United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge
REPORT AND RECOMMENDATIONS 
L. Ovington United States Magistrate Judge
Enon Sand and Gravel, LLC, brings this case against
Defendants Clark County Board of Commissioners and Clark
County Zoning Administrator Thomas A. Hale “to protect
its right to continue prior non-conforming uses of certain
real property located in … Clark County, Ohio
….” (Doc. #1, PageID #2). Plaintiff
seeks declaratory judgment under O.R.C. § 2721.01 et
seq., injunctive relief, monetary relief under 42 U.S.C.
§ 1983, reasonable attorneys' fees under 42 U.S.C.
§ 1988, and “other relief as the Court deems just
and warranted.” Id. at 1-19.
case is before the Court upon Defendants' Motion for
Judgment on the Pleadings (Doc. #20), Plaintiff's
Opposition (Doc. #27), Defendant's Reply Memorandum (Doc.
#33), Charles D. Swaney's Motion to Intervene (Doc. #13),
Plaintiff's Opposition (Doc. #16), Mr. Swaney's Reply
(Doc. #18), Plaintiff's Sur-Reply (Doc. #22), and the
record as a whole.
Enon Sand and Gravel is an Ohio limited liability company
which owns, or has the option to purchase, several pieces of
property in the unincorporated areas of Clark County. (Doc.
#1, PageID #2). There are five properties at issue
in the present case-Kiefer I and II and Demmy I, II, and III.
Id. at 3-6. “Since before 1955, [Plaintiff],
and its predecessors-in-title, have continuously (i) used
such property for surface mining, (ii) held it in reserve for
future surface mining, and/or (iii) used it for incidental
purposes necessary to surface mining (the ‘Surface
Mining Uses').” Id. at 2.
November 1964, Clark County enacted the Clark County Zoning
Resolution for the unincorporated areas of the County.
Id. at 3. Plaintiff contends, “Because the
Surface Mining Uses of the property predate the enactment of
the Clark County Zoning Resolution (‘CCZR'), they
constitute prior non-conforming uses not subject to the
CCZR.” Id. at 2.
“understands” it is Defendants' position that
Plaintiff must have a conditional use permit to continue the
Surface Mining Uses on its properties; Plaintiff's prior
non-conforming use of the portion of its properties held in
reserve for future surface mining has expired due to lack of
active mining for two or more years; and Plaintiff's use
of explosives and dewatering invalidates any prior
non-conforming use because it had not used those means for
surface mining in the past. Id. at 8-14.
first through fifth claims for relief seek declaratory
judgment under Ohio Revised Code § 2721.01 et seq.
Id. at 7-15. Specifically, Plaintiff asks for a judgment
declaring that it “has valid prior non-conforming uses
which extend to all Surface Mining Uses of [its properties]
…”; it may continue its prior non-conforming
uses without a conditional use permit; and “neither the
nature of the minerals mined by [Plaintiff] nor the method of
mining such minerals … invalidates the valid prior
nonconforming uses ….” Id. at 7-15.
sixth claim for relief, Plaintiff further seeks a preliminary
and permanent injunction precluding Defendants “from
stopping Enon from exercising its valid prior non-conforming
uses ….” Id. at 15-16.
Plaintiff alleges that it “has a
constitutionally-protected property right in its valid prior
non-conforming uses of [all five properties] for Surface
Mining Uses.” Id. at 16. As a result of
Defendants' conduct, Plaintiff “has been deprived
of its property rights in violation of the Fifth and
Fourteenth Amendments of the United States Constitution.
… Enon is entitled to monetary and injunctive relief
under 42 U.S.C. § 1983, as well as an award of
reasonable attorneys' fees ….” Id.
October 2013, Charles D. Swaney, pro se, filed a
Motion to Intervene (Doc. #13). According to Mr. Swaney, his
property is bordered on the east and north by Plaintiff's
properties. Id. He seeks to intervene because,
“The value of his said real property will be
substantially diminished, and his use and enjoyment thereof
will be substantially curtailed, if the Plaintiff is granted
the judgment requested in the Complaint.” Id.
