Verbillion v. Enon Sand & Gravel, LLC
| Decision Date | 29 October 2021 |
| Docket Number | No. 2021-CA-1,2021-CA-1 |
| Citation | 180 N.E.3d 638 |
| Parties | Michael E. VERBILLION, et al. Plaintiffs-Appellees v. ENON SAND AND GRAVEL, LLC, Defendant-Appellant |
| Court | Ohio Court of Appeals |
BRIAN P. BARGER, Atty. Reg. No. 0018908 and MATTHEW D. HARPER, Atty. Reg. No. 0059192, One SeaGate, 24th Floor, P.O. Box 10032, Toledo, Ohio 43699, Attorneys for Plaintiffs-Appellees.
PAUL J. KAVANAGH, Atty. Reg. No. 0065418, 333 North Limestone Street, P.O. Box 1687, Springfield, Ohio 45501, Attorney for Defendant-Appellant.
{¶ 1} This case involves whether a prior, non-conforming use for surface mining exists on property owned by Defendant-Appellant, Enon Sand and Gravel, LLC ("Enon"). The trial court concluded that it does not, and that Enon must obtain a conditional use permit to engage in surface mining. Enon appeals from the trial court's judgment, which was rendered in favor of Plaintiffs-Appellees, Michael Verbillion, Jolyn Verbillion, Beth Zainey, Carol Culbertson, and Charles Swaney (collectively, "Appellees").
{¶ 2} In support of its appeal, Enon raises six assignments of error, including whether the trial court erred: (1) in failing to apply res judicata to Appellees’ claims; (2) in failing to find that Appellees’ action impermissibly attacked a prior federal court judgment; (3) in finding that Appellees had standing under R.C. 303.24 to bring this action; (4) in excluding the testimony of a deceased witness; (5) by finding that Enon failed to prove a prior legal nonconforming use to engage in surface mining on its property; and (6) by concluding that Enon's predecessors-in-interest had abandoned a prior non-conforming use on certain parts of the property.
{¶ 3} After considering the record, we find no error, other than harmless error, on the trial court's part. Accordingly, the judgment of the trial court will be affirmed.
{¶ 4} In 2004, Melvin Stone Company ("Melvin") purchased Enon, which is a business supplying construction, asphalt, and concrete aggregates. Transcript of Proceedings ("Tr."), p. 477-478.1 Enon is located just north of Enon, Ohio. Id. at p. 478. Dennis Garrison is the president of Enon and of several other aggregate companies affiliated with Jurgensen Company. Id. at 511. Since becoming president of the Jurgensen aggregates in 2002, Garrison has acquired many properties for the purpose of engaging in surface mining. Id. at p. 479 and 512. Surface mining encompasses any type of mining that starts on the earth's surface. Typically, sand and gravel are mined by mechanical means, whether above water or under water, while limestone is mined by blasting followed by mechanical extraction. Id. at p. 480.
{¶ 5} After learning that Daniel Demmy was attempting to market property in Clark County that might have extensive mineral reserves, Garrison signed a letter of intent in August 2014 for Melvin to purchase 500 acres from Demmy, Demmy's wife, and their associated entities. Id. at p. 482-483, 492, and 513-514. Garrison had known Demmy since the 1990s, as both a customer and a competitor. Id. at 486-487.
{¶ 6} For purposes of simplifying the process with the Clark County Auditor, 17 parcels were combined into five parcels, which were later labeled as Demmy I, II, and III, and Keifer I and II. Id. at p. 492, 494, 519, and 522 The property in question was zoned agricultural, and unless a prior lawful non-conforming use existed, Clark County would require Enon to obtain a conditional use permit before engaging in surface mining. Id. at p. 517-518.
{¶ 7} Specifically, Clark County's Zoning Resolution ("CCZR"), which was adopted in November 1964, allowed exemption from the conditional use process if a property was subject to a prior lawful non-conforming use before the CCZR was enacted. Id. at p. 154, 164, 394-395, and 524; Joint Ex. I, Ch.9, Section (G)(1)(h), p. 9-8. If a prior lawful non-conforming use exists, it extends to the full extent of a parcel at the time of approval, regardless of where the non-conforming use is located on the parcel. Tr. at p. 164. However, if the non-conforming use is voluntarily discontinued for two years or more, any future uses much comply with the CCZR. CCZR at Ch. 9, Section (G)(3)(a), p. 9-9.
{¶ 8} Under the August 2014 letter of intent, Melvin's obligation to close on the property was conditioned on confirmation that no zoning or other land use restrictions would limit, impair, or prevent Melvin's ability to mine the property's mineral deposits. Tr. at p. 516.
