2010-05-08 / News

Neighbors win battle over C&DD landfill zoning

The Mock’s Micro Construction LLC began operations as a stone yard on a 65.9 acre tract of farmland just west of Ohio 37. Operations now include C&DD recycling, concrete crushing and wood shredding. Beacon aerial photo by Charles Prince. The Mock’s Micro Construction LLC began operations as a stone yard on a 65.9 acre tract of farmland just west of Ohio 37. Operations now include C&DD recycling, concrete crushing and wood shredding. Beacon aerial photo by Charles Prince. LANCASTER – It took more than 10 months, but Fairfield County Common Pleas Judge Richard E. Berens has granted an injunction sought by neighbors of the proposed construction and demolition debris landfill in Walnut Township.

The injunction, issued April 26, “enjoins Walnut Township, the Walnut Township Zoning Commission, the Walnut Township Board of Trustees, and Zoning Inspector Ralph Reeb from issuing a Certificate of Zoning Clearance or other permit based upon Resolution 15-08.” That means that township officials may not tell the Fairfield Department of Health that Walnut C&DD LLC has the proper zoning for a construction and demolition debris landfill. That zoning clearance is the only regulatory obstacle remaining before the Mock family and their Micro Construction, LLC can build a 118 foot high landfill on 32.6 acres of the 65.9 acre tract just west of Ohio 37.

The Fairfield Department of Health is the permitting agency for C&DD landfills in the county. The Department approved a 2008 and 2009 license for the facility on December 11, 2008. A 2010 license was approved last December.

The referenced resolution – 15-08 – is the Walnut Township resolution that rezoned the property from I-1 (Light Industrial) to I-2 (General Industrial). It is that process that is the basis of the suit filed by neighbors Ron and Irene DiPaolo and their Cherry Lane Development, LLC.

The DiPaolos raised a number of issues about the rezoning process in their suit. They claimed the Mock’s initial zoning application was deficient, adding it was supplemented after the initial hearing before the township zoning commission. The application was tabled at the March 6 Commission hearing and it was considered at the April 3 meeting. However, that meeting wasn’t properly public noticed. The Zoning Commission recommended approval on April 3 and sent their recommendation to trustees who set their public hearing for April 22. The notices for that hearing had some defects so new notices were issued for a rescheduled hearing on May 6. The DiPaolos said the map with that notice was inaccurate. After a brief 38 minute hearing, trustees unanimously approved the zoning change from I-1 to I-2. The DiPaolos then timely submitted a petition for a referendum on the zoning change, giving township voters the final say. That petition was successfully challenged by the Mocks, primarily because it included an inaccurate map – the same one included with the Mock’s application.

Oral arguments were heard on August 31 and September 1 last year. In April, the Court told the parties it was separating the request for an injunction from the other claims unless a party objected. None did by April 26. Issuance of an injunction requires that an adjacent o neighboring property owner be “especially damaged.” The DiPaolos property adjoins the Mock’s property and a professional appraiser found that a C&DD landfill would discount the value of their property by 40-50 percent – $275,000 to $300,000.

With that determination, the Court then addressed Walnut Township’s procedures. The Court found that the Mock’s application did not contain the required minimum information. “Given these defects, the ZC (Zoning Commission) should not have accepted the application or set a hearing until the Mocks corrected their application.” The public notices were found to be deficient.

The Court also found that trustees failed to timely set their hearing, setting it 33 days after receipt of the Zoning Commission recommendation, outside the required 30-day window. Trustees’ public notification failed to meet the requirement for an accurate summary, the Court determined, since it included an inaccurate map.

The Court also addressed the Mock’s contention that even if the change to I-2 zoning is invalid, clearance from Ohio EPA and the Fairfield Board of Health preempts Walnut Township’s Zoning Resolution, allowing them to proceed with their C&DD landfill. That claim was based on a Fifth District Court of Appeals’ decision in a Stark County case. The Court stated, “Contrary to the Mocks’ position, Walnut (Township) has not prohibited C&DD facilities. Walnut has merely restricted C&DD facilities to certain zones – a zoning scheme the Supreme Court of Ohio approves. Walnut has also averred that should the Mocks’ property remain zoned I-2 pursuant to Resolution 15-08, then a C&DD facility properly licensed by the Ohio EPA and Fairfield County Board of Health would be permitted.”

The defendants – Walnut Township and the Mocks – have 30 days to file a Notice of Appeal. Trustees discussed the decision in executive session last week. When they returned from that session, trustees unanimously approved an agreement to continue to be represented by Crabbe, Brown & James in this matter, “including handling the appeal, if necessary.” The agreement says the cost is not to exceed $30,000, noting that approximately $20,000 of that amount has already been spent.

The Mocks have at least three possible courses of action – appeal the decision, perhaps focusing on the rejection of their preemption claim; contend that a C&DD landfill is allowed in an I-1 district; or file a new application to rezone their property from I-1 to I-2. A phone call to Rusty Mock seeking their comments on the decision was not returned by press time.

In the event trustees approve another change to I-2 zoning for the Mocks, township voters will likely have the last word as the DiPaolos would likely seek a referendum on the rezoning.

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