STANDARD OF REVIEW
12(c) motion for judgment on the pleadings “is granted
when no material issue of fact exists and the party making
the motion is entitled to judgment as a matter of law.”
Paskvan v. Cleveland Civil Serv. Comm'n, 946
F.2d 1233, 1235 (6th Cir. 1991); see Fritz v. Charter
Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010)
(citations omitted) (“The standard of review for a Rule
12(c) motion is the same as for a motion under Rule 12(b)(6)
for failure to state a claim upon which relief can be
granted.”). “In reviewing the motion, [the Court]
must construe the complaint in the light most favorable to
the plaintiff, [and] accept all of the complaint's
factual allegations as true ….” Hoven v.
Walgreen Co., 751 F.3d 778, 783 (6th Cir. 2014) (citing
Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512
(6th Cir. 2001)).
Federal Rule of Civil Procedure 8, “A pleading that
states a claim for relief must contain: … a short and
plain statement of the claim showing that the pleader is
entitled to relief; and … a demand for the relief
sought ….” This standard “does not require
‘detailed factual allegations, ' but it demands
more than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007); Papasan v. Allain, 478
U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)).
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim for relief that is plausible on its face.' A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (citing Twombly, 550 U.S. at
556, 127 S.Ct. 1955, 167 L.Ed.2d 929); see also Tackett
v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th
Cir. 2009) (quoting in part Twombly, 550 U.S. at
555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929) (“a
complaint must contain (1) ‘enough facts to state a
claim to relief that is plausible, ' (2) more than
‘a formulaic recitation of a cause of action's
elements, ' and (3) allegations that suggest a
‘right to relief above a speculative
contend that Plaintiff's § 1983 claim should be
dismissed because Plaintiff has not alleged facts showing
that Defendants acted under the color of state law, that
there was a final decision regarding Plaintiff's
property, and that Plaintiff has exhausted its available
state remedies. Additionally, Defendants assert that
Plaintiff's Complaint fails to allege facts showing an
actual case or controversy.
state a plausible claim for relief under § 1983, a
plaintiff must allege facts sufficient to show “that a
person acting under color of state law deprived him of a
right secured by the Constitution or laws of the United
States.” Everson v. Leis, 556 F.3d 484, 493
(6th Cir. 2009); see also Upsher v. Grosse Pointe Pub.
Sch. Sys., 285 F.3d 448, 452 (6th Cir. 2002) (“to
state a viable claim under 42 U.S.C. § 1983, plaintiffs
must produce evidence that: (1) they were deprived of a
right, privilege, or immunity secured by the federal
Constitution or law of the United States, and (2) the
deprivation was caused by a person while acting under the
color of state law.”) (citations omitted); Haywood
v. Drown, 556 U.S. 729, 731, 129 S.Ct. 2108, 2112, 173
L.Ed.2d 920 (2009) (Section 1983 “creates a remedy for
violations of federal rights committed by persons acting
under color of state law.”) (footnote omitted).
contend that Plaintiff does not allege that they took any
action. “The only allegation about Defendants'
‘actions' is a description of what Plaintiff
understands the position of Defendants may be with
respect to Plaintiffs' use of its land.” (Doc. #20,
PageID #s 237-38) (citation omitted).
response, Plaintiff asserts that its “allegations rest
directly on Defendants' Letter telling [Plaintiff]
exactly what Defendants position is and what [Plaintiff] must
do.” (Doc. #21, PageID #275). In the letter
from Allan Neimayer, Senior Planner at the Clark County
Community and Economic Development, he observed that
Plaintiff's application for a significant mining
modification was pending with the Ohio Department of Natural
Resources (ODNR). Id. at 288. Under Clark County
Zoning Regulations, “the start of any mineral
extraction operation after November 3, 1964, or the expansion
or significant modification to a legal non-conforming
operation prior to November 3, 1964, requires a Conditional
Use permit approved by the Clark County Board of Zoning
Appeals (BZA).” Id. The Clark County Community
and Economic Development Department searched their records
and found no record of a Conditional Use permit approval by
the BZA. Id. Accordingly, Mr. Neimayer explained,
“The purpose of this ...