2011-09-03 / News

Township loses battle over C&DD landfill

By Charles Prince

This is an aerial view of the Mocks’ current operations on their tract west of Ohio 37 (in the foreground). The landfill will be constructed behind the current active area. Beacon aerial photo by Charles Prince. This is an aerial view of the Mocks’ current operations on their tract west of Ohio 37 (in the foreground). The landfill will be constructed behind the current active area. Beacon aerial photo by Charles Prince. LANCASTER - Local zoning doesn’t matter.

That’s basically what Fairfield County Common Pleas Court Judge Richard E. Berens determined in a Judgment Entry filed August 26. Neighbors, Walnut Township Trustees and Jerry and Barbara Mock, owners of Walnut C&DD, have been battling for more than three years over whether the Mocks’ 65.9 acre tract just west of Ohio 37 is properly zoned for a 32.6 acre construction and demolition debris landfill.

The Mocks bought some of the property in 2006 and the rest in 2007. Some of it was zoned rural residential and some I-1 (light industrial). Walnut Township rezoned the entire tract to I-1 in May 2007.

The now years-long zoning dispute began when Walnut Township zoning inspector Ralph Reeb 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).

The Mocks interest in a C&DD landfill didn’t become public knowledge until the required hearing on I-2 rezoning application before the Fairfield County Regional Planning Commission. A Mock attorney said a feasibility study for a C&DD facility was being conducted.

Walnut Township Trustees Sonny Dupler, Wally Gabriel and Ralph Zollinger unanimously approved the rezoning to I-2 on May 6, 2008, characterizing it as correcting the zoning inspector’s mistake. Neighbors mounted a campaign to put the rezoning issue before voters, but the Mocks successfully challenged the petition on technical issues before the Board of Elections.

While neighbors and trustees were focusing on zoning issues, the key issue - the only issue according to Berens’ decision - was quietly going on before the Fairfield Department of Health. As an Ohio EPA approved health department, Fairfield Department of Health is the licensing authority for a C&DD landfill in the county. Ohio EPA assisted with the technical review of the Mocks’ application. The landfill application that was filed June 13, 2008, was on the Board of Health’s agenda for a 2008 and 2009 license at its Dec. 11, 2008. 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. Board members were told that the facility was approved by Walnut Township Zoning. After discussion, both licenses were approved by a 8-0 vote with two abstentions.

No public hearing was held. 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 were also caught by surprise. They had expressed concern about the proposed landfill’s proximity to their 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 in 2009. “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 Mocks’ license allows debris to be placed on 32.6 acres of the 65.9 acre tract. The maximum height of the facility at closure is 993.77 above sea level or 117.77 feet above ground level. That’s roughly equivalent to a 12-story building towering above the surrounding land. At maximum height, it would be the second highest point in Walnut Township.

The FDH timeline provided to The Beacon in 2009 shows that the Mocks raised the preemption issue in early 2009 – that state law, Ohio Revised Code 3714 in this case, cannot be preempted by local ordinances such as zoning codes. But in the same letter to FDH raising the preemption issue, the Mocks agreed to suspend all construction activities until township zoning issues were resolved.

The first legal decision in the dispute came April 26, 2010, when Berens granted an injunction enjoining any Walnut Township official or body from issuing a Certificate of Zoning Clearance based on the May 2008 rezoning to I-2. The Court found that the township’s procedures in that rezoning were deficient.

The Court also addressed the Mocks’ contention that even if the change to I-2 zoning is invalid, approval from Ohio EPA and the Fairfield Board of Health preempts the township zoning resolution. 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.”

The 2010 injunction left the Mocks with several options, including appealing Berens’ decision and asking the township again to rezone the property I-2. They did both. The second rezoning application was rejected at each stage - 13-2 at the recommendation stage by the Fairfield County Regional Planning Commission and unanimously by both the township zoning commission and township trustees. The Fifth District dismissed the appeal and sent the dispute back to Berens.

Both the Mocks and the Walnut Township defendants filed motions for Summary Judgment. Both sides agreed that the only outstanding issue is whether the license issued by FDH preempts the local zoning ordinance. Two of the three conditions for a local ordinance to be preempted by state law were met and accepted by both parties. “...Leaving only the question of whether the ordinance (zoning ordinance) is in conflict with the statute (ORC Chapter 3714 addressing C&DD facilities)...” Berens wrote.

He added that two cases “control the Court’s inquiry” - Sheffield where “the village’s zoning regulation completely prohibited the operation of a C&DD facility...” and Osnaburg Twp. Zoning Inspector where a C&DD facility operating under a Certification of Non-Conforming Use expanded from two acres to more than 20.

“The Court finds the decision in Osnaburg to be controlling. Although the Sheffield court cautioned that Sheffield was not to be construed as holding that localities could not restrict C&DD facilities to certain zoning districts, the court did not set forth a specific test for determining when a zoning restriction would be ‘appropriate.’” In Osnaburg, the township zoning resolution would permit operation under I-2 (general industrial) but the facility was in a R-1 single family residential district. “...It is clear that the Osnaburg court analyzed the conflict issue in terms of the zoning designation of the particular parcel instead of in terms of the entire zoning scheme. Because Osnaburg was decided by the Fifth District Court of Appeals, this Court is bound to follow that analysis....The operative question is not whether there is any place in Walnut Township where a C&DD facility could operate, but rather whether a C&DD facility can operate in the particular location approved by the licensing authority pursuant to R.C. Chapter 3714.”

Since there is no dispute that the Mocks have a license to operate a C&DD facility on their property and that its I-1 zoning prohibits such operation, Berens concludes that “the zoning resolution conflicts with the statue and the statue must prevail.” He also writes that “the issue would likely be resolved no differently if the Court were guided only by Sheffield.”

Berens quickly rejected Walnut Township’s motion for summary judgment because there is “no live or justiciable issue because the Court has already ruled on the issue of conflict or preemption...”Berens notes that the Fifth District Court of Appeals - in its decision on the appeal of his April 2010 injunction - said his injunction was not a final order. Thus, “the Court has discretion to reconsider that judgment.”

Berens’ decision also aggravates the township’s general fund shortfall that it’s facing next year. Trustees have been cutting expenses for the last several months, including cutting township workers’s hours to 35 per week from 40 and requiring them to pay 15 percent of the cost of their health insurance. Trustees on a 2-1 vote with Trustee Terry Horn objecting decided to pull township vehicles out of the Sweet Corn Festival parade to save fuel.

Trustees have previously allocated up to $40,000 for legal expenses for this dispute and are likely to have spent all of it and possibly more. Berens’ decision states that the Mocks and Walnut C&DD, LLC “shall recover” from the defendants -Walnut Township; Trustees Dupler, Gabriel and Zollinger; and zoning inspector Ralph Reeb - “their costs of action.” The Mocks’ legal costs are thought to be extensive as a Cleveland attorney was added to their Lancaster legal team. Their cots could total several hundred thousand. Some of that cost might be borne by the township’s bond on officials or other insurance. The township could also elect to appeal the decision, but that would also increase their legal fees.

Trustees have only discussed this litigation in executive or closed session for years. That will likely continue at the trustees next regular meeting set for 7 p.m. on Tuesday, Sept. 13.

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