Vill. of Terrace Park v. Anderson Twp. Bd. of Zoning Appeals
| Decision Date | 06 November 2015 |
| Docket Number | C–140745.,Nos. C–140741,s. C–140741 |
| Citation | 48 N.E.3d 143 |
| Parties | The VILLAGE OF TERRACE PARK, Ohio, the Village of Newtown, Ohio, Deborah Blankenship, Michael Blankenship, Jerry L. Brandhorst, Diane C. Brandhorst, Bruce Burger, Cathy Burger, David Burger, Anna Carey, George G. Carey, James Coomer, Linda Coomer, Juliann Cochran, Steven Cochran, Andrew Curran, Christine Curran, Frank G. Distler, Wanda F. Distler, Eureka Ranch Properties, Inc., Joseph W. Fahrenholtz, Linda J. Fahrenholtz, Ellen Foley, Jeffrey Frye, Shirley Frye, Terry Garvin, Loretta L. Gordon, Jack R. Gordon, Jason Gordon, Nicole Gordon, Gary Gottenbusch, Patricia Gottenbusch, Ha Ha, Inc., Ha Ha II, Inc., Deborah A. Hall, Douglas B. Hall, Anne W. Harrison, Daniel G. Hendershot, Roberta A. Hendershot, Terri L. Herbert TR, Gary Lee Hicks, Gregory C. Hounshell, Gail Hounshell, William E. Houser TR, Willard Hughett, Anita M. Humphries, Thomas M. Humphries, Michael Johnston, Peggy Johnston, Leawanda D. Kazee, W. Stanley Kazee, M.P. Properties, Inc., Jeffrey H. Neeley, Catherine Ropar, Jeffrey Ropar, Joyce Schimpf, Six Kids Investments LLC, Helen M. Steele, Robert J. Steele, Judith Winstel, Thomas Winstel, Lynn Woodward, Cathy Y. Zistler, and James A. Zistler, Plaintiffs–Appellees, v. ANDERSON TOWNSHIP BOARD OF ZONING APPEALS, Anderson Township, Anderson Township Board of Trustees, and Martin Marietta Materials, Inc., Defendants–Appellants. |
| Court | Ohio Court of Appeals |
Wood & Lamping LLP, Robert P. Malloy, Cincinnati, and Ryan F. Coutinho, for Plaintiff–Appellee Village of Terrace Park, Ohio.
Donnellon, Donnellon, and Miller and R. Douglas Miller, Cincinnati, for Plaintiff–Appellee Village of Newtown, Ohio.
Timothy G. Mara, Cincinnati, for Plaintiffs–Appellees Deborah Blankenship, Michael Blankenship, Jerry L. Brandhorst, Diane C. Brandhorst, Bruce Burger, Cathy Burger, David Burger, Anna Carey, George G. Carey, James Coomer, Linda Coomer, Juliann Cochran, Steven Cochran, Andrew Curran, Christine Curran, Frank G. Distler, Wanda F. Distler, Eureka Ranch Properties, Inc., Joseph W. Fahrenholtz, Linda J. Fahrenholtz, Ellen Foley, Jeffrey Frye, Shirley Frye, Terry Garvin, Loretta L. Gordon, Jack R. Gordon, Jason Gordon, Nicole Gordon, Gary Gottenbusch, Patricia Gottenbusch, Ha Ha, Inc., Ha Ha II, Inc., Deborah A. Hall, Douglas B. Hall, Anne W. Harrison, Daniel G. Hendershot, Roberta Hendershot, Terri L. Herbert TR, Gary Lee Hicks, Gregory C. Hounshell, Gail Hounshell, William E. Houser TR, Willard Hughett, Anita M. Humphries, Thomas M. Humphries, Michael Johnston, Peggy Johnston, Leawanda D. Kazee, W. Stanley Kazee, M.P. Properties, Inc., Jeffrey H. Neeley, Catherine Ropar, Jeffrey Ropar, Joyce Schimpf, Six Kids Investments LLC, Helen M. Steele, Robert J. Steele, Judith Winstel, Thomas Winstel, Lynn Woodward, Cathy Y. Zistler, and James A. Zistler.
Gary E. Powell, Cincinnati, for Defendants–Appellants Anderson Township Board of Zoning Appeals, Anderson Township, and Anderson Township Board of Trustees.
Kegler, Brown, Hill & Ritter, Richard C. Brahm and Catherine A. Cunningham, Columbus, Barrett & Weber and C. Francis Barrett, Cincinnati, for Defendant–Appellant Martin Marietta Materials, Inc.
MOCK
, Judge.
{¶ 1} In these consolidated administrative appeals, we are faced again with a zoning dispute over a proposed underground limestone mining operation on the eastside of greater Cincinnati. Defendants-appellants Martin Marietta Materials, Inc., (“Martin Marietta”), Anderson Township, Anderson Township Board of Trustees, and the Anderson Township Board of Zoning Appeals (“BZA”) appeal from the trial court's judgment reversing the BZA's approval of Martin Marietta's zoning application. Plaintiffs-appellees the Villages of Terrace Park, Ohio, and Newtown, Ohio, as well as more than 60 individuals and corporations urge us to affirm the trial court's decision.
