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State ex rel. Sautter v. Grey

Court of Appeals of Ohio, Fifth District

April 18, 2007

STATE OF OHIO, EX REL. ROLAND SAUTTER, ET AL., Relators
v.
HON. LAWRENCE GREY, ET AL., Respondents and C&DD ACQUISITIONS, LTD, ET AL. Intervening Respondents

Original Action for Writ of Mandamus and Prohibition.

For Relators: CURTIS E. KISSINGER.

For Respondents Hon. Lawrence Grey, et al.: TOM C. ELKIN Assistant Prosecuting Attorney.

For Intervening Respondents: MAX E. RAYLE.

Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

FARMER, J.

{¶1} This matter came before the Court on an original action for Writs of Mandamus and Prohibition filed by Relators, Roland Sautter and Edward Sickmiller, against Respondents, Judge Lawrence Grey, the Morrow County Zoning Clerk, the Morrow County Zoning Inspector, and Intervening Respondents, C&DD Acquisitions, Ltd., Washington Environmental, Ltd, and Harmony Environmental, Ltd. The matter is currently before the Court for consideration of Intervening Respondent's motion to dismiss for lack of standing and failure to state a claim upon which relief may be granted, and/or for summary judgment. Relators filed a response in opposition.

{¶2} Relators in this action are taxpayers and residents of Morrow County. Relators and other members of the Commission for Zoning Against Landfills have been actively opposing the construction of new demolition debris landfill sites in Ohio. In this instance, Relators are seeking to prohibit the construction and operation of any landfills within Morrow County.

{¶3} Respondents C&DD Acquisitions, Ltd. ("C&DD") is a limited liability company formed for the purpose of licensing, constructing and operating demolition debris facilities. C&DD is the entity which owns Harmony Environmental, Ltd. ("Harmony Environmental") and Washington Environmental, Ltd. ("Washington Environmental"). Respondents Eckert and Milligan are Morrow County zoning officials. Respondent Judge Lawrence Grey is a retired Judge who sits by assignment in the Morrow County Common Pleas Court.

{¶4} The pertinent history which led to this original action is as follows. In 2001, C&DD began investigating potentially suitable parcels of land within the un-zoned townships of Morrow County for the specific purpose of making applications to locate and license new construction and demolition debris facilities. During the investigations, C&DD spent substantial amounts of time and money to conduct evaluations of state statutory and administrative regulation requirements, soil types, aquifer designations and locations, and flood plain locations in preparation for both the location and application for licensure of two facilities. In June and July of 2003, C&DD's subsidiaries, Harmony Environmental and Washington Environmental obtained options to purchase un-zoned property in Harmony and Washington Townships.

{¶5} After obtaining the options to purchase, both Harmony Environmental and Washington Environmental filed applications with the Morrow County Health Board (MCH Board) for demolition debris facility operation licenses. Harmony Environmental filed its application on August 11, 2003 and Washington Environmental filed its application on August 18, 2003.

{¶6} On August 20, 2003, the Morrow County Commissioners passed a resolution entitled "Resolution Adopting Zoning and Ordering an Election". Essentially, the Board of Commissioners enacted a resolution adopting a previously submitted 1990 zoning plan and asked the Morrow County Board of Elections to resubmit the zoning plan to the voters for county-wide approval in the November 4, 2003, general election.[1] At the November 4, 2003, general election, 6 out of 15 townships, including Harmony and Washington Townships, voted to approve county-wide zoning and prohibit the construction and operation of demolition debris facilities. On November 17, 2003, the Board of Commissioners adopted a resolution to "grandfather zoning issues" until December 3, 2003, in the six (6) townships that adopted the zoning resolution.

{¶7} In response to the Commissioners' resolution to adopt county-wide zoning prohibiting landfills, on August 24, 2004, C&DD, Harmony Environmental and Washington Environmental filed a declaratory judgment action in the Morrow County Court of Common Pleas against the Morrow County Board of Commissioners, Olen Jackson, Don Staley, Jean McClintock and Jean McClintock individually.[2] Judge Lawrence Grey presided over the matter by assignment. In the declaratory judgment action, the demolition debris companies sought to have the county-wide zoning regulations declared invalid in their entirety or inapplicable to the C&DD's parcels pursuant to alleged statutory defects in the zoning enactment, at common law and on constitutional grounds.

{¶8} Meanwhile, on February 27, 2004, after conducting an evidentiary hearing, the MCH Board denied both Harmony Environmental's and Washington Environmental's applications for operating licenses. Harmony Environmental and Washington Environmental subsequently appealed the MCH Board decision to the Environmental Review Appeals Commission (ERAC). On November 18, 2004, the ERAC vacated the decision of the MCH Board. On December 16, 2004, the MCH Board appealed the ERAC decision to the 10th District Court of Appeals. On June 23, 2005, upon appeal, the 10th ...


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