2021 Ohio 3850
Ohio Ct. App.2021Background
- Enon Sand & Gravel purchased large tracts (Demmy/Keifer parcels) and acquired historic ODNR/DMRM mining permits; Clark County zoning (1964 CCZR) requires a conditional use permit for surface mining unless a prior lawful nonconforming use existed as of the CCZR's enactment.
- ODNR/DMRM issued and later consolidated permits (IM-340/IM-375) for hundreds of acres; Reclamation Commission affirmed the permit amendments after administrative appeals by local residents and CAM.
- Enon settled a federal suit with Clark County in October 2018; the settlement recited that the parcels "constitute and remain a prior, legal non-conforming use," but it included a provision rendering it void if citizen or county action prevented implementation.
- On the same day the county approved the settlement, five nearby landowners (Appellees) filed a R.C. 303.24 citizen suit seeking injunction requiring Enon to obtain a conditional use permit, alleging they would be specially damaged (traffic, blasting, water-well impacts).
- The trial court (bench trial) excluded the deposition of the deceased seller (Demmy), found Appellees had standing, found no prior lawful nonconforming use for most parcels (and abandonment for a portion), and enjoined Enon from surface mining without a conditional use permit.
- Enon appealed six assignments of error; the appellate court affirmed the trial court (overruling Enon’s challenges except for harmless error findings).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Appellees had standing under R.C. 303.24 | Appellees: they would be specially damaged (abutting Fairfield Pike traffic, blasting, well impacts) distinct from the general public | Enon: claimed damages were general/public or regulated by other agencies and therefore not "special"; alleged damages would occur regardless of a conditional-use permit | Court: standing exists — traffic impact to adjacent owners and well-impact evidence suffice; administrative findings could preclude some evidence but standing remains (errors were harmless) |
| Whether federal settlement/res judicata bars the suit | Appellees: no privity with the County; settlement contemplated citizen action and could be voided by such action | Enon: settlement/judgment precludes relitigation (claim preclusion) that the parcels are prior nonconforming uses | Court: claim-preclusion analysis required but no privity existed between Board and Appellees; res judicata did not bar citizen suit (affirmed on that basis) |
| Whether the state action was an impermissible collateral attack on the federal judgment | Appellees: action permitted by R.C. 303.24 and settlement contemplated citizen litigation; Appellees have standing | Enon: citizen suit attacks the prior federal judgment and is thus a collateral attack | Court: collateral-attack doctrine inapplicable because Appellees have standing and settlement expressly anticipated citizen action; not a forbidden collateral attack |
| Admissibility of deceased seller (Demmy) deposition | Appellees: Demmy deposition was discovery/testimonial and Enon lacked privity/predecessor-in-interest to invoke former testimony exception | Enon: Demmy’s deposition proves prior intent and nonconforming use; Demmy unavailable by death so deposition admissible | Court: Exclusion affirmed — Evid.R. 804(B)(1) requires the offered testimony be against a party or predecessor-in-interest; lack of privity with Board/predecessor-in-interest fatal to admissibility |
| Whether Enon proved a prior lawful nonconforming use that extends across parcels | Enon: historical mining, permits, maps, and (excluded) Demmy testimony show continuous/reserved mining use across parcels | Appellees: mining on many parcels ceased before 1964 or was abandoned; evidence of continuous use lacking | Court: Trial court credited local testimony and ODNR records showing limited/abandoned activity as of 11/3/1964; Enon failed to prove prior lawful nonconforming use for most parcels (affirmed) |
| Whether prior nonconforming use (Keifer II portion) was abandoned | Appellees: Youngs’ ownership and ODNR filings showed the quarry was abandoned and not used for >2 years before later mining | Enon: mere nonuse insufficient to prove abandonment; intent required | Court: Sufficient affirmative evidence of voluntary discontinuance/abandonment (maps listing "abandoned quarry," lack of permits/use) — nonconforming status lapsed |
Key Cases Cited
- Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77 (1984) (bench-trial credibility findings entitled to deference; trial judge best assesses witness demeanor)
- C.D.S., Inc. v. Village of Gates Mills, 26 Ohio St.3d 166 (1986) (definition and treatment of nonconforming land use)
- Brown v. Dayton, 89 Ohio St.3d 245 (2000) (privity explained for res judicata purposes; privity is context-dependent)
- O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59 (2007) (res judicata includes claim and issue preclusion; collateral estoppel scope)
- Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375 (2007) (collateral-attack doctrine disfavored; applies only for judgments procured by fraud or without jurisdiction)
- Columbus Bituminous Concrete Corp. v. Harrison Twp. Bd. of Zoning Appeals, 160 Ohio St.3d 279 (2020) (county/township may only apply general conditional-use standards insofar as they concern public health and safety)
- Davis v. Miller, 163 Ohio St. 91 (1955) (separate parcels bisected by public highway can be treated as distinct for nonconforming-use analysis)
- City of Columbus v. Union Cemetery Assn., 45 Ohio St.2d 47 (1976) (nonconforming use on part of tract may extend to entire tract depending on circumstances)
- Petti v. City of Richmond Heights, 5 Ohio St.3d 129 (1983) (if legality at establishment is unclear, earliest subsequent zoning in evidence controls)
- Burkhart v. H.J. Heinz Co., 140 Ohio St.3d 429 (2014) (Evid.R. 804(B)(1) former testimony requires party-or-predecessor-in-interest/privity)