{¶ 2} The trial court determined that the BZA had acted illegally by: (1) permitting mining in a residential district, (2) characterizing mining tunnels as “ingress and egress” through a residential district, (3) allowing storage of explosives, (4) determining that the mine would meet the vibration-performance standard, and (5) failing to review the entirety of the evidence presented at the public hearings. Because we conclude that the trial court's decision with respect to these issues is not supported by a preponderance of reliable, probative, and substantial evidence, or is otherwise contrary to law, we reverse the judgment of the trial court.
{¶ 3} Martin Marietta owns 480 acres of property in Anderson Township near the Little Miami River (the “Property”), which is the subject of this appeal. The Property sits between U.S. Route 50 and State Route 32, west of Interstate 275. Broadwell Road, a county road, bisects the Property into northern and southern halves. The Property had been used as a surface sand-and-gravel mine for more than 50 years, until sometime in the mid—to late–1990s, but is now vacant. In 2008, Martin Marietta filed an application with Anderson Township for a conditional use permit and variances to build an underground limestone mining operation and surface processing plant on the Property. The Anderson Township Zoning Resolution (“ATZR”) Section 114.2 permits “[e]xtracting, excavating, mining or processing of sand, rock and/or gravel” as a “conditional use” in an Industrial Development District (“ID District”), subject to the issuance of a “special zoning certificate” by the BZA. The majority of the Property is located within an ID District; however, a strip of the Property abutting the southern edge of Broadwell Road is located in a “B” Residence District. Mining is not permitted in the “B” Residence District.
{¶ 4} In its application, Martin Marietta proposed to build two, side-by-side tunnels on the Property. The tunnels would begin above ground at the processing plant north of Broadwell Road, continue underneath Broadwell Road, and end south of Broadwell Road in the underground limestone mine. Martin Marietta would use a large drill to create the tunnels, and then install conveyor belts inside the tunnels. The tunnels would be the only means to access the underground limestone housed 400 to 800 feet below ground level.
{¶ 5} Following over a year of hearings before the BZA, the BZA approved Martin Marietta's application, subject to certain conditions. Various corporate entities, individuals, and the Villages of Indian Hill, Newtown, and Terrace Park, Ohio, filed administrative appeals from the BZA's decision to the court of common pleas under R.C. 2506.01
, objecting to the BZA's approval of the mine. One of the many issues raised by the opponents of the mine in the first administrative appeal included the BZA's condition of the “Good Neighbor Agreement.” The Good Neighbor Agreement allowed Anderson Township to collect five cents per every ton of material sold by Martin Marietta in its mining operation. The opponents also raised issues regarding dust, noise, traffic, pollution, and vibrations that the mine might generate, as well as other issues.
{¶ 6} In the first administrative appeal, the trial court determined that the BZA had exceeded its authority, and that the BZA's decision was not supported by substantial, reliable, and probative evidence. The trial court listed several reasons for its conclusion, including, but not limited to, dust, noise, traffic, pollution, and vibrations, and that the Good Neighbor Agreement was not authorized by law. Thus, the trial court reversed the BZA's decision and declared it “null and void.”
{¶ 7} Martin Marietta appealed to this court, raising several assignments of error, including an assignment of error dealing solely with the Good Neighbor Agreement. In that assignment, Martin Marietta argued that the trial court should have stricken the Good Neighbor Agreement from the BZA's decision and allowed the BZA's decision to remain intact, or, alternatively, that the trial court should have remanded the matter to the BZA for further reconsideration, rather than declaring the BZA's decision null and void. A panel of this court agreed with the trial court's determination that the BZA could not condition its approval of Martin Marietta's application on the Good Neighbor Agreement; however, this court sustained Martin Marietta's assignment of error in so far as this court concluded that the trial court erred in finding that the BZA's decision was void in total. We instructed the trial court to remand the matter to the BZA to decide “in the first instance” whether to grant Martin Marietta's application without the Good Neighbor Agreement. See Citizens Against Blasting on Our Miami (CABOOM) v. Anderson Twp., 1st Dist. Hamilton Nos. C–120011, C–120012, C–120013, C–120014
and C–120015, 2012-Ohio-6145, 2012 WL 6728334, ¶ 32.
{¶ 8} The BZA held an executive session to consider this court's decision on remand. The BZA then readopted its original decision in all respects, except to omit the condition containing the Good Neighbor Agreement.
{¶ 9} The Villages of Terrace Park and Newtown, Ohio, as well as 62 corporate entities and individuals filed a joint administrative appeal in the case numbered A–1305724, again challenging the BZA's decision on multiple grounds. The trial court again reversed the BZA's decision approving Martin Marietta's application. The trial court determined that the BZA membership had changed since the first BZA decision, and that the second panel of BZA members merely “rubber stamped” the first BZA decision. The trial court also determined that the BZA erred by: (1) permitting mining in a residential district; (2) characterizing the two underground tunnels as “ingress and egress” to the limestone mine; (3) allowing the storage of a one-month supply of explosives on the Property; and (4) determining that Martin Marietta met the vibration standard set forth in the ATZR.
{¶ 10} Martin...
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