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Shelly Materials, Inc. v. City of Streetsboro Planning and Zoning Commission

Court of Appeals of Ohio, Eleventh District, Portage

December 29, 2017

SHELLY MATERIALS, INC., Appellee,
v.
CITY OF STREETSBORO PLANNING AND ZONING COMMISSION, et al., Appellants.

         Administrative Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV 00799. Judgment: Reversed and judgment entered for appellants.

          Barry W. Fissel, and Brian P. Barger, Eastman & Smith LTD., 100 East Broad Street, Suite 2100, Columbus, OH 43215 (For Appellee).

          John D. Latchney, OToole, McLaughlin, Dooley & Pecora Co., LPA, 5455 Detroit Road, Sheffield, OH 44054; and Paul A. Janis, Streetsboro Law Director, 9184 State Route 43, Streetsboro, OH 44241 (For Appellants).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellants, the City of Streetsboro Planning and Zoning Commission and two of the city's zoning officials, appeal the common pleas court's decision reversing the Commission's determination denying a conditional use permit. Appellants primarily challenge the common pleas court's ruling that the Commission misapplied the evidence to the statutory criteria. The trial court's decision is reversed and the Commission's determination is reinstated.

         {¶2} Appellee, Shelley Materials, Inc., an Ohio corporation, is engaged in the business of extracting natural resources. This includes surface mining to extract sand and gravel, employed in the construction of roads and building foundations. At some point prior to April 2016, appellee executed a lease to the mineral rights underlying a 226-acre tract of land, previously a horse farm, located near the intersection of State Route 14 and Diagonal Road.

         {¶3} The tract is zoned as a rural-residential district. Since 1981, surface mining has been a permitted conditional use in rural-residential districts and has occurred at a few sites over the years. When appellee entered into the lease, a surface mine was being operated by a separate entity, Jefferson Materials, Inc. That site abuts the northwest corner of the tract. In light of the proximity, appellee entered into an agreement with Jefferson Materials, wherein all sand and gravel extracted at the proposed site would be transferred to the Jefferson Materials site for processing.

         {¶4} Prior to beginning the process of obtaining permits to surface mine the tract, appellee held a public meeting to explain the project to those interested. Some who attended this meeting were homeowners whose property abuts the proposed site. After the public meeting, one of those homeowners, George Mitchell IV, hired counsel and submitted an application with the City of Streetsboro to amend its zoning ordinance to ban surface mining as a permitted conditional use throughout the city. On April 12, 2016, as part of the amendment process, the Commission passed a recommendation banning surface mining. Three months later, on June 27, 2016, the Streetsboro City Council adopted the amendment.

         {¶5} On April 13, 2016, before the amendment was passed, appellee filed its application for a conditional use permit. Since a property owner's entitlement to a zoning permit is determined in accordance with the ordinances in effect at the time of application, the amendment banning surface mining could not be applied to appellee's application. Beth Jacobs Congregation v. City of Huber Heights Bd. of Zoning Appeals, 2d Dist. Montgomery No. 16650, 1998 WL 125568, *2 (Mar. 20, 1998).

         {¶6} After appellee's application was initially reviewed by the city zoning director, it filed a supplemental submission, addressing some of the concerns raised by the zoning director. The Commission then conducted an initial hearing on the application on June 14, 2016, consisting of unsworn statements made by those in attendance regarding the proposed project.

         {¶7} A three-day evidentiary hearing before the Commission was held later. During this hearing, appellee presented testimony addressing the six general criteria set forth in Section 1153.03(c) of the city zoning ordinance for the issuance of a conditional use permit. In relation to whether the proposed surface mining project would be detrimental to the property in the immediate vicinity, appellee presented the testimony of Paul K. Bidwell, a certified residential and commercial appraiser. Based upon a report he previously produced, Bidwell testified that, in his opinion, surface mining would have no adverse effect upon the value of the homes in the immediate vicinity.

         {¶8} Thereafter, the Commission heard sworn testimony from the Portage County Regional Commission Director, the city zoning director, a private engineer, and an environmental scientist regarding application. Appellee's lead counsel declined to question them. Mitchell's counsel presented two witnesses and legal arguments concerning whether appellee had carried its burden of proof.

         {¶9} After discussion, in September 2016, the Commission denied the application. The Commission stated in part that surface mining is not consistent with the general "spirit" of the city's zoning ordinance, citing the recent surface mining ban. The Commission also found that appellee failed to meet at least four of the six requirements.

         {¶10} Appellee appealed to the common pleas court, where the case was initially assigned to a magistrate for consideration. After the record of the Commission proceedings was filed, including transcripts of the three evidentiary hearings, appellee and the Commission submitted briefs. The parties presented oral arguments in a separate hearing, but no additional evidence was submitted.

         {¶11} In a written decision, the magistrate concluded that the Commission erred in basing its determination, in part, upon improper non-evidentiary materials. She found error with Commission members' statements referencing opinions expressed by the public during the first hearing and the reference in the Commission's decision noting the ban. The magistrate also held that none of the Commission's findings were supported by a preponderance of the evidence, and that appellee carried its burden of proof on all six requirements. The magistrate recommended reversing the Commission's ruling and entering judgment granting appellee a surface mining permit.

         {¶12} The Commission objected, challenging all aspects of the magistrate's decision. In relation to the statutory requirements for a conditional use permit, the common pleas court held that the magistrate followed the proper standard of review in determining whether the Commission's factual findings were supported by the evidence. The court also upheld the magistrate's conclusion that the Commission had improperly considered the passage of the recent city ordinance proscribing surface mining. The court ultimately overruled the Commission's objections and entered judgment in favor of appellee.

         {¶13} Appellants appeal assigning ...


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