its arguments in opposition to the motion for a
de novo hearing in their appellate brief (“for the sake of brevity, the Village incorporates
herein its arguments in opposition to the motion for a de novo hearing, rather than
repeating them”). However, this Court has previously held, “it is well-established that the
Rules of Appellate Procedure do not permit parties to incorporate by reference arguments
from other sources.” Tripodi Family Trust v. Muskingum Watershed Conservancy Dist.,
2008-Ohio-6902 (5th Dist.).
{¶67} To the extent the Village argues the trial court committed error in granting
the Dairy’s motion for a de novo hearing, we find no abuse of discretion in the trial court’s
determination. First, this Court has held that when an appellant in an administrative
appeal raises the constitutionality of the resolution or ordinance as applied to him, he is
entitled to a de novo review because the constitutional issue is within the primary
jurisdiction of the trial court. Sanicky v. Ruggles Twp. Bd. of Zoning Appeals, 2003-Ohio-
3133 (5th Dist.). In this case, the Dairy asserted several as-applied constitutional
challenges to the Disconnection Order and Minerva Ordinance Chapter 921. Thus, the
trial court’s determination comports with this Court’s prior holdings.
{¶68} Further, as to the April 30th hearing, the trial court did not actually take any
new evidence at this hearing. Rather, the parties and the trial court agreed the question
of whether the Disconnection Order was unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by a preponderance of the substantial, reliable, and
probative evidence (including any due process issues) should be decided on briefs the parties would file, with the administrative record already filed with the trial court. Thus,
no additional evidence was considered by the trial court with regards to the R.C. 2506
issues.
{¶69} As to the Village’s second argument the trial court committed error in failing
to hold a de novo hearing to correct any due process deficiencies in the Disconnection
Order instead of vacating the Disconnection Order, we similarly find no abuse of
discretion in the trial court’s determination.
{¶70} First, throughout the proceedings, the Village continually maintained the
Dairy was not entitled to a de novo hearing before the trial court. Because the Village
failed to argue their position in a brief and maintained throughout the proceedings they
did not want a de novo hearing in front of the trial court, any error in this regard is invited
error. The invited error doctrine is a well-settled principle of law under which a “party will
not be permitted to take advantage of an error which he himself invited or induced.” Hal
Artz Lincoln-Mercury, Inc. v. Ford Motor Co., 28 Ohio St.3d 20 (1986). Continually
throughout the administrative appeal, the Village objected to the trial court holding a de
novo hearing. Further, the Village did not ask the trial court to conduct a de novo hearing
if it found the Dairy was denied due process. The Village cannot now take advantage of
any error in that regard. Wojcik v. Pratt, 2011-Ohio-5012 (9th Dist.).
{¶71} Second, though the Village asserts the trial court only found in the Dairy’s
favor because of due process violations, the trial court also found the Disconnection Order
was not supported by the preponderance of reliable, substantial, and probative evidence.
Thus, simply holding a de novo hearing to “cure any due process that was lacking” as the
Village suggests, does not solve the problem. Remand to Village Council
{¶72} The Village also contends the trial court abused its discretion in failing to
remand the case to Village Council to cure any procedural deficiencies and issue a new
show cause order.
{¶73} As noted above, the trial court did not decide the administrative appeal
solely on the lack of due process. Rather, the trial court also found the decision was not
supported by a preponderance of the probative, reliable, and substantial evidence. Thus,
a simply remand to cure any due process issues does not cure the lack of evidence
submitted at the hearing to support the Disconnection Order. Natoli v. Ohio State Dental
Bd., 2008-Ohio-4068 (10th Dist.) (if state failed to prove violations by reliable, probative,
and substantial evidence, no remand would be necessary and should affirm trial court’s
judgment vacating board’s order with regard to violations). The trial court opined a
remand for a new evidentiary hearing would impermissibly grant the Village a “second
bite at the apple.”
{¶74} Further, while R.C. 2506.04 authorizes a court of common pleas to remand
the matter back to the administrative body, such a remand is not required by R.C.
2506.04, and “it does not necessarily follow that the trial court abuses its discretion by not
remanding the matter to the administrative body.” Speedway L.L.C. v. Berea Planning
Comm., 2014-Ohio-4388 (8th Dist.). Rather, the plain language of the statute gives the
trial court the discretion to reverse, vacate, or modify the decision on its own, or it can
send it back to the agency with further instructions. Woodstock Solar Project, LLC v.
Rush Twp. Bd. of Zoning Appeals, 2023-Ohio-2215 (2nd Dist.); Glass City Academy, Inc.
v. City of Toledo, 2008-Ohio-6391 (6th Dist.). {¶75} We find no abuse of discretion in the trial court’s determination in this case,
particularly because the Village failed to request a remand or argue to the trial court a
remand was appropriate and because, throughout the proceedings, the Village
maintained a remand to the administrative body was not necessary because all of the
information required to support the administrative determination was in the record.
{¶76} The Village’s fourth assignment of error is overruled.
{¶77} Based on the foregoing, the Village’s assignments of error are overruled.
{¶78} The May 30, 2024, judgment entry of the Stark County Court of Common
Pleas is affirmed.
By Popham, J.,
Hoffman, P.J., and
Montgomery, J., concur