Cherry Lane Dev., L.L.C. v. Walnut, C & DD, L.L.C.

[Cite as Cherry Lane Dev., L.L.C. v. Walnut, C & DD, L.L.C., 2012-Ohio-3559.]

COURT OF APPEALS

FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

: JUDGES:

CHERRY LANE DEVELOPMENT, : W. Scott Gwin, P.J.

LLC, et al., : Sheila G. Farmer, J.

: Julie A. Edwards, J.

Plaintiffs-Appellees :

: Case No. 2011CA00049

-vs- :

:

: OPINION

WALNUT, C & DD, LLC, et al.,

Defendants-Appellants

CHARACTER OF PROCEEDING: Civil Appeal from Fairfield County

Court of Common Pleas Case No.

09CV774

JUDGMENT: Vacated, Final Judgment Entered

DATE OF JUDGMENT ENTRY: August 3, 2012

APPEARANCES:

For Plaintiffs-Appellees For Defendants-Appellants Jerry

Mock, Barbara Mock, and Walnut C &

DD, LLC

TODD D. PECHAR D. JOE GRIFFITH

DANIEL J. FRUTH CARRIE SNOKE LOTT

CHARLES M. ELSEA Dagger, Johnston, Miller,

Stebelton, Aranda & Snider Ogilvie & Hampson

109 N. Broad Street, Suite 200 144 East Main Street

Lancaster, Ohio 43130 P.O. Box 667

Lancaster, Ohio 43130

For Defendants-Appellee’s Walnut Township, MICHAEL A. CYPHERT

et. al. Walter & Haverfield, LLP

STEVEN A. DAVIS The Tower at Erieview

Crabbe, Brown & James, LLP 1301 East Ninth Street, Suite 3500

111 South Broad Street, Suite 209 Cleveland, Ohio 44114-1821

Lancaster, Ohio 43130

LAURA MACGREGOR COMEK For Amicus Curiae State of Ohio

Crabbe, Brown & James, LLP

500 South Front Street, Suite 1200 MICHAEL DEWINE

Columbus, Ohio 43215 Attorney General of Ohio

ROBERT C. MOORMANN

Counsel of Record

NICHOLAS J. BRYAN

Assistant Attorneys General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

[Cite as Cherry Lane Dev., L.L.C. v. Walnut, C & DD, L.L.C., 2012-Ohio-3559.]

Edwards, J.

{¶1} Appellants Walnut C&DD, LLC, Barbara S. Mock and Jerry L. Mock

(collectively “Mocks”) appeal a judgment of the Fairfield County Common Pleas Court

finding that Walnut Township failed to comply with the requirements of R.C. 519.12 and

its own zoning resolution in changing the zoning of appellants’ property from Industrial 1

(I-1) to Industrial 2 (I-2). Appellees are Walnut Township, Walnut Township Zoning

Commisson, Ralph Reeb, Ralph Zollinger, Allen Dupler, Pauline Ety and Walter Gabriel

(collectively “Walnut Township”); and Cherry Lane Development, LLC, Ronald DiPaolo

and Irene DiPaolo (collectively “DiPaolos”).

STATEMENT OF FACTS AND CASE

{¶2} The Mocks own 65.9 acres in Walnut Township. Cherry Lane owns

property lying north of and contiguous to the Mocks’ property. Ronald and Irene

DiPaolo are members of Cherry Lane Development, LLC.

{¶3} In February of 2008, the Mocks applied to the township to change the

zoning of their property from I-1 (light industrial) to I-2 (general industrial). The Walnut

Township Zoning Commission set the matter for public hearing on March 6, 2008. The

DiPaolos attended the hearing with their attorney. At the hearing, the Mocks explained

that they were currently operating a roll-off trash container business, a stone yard and a

recycling business on their property and wanted to split off three lots and sell them to

businesses that needed I-2 zoning in order to operate on the property. The DiPaolos

objected to the rezoning, notified the Commission that the Mocks had contacted the

EPA that week about constructing a demolition landfill and presented a petition

containing 27 signatures of neighboring landowners who opposed the rezoning. The

Fairfield County App. Case No. 2011CA00049 3

DiPaolos believed that the Mocks were attempting to have their property rezoned in

order to construct a construction and demolition debris (C&DD) landfill next to the

Cherry Lane Development, which would diminish the value of the DiPaolos’ property.

