Neighbors file suit to try to stop C&DD landfill
Cherry Lane Development, LLC, which is owned by Ron and Irene DiPaolo, and the DiPaolos individually, filed a complaint June 11, 2009, in Fairfield County Common Pleas Court. Cherry Lane owns property that includes the DiPaolos' home that is adjacent to property owned by Jerry and Barbara Mock.
The complaint names Walnut Township; Walnut Township Zoning Commission; Trustees Sonny Dupler, Wally Gabriel and Ralph Zollinger; Fiscal Officer Pauline Ety; Township Zoning Inspector Ralph Reeb; Jerry and Barbara Mock; Walnut C&DD LLC; Micro Construction, LLC and an unknown entity.
The DiPaoos are seeking an injunction against the Mocks, Walnut C&DD and Micro Construction stopping them from continuing operations in violation of zoning laws. They are seeking a writ of mandamus compelling the township defendants to enforce the township zoning code.
The dispute concerns approximately 66 acres on the west side of Ohio 37, just north of the railroad tracks. Jerry Mock and his sons moved a stone yard, recycling and roll-off container business from the Village of Baltimore to Walnut Township. Part of the property was purchased in 2006 with the balance purchased the following year. Some of the property was zoned Rural Residential and some was I-1 (light industrial). The township zoning commission recommended in March 2007 that trustees rezone the entire property as I-1. Trustees approved the change on May 22, 2007.
What happened in the next 19 months or so is the basis for the dispute that will be heard before Judge Richard E. Berens on Thursday, August 13. The story line played out in Walnut Township Trustee meetings last spring was that Zoning Inspector Ralph Reeb had discovered that he had mistakenly told the Mocks that I-1 zoning was sufficient for their stone yard, recycling and roll-off container businesses. I- 1 required those activities to be done inside a building while the Mocks were operating outside. The Mocks didn't concede that point, but agreed to apply to rezone the property to I-2 (General Industrial). They did agree that I-2 zoning is required for the anticipated operations on the three out parcels that they inteneded to sell along Ohio 37. Two sales were "in contract" for a propane storage and distribution facility and a metal fabrication shop.
The Mocks' interest in constructing a C&DD disposal facility on the property became known to the general public during the required hearing before the Fairfield County Regional Planning Commission. The staff summary included, "The applicant has indicated that it may want to bury demolition debris on site." At the hearing, their attorney, Carrie Snoke, said a feasibility study for a C&DD facility is being conducted at the site. The planning commission staff recommended that the Mocks "work with the neighboring communities to alleviate concerns regarding he construction/demolition debris facility issue." The commission recommended approval, noting that "it does not seem unreasonable for the Township to want the proper zoning classification for an existing business."
The characterization that the rezoning was correcting a mistake carried through the trustees' hearing. Attorney Todd Pechar, representing the DiPaolos, was prescient when he cautioned trustees during the May 6 hearing that once the door to I-2 zoning is opened, a whole host of things can move in.
A couple of neighbors brought up the landfill issue, but could say little about it since trustees had set a three-minute time limit for comments. Trustees had stopped Pechar for time in mid-sentence. The hearing closed after 38 minutes without any questions or comments from trustees. Trustee Sonny Dupler then moved to approve the request and Trustee Wally Gabriel seconded the motion. The vote was 3-0 to approve the change. "We are only trying to rectify a mistake that our zoning inspector admits to making," Dupler explained.
Just 37 days after trustees' unanimous approval, Jerry Mock submitted an extensive application for a C&DD disposal facility to the Fairfield Department of Health. The application was received June 13, 2008.
A much different storyline emerges from the Mocks and Walnut C&DD's answer, counterclaim and cross claims to the Cherry Lane/DiPaolo complaint. The answer says that Tony and Rusty Mock, sons of Jerry and Barbara Mock, meet with Reeb at the township offices on or about Dec. 6, 2007, requesting that he issue a zoning permit to operate a C&DD facility on their property. The answer claims that Reeb told them they had a "green light" and he would "put it in writing." Reeb allegedly told them that the disposal facility fell within I-1 zoning under the provisions of Section 614.2 of the zoning resolution which provided for 'compounding.' Based on Reeb's 'green light,' the Mocks accepted a proposal on Dec. 7, 2007, from engineering consultant Mark Ruoff to prepare the permit applications.
Both the Fairfield Department of Health and the Mocks state that Reeb attended a Jan. 10, 2008, meeting at the property that included the consultant, representatives from Ohio EPA and FDH, and Rusty and Tony Mock. The answer contends that Reeb again said they had the 'green light' from the township for a C&DD facility. From a township Zoning Commission meeting that night, the minutes read, "EPA questioned if the landfill meets the current zoning. Mr. Reeb stated it would but it is in a little gray area."
