Appeals court backs Benton Twp. in quarry case

Larry Limpf

A 2019 decision by the Ottawa County Common Pleas Court to issue an injunction against the operator of a quarry in Benton Township has been upheld by the Ohio Sixth District Court of Appeals.
Rocky Ridge Development, LLC, had appealed the lower court’s decision, arguing the court erred in finding the company’s re-use of spent lime from the City of Toledo’s water treatment plant violated the township zoning resolution.
In 2014, the Ohio Environmental Protection Agency issued a Land Application Management Permit to the company that allowed it to blend spent lime with soil and use the mixture to increase elevation and improve drainage on its property, which includes parcels zoned for agriculture and manufacturing.
The common pleas court ruled in March 2017 the digging of cells in an agricultural zoned area and mixing the soil with spent lime and burying it in the cells isn’t permitted by the township zoning resolution and issued a preliminary injunction. In 2019, the court issued a permanent injunction against Rocky Ridge Development.
In its opinion, the appeals court wrote: “The township asserts the zoning classifications are designed to prevent the industrial aspects of the blending operation (digging, hauling, mixing) on A-3 property because industrial activities are not permitted on A-3 property. The township also seeks to stop Rocky Ridge from removing the topsoil to be used in the blending process because the BTZR (zoning resolution) bans removal of topsoil from A-3 property. Benton Township has not challenged the specific activity of burying the spent lime/soil mixture.”
The function of the zoning resolution is to preserve the agricultural use of the land “and the blending operation clearly violates this purpose,” the appeals court wrote.
The court also rejected the argument of Rocky Ridge that the township zoning resolution is pre-empted by the Ohio EPA permit and state law.
“In this case, through the LAMP permit, the OEPA determined how spent lime could be disposed of as a beneficial use as general fill. Thus, state law only governs how wastes are disposed and whether a particular waste can be disposed of in a beneficial manner. While the LAMP permit allows the use of the blended spent lime/soil mixture as general fill on this agricultural-zoned property, there is no statute which requires that this type of general fill be placed on agricultural-zoned property. Thus the LAMP permit governs proper disposal of the spent lime, while the BTZR zoning classifications and restrictions regulate land use for the health, welfare and safety of the community,” the appeals court ruled.

Aquifer concerns
Residents living near the quarry fear the lime sludge endangers an aquifer that is their source of drinking water.
In addressing the issue of whether a conflict exists between a township’s zoning resolution and the Ohio Revised Code, the appeals court quoted from a 1986 case involving the City of Oregon and Fondessy Enterprises, Inc., an operator of a landfill in the city. “The test….is ‘whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.’ ”
In the Benton Township case, the appeals court ruled: “Benton Township argues the blending operation is an industrial activity and, therefore, can only be conducted on the M-3 (manufacturing) property. Rocky Ridge argues that because the LAMP permit allows the blending operation on all of its property, the BTZR sections which would prohibit the operations on A-3 property conflict with state law. We reject the argument of Rocky Ridge.”


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