Court of Appeals of Ohio, Eleventh District, Portage
Appeal from the Portage County Court of Common Pleas, Case
No. 2016 CV 00799. Judgment: Reversed and judgment entered
W. Fissel, and Brian P. Barger, Eastman & Smith LTD., 100
East Broad Street, Suite 2100, Columbus, OH 43215 (For
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).
R. WRIGHT, J.
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
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.
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.
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
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).
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
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
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.
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.
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.
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.
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.
Appellants appeal assigning ...