Huth Ready Mix & Supply Co. v. Massillon

[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.

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