Township to appeal C&DD landfill decision
MILLERSPORT – Walnut Township Trustees unanimously agreed Tuesday night to appeal Fairfield County Common Pleas Court Judge Richard E. Berens’ August 26 decision that a stateissued permit for a C&DD landfill preempts the local zoning ordinance.
His decision is the latest in the more than three year battle over whether Jerry and Barbara Mock, owners of Walnut C&DD, can construct a 32.6 acre construction and demolition debris landfill on their 65.9 acre tract just west of Ohio 37. At its maximum height of 118 feet above ground level, the landfill would be roughly equivalent to a 12-story building towering over the surrounding land and would be the second highest point in Walnut Township.
The battle originally focused on whether the trustees’ decision in 2008 to rezone the property I-2 was done properly. In April 2010, Berens agreed with neighbors that the rezoning had not been properly done. A second attempt to obtain the required I-2 zoning for a C&DD landfill was turned down by the township zoning commission and trustees.
While the initial zoning dispute was brewing, the Fairfield Department of Health quietly issued a 2008 and 2009 license to the Mocks, just six months after the Mocks filed their original application. Licenses for 2010 and 2011 have subsequently been issued.
According to Berens, the health department decision is the controlling one since the license is issued under state law (ORC Chapter 3714). Once the ORC requirements are met as evidenced by the issuance of the license, Berens found that the local zoning ordinance is in conflict with the state law, thus meeting the only remaining condition required for preemption.
Trustees made their decision after a relatively short executive session with their outside legal counsel Steven Davis. Since he began representing trustees in this matter, Davis has been appointed to fill the vacancy created when Fairfield County Commissioner Jon Myers retired on Dec. 31, 2010, with two years left on his term.
Trustees have been very tightlipped about the case, discussing it only in executive or closed sessions with Davis. Their public actions have been limited to approving resolutions to pay for legal fees.
That years-long silence was partially broken Tuesday night when Davis offered some public comments after the executive session.
His comments were likely prompted by a Beacon report on Sept. 3 that interpreted a Berens’ statement in his decision that the Mocks and Walnut C&DD, LLC “shall recover” from the defendants “their costs of action” as including their legal fees. Their legal fees are thought to be at least several hundred thousand dollars as a Cleveland attorney was added to their Lancaster legal team. The Beacon story thought his order would aggravate the township’s general fund shortfall heading into 2012.
Davis had good news for residents. He said the “costs” referenced in the decision meant “court costs.” “‘Costs’ does not mean ‘fees,’” he explained. While those ‘costs’ aren’t specified and could include some deposition costs, they are nowhere near the cost of legal fees. He acknowledged that for years disputes have been waged over what is included in ‘costs,’ but it is now understood that it doesn’t mean ‘legal fees.’
“The judge didn’t order them,” Davis continued. “Nobody has put fees before this judge. The only ‘costs’ the judge could possibly be aware of when he wrote that is ‘court costs.’”
He added that an effort to assess the losing party for legal fees would likely require a week-long trial itself just to determine which expenses were to be reimbursed. That obviously hasn’t happened and there has been no discussion of legal fees before Judge Berens.
Davis was asked how much more in legal fees will it cost to complete the appeal to the Fifth District Court of Appeals. Davis said the cost would be $7,000 to $8,000 to get through the Fifth District if no one assists with legal fees.
He anticipates amicus or “friends of the court” briefs supporting the township’s effort to preserve local zoning ordinances. Some amicus parties such as larger townships or the township association may be willing to share legal fees. Davis expects it will probably take a year to get a decision from the Fifth District.
Though Davis didn’t mention it publicly, the township’s chances of prevailing at the Fifth District aren’t very good since the two decisions that Berens referenced as the basis for his entry came out of the Fifth District. That means it will likely take an appeal to the Supreme Court of Ohio to get the final word on whether preemption applies in this matter or not.
The Mocks’ neighbors, Ron and Irene DiPaolo, urged trustees before they went into executive session to appeal the decision.
“Citizens of Walnut Township, your rights for zoning are threatened,” Ron DiPaolo said. “The Court of Common Pleas has ruled your zoning regulations are unimportant in regards to the placement of Construction and Demolition Debris Landfills. If permits are granted by the State of Ohio, these facilities may be placed anywhere with no consideration of zoning or public desires.”
He reminded trustees that the landfill will sit on top of an aquifer that supplies Baltimore’s water. After noting that alternative energy sources are available, he asked what substitute there is for water. “Which elected officials will be the ones to say business is too important to protect our water supplies,” he asked. “I can only hope there will be enough courage on the part of the trustees to fight for the Zoning Regulations of Walnut Township.”
