578 N.E.2d 886 | Ohio Ct. App. | 1991
This is an appeal from the Lucas County Court of Common Pleas where, following a bench trial, the court held a section of the 1989 Providence Township Zoning Resolution to be "void and unenforceable for any and all purposes." The section of the zoning resolution in question prohibits the application of sludge to any land in Providence Township and reads:
"The dumping and/or spreading of sewage sludge,1
industrial sludge, and any by-product of the treatment of sewage or industrial waste is prohibited within the township." Southeast Providence Township Zoning Resolution (1989), Section
The trial court held that "the land application of sludge is an agricultural use of the land, and that Providence Township exceeded its authority under R.C. Chapter 519 by adopting Section
Appellants, Providence Township, Ronald E. Disher, Trustee, James Ford, Trustee, and Neil Hefflinger, Trustee, filed their appeal alleging that the trial court erred in both of the above holdings. Appellees and cross-appellants, James W. Perry, Melva Jean Perry and S L Fertilizer Co., Inc., filed a cross-appeal alleging that the trial court erred in not further holding that (1) Section
We find no error was committed in the trial court and affirm its decision.
Appellees, James and Melva Perry, are owners of a farm in Providence Township. They lease a portion of the farm to appellee S L Fertilizer Co., Inc. ("S L") which is in the business of hauling sludge from waste water sewage treatment plants. The sludge is then disposed of by S L in one of *379 three ways: applying the sludge to the land for agricultural purposes, depositing the sludge in a sanitary landfill, or depositing the sludge in land reclamation projects. Over a ten-year period, S L applied sludge to the Perry farm as fertilizer.
Appellees filed a complaint for declaratory judgment and injunctive relief against appellants requesting that Section
"I. The common pleas court erred by finding that R.C. Chapter 6111 preempts enforcement of Section
"II. The common pleas court erred by finding that R.C.
"General supervision of disposal.
"The environmental protection agency shall exercise general supervision of the disposal of sewage and industrial wastes and the operation and maintenance of works or means installed for the collection, treatment, or disposal of sewage and industrial wastes. Such general supervision shall apply to all features of construction, operation, and maintenance of such works or means which do or may affect the proper treatment or disposal of such sewage and industrial wastes. The agency * * * may adopt and enforce orders and regulations governing the operation and maintenance of such works or means * * *."
The Ohio Environmental Protection Agency has adopted a regulation in connection with the land application of sludge in Ohio Adm. Code Chapter 3745-31. Ohio Adm. Code
"In the case of land application of sludge, no person shall cause, permit, or allow sludge to be applied to land without first submitting and obtaining approval of detail plans from the director. Any plan approval issued for land application of sludge shall specifically describe the type, character, and composition of such sludge and shall specifically designate the method, terms and conditions of its application." *380
The general test for determining whether a state statute, such as R.C.
"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 (1923),
The issue before this court is whether Section
R.C.
Appellants argue that there is no direct conflict between the zoning resolution and state law in this case. In support of this argument, appellants rely on Fondessy Enterprises, Inc. v.Oregon, supra. In Fondessy, the Ohio Supreme Court held that a municipal ordinance which did not "alter, impair, or limit the operation of a state-licensed hazardous waste facility is not in conflict with R.C. Chapter 3734, and may be held valid." Id. at 217, 23 OBR at 375,
In the instant case, Section
"[R]egulations adopted under the powers of local self-government * * * must yield to [conflicting] general laws of statewide scope and application * * *." Canton v. Whitman
(1975),
Since Section
Like the trial court, we are mindful of appellants' concerns regarding land application of sludge in their neighborhoods. However, sewage disposal is a problem of statewide concern and must be dealt with on a statewide basis. A uniform statewide approach to regulating methods of disposing of sludge is preferable to piecemeal local regulation. For all of the reasons stated above, we find appellants' first assignment of error not well taken.
"Except as otherwise provided in division (B) of this section, sections
R.C.
Appellants argue that Resolution
Appellants rely on 1988 Ohio Atty.Gen.Ops. No. 051 in attacking the trial court's finding. In that opinion, the Ohio Attorney General was requested to rule on whether a specific piece of land used primarily for the disposal of sewage gathered by a septic tank cleaning business was an agricultural use of the land where some crops were grown on the land. The trial court correctly held that 1988 Ohio Atty.Gen.Ops. No. 051 "is not even remotely related to this case." The Attorney General was asked to rule on whether a specific use of land by a specific individual was a "use incidental to agriculture." In the instant case, we are not being asked to decide whether appellees'
disposal of sludge is a "use incident to agriculture" but are instead being asked to determine whether any land application of sludge can be a use of land incidental to agriculture. Whether appellees are using the sludge mainly for agricultural purposes or not is irrelevant in this case since Section
Since the trial court has found, as a matter of fact, that land application of sludge is a method of fertilizing crops, we will not disturb this finding unless it is against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984),
"The zoning authority possessed by townships in the state of Ohio is limited to that which is specifically conferred by the General Assembly." Bd. of Bainbridge Twp. Trustees v. Funtime,Inc. (1990),
"1. The Common Pleas Court erred by not finding Section
"2. The Common Pleas Court erred by not finding Section
Assignments of error filed by an appellee for the sole purpose of preventing a reversal of the trial court's ruling are governed by R.C.
R.C.
"In connection with an appeal of a final order, judgment, or decree of a court, assignments of error may be filed by an appellee who does not appeal, which assignments shall be passed upon by a reviewing court before the final order, judgment, or decree is reversed in whole or in part. The time within which assignments of error by an appellee may be filed shall be fixed by rule of court."
The Supreme Court of Ohio, in interpreting this statute, stated in Parton v. Weilnau (1959),
"Obviously this section of the Code authorizes the assignment of error filed on behalf of defendant, but it indicates by its words that such an assignment of error `shall be passed upon * * * [only] before a judgment or order is reversed.' There is nothing in the statute to indicate that such assignments of error shall necessarily be passed upon where, as here, the judgment of the Court of Appeals is being affirmed.
"Those words indicate the limited purpose to be served by assignments of error by an appellee * * *. They are apparently to be considered only for the purpose of preventing a reversal of the judgment under review.
"* * * In other words, it may be said that an assignment of error by an appellee * * * may be used by the appellee as a shield to protect the judgment *384 of the lower court but may not be used by the appellee as a sword to destroy or modify that judgment."
In the instant case, appellees' assignments of error are being used as a shield against reversal, and this court may only consider them in the event we are contemplating reversal based on appellants' assignments of error. Since we are not reversing the trial court on appellant's assignments of error, we may not consider or rule on appellees' cross-assignments of error.
On consideration whereof, the court finds substantial justice has been done the parties complaining, and judgment of the Lucas County Court of Common Pleas is affirmed. It is ordered that appellants pay the court costs of this appeal.
Judgment affirmed.
GLASSER and MELVIN L. RESNICK, JJ., concur.