Opinion
Case No. 19-COA-021
02-28-2020
JAMES DIAZ, ET AL. Plaintiffs-Appellees v. SULLIVAN TOWNSHIP BOARD OF TRUSTEES Defendant-Appellant
APPEARANCES: For Plaintiffs-Appellees W. LOVE II 739 West Rextur Drive Akron, OH 44319 For Defendant-Appellant MATTHEW A. DOOLEY PATRICK M. WARD 5455 Detroit Road Sheffield Village, OH 44054
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 18-CIV-136 JUDGMENT: Affirmed APPEARANCES: For Plaintiffs-Appellees W. LOVE II
739 West Rextur Drive
Akron, OH 44319 For Defendant-Appellant MATTHEW A. DOOLEY
PATRICK M. WARD
5455 Detroit Road
Sheffield Village, OH 44054 Wise, Earle, J.
{¶ 1} Defendant-Appellant, Sullivan Township Board of Trustees, appeals the May 6, 2019 judgment entry of the Court of Common Pleas of Ashland County, Ohio, granting partial summary judgment to Plaintiffs-Appellees, James Diaz and James Diaz, Jr.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 9, 2018, appellant passed a resolution, Section 620, prohibiting the storage or processing of Class B biosolids (partially treated sewage sludge) in all zoning districts. Appellees owned/leased farmland in Sullivan Township and applied Class B biosolids to this land as fertilizer in accordance with permits issued by the Ohio Environmental Protection Agency in March/April 2018.
{¶ 3} On July 30, 2018, appellees filed a complaint for injunctive relief against appellant and the three individual trustees. Appellees sought a declaration that Section 620 was void under R.C. 519.12 (prohibition of agricultural uses limited) and R.C. Chapter 6111 (water pollution control). Appellees requested a permanent injunction to prevent enforcement of the resolution, and also requested attorney fees and costs. Appellees eventually voluntarily dismissed the three trustees from the action.
{¶ 4} On October 26, 2018, appellees filed a motion for partial summary judgment on the issue of whether R.C. Chapter 6111 preempted the resolution. Appellees argued R.C. 6111.03 grants the Ohio EPA exclusive authority to regulate sewage sludge. Appellees' argument relative to R.C. 519.21 was not included in the motion. By decision filed December 19, 2018, a magistrate granted the motion, finding R.C. Chapter 6111 preempted the resolution and therefore Section 620 was void and unenforceable. Appellees' R.C. 519.21 claim was rendered moot.
{¶ 5} Appellant filed objections. By judgment entry filed May 6, 2019, the trial court overruled the objections and adopted the magistrate's decision. The trial court noted "[t]here is no just reason for delay." Pending still were appellees' request for a permanent injunction and attorney fees and costs which were subsequently stayed after this appeal was filed.
{¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
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{¶ 7} "THE TRIAL COURT REVERSIBLY ERRED IN GRANTING PLAINTIFFS-APPELLEES' MOTION FOR PARTIAL SUMMARY JUDGMENT, FINDING SECTION 620 OF THE SULLIVAN TOWNSHIP ZONING RESOLUTION VOID AND UNENFORCEABLE"
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{¶ 8} In its sole assignment of error, appellant claims the trial court erred in granting partial summary judgment to appellees. We disagree.
{¶ 9} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996):
Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly
in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.
{¶ 10} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).
{¶ 11} The subject resolution, Section 620, states the following:
The storage or processing of human biosolids in any form, whether liquid, thickened liquid, detwatered or dried, shall be a prohibited use in all zoning districts. Further, land application of Class B biosolids shall be prohibited in all zoning districts. The foregoing prohibition shall not apply to the storage of biosolids on a lot generated by a wastewater treatment facility constructed on that lot solely to treat sanitary effluent from residents of Sullivan Township.
{¶ 12} Appellees argue this resolution is preempted by R.C. Chapter 6111 which regulates water pollution control. R.C. 6111.46 governs general supervision of disposal and states the following:
(A) The environmental protection agency shall exercise general supervision of the treatment and disposal of sewage and industrial wastes and the operation and maintenance of works or means installed for the collection, treatment, and disposal of sewage and industrial wastes. Such general supervision shall apply to all features of construction, operation, and maintenance of the works or means that do or may affect the proper treatment and disposal of sewage and industrial wastes.
{¶ 13} R.C. 6111.03 governs powers of director of environmental protection. Subsection (R) states the following in pertinent part:
The director of environmental protection may do any of the following:
(R)(1) Administer and enforce a program for the regulation of sludge management in this state. In administering the program, the director, in addition to exercising the authority provided in any other applicable sections of this chapter, may do any of the following:
(a) Develop plans and programs for the disposal and utilization of sludge and sludge materials;
(d) Issue, modify, or revoke orders to prevent, control, or abate the use and disposal of sludge and sludge materials or the effects of the use of sludge and sludge materials on land located in the state and on the air and waters of the state;
(e) Adopt and enforce, modify, or rescind rules necessary for the implementation of division (R) of this section. The rules reasonably shall
protect public health and the environment, encourage the beneficial reuse of sludge and sludge materials, and minimize the creation of nuisance odors.