“ Judge Berens’ ruling has taken away the township’s power to regulate the location of a landfill…” Irene DiPaolo said. “Under this ruling the township cannot stop a landfill in any area, no matter what the zoning is – residential, agricultural or business – as long as the EPA and health department have approved.”
She continued, “I have over 200 acres n Walnut Township. I can build a landfill and you can’t stop me as long as I have my per- mits. Or, I can sell my property to the highest bider who has heard that Walnut township is an easy place to start a landfill. Anyone in this room can do the same thing.”
She said trustees “are the only ones who can correct it (the decision) and the only way is through an appeal.” She acknowledged that the appeal costs money, but said she and Ron have spent over $140,000 trying to correct the township’s mistake. “If the process had been done correctly, we wouldn’t be here today.”
In other business Tuesday night, trustees agreed to sign a corrected application for an Ohio Public Works Commission grant and no-interest loan for the third and final phase of the Cherry Lane rebuild project. Road supervisor Randy Kemmerer told trustees that Phase 2 of the project has been completed for $27,000 under the initial bid. The county engineer’s office is holding back $17,000 for six months in case any problems arise from the contractor’s workmanship.
The township is seeking a $ 307,525 OPWC grant and a $109,831 no-interest ten-year loan to fund Phase 3. Annual loan repayments will be just under $11,000. The application is due Sept. 30 and decisions will likely be announced early next year. Phase 3 will complete the total rebuild of Cherry Lane from the Licking County line south to Ohio 204.
During public comments, South Bank Road resident Robert Myers told trustees he continues to be concerned about how properties are maintained in the township.
“We need to revisit consideration of a property maintenance code,” he said. “I share your concerns,” Trustee Terry Horn said.
Myers pressed trustees on what they have done or could do. Horn said he had tried to focus on some distressed properties, but the efforts hadn’t been supported by his fellow trustees. When Myers asked what it would take to make some progress, Horn said, “I think it will take a change in the leadership of the township to make a change.” When Myers asked what he could do to push things along, Horn told him, “Bring back more people.”
When asked his opinion, zoning inspector Ralph Reeb said Fairfield County Planning Commission Executive Director Holly Mattei, who recently lead the rewrite of the township’s zoning ordinance, recommended that the township not include a property maintenance code in their zoning resolution. He told Myers that anyone could initiate a property maintenance code by bringing it up to trustees. A proposal could also be made to the zoning commission to add such a code to the zoning resolution.
Myers also gave trustees a written complaint about Reeb’s actions during an unannounced visit by Reeb and Zollinger to Myers’ home on Sunday, July 31.
Reeb said Myers is planning to challenge the revised zoning resolution in court in a dispute over what Myers says is a trellis and Reeb calls an eight-foot high fence. Horn offered to meet with Reeb and Myers together and try to resolve the complaint. Both Myers and Reeb agreed, provided it occurs before the Sept. 27 trustees meeting. Trustee Sonny Dupler abstained when Horn moved that he try to work it out with Myers and Reeb.
Horn’s question about how the road department’s hours were set quickly got contentious. He agreed that trustees cut road workers to 35 hours per week to avoid having to lay off one employee. But Horn wanted to know who decided they would only work Monday through Thursday.
“It was a change made, but not officially,” he said. “I think we ought to be here everyday.”
Dupler rebuffed his question, prompting Horn to say, “Do what you want, just do it publicly.”
Trustees later unanimously agreed to return road workers to 40 hours a week when Kemmerer retires on Sept. 31. Trustees didn’t comment on whether he will be replaced.
After some discussion, trustees unanimously agreed to change the secretary’s work days from Monday and Thursday to Tuesday and Thursday. Holidays often fall on Mondays and Reeb said having her in the office on Tuesdays is a better fit for her zoning duties.
An effort to amend the employee handbook by stating that employees will be paid for unused vacation leave when they retire or leave township employment lead to another blow-up between Dupler and Horn.
After Kemmerer announced his retirement and requested payment for his unused sick leave, trustees agreed to ask the prosecutor’s office for guidance on the issue. Dupler considers it “a gray area.” Horn also asked for an opinion on unused vacation time which is not addressed in the handbook. Dupler then demanded that his name be removed from the letter.
Trustees are still waiting for a response to the letter. Horn strongly objected to amending the handbook before they hear from the prosecutor’s office. His objections were overridden by a 2-1 vote.