The answer also contends that Tony Mock spoke by telephone with Reeb on or about Jan. 23, 2008, where Reeb advised Jerry and Barbara Mock to meet with each trustee at the property "to show them a layout of the proposed site and to answer any questions they may have." According to the answer, those individual meetings took place during January and February on Saturdays with all three trustees viewing photographs of similar sites with an opportunity to ask questions. "At the end of each meeting…, the participating Trustee gave his approval of the C&DD Facility."
While the re-zoning process is being disputed in court, what happened over the next six months at the department of health is not disputed. As an Ohio EPA approved health department, Fairfield County is the licensing authority for a C&DD landfill.
According to a timeline provided by the department to The Beacon, FDH asked Ohio EPA to assist with the technical review of the application. Ohio EPA reviewed the boring samples and their initial comments were done on July 31. A month later, the Mocks' engineering consultant submitted additional information to FDH in response to Ohio EPA's comments. The timeline states that Randy Kemmerer told the health department on August 14, 2008, that zoning had been approved for the proposed landfill. He is the township's road supervisor.
As the landfill application was fine tuned with the submission of additional information, the Mocks were also addressing the improper use of a temporary storage tank as a permanent sewage treatment system and an agricultural well as a potable water source. An April 20, 2008, FDH letter to Micro Construction detailed those issues. Those violations came up again in September and were still an issue in November. A Nov. 6, 2008, letter to the Mocks said the landfill application could not be approved until the sewage treatment system and source of potable water issues were resolved. A week later, the Mocks agreed to disconnect the agricultural well from the office trailer at Micro Construction and remove the holding tank being used as the sewage treatment system.
Consideration of the landfill's 2008 and 2009 licenses was on the Board of Health's agenda for its Dec. 11, 2008, meeting. Only Mock family members, their consultant and attorney were present for the Board meeting. According to the Board minutes, Environmental Health Director Larry Hanna briefly discussed the landfill. Six conditions placed on the licenses were noted. Board members were told that the facility was approved by Walnut Township Zoning. After discussion, the licenses were approved by a 8-0 vote with two abstentions.
Hanna told The Beacon that a public hearing isn't required by law so one wasn't held. The license approval escaped public attention, including this newspaper. Village of Baltimore officials had expressed concern about the facility's proximity to its well field with Ohio EPA when the facility was in the discussion stage.
"We were under the impression from the OEPA that we would be notified if the application actually proceeds." Village Administrator Marsha Hall told The Beacon. "That did not occur. We were not notified by either agency (FDH or OEPA), and only became aware of it after the license was issued. The only contact with the Board of Health was when we did a records request for the license information."
According to the Fairfield Department of Health, the license allows debris to be placed on 32.6 acres of the 65.9 acre tract. The working face or uncovered portion of the facility is limited to 2.2 acres. The maximum height of the facility at closure is 993.77 feet above sea level or 117.77 feet above ground level. That's roughly equivalent to a 12 story building towering above the surrounding land.
Something changed in Walnut Township in early January this year. The FDH timeline lists an undated January call from Reeb stating that the facility had not been approved for zoning even though FDH had been told so previously. Hanna told Reeb to put it in writing. Gabriel wrote on Feb. 2, 2008, that the language relating to zoning approval for the landfill had been removed by trustees when they removed the word "compounding" from permitted uses in a I-1 district on April 22, 2008.
The last item on the timeline is a letter from the Mocks' attorney received Feb. 12, 2009. The letter states that that Ohio Revised Code 3714.10 does not permit a health department to deny or revoke a C&DD license due to a zoning matter. However, "the letter did describe the Mocks agreement to suspend all construction activities and potential operation of their licensed C&DD facility until all township zoning issues have been resolved."
In recent months, trustees have discussed this dispute in executive or closed session several times. So far, they have approved spending up to $10,000 with Crabbe, Brown & James LLP to defend their actions against the DiPaolos' complaint. Trustees have consistently refused to answer any questions about the nature of the legal action.
The DiPaolos have declined to discuss their complaint. Their reluctant is likely prompted by the Mocks' counterclaim that "as a direct and proximate result of Plaintiffs' actions in willfully, falsely and maliciously stating that Defendants/Counterclimants are intending to operate the subject property as a landfill, Plaintiffs have cast Defendants/ Counterclaimants' actvities in a false light and have interfered with WC&DD's contractual relations and business relations." They are claiming damages in excess of $25,000 and seeking punitive damages in excess of $100,000.
This report is based on public records, legal filings and information provided by the Fairfield Department of Health.