The director may specify in sludge management permits the net volume, net weight, quality, and pollutant concentration of the sludge or sludge materials that may be used, stored, treated, or disposed of, and the manner and frequency of the use, storage, treatment, or disposal, to protect public health and the environment from adverse effects relating to those activities. The director shall impose other terms and conditions to protect public health and the environment, minimize the creation of nuisance odors, and achieve compliance with this chapter and rules adopted under it and, in doing so, shall consider whether the terms and conditions are consistent with the goal of encouraging the beneficial reuse of sludge and sludge materials.
(2) As a part of the program established under division (R)(1) of this section, the director has exclusive authority to regulate sewage sludge management in this state. (Emphasis added.)
{¶ 14} R.C. 6111.01 defines the following pertinent terms:
(B) "Sewage" means any liquid waste containing sludge, sludge materials, or animal or vegetable matter in suspension or solution, and may include household wastes as commonly discharged from residences and from commercial, institutional, or similar facilities.
(N) "Sludge" means sewage sludge and a solid, semi-solid, or liquid residue that is generated from an industrial wastewater treatment process and that is applied to land for agronomic benefit.
(O) "Sludge materials" means solid, semi-solid, or liquid materials derived from sludge and includes products from a treatment works that result from the treatment, blending, or composting of sludge.
(P) "Storage of sludge" means the placement of sludge on land on which the sludge remains for not longer than two years, but does not include the placement of sludge on land for treatment.
(R) "Agronomic benefit" means any process that promotes or enhances plant growth and includes, but is not limited to, a process that increases soil fertility and moisture retention.
(S) "Sludge management" means the use, storage, treatment, or disposal of, and management practices related to, sludge and sludge materials.
{¶ 15} In conjunction with R.C. Chapter 6111, Ohio Adm.Code Chapter 3745-40 sets forth the requirements needed to obtain a permit for sewage sludge or biosolid disposal, transfer, use, storage or treatment.
{¶ 16} Article XVIII, Section 3, of the Ohio Constitution states: "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."
{¶ 17} The test for determining whether a general state statute, such as R.C. Chapter 6111, preempts a local resolution, such as Section 620, is whether there is a conflict between the two provisions. "In determining whether an ordinance is in 'conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa." Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519 (1923), paragraph two of the syllabus.
{¶ 18} In determining Section 620 to be void and unenforceable, the magistrate stated the following in his decision filed December 19, 2018:
The Ohio Revised Code specifically provides that the environmental protection agency shall exercise general supervision of the treatment and disposal of sewage and authorizes the environmental protection agency to develop plans and programs for the disposal and utilization of sludge and sludge materials. R.C. 6111.46 and R.C. 6111.03. Pursuant to the authority granted to it by the Ohio Revised Code, the Ohio Environmental Protection Agency has set forth standards through which someone may obtain authorization to beneficially use Class B biosolids at a proposed beneficial use site. Ohio Administrative Code Chapter 3745-40.
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Section 620 of the Sullivan Township Zoning Resolution outright prohibits the usage, storage, and land application of human biosolids, in any form, in Sullivan Township, Ohio. * * * The zoning resolution at issue constitutes an absolute prohibition of what the Ohio Environmental Protection Agency permits.
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The Court, therefore, finds that Section 620 of the Sullivan Township Zoning Resolution prohibits what the general laws of Ohio permit.
{¶ 19} In its May 6, 2019 judgment entry adopting the magistrate's decision, the trial court stated it concurred with the magistrate's "findings, reasoning and rationale" and found the decision "to be a correct recitation of legal authority."
{¶ 20} After reviewing the resolution in relation to the applicable statutes and the case law cited by the parties, we concur with the trial court's decision. R.C. 6111.03(R)(2) grants the director of environmental protection the exclusive authority to regulate sewage sludge management in the state of Ohio. Appellees secured permits from the Ohio EPA to store and use biosolids on their property to be used as fertilizer pursuant to the Ohio Revised Code and the Ohio Administrative Code. Section 620 would prohibit the storing and use of biosolids in all zoning districts, including appellees' property. As noted by the magistrate, the resolution "constitutes an absolute prohibition of what the Ohio Environmental Protection Agency permits." We concur appellant's resolution directly conflicts with the state statutes and therefore is preempted.
{¶ 21} As noted by the magistrate in his decision, we find the cases cited by appellant to be distinguishable from the case sub judice. We do not find any genuine issues of material fact to exist in this matter, and find reasonable minds can come to but one conclusion, and that conclusion is adverse to appellant.
{¶ 22} Upon review, we find the trial court did not err in granting appellees' motion for partial summary judgment.
{¶ 23} The sole assignment of error is denied.
{¶ 24} The judgment of the Court of Common Pleas of Ashland County, Ohio is hereby affirmed. By Wise, Earle, J. Gwin, P.J. and Baldwin, J. concur. EEW/db