{¶ 9} As part of the sale process, Garrison engaged in due diligence, which included the following items: inquiring how the property had been used in the past; reviewing all the Ohio Department of Natural Resource ("ODNR") records; walking the property; evaluating ten to twelve core drills Demmy had done to ascertain the types, depths, and amounts of limestone on the property; looking at areas Demmy had mined in the past and what reclamation had been done; reviewing the potential mine plan for the property at that time; doing environmental studies; reviewing zoning and the conditional use process; checking for property liens; and determining if prior lawful nonconforming mining uses existed on the property. Id. at p. 483-484 and 515-517. Over the years, extensive parts of the property had been mined for sand, gravel, and limestone, including sand and gravel mining on Demmy II, Demmy III (an option parcel), and Keifer II, and sand, gravel, and limestone mining on Keifer I and Demmy I. Id. at p. 484-486.
{¶ 10} In addition to complying with zoning laws, surface mine operators must comply with surface mine laws. Ohio's surface mine statute was enacted in 1975 and currently requires pre-existing mine sites not covered by a mining reclamation plan to apply for a mining permit with the Division of Mineral Resources Management ("DMRM"), which is a division of ODNR.2 This Division, as part of the ODNR, has authority over all surface mining in Ohio. See R.C. 1501.01, R.C. 1501.05, R.C. 1514.011, and R.C. 1514.02.
{¶ 11} Under R.C. 1514.02, applications for permits for surface mining are made to the Chief of the DMRM. The Reclamation Commission hears appeals from the Chief's orders, and aggrieved parties are permitted to appeal from the Commission's decisions to the common pleas court. See R.C. 1514.09, R.C. 1515.13, and 1513.14(A).
{¶ 12} Properties in southwest Ohio had their first permits issued in the summer of 1976. The reclamation law is equivalent to a construction bond that ensures owners will reclaim mining areas. Tr. at p. 339-340. Issuance of a mining permit under R.C. Chap. 1514 does not relieve mine owners or operators from complying with any other federal, state or local requirements, including zoning regulations. In fact, applicants for mining permits must state that they will comply with zoning laws. However, they do not have to apply for a zoning permit before obtaining a mining permit. Id. at p. 359 and 361-362.
{¶ 13} ODNR/DMRM also regulates the impact of surface mining on water and wells, as well as all blasting issues, including the manner of blasting and the requirement of approval of a blasting. Id. at p. 388 and 390. The fire marshal and/or federal government may regulate storage of blasting materials. Id. at p. 388.
{¶ 14} ODNR, through the Reclamation Division, initially issued two mining permits relative to the property in question. Tr. at p. 338. This was because, at the time, different individuals owned parts of the property. One, permit IM-375, was issued effective June 6, 1977, to Demmy Sand & Gravel and initially covered 156.8 acres. Ex. C, p. 6.3 This permit covered Demmy I, II, and III, and allowed the applicant and its later successors to mine anywhere on the permitted properties. Tr. at p. 364-366; Ex. 42-A; and Ex. B-1.
{¶ 15} Furthermore, including all the acreage in an application indicates an applicant's intent to mine all the property either at the present time or in the future. Id. at p. 366 (testimony of Richard Pennington, ODNR Reclamation Inspector). In the mining industry, the term "reserves" refers to the remaining sand or aggregate or other minerals remaining to be extracted. Id. at p. 366. "Holding in reserve" is a standard part of mining operations and refers to mining companies’ acquisition of acreage exceeding what they can presently mine. Holding property in reserve is necessary for profitable operations because mining, by its nature, exhausts the available resources as it proceeds. Id. at p. 366-367.
{¶ 16} Although permit IM-375 was not issued until 1977, some mining had already occurred on the site. Between 1977 and 2015, permit IM-375 was amended to both increase and decrease its size. At the most recent permit renewal in 2007, IM-375 covered 398.9 acres. Ex. C at p. 6.
{¶ 17} In 2015, Enon acquired title to Demmy I and Demmy II and acquired an option to purchase Demmy III. Subsequently, in December 2015, Demmy Sand & Gravel transferred permit IM-375 to Enon. Ex. C at p. 6. Id.
{¶ 18} As noted, two mining permits are relevant to this case. ODNR issued the second permit, IM-340, on April 27, 1977, to William Keifer. Tr. at p. 338, 351-352, 369 and 374; Ex. 28-A; Ex. 43; Ex. B-1; and Ex. C, p. 5. The original permit covered about 13.8 acres. Ex. C at p. 5.
{¶ 19} Although this permit was not issued until 1977, "mining had been occurring on this site for many years." Id. ...
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