{¶4} At the conclusion of the hearing, the Commission chose not to make a

recommendation because it had not yet received the Regional Planning Commission’s

recommendation. The Zoning Commission tabled the matter until its April 3, 2008,

meeting.

{¶5} The Regional Planning Commission met on April 1, 2008, for a public

hearing on the Mocks request for rezoning. The DiPaolos were present at this meeting

and voiced their objections. The Regional Planning Commission recommended

approval of the zoning change.

{¶6} The Zoning Commission met on April 3, 2008, read the Regional Planning

Commission’s recommendation into the record, and passed a motion recommending

that the Board of Trustees adopt the zoning change.

{¶7} On April 8, 2008, the Walnut Township Trustees met in regular session,

received the recommendation of the Zoning Commission and set a public hearing for

April 22, 2008. The trustees convened as planned on April 22, 2008, but rescheduled

the hearing for May 6, 2008, because the notices publicizing the hearing failed to

comply with R.C. 519.12(F). Notice of the May 6, 2008, hearing was mailed to

neighboring property owners, including Cherry Lane Development, and published in the

newspaper.

Fairfield County App. Case No. 2011CA00049 4

{¶8} At the May 6, 2008, hearing, the DiPaolos once again vehemently

objected to the zoning change. The township trustees approved the zoning change in

Resolution 15-08.

{¶9} On December 11, 2008, Walnut C&DD, LLC, a company owned by the

Mocks, obtained a site specific license to operate a C&DD facility on their property from

the Fairfield Department of Health, acting on behalf of the Ohio Environmental

Protection Agency. Such a facility is permissible in an area zoned I-2, but not in an area

zoned I-1. The license has been renewed yearly.

{¶10} The DiPaolos brought the instant action on June 11, 2009, in the Fairfield

County Common Pleas Court, challenging the procedure used by the Township in

adopting the zoning change. They sought a declaration that the new Zoning Resolution

was null and void, and a writ of mandamus ordering the township to enforce the old

Zoning Resolution with respect to the Mocks’ property. They also sought both

preliminary and permanent injunctions to prevent the Mocks from constructing a C&DD

facility on their property and to prevent the township and its agents from issuing licenses

or permits in accordance with Resolution 15-08.

{¶11} The Mocks filed counterclaims against the DiPaolos and cross-claims

against the Township. They further filed third party complaints against the trustees

individually.

{¶12} On April 26, 2010, the trial court found that Resolution 15-08 was null and

void because the township failed to comply with R.C. 519.12 and its own Zoning

Resolution in adopting the change.

Fairfield County App. Case No. 2011CA00049 5

{¶13} The Mocks moved the trial court for leave to amend their cross-claim

against the Township to state a claim for declaratory relief as to whether the Mocks may

operate a C&DD facility on the property pursuant to a state license. The court granted

the motion on March 24, 2011. Both parties filed motions for summary judgment. On

August 26, 2011, the trial court sustained the Mocks’ motion for summary judgment,

declaring that the Walnut Township Zoning Resolution as applied to the portion of the

Mocks property covered by the 2011 C&DD license was invalid and could not be

enforced, as state law preempted the zoning ordinance.

{¶14} The Mocks appeal the April 26, 2010, judgment, assigning a single error:

{¶15} “THE TRIAL COURT ERRED IN FINDING THAT WALNUT TOWNSHIP

FAILED TO COMPLY WITH R.C. §519.12 AND ITS OWN ZONING RESOLUTION.”

{¶16} Appellees argue that appellants waived this argument by stipulating that

the property was zoned I-1 light industrial in connection with the court’s resolution of the

issues raised in the Mocks’ cross-claim concerning state preemption. We disagree.

The stipulation was an accurate reflection of the state of the zoning at the time, based

on the court’s decision on April 26, 2010, that Resolution 15-08 was null and void. The

stipulation did not waive appellants’ rights to challenge the April 26, 2010, judgment of

the trial court.

