Coal Co. v. Gebhart , 44 Ohio App. 2d 284 ( 1975 )

Although I concur in the judgment, I cannot concur in the finding that the owners of land which is the subject of strip mining are not persons whose rights, duties, or privileges are affected by the issuance or denial of a license to a strip mine operator to conduct strip mining upon such owners' property. The statutes relate not only to the manner of strip mining but also to the manner of reclamation.

In the first sentence of R. C. 1513.11, provision is made to findings "affecting the rights, duties, or privileges of an operator or his surety or of an applicant for a license." The second sentence thereof requires notice "to the person whose rights, duties, or privileges are affected" by an order. The change in statutory language tends to indicate a legislative intent to give broader scope to the second sentence. Likewise, former R. C. 1513.13 confers a right of appeal upon "any person claiming to be aggrieved or adversely affected by an order." Such appeal is to be filed "within thirty days after the date upon which appellant received notice" of the order.

It is unnecessary in this case to decide this basic issue. The appellants did not receive notice of the orders from which they attempt to appeal, since they were "approvals issued by the appellee during the period August 13, 1963 through and including the date of filing of the appeal under R. C. 1513.33"; thus, they did not constitute a specific order but, rather, were a series of orders dating back some ten years. The board of reclamation did not dismiss appeals from all the orders by its order of December 18, 1973, from which this appeal originates. Rather, the board recognized and accepted jurisdiction of appeals "from all such orders which are appealable pursuant" to R. C. 1513.16, as amended in 1972.

Furthermore, the last sentence of former R. C. 1513.13 and present R. C. 1513.15(A) provides that the remedy of appeal, pursuant to R. C. 1513.13, if it be available, does not preclude a person adversely affected by strip mining operations from seeking otherwise to enforce compliance with the statutory provisions of R. C. Chapter 1513, and such remedy would not prevent the enforcement of contractual rights.

Under the circumstances, there is no prejudicial error in dismissing this attempted blanket appeal from stale orders dating back to 1963. Therefore, I concur in the judgment herein, affirming that of the Court of Common Pleas.