State ex rel. v. Clark Cty. Bd. of Commrs.

• Decision Date: 03 October 2007
• Docket Number: No. 2006-0165.,2006-0165.
• Citation: 875 N.E.2d 59,2007 Ohio 5022,115 Ohio St.3d 337
• Parties: The STATE ex rel. SHELLY MATERIALS, INC., Appellant, v. CLARK COUNTY BOARD OF COMMISSIONERS, Appellee.
• Court: Ohio Supreme Court

875 N.E.2d 59

115 Ohio St.3d 337

2007-Ohio-5022

The STATE ex rel. SHELLY MATERIALS, INC., Appellant, v. CLARK COUNTY BOARD OF COMMISSIONERS, Appellee.

No. 2006-0165.

Supreme Court of Ohio.

Submitted April 17, 2007.

Decided October 3, 2007.

Bieser, Greer & Landis, L.L.P., Carla J. Morman, and David C. Greer, Dayton, for appellant.

Onda, LaBuhn, Rankin & Boggs Co., L.P.A., Timothy S. Rankin, and Benjamin

W. Ogg, Columbus; Stephen A. Schumaker, Clark County Prosecuting Attorney, and Andrew J. Pickering, Assistant Prosecuting Attorney, for appellee.

Brady, Coyle & Schmidt, L.L.P., Brian P. Barger, and Margaret G. Beck, Toledo, urging reversal for amicus curiae, Ohio Aggregates and Industrial Minerals Association.

LANZINGER, J.

{¶ 1} This is an appeal from a judgment denying a writ of mandamus to compel appellee, the Clark County Board of Commissioners ("commissioners"), to begin appropriation proceedings. Appellant, Shelly Materials, Inc. ("Shelly") claims that the county zoning appeals board's denial of a conditional-use permit to mine sand and gravel on a parcel of land it purchased in Moorefield Township, Clark County, constitutes a compensable regulatory taking. We hold that the court of appeals concluded correctly that the denial of Shelly's conditional-use-permit application did not constitute a compensable categorical taking of property. Accordingly, we affirm the judgment denying the writ of mandamus.

Case Background

{¶ 2} Shelly has been in the business of sand and gravel extraction, aggregate production, and construction in Clark County for 35 years. In 1998, the company purchased a 306.057-acre tract of land in Moorefield Township for $1,943,340, to mine the sand and gravel deposits beneath the subsurface.

{¶ 3} The purchased property, zoned A-1 as an agricultural district, permits agricultural uses and also allows residences on lots of one acre or more. The parcel is surrounded by eight subdivisions with more than 200 residential lots. Resource and mineral extraction is an allowed conditional use in an A-1 Agricultural District, provided that the Clark County Board of Zoning Appeals approves the application for a permit as a conditional use.

{¶ 4} The year after it bought the property, Shelly submitted its application to the board for a conditional-use permit. Following community hearings, Shelly filed an amended application, seeking a permit to mine sand and gravel for 20 years, with a gradual conversion of the property into an area suitable for development as a lakefront residential community. After consideration of the amended application, the board denied Shelly's application because the company had not complied with certain zoning regulations. More specifically, the board concluded:

{¶ 5} "4. The Applicant has not complied with Section 129(4) of the Clark County Zoning Resolution, because the Applicant has not demonstrated that the proposed resource and mineral extraction use would not be detrimental to the vicinity or surrounding properties.

{¶ 6} "5. The Applicant has not complied with Section 129(5) of the Clark County Zoning Resolution, because the Applicant has not demonstrated that all equipment used in the proposed resource and mineral extraction use would be constructed, maintained, and operated in such a manner as to eliminate so far as practical, noise, vibration, or dust which would injure or annoy persons living in the vicinity.

{¶ 7} "* * * {¶ 8} "12. The Applicant has not complied with Section 129(12) of the Clark County Zoning Resolution, because the Applicant has not demonstrated that the proposed resource and mineral extraction use would be carried out in a manner and on such scale as to minimize dust, noise, and vibrations, and to prevent adversely affecting the surrounding properties.

{¶ 9} "13. The Applicant has not complied with Section 129(13) of the Clark County Zoning Resolution, because the Applicant has not demonstrated that access roads to the proposed use would be maintained in a dust-free condition."

{¶ 10} The Clark County Court of Common Pleas affirmed the board's denial of the conditional-use permit.

