Eckert v. Warren Cnty. Rural Bd. of Zoning Appeals
| Decision Date | 29 October 2018 |
| Docket Number | CASE NO. CA2017-07-109,CASE NO. CA2017-06-095,CASE NO. CA2017-07-108,CASE NO. CA2017-07-107 |
| Citation | 2018 Ohio 4384 |
| Parties | ROGER ECKERT, et al., Appellants, v. WARREN COUNTY RURAL BOARD OF ZONING APPEALS, et al., Appellees. |
| Court | Ohio Court of Appeals |
CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Roger C. Eckert, P. Daniel Fedders, Carol Fedders, and Cathy Baker, Franklin, Ohio, appellants, pro se
David P. Fornshell, Warren County Prosecuting Attorney, and Adam M. Nice, Warren County Assistant Prosecuting Attorney, Lebanon, Ohio, for appellee, Warren County Rural Board of Zoning Appeals
Thomas G. Eagle, Thomas G. Eagle Co., L.P.A., Lebanon, Ohio, for appellees, SepTek, Laura DeHart, and Scott DeHart
{¶ 1} The Warren County Rural Board of Zoning Appeals ("BZA") approved a conditional-use permit and site plan for appellees, Scott and Laura DeHart, to operate a Class 2 home-occupation business known as SepTek, which installs, cleans, and repairs septic systems off-site. Appellants, who are neighbors of the DeHarts, opposed the permit application and appealed the BZA's decision to the Warren County Court of Common Pleas, which affirmed. They now appeal to this court.
{¶ 2} Upon consideration of appellants' ten assignments of error, we conclude that the common pleas court neither erred in its application or interpretation of the law, nor was its decision unsupported by a preponderance of the evidence as a matter of law. We overrule the appellants' assignments of error and affirm the judgment of the common pleas court.
{¶ 3} Scott and Laura DeHart applied for conditional use and site-plan review for a family-owned septic-system installation, cleaning, and repair business known as Septek, which is located on property they leased (with an option to purchase) from the landowner, Steve Henderson.
{¶ 4} At the BZA hearing Warren County Zoning Inspector Mike Yetter testified that the property the DeHarts leased consisted of two parcels totaling about 16 acres; the SepTek business sits on the parcel of just over five acres on Beal Road in Franklin, Ohio. The property is zoned R1 single-family residential, and the future comprehensive plan land use for the property is also R1. SepTek employs the applicants, Scott and Laura DeHart, their two sons, who live on the property in the residential dwelling with their parents, and two nonfamily members who live and work off-site. SepTek takes waste from customers' septic tanks, off-loads it at a treatment plant off-site, and injects bio-solids used for agricultural farming on land owned by the AAA Wastewater Services treatment plant; it also installs and repairs septic systems. SepTek uses one 4,200 pump truck, a dump truck, a tractor, a backhoe, a loader trailer, and a trackhoe trailer; it has plans to buy another pump truck, skidsteer, and trackhoe in the future. The vehicles will be stored in an existing building, as well as a proposed garage and a lean-to. The Henderson Turf Farm sod business is adjacent to the property.
{¶ 5} Zoning Inspector Yetter testified that the proposed conditional use of the property complied with the review criteria of Sections 1.306.5 and 3.203.4 of the Warren County Rural Zoning Code as a Class 2 home occupation that was similar to an excavation contractor, which is expressly permitted under the code. However, he recommended the addition of several conditions to the issuance of any permit.
{¶ 6} Scott DeHart testified that the area of the property he uses for SepTek is generally not visible from the road except during winter. DeHart negotiated an agreement with AAA Wastewater Services to off-load waste at the treatment plant in return for injecting bio-solids on nearby land owned by AAA. They do not off-load or store any waste product at the property site. The trucks leave in the morning and do not return until they are done for the day. No sewage activities occur on the property. According to DeHart, noise from heavy equipment, including trucks and tractors, is caused by the activities of their neighbor, Henderson Turf Farm.
{¶ 7} Neighbors living near the property, including appellants, testified in opposition to the DeHarts' application for a conditional-use permit. They testified that the DeHarts had already been illegally operating their business without a conditional-use permit for some time, that they feared that their septic-system materials would pollute the land, creek, and drinking water in the area, the increased traffic caused noise and dust, and the business would decrease their property value. The BZA Chairman asked some of the opponents of the conditional-use permit to testify about what unique harm their property had suffered from the SepTek business, but did not preclude them from testifying about general harm.