{¶17} Appellants argue that the trial court improperly counted the number of

days in concluding that the May 6, 2008, hearing was not held within 30 days of the

township trustees’ receipt of the recommendation of the zoning commission as required

by R.C. 519.12(E), which provides in pertinent part:

Fairfield County App. Case No. 2011CA00049 6

{¶18} “The township zoning commission, within thirty days after the hearing,

shall recommend the approval or denial of the proposed amendment, or the approval of

some modification of it, and submit that recommendation together with the motion,

application, or resolution involved, the text and map pertaining to the proposed

amendment, and the recommendation of the county or regional planning commission on

it to the board of township trustees.

{¶19} “The board of township trustees, upon receipt of that recommendation,

shall set a time for a public hearing on the proposed amendment, which date shall not

be more than thirty days from the date of the receipt of that recommendation. Notice of

the hearing shall be given by the board by one publication in one or more newspapers

of general circulation in the township, at least ten days before the date of the hearing.”

{¶20} Appellees argue that the board of township trustees received the notice on

April 3, 2008, which is the date the zoning commission recommended approval of the

resolution, and the May 6, 2008, hearing was therefore held more than thirty days from

the receipt of the recommendation. Appellants argue the board of township trustees

received the notice on April 8, 2008, which is the date of their first meeting following the

recommendation and the date on which the board formally received the

recommendation.

{¶21} We agree with appellants. If the date of the recommendation was the date

the board of trustees received the recommendation, there would be no need to

distinguish between the two dates in the statute. However, R.C. 519.12(E) specifically

states that the board must hold a hearing not more than thirty days from the date of

receipt of the recommendation, and does not state that the hearing must be held within

Fairfield County App. Case No. 2011CA00049 7

thirty days of the zoning commission’s recommendation. Until the board of township

trustees convenes for a meeting, the board has no opportunity to receive the

recommendation or to act on setting a hearing date. The fact that several of the

township trustees were individually present at the zoning commission’s hearing and

heard the recommendation on April 3, 2008, does not give the board as a whole the

opportunity to receive and act on the recommendation.

{¶22} We therefore, find the trial court erred in holding that the meeting hearing

was not held in a timely fashion. The board of township trustees received the

recommendation on April 8, 2008. The public hearing was held on May 6, 2008, within

30 days of receipt of the recommendation as required by R.C. 519.12 and the Walnut

Township zoning resolution.

{¶23} Appellants next argue that the trial court erred in finding that the township

did not substantially comply with the requirements of R.C. 519.12 and its own zoning

resolution in adopting Resolution 15-08.

{¶24} The standard to be applied to procedures of nonlegislative bodies involved

in the zoning amendment process is “substantial compliance.” Kroeger v. Standard Oil

Co. of Ohio, Inc., 12th Dist. Nos. CA88-11-086, CA88-11-087, 1989 WL 87837 (August

7, 1989). We must determine if the notice given by the zoning commission

substantially complied with the requirements of R.C. 519.12 and whether any interested

party was prejudiced by the defects in the notice. Id., citing Schlagheck v. Winterfield

(1958), 108 Ohio App. 299, 307-08.

{¶25} The trial court first found that the application filed by the Mocks did not

comply with Zoning Resolution §1102.2 because the application failed to provide a legal

Fairfield County App. Case No. 2011CA00049 8

description of the property affected, failed to include a present or proposed use, did not

include a vicinity map showing property lines, streets, and existing and proposed

zoning, and did not list all property owners and their addresses contiguous to and

directly across the street from their property.

{¶26} The DiPaolos did not demonstrate prejudice from any of the defects in the

application. The record reflects that they attended the initial March 6, 2008, hearing;

thus, they received notice of the hearing. The information missing from the application

was provided at the hearing. The proposed zoning ordinance submitted by the Mocks

had attached to it their deed to the property, which included the legal descriptions. Two

maps were submitted with the agenda presented by the Mocks, and the information

concerning the present and proposed zoning was discussed at the hearing. The Mocks

explained their current business operations, and stated that they wanted to sell lots to

three businesses which needed I-2 zoning. The DiPaolos were prepared to discuss the

issue of proposed use of the property, as they expressed concern that the Mocks true

intent was to open a C&DD landfill, and they presented the commission with 27

signatures of those opposing the zoning change. The DiPaolos clearly participated fully

in the first hearing and the record does not reflect that they were prejudiced by the

defects in the application.

