Posted by: Patricia Salkin | January 24, 2015

OH Appeals Court Holds that Township was not Preempted from Controlling the Storage of Debris Through its Zoning Laws

This case was an accelerated-calendar appeal from a final order of the Lake County Court of Common Pleas, granting summary judgment in favor of appellee, Leroy Township, on both claims in the underlying civil action. Appellants, Richard M. Osborne and Great Plains Exploration, L.L.C., sought reversal of the trial court’s determination that the Leroy Township zoning resolution precludes them from maintaining piles of concrete and asphalt debris to be used in repairing roadways associated with an oil and gas well, and a sign requesting concrete and asphalt. Appellants argued that the trial court committed two errors in deciding that the township zoning resolution prohibits both the sign and storage of concrete and asphalt debris. First, they contended that the sections of the resolution cited by the zoning inspector are too vague to be interpreted to ban the two uses of the property. Second, they argued that even if the zoning resolution can be construed to forbid the two uses, the resolution is still not enforceable because the state statutory scheme, R.C. Chapter 1509, pre-empts all local laws governing the use of land containing an oil and gas well.

As to the first argument that section 29.01 was too vague to be enforceable, appellants claimed the terms “wholesale” and “retail” sales, as stated in the ninth permitted use for a “special interchange” area, were not defined anywhere in the zoning resolution. However, appellants did not present any evidence tending to show that the proposed piles of debris were meant to be sold. Therefore, regardless of how the two terms are defined, the “sales” permitted use under section 29.01 cannot be invoked by appellants as a means of justifying the storage of the debris on the property. Accordingly, the court found the trial court did not err as to the vagueness issue.

In regards to the pre-emption argument, the court discussed that while the department of natural resources has the power to dictate the kinds of materials to be used in the construction and maintenance of the access road, it cannot be said to be associated with the production of the oil and gas. Therefore, since R.C. 1509.02 and 1509.01(AA) do not address the issue of storage of concrete and asphalt debris, the township was not barred from controlling the storage of the debris through its zoning laws. Finally, the trial court concluded that a sign regarding the acquisition of concrete and asphalt debris could not be posted and maintained on the property when it was impermissible to keep piles of the debris on the property. However, this court found that the trial court’s analysis failed to acknowledge the distinction between the acquisition of the debris and the storage of the debris on the property. The court therefore reversed the trial court’s decision as to the sign issue, and remanded the case.

Osborne v Leroy Township, 2014 WL 7457065 (OH App. 12/31/2014)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2014/2014-ohio-5774.pdf


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