Health Mgt., Inc. v. Union Twp. Bd. of Zoning Appeals

• Decision Date: 24 February 1997
• Docket Number: No. CA96-10-208,CA96-10-208
• Parties: HEALTH MANAGEMENT, INC., Appellant, v. UNION TOWNSHIP BOARD OF ZONING APPEALS et al., Appellees. Twelfth District, Butler County
• Court: Ohio Court of Appeals

Page 281

118 Ohio App.3d 281

692 N.E.2d 667

HEALTH MANAGEMENT, INC., Appellant, v. UNION TOWNSHIP BOARD OF ZONING APPEALS et al., Appellees.

No. CA96-10-208.

Court of Appeals of Ohio,

Twelfth District, Butler County.

Decided Feb. 24, 1997.

Barrett & Weber, C. Francis Barrett and M. Michele Fleming, Cincinnati, for appellant.

Manley, Burke, Lipton & Cook, Robert E. Manley and Gary E. Powell, Cincinnati, for appellees.

WILLIAM W. YOUNG, Presiding Judge.

This is an accelerated appeal pursuant to Loc.R. 6 of the Twelfth District Court of Appeals. Appellant, Health Management, Inc., appeals a Butler County Common Pleas Court judgment that affirmed three decisions by the Union Township Board of Zoning Appeals.

On February 16, 1988, the Butler County Board of Zoning Appeals approved appellant's request for a conditional use permit to build a medical waste incinerator on a 5.7-acre parcel in the Schumacher Commerce Park. Union Township acknowledged the conditional use permit after adopting zoning in 1990. Before appellant received an Ohio Environmental Protection Agency ("OEPA") permit to operate the incinerator, it began using the site to transfer medical waste from collection vehicles to refrigerated trucks for shipment to other sites. Union Township challenged appellant's use of the property as a "medical waste transfer station." The parties resolved that matter, however, when the OEPA finally issued appellant an incinerator permit on November 19, 1990.

Appellant operated the "BFI West Chester Infectious Waste Incinerator" from late 1990 until October 28, 1995. Earlier in 1995, an ex-employee alleged various health and safety violations at the incinerator. On November 3, 1995, the OEPA issued a press release informing the public that appellant had operated the incinerator in violation of certain health and safety regulations. On November 6, 1995, the Union Township Zoning Inspector issued a "Notice of Violation" to appellant and ordered appellant to comply with the Union Township Zoning Resolution. At some time in early November 1995, appellant voluntarily and permanently closed its incinerator. However, appellant resumed using its site to transfer medical waste from collection vehicles to refrigerated trucks for shipment to other sites.

On November 15, 1995, Union Township informed appellant by letter that it had effectively abandoned its conditional use approval when it permanently closed its incinerator. According to the township, any future use of the site required zoning approval. Appellant appealed the November 6 "Notice of Violation" and the November 15 letter to the Union Township Board of Zoning Appeals (the "board").

On January 11, 1996, appellant applied for a zoning certificate to use the property for the "trucking, carting, and storage" of medical waste. On January 16, 1996, the Union Township Zoning Inspector issued a "Notice of Refusal," stating that "[y]our zoning certificate application for the storage, trucking and carting of medical wastes at the subject facility requires conditional use approval by the Union Township Board of Zoning Appeals." Appellant also appealed that decision to the board.

On February 2, 1996, appellant filed an application for a conditional use permit for the "trucking and transportation of medical waste." The board consolidated appellant's two previous appeals with its application for a conditional use permit and scheduled a hearing. After an extensive hearing on February 28, 1996, the board affirmed the township's conclusion that appellant had abandoned its original conditional use permit when it voluntarily closed its incinerator. The board also affirmed the zoning inspector's opinion that appellant needed a conditional use permit to operate a "medical waste transfer station." Finally, the board denied appellant's application for a conditional use permit after concluding:

"[A]ny special conditions or requirements imposed that would mitigate the special characteristics which are inherent to the use and enable compatibility with the existing neighborhood and maintain the spirit of the resolution would be conditions of self-regulation. Based on testimony at the public hearing, the Board determined that actions of Health Management, Inc. were contrary to the public health, safety, and general welfare * * *."

Appellant appealed the board's decisions to the common pleas court under R.C. Chapter 2506. On October 4, 1996, the common pleas court upheld the board, and this appeal followed.

In an administrative appeal under R.C. Chapter 2506, a court of common pleas must not substitute its judgment for that of an administrative board unless the court finds that there is not a preponderance of substantial, reliable, and probative evidence supporting the board's decision. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 29-30, 465 N.E.2d 848, 852. This court's review is expressly limited to questions of law. R.C. 2506.04.

Appellant complains under its first assignment of error that the board acted illegally in revoking or nullifying the original conditional use permit. Appellant cites Carrocce v. Boardman Twp. Bd. of Zoning Appeals (Aug. 25, 1993), Mahoning App. No. 92 C.A. 38, unreported, 1993 WL 327678, for the proposition that a township board of zoning appeals cannot nullify a conditional use, even where the conditions established in the approval have been violated. The board, however, did not revoke appellant's conditional use permit. Instead, the board found that appellant had abandoned its conditional use when it permanently closed its incinerator. The lower court agreed after concluding that appellant's use of the site as a medical waste transfer station constituted "an entirely different and unconnected use from the original incineration operations."

The record supports the board's finding that appellant abandoned its original conditional use permit. The lower court properly affirmed the board's conclusion that appellant needed a new zoning certificate after the change in its operations. See Union Township Zoning Resolution, Section 5.02. Appellant's first assignment of error is overruled.

Appellant complains under its second assignment of error that it was entitled to a zoning certificate to operate a "trucking terminal." Appellant's property is located in an "M-2 General Industrial District." Union Township Zoning Resolution, Section 25.034, provides that "[a]ny use which involves incineration, processing, reduction, storage of garbage, debris, infectious or medical waste, dead animals, or other types of refuse" requires a conditional use permit in a general industrial district.

Appellant insists that no "storage" or "processing" of medical waste occurs on its property. Appellant points out that the zoning resolution defines "outside storage" as "[t]he keeping, in an unroofed area, of any goods, material, merchandise, or vehicles in the same place for more than forty-eight hours." Appellant claims that it does not intend to keep waste at its facility for more than forty-eight hours.

The lower court, however, determined that ...