Citizens Against Blasting on Our Miami v. Anderson Twp. Bd. of Zoning Appeals , 2012 Ohio 6145 ( 2012 )

[Cite as Citizens Against Blasting on Our Miami v. Anderson Twp. Bd. of Zoning Appeals,
2012-Ohio-6145.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CITIZENS AGAINST BLASTING ON : APPEAL NOS. C-120011
OUR MIAMI (CABOOM), C-120012
: C-120013
Plaintiff, C-120014
: C-120015
and TRIAL NOS. A-1006066
: A-1006067
ACUPOLL RESEARCH, INC., A-1006068
: A-1006069
DEBORAH BLANKENSHIP, A-1006189
:
MICHAEL BLANKENSHIP, O P I N I O N.
:
BRUCE BURGER,
:
CATHY BURGER,
:
DAVID BURGER,
:
ANNA CAREY,
:
GEORGE G. CAREY,
:
JAMES COOMER,
:
LINDA COOMER,
:
JULIANN COCHRAN,
:
STEVEN COCHRAN,
:
ANDREW CURRAN,
:
CHRISTINE CURRAN,
:
FRANK G. DISTLER,
:
WANDA F. DISTLER,
OHIO FIRST DISTRICT COURT OF APPEALS
:
EUREKA RANCH PROPERTIES, INC.,
:
JOSEPH W. FAHRENHOLTZ,
:
LINDA J. FAHRENHOLTZ,
:
ELLEN FOLEY,
:
JEFFREY FRYE,
:
SHIRLEY FRYE,
:
TERRY GARVIN,
:
LORETTA L. GORDON,
:
JACK R. GORDON,
:
JASON GORDON,
:
NICOLE GORDON,
:
GARY GOTTENBUSCH,
:
PATRICIA GOTTENBUSCH,
:
HA HA, INC.,
:
HA HA II, INC.,
:
DEBORAH A. HALL,
:
DOUGLAS B. HALL,
:
ANNE W. HARRISON,
:
ROBERT S. HARRISON,
:
DANIEL G. HENDERSHOT,
:
ROBERTA HENDERSHOT,
:
GARY LEE HICKS,
:
GREGORY C. HOUNSHELL,
:
GAIL HOUNSHELL,
:
WILLARD HUGHETT,
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OHIO FIRST DISTRICT COURT OF APPEALS
:
ANITA M. HUMPHRIES,
:
THOMAS M. HUMPHRIES,
:
MICHAEL JOHNSTON,
:
PEGGY JOHNSTON,
:
LEAWANDA D. KAZEE,
:
W. STANLEY KAZEE,
:
JEFFREY H. NEELEY,
:
PALMISANO & CO., INC.,
:
JUDITH A. PALMISANO,
:
ROBERT L. PALMISANO,
:
CATHERINE ROPAR,
:
JEFFREY ROPAR,
:
JEROME SCHIMPF,
:
JOYCE SCHIMPF,
:
HELEN M. STEELE,
:
ROBERT J. STEELE,
:
JUDITH WINSTEL,
:
THOMAS WINSTEL,
:
LYNN WOODWARD,
:
CATHY Y. ZISTLER,
:
JAMES A. ZISTLER,
:
VILLAGE OF NEWTON,
:
VILLAGE OF TERRACE PARK,
:
CITY OF THE VILLAGE OF INDIAN
HILL, :
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OHIO FIRST DISTRICT COURT OF APPEALS
WILLIAM E. HOUSER TR, :
JERRY L. BRANDHORST, :
DIANE C. BRANDHORST, :
and :
TERRI L. HERBERT TR, :
Plaintiffs-Appellees, :
vs. :
ANDERSON TOWNSHIP BOARD OF :
ZONING APPEALS,
:
and
:
ANDERSON TOWNSHIP BOARD OF
TRUSTEES, :
Defendants-Appellees, :
and :
MARTIN MARIETTA MATERIALS, :
INC.,
:
Intervenor-Appellant.
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: December 28, 2012
Timothy G. Mara, for Plaintiffs-Appellees Acupoll Research, Inc., Deborah
Blankenship, Michael Blankenship, Diane C. Brandhorst, Jerry L. Brandhorst, Bruce
Burger, Cathy Burger, David Burger, Anna Carey, George G. Carey, James Coomer,
Linda Coomer, Juliann Cochran, Steven Cochran, Andrew Curran, Christine Curran,
Frank G. Distler, Wanda F. Distler, Eureka Ranch Properties, Inc., Joseph W.
Fahrenholtz, Linda J. Fahrenholtz, Ellen Foley, Jeffrey Frye, Shirley Frye, Terry
Garvin, Loretta L. Gordon, Jack R. Gordon, Jason Gordon, Nicole Gordon, Gary
Gottenbusch, Patricia Gottenbusch, Ha Ha, Inc., Ha Ha II, Inc., Deborah A. Hall,
Douglas B. Hall, Anne W. Harrison, Robert S. Harrison, Daniel G. Hendershot,
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OHIO FIRST DISTRICT COURT OF APPEALS
Roberta Hendershot, Terri L. Herbert TR, Gary Lee Hicks, Gregory C. Hounshell,
Gail Hounshell, William E. Houser TR, Willard Hughett, Anita M. Humphries,
Thomas M. Humphries, Michael Johnston, Peggy Johnston, Leawanda D. Kazee, W.