{¶ 8} On rebuttal Scott DeHart testified that some of the traffic the permit opponents objected to was from his family's personal vehicles, and friends for nonwork-related travel. He indicated that he had the exterior of the SepTek trucks washed off-site, and the interior of the trucks washed twice a year at the AAA Wastewater Services treatment plant.
{¶ 9} The BZA conducted private deliberations and reconvened later to announce its decision to approve the DeHarts' conditional-use permit as a Class 2 home occupation, after finding that the application satisfied the applicable standards in Section 3.203.4 of the zoning code. The BZA concluded the evidence failed to establish that unique harm occurring to the opponents' property could not otherwise be mitigated by reasonable conditions, and that the opponents' testimony concerning pollution, property-value decrease, noise, and traffic were speculative potential harms to the area at large. After weighing and balancing the review criteria, the BZA found a preponderance of substantial, reliable, and probative evidence supported the approval of the conditional-use application, subject to the following additional conditions:
{¶ 10} The board also approved the site plan, subject to certain conditions.
{¶ 11} Appellants and other individuals appealed the BZA's decision and conditional-use permit, naming the BZA as appellee. Their retained counsel raised several assignments of error in the Warren County Court of Common Pleas. The DeHarts and SepTek intervened as additional appellees and argued for affirmance of the BZA's decision. After weighing the entire administrative record, the common pleas court issued a detailed and reasoned decision affirming the BZA's decision. The court concluded that, it could not find that the BZA's decision was not supported by a preponderance of reliable, probative, and substantial evidence." Appellants each filed four separate pro se notices of appeal, which we consolidated under Case No. CA2017-07-095.
{¶ 12} Appellants assign the following errors for our review:
{¶ 13} THE BZA VIOLATED SECTION 1.204.3 OF THE ZONING CODE WHEN IT DELIBERATED ON THIS CASE IN PRIVATE SESSION ON APRIL 26, 2016.
{¶ 14} THE COMMON PLEAS COURT ERRED WHEN IT EXPRESSLY BASED ITS DECISION ON INTERVENORS' FALSE ASSERTIONS THAT BEAL ROAD IS A "STATE ROUTE" OR "STATE TRUCK ROUTE."
{¶ 15} THE COMMON PLEAS COURT ERRED IN FAILING TO UNDERSTAND THAT THE BZA IMPROPERLY RESTRICTED THE ADMISSIBILITY OF EVIDENCE, IN VIOLATION OF DUE PROCESS, BY APPLYING A BIZARRE AND UNLAWFUL "UNIQUENESS" EVIDENTIARY STANDARD.
{¶ 16} THE COMMON PLEAS COURT ERRED IN FINDING THAT THE BZA HAD NO DUTY TO SHOW HOW THE INDUSTRIAL SEPTEK OPERATION WAS "IN ACCORDANCE WITH" THE RESIDENTIAL PURPOSES OF WARREN COUNTY'S COMPREHENSIVE PLAN.
{¶ 17} THE COMMON PLEAS COURT ERRED IN FAILING TO ENFORCE THE "SPECIFICITY" REQUIREMENTS OF R.C. 303.14(C), AND CODE SECTIONS 1.204.1(D) AND 1.306.1, ALL OF WHICH LIMIT THE USES POTENTIALLY ELIGIBLE FOR A CONDITIONAL USE PERMIT.
{¶ 18} THE BZA AND COMMON PLEAS COURT ERRED BY COMPLETELY IGNORING SECTION 2.205, THE "TABLE OF USES BY ZONING DISTRICT."
{¶ 19} THE COMMON PLEAS COURT ERRED IN FAILING TO ENFORCE THE "UNIFORMITY" REQUIREMENTS OF R.C. 303.02(A) AND CODE SECTION 1.102.
{¶ 20} THE COMMON PLEAS COURT ERRED WHEN IT FAILED TO REVERSE DUE TO THE BZA'S PRACTICE OF MISAPPLYING THE CONDITIONAL USE APPROVAL CRITERIA.
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