{¶ 11} Shelly appealed. The Second District Court of Appeals determined that the findings that Shelly had violated Clark County Zoning Resolution 129(5), (12), and (13) were not supported by evidence. Shelly Materials, Inc. v. Daniels, Clark App. No. 2002-CA-13, 2003-Ohio-51, 2003 WL 77176, ¶ 44, 48, 51. The court of appeals concluded that there was no credible evidence that substantiated any concerns "about dust, noise, groundwater contamination, and traffic." Id. at ¶ 82. Yet the court affirmed the judgment of the trial court because sufficient evidence backed the board's finding that Shelly did not demonstrate that its operations "will not be detrimental to the vicinity or surrounding properties," Clark County Zoning Resolution Section 129(4). Id. at ¶ 82. The court of appeals stated, "[W]hile the evidence is far from overwhelming, we have to conclude * * * that the trial court did not err in finding the proposed gravel pit incompatible with the surrounding area." Id. at ¶ 84. The Second District rejected Shelly's constitutional arguments against the board's decision and interpretation of the zoning regulations. Id. at ¶ 113. We did not accept for review Shelly's discretionary appeal from the court of appeals' judgment. Shelly Materials, Inc. v. Daniels, 99 Ohio St.3d 1410, 2003-Ohio-2454, 788 N.E.2d 647.

Federal Case

{¶ 12} Shelly sued the board and the county zoning inspector in federal district court alleging Fifth and Fourteenth Amendment claims under Section 1983, Title 42, U.S.Code. Shelly sought declaratory and injunctive relief and damages, alleging that the board's denial of its conditional-use-permit application was an unconstitutional taking; that the zoning regulations were unconstitutional both on their face and as applied; and that it was denied both substantive and procedural due process and equal protection of the law.

{¶ 13} The district court dismissed the taking claim and state constitutional claims without prejudice because Shelly had not exhausted its state remedies. The court also held that the due process claims were barred by res judicata and that the equal protection claim lacked merit. The United States Court of Appeals for the Sixth Circuit affirmed the dismissal of the taking claim but deferred consideration of the remaining claims, removing the appeal from the active docket, subject to a possible reinstatement after state court proceedings were completed.

Mandamus Case

{¶ 14} Shelly then filed a complaint in the Second District Court of Appeals for a writ of mandamus to compel the commissioners to begin appropriation proceedings, alleging that the permit denial was a compensable and involuntary taking. The commissioners filed an answer, and both parties filed motions for summary judgment. The court of appeals granted the commissioners' motion for summary judgment, denied Shelly's motion for summary judgment, and denied the writ. State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs., Clark App. No. 2003-CA-72, 2005-Ohio-6682, 2005 WL 3454751.

{¶ 15} This matter is now before us as an appeal as of right. To be entitled to a writ of mandamus, Shelly must establish a clear legal right to compel the commissioners to begin appropriation, the commissioners' corresponding clear legal duty to institute such action, and the lack of an adequate remedy for Shelly in the ordinary course of law. See State ex rel. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 2005-Ohio-2163, 826 N.E.2d 832, ¶ 10. Mandamus is the appropriate action to compel public authorities to commence appropriation cases when an involuntary taking of private property is alleged. State ex rel. Preschool Dev., Ltd. v. Springboro, 99 Ohio St.3d 347, 2003-Ohio-3999, 792 N.E.2d 721, ¶ 12.

The Takings Clause and Regulatory Takings

{¶ 16} Often referred to as the Just Compensation Clause, the final clause of the Fifth Amendment to the United States Constitution provides: "nor shall private property be taken for public use, without just compensation." This prohibition applies to the states as well as the federal government. Chicago, Burlington & Quincy RR. Co. v. Chicago (1897), 166 U.S. 226, 239, 241, 17 S.Ct. 581, 41 L.Ed. 979; Webb's Fabulous Pharmacies, Inc. v. Beckwith (1980), 449 U.S. 155, 160, 101 S.Ct. 446, 66 L.Ed.2d 358. Section 19, Article I of the Ohio Constitution also provides that private property shall not be taken for public use without just compensation. See, also, State ex rel. Trafalgar Corp. v. Miami Cty. Bd. of Commrs., 104 Ohio St.3d 350, 2004-Ohio-6406, 819 N.E.2d 1040, ¶ 24.

{¶ 17} The government's appropriation or physical invasion of private property requires compensation for the property owner. We recently have indicated the limits on the government power in eminent domain. Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, 853 N.E.2d 1115. In some instances, moreover, a direct appropriation or ouster does not occur, but government regulation of private property becomes so onerous that its effect is tantamount to a condemnation and such regulatory taking may be compensable under the Fifth Amendment. See Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (Property may be regulated to a certain extent, but "if regulation goes too far it will be recognized as a taking").

{¶ 18} Two types of regulatory actions will be deemed to be per se takings for Fifth Amendment purposes: first, those government actions that cause an owner to suffer a permanent physical invasion of property, see Loretto v. Teleprompter Manhattan CATV Corp. (1982), 458 U.S. 419, 435-440, 102 S.Ct. 3164, 73 L.Ed.2d 868 (state law requiring landlords to permit cable companies to install cable facilities in apartment buildings effected a taking); and second, government regulations that completely deprive an owner of ...