An Ottawa County judge can consider some claims brought by a township against owners attempting to fill their rock quarry, the Ohio Supreme Court ruled today. However, some of the township’s contentions must be addressed by a state environmental agency.

In a unanimous per curiam decision, the Supreme Court ruled that Benton Township’s claims of nuisance and local zoning ordinance violations by Rocky Ridge Development LLC can be considered by Ottawa County Common Pleas Court Judge Bruce Winters. However, challenges to the permit to fill the property granted by the Ohio Environmental Protection Agency (EPA) cannot be considered in local court, but must be addressed by the Ohio Environmental Review Appeals Commission (ERAC).

Township Objects to Revised Permit
In 2014, Ohio EPA approved a land application management plan (LAMP) for Stansley Industries Inc., a collaborative effort by Rocky Ridge Development and Ohio Ecology of Ohio Inc., which permitted the company to use spent lime in a soil blend to increase the elevation and improve the property’s drainage.

In February 2017, the EPA issued a second permit, superseding the first, and modifying the conditions. A week later, Benton Township filed for an injunction and temporary restraining order (TRO) in common pleas court, alleging the companies were violating the terms of the LAMP, violating local zoning ordinances and state law, and creating a public nuisance.

Judge Winters issued a TRO preventing the companies from operating until they came into compliance with township zoning rules and state law. The order specifically prevented further digging of a pit; constructing a pond; spreading, burying, or mixing waste; removing topsoil in certain areas; changing the drainage; and sending materials into waterways.

Two weeks after the order, Rocky Ridge sought a writ of prohibition against Judge Winters from the Supreme Court.

Company Claims Local Judge Without Authority to Block Work
Rocky Ridge contended the matters before Judge Winters fall within exclusive jurisdiction of ERAC, and only the agency can decide whether the companies are abiding by the LAMP, and if the EPA director properly allowed the work permitted by the LAMP. It also argues that state laws preempt local ordinances.

The Supreme Court wrote that R.C. 3745.04(B) gives ERAC jurisdiction to rule on actions taken by the EPA director, and that includes issuing permits.

“Without question, some of the allegations in the Benton Township complaint directly challenge the wisdom of the LAMP permit and therefore fall squarely within the jurisdiction of ERAC,” the opinion stated.

The Court granted the writ of prohibition, preventing the trial court from considering issues about the LAMP or alleged violations of state law.

Court Can Decide Zoning Ordinances, Nuisance Claim
The township claimed Rocky Ridge is violating the zoning laws by removing topsoil on agricultural land without the required permit and disposed of waste on property without approval.

The Court explained that state law only preempts a local ordinance if a local ordinance conflicts with a general state law.

“A conflict exists if ‘the ordinance permits or licenses that which the statute forbids and prohibits, or vice versa,’” the Supreme Court wrote, citing its 1923 Struthers v. Sokol decision.

The Court wrote the question of preemption is a matter a local court may consider, and if a party disagrees with the trial court’s decision, the case can proceed through the normal appeals process. In denying the writ to block the court from considering the zoning rules, the Court noted ERAC does not have exclusive jurisdiction to determine if state and local laws are in conflict.

Benton Township also claimed the companies are creating a nuisance by excavating land down to bedrock, which they claim could endanger ground water and well water, spill industrial waste onto roadways, and cause erosion and flooding on adjacent properties.

Rocky Ridge argued ERAC has the exclusive right to consider those types of complaints, but the Court ruled the state law preserves the rights of common pleas courts to consider nuisance complaints. It noted that if the court considers Rocky Ridge’s activities to be a nuisance, again the company has the right to challenge the ruling through the normal appeals process.

2017-0321. State ex rel. Rocky Ridge Dev., LLC v. Winters, Slip Opinion No. 2017-Ohio-7678.

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