{¶27} The trial court also found that the Zoning Commission’s notice to the

neighbors failed to state the addresses of both of the Mocks’ parcels that were the

subject of the rezoning as required by R.C. 519.12(C)(3), the location where the

proposed amendment could be inspected prior to the public hearing as required by R.C.

Fairfield County App. Case No. 2011CA00049 9

519.12(C)(5), and that the commission would submit the matter to the trustees for their

action after the commission’s hearing as required by R.C. 519.12(C)(7).

{¶28} Again, the record does not reflect that the DiPaolos were prejudiced in any

manner by these defects in the notice. The exhibits entered into evidence by the parties

in this case clearly reflect that the DiPaolos participated fully in all hearings to voice their

objections and were fully aware of the nature of the zoning change and the exact

property subject to the proposed change.

{¶29} The trial court also found that no written notice was issued for the April 3,

2008, Zoning Commission hearing as required by R.C. 519.12(C), Z.R. §1102.6 and

Z.R. §1102.7. Again, the DiPaolos were not prejudiced in any way by the lack of

written notice. They were present at the March 6, 2008, public hearing where they were

verbally told that the next hearing would be April 3, 2008, and the Zoning Commission’s

recommendation would be announced at that time. They attended the meeting on April

3, 2008, so clearly they were aware of the meeting and were not prejudiced by not

receiving written notice.

{¶30} Finally, the court found that the maps attached to the notice mailed by the

trustees to the Mocks’ neighbors informing them of the public hearing were incorrectly

highlighted, included parcel numbers that did not correspond to the Mocks’ actual parcel

numbers, and listed persons other than the Mocks as owners of the parcels. The

DiPaolos argue that they were prejudiced because when they presented these maps

with their petition for referendum of Resolution 15-08, they were rejected by the Fairfield

County Board of Elections, thus stopping their efforts to have the trustees’ action

overturned by referendum.

Fairfield County App. Case No. 2011CA00049 10

{¶31} The mere fact that petitioners for a referendum receive an inaccurate map

from the township does not alter their duty under R.C. 519.12(H) to submit an accurate

map with their petition. State ex rel. Columbia Reserve Ltd. v. Lorain County Bd. of

Elections, 111 Ohio St.3d 167, 855 N.E.2d 815, 2006-Ohio-5019, ¶36. The duty was,

therefore, on appellants to ensure that their map was accurate pursuant to the laws

governing referendum petitions. Further, the Ohio Supreme Court has held that

township electors seeking to exercise their right of referendum need not attach a map

that is more accurate than the map that was approved by the board of trustees. State

ex rel. Gemienhardt v. Delaware Cty. Bd. of Elections, 109 Ohio St.3d 212, 846 N.E.2d

1223, 2006-Ohio-1666, ¶56. The DiPaolos therefore could have challenged the

decision of the Fairfield County Board of Elections concerning their reliance on the map

approved by the trustees.

{¶32} The assignment of error is sustained.

Fairfield County App. Case No. 2011CA00049 11

{¶33} The April 26, 2010, judgment of the Fairfield County Common Pleas Court

declaring Resolution 15-08 to be null and void is vacated. Pursuant to App. R. 12(B),

we hereby enter final judgment reinstating Zoning Resolution 15-08. Costs to

appellees.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/0501

[Cite as Cherry Lane Dev., L.L.C. v. Walnut, C & DD, L.L.C., 2012-Ohio-3559.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

CHERRY LANE DEVELOPMENT, LLC,

et al., :

:

Plaintiffs-Appellees :

:

:

-vs- : JUDGMENT ENTRY

:

WALNUT C & DD, LLC, et al., :

:

Defendants-Appellants : CASE NO. 2011CA00049

For the reasons stated in our accompanying Memorandum-Opinion on file, the April

26, 2010, appeal of the Fairfield County Court of Common Pleas is vacated pursuant to

App.R. 12(B), we hereby enter final judgment reinstating Zoning Resolution 15-08.

Costs assessed to appellees.

_________________________________

_________________________________

_________________________________

JUDGES