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Enon Sand and Gravel, LLC v. Clark County Board of County Commissioners

United States District Court, S.D. Ohio, Western Division, Dayton

May 2, 2018

ENON SAND AND GRAVEL, LLC, Plaintiff,
v.
CLARK COUNTY BOARD OF COMMISSIONERS, et al., Defendants.

          Walter H. Rice District Judge

          REPORT AND RECOMMENDATIONS [1]

          Sharon L. Ovington United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff 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.

         This 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.

         II. BACKGROUND

         Plaintiff 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.

         In 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.

         Plaintiff “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.

         Plaintiff's 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.

         In its 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.

         Last, 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. at 17.

         In 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.

         III. STANDARD OF REVIEW

         A Rule 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)).

         Under 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)).

         “To 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 level.'”).

         IV. ANALYSIS

         Defendants 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.

         A. State Action

         To 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).

         Defendants 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).

         In 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 ...


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