Fed. Dist Court in OH Finds Surface Mining Company Plausibly Alleged Procedural Due Process Claim

This post was authored by Matthew Loeser, Esq.
Plaintiff Enon Sand and Gravel owned, or had the option to purchase, several pieces of property in the unincorporated areas of Clark County. Plaintiff alleged that it, and its predecessors-in-title, had continuously used the property for surface mining, held it in reserve for future surface mining, and used it for incidental purposes necessary to surface mining. In this case, Plaintiff Enon Sand and Gravel, LLC, brought an action against Defendants Clark County Board of Commissioners and Clark County Zoning Administrator Thomas A. Hale “to protect its right to continue prior non-conforming uses of certain real property located in Clark County, Ohio.” Specifically, Plaintiff claimed that, because the Surface Mining Uses of the property predated the enactment of the Clark County Zoning Resolution (“CCZR”), they were prior non-conforming uses not subject to the CCZR.

The court first addressed Defendants contention that Plaintiff’s § 1983 claim should be dismissed because Plaintiff failed to alleged any facts showing that Defendants acted under the color of state law, that there was a final decision regarding Plaintiff’s property, and that Plaintiff has exhausted its available state remedies. The record reflected that in the letter from Allan Neimayer, Senior Planner at the Clark County Community and Economic Development, Neimayer claimed since Plaintiff’s application was for a “significant mining modification,” Plaintiff required a Conditional Use permit that had to be approved by the Clark County Board of Zoning Appeals (BZA). Here, the only action taken by Defendants was the letter notifying the Plaintiff that it was the County’s position that mining is not a legal nonconforming use of Plaintiff’s properties. The court found that Plaintiff did not allege in its Complaint facts plausibly showing there was no rational basis for Defendants’ determination or that Defendants arbitrarily and capriciously deprived it of its property interest. Accordingly, Plaintiff’s substantive due process claim failed.

Plaintiff next contended that it was not given prior notice or a pre-deprivation hearing, but only a conclusory letter disclaiming Plaintiff’s right to Surface Mining Uses as a prior, lawful non-conforming use without offering it an opportunity to respond or refute this conclusion. Here, Defendants’ argument failed to address Plaintiff’s right to a pre-deprivation hearing. Accordingly, the court found Plaintiff’s allegations were sufficient to state a procedural due process violation.

Lastly, the court determined that the adjacent landowner’s land value was not relevant to either sought-after remedy in this case. Here, Plaintiff sought a declaration that it had a valid prior non-conforming use and a finding that Defendants violated its right to procedural due process. Intervention in this case would therefore likely cause undue and unnecessary delay. Intervenor’s property-value deprivation claim would complicate the case by requiring evaluation of property value and depreciation. Accordingly, the court found the adjacent property owner’s Motion to Intervene lacked merit.

Enon Sand and Gravel, LLC v Clark County Board of Commissioners, 2018 WL 2041696 (SD OH 5/2/2018)