Stanley Kazee, Jeffrey H. Neeley, Palmisano & Co, Inc., Judith A. Palmisano, Robert
L. Palmisano, Catherine Ropar, Jeffrey Ropar, Jerome Schimpf, Joyce Schimpf,
Helen M. Steele, Robert J. Steele, Judith Winstel, Thomas Winstel, Lynn Woodward,
Cathy Y. Zistler, and James A. Zistler,
Wood & Lamping, LLP, Robert P. Malloy, and Ryan F. Coutinho, for Plaintiffs-
Appellees the City of the Village of Indian Hill, and the Village of Terrace Park,
Donnellon, Donnellon & Miller, and R. Douglas Miller, for Plaintiff-Appellee Village
of Newtown,
Gary E. Powell, for Defendants-Appellees Anderson Township Board of Zoning
Appeals and Anderson Township Board of Trustees,
Brahm & Cunningham, LLC, Richard C. Brahm, Catherine A. Cunningham, Barret
& Weber, and C. Francis Barrett for Intervenor-Appellant Martin Marietta
Materials, Inc.
Please note: This case has been removed from the accelerated calendar.
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OHIO FIRST DISTRICT COURT OF APPEALS
J. H OWARD S UNDERMANN , Presiding Judge.
{¶1} This administrative appeal concerns a proposed mining operation on
property owned by Martin Marietta Materials, Inc. (“Martin Marietta”), near the Little
Miami River in Anderson Township. Martin Marietta sought, and the Anderson
Township Board of Zoning Appeals (“BZA”) approved, several zoning permits to allow
this use. The BZA’s approval, however, was conditioned in part on a “Good Neighbor
Fee” to be paid annually by Martin Marietta and any future owner of the property.
{¶2} More than sixty individuals, corporations, and municipalities—
including the city of the Village of Indian Hill (“Indian Hill”) and the villages of Terrace
Park and Newtown—appealed from the BZA’s decision to the Hamilton County Court of
Common Pleas under R.C. Chapter 2506. The common pleas court reversed on several
grounds, and Martin Marietta now appeals to this court, raising three assignments of
error. For the following reasons, we affirm in part and reverse in part.
Background
{¶3} In 2008 Martin Marietta applied to Anderson Township officials for
several zoning permits to establish a limestone mine and surface processing plant on
approximately 480 acres of land in the township. The property is predominantly
situated in the township’s “ID” Industrial Development District (“ID District”), though
a small portion is situated in the township’s “B” Residence District (“B District”).
{¶4} Under the Anderson Township Zoning Resolution, the “[e]xcavating,
mining or processing of sand, rock and/or gravel” is permissible in the ID District as a
“conditional use,” meaning that “no building or premises shall be used for [such
purposes] unless a special zoning certificate shall have been authorized and issued” by
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OHIO FIRST DISTRICT COURT OF APPEALS
the BZA. Anderson Township Zoning Resolution 114 and 114.2. Such uses are not
permitted in the B District. See Anderson Township Zoning Resolution 62 and 78.
{¶5} In authorizing a conditional use in the ID District, the BZA must
“employ the performance standards described in [Anderson Township Zoning
Resolution] 116 et seq. and shall also consider the compatibility of such uses with
surrounding uses and the effect of such uses upon the health, safety, and morals of the
community.” Anderson Township Zoning Resolution 184 and 184.7. Such uses are
further subject to the general requirements of the ID District. Anderson Township
Zoning Resolution 118 et seq.
{¶6} In June 2010, following extensive testimony at several public hearings,
the BZA granted a conditional-use special zoning certificate, as well as other related
permits, to allow the proposed mining operation on Martin Marietta’s property. The
BZA conditioned its approval, however, in the following manner:
CONDITIONS OF APPROVAL:
To ensure that there will be continued compliance with the
performance standards set forth in ZR § 116 and the general
requirements of ZR § 118, that the continued use of the
subject property will be compatible with surrounding uses,
and that the effect on health, safety, morals, and/or general
welfare of the community will not be negatively impacted, the
Zoning Resolution authorizes the BZA to impose conditions
to its authorization of a special zoning certificate for a
conditional use. Because each separate condition listed
herein is interrelated to all of the other conditions and is
necessary to ensure compliance with the intent and purpose
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OHIO FIRST DISTRICT COURT OF APPEALS
of the Zoning Resolution and the approval herein, if any one
or more conditions in this resolution is challenged in court
and declared invalid, void or ineffective for any reason, this
entire resolution granting the application for conditional use
approval shall be null and void and the matter should be
remanded to the BZA for further consideration of the
application in light of the invalidated condition(s).
***
X. The Applicant has proposed, and the Township has
agreed, to enter into a “Good Neighbor
Agreement” that provides the Township five (5)
cents per ton of material sold and delivered from
the site. The per-ton payment to the Township
under the Good Neighbor Agreement shall be
indexed to the value of the U.S. Dollar in 2010.
The Good Neighbor Agreement shall apply and be
binding upon any subsequent owner or purchaser
of the Property. The payments under the Good
Neighbor Agreement shall be made on an annual
basis, on or before January 31 for the previous
calendar year.
{¶7} The BZA further resolved that any failure to comply with this and other
conditions
may lead to enforcement actions by the Township to
revoke the special zoning certificate for the conditional
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OHIO FIRST DISTRICT COURT OF APPEALS
use, or in the alternative, to enjoin the operation of the
conditionally-permitted use unless such * * * conditions
are complied with, and may put in jeopardy the financial
investment in the site and the equipment made by [Martin
Marietta], as well as the anticipated economic return on
that investment.
{¶8} On appeal brought under R.C. 2506.01, the common pleas court
reversed the decision of the BZA. The court reasoned that the BZA had erred in
(1) allowing mining in the B District by approving mining on all of Martin Marietta’s
property and by classifying proposed tunnels beneath the B District as “ingress and
egress” under Anderson Township Zoning Resolution 184.8-4-1, (2) allowing the
storage of explosives on the property, (3) concluding that the vibration performance
standard of Anderson Township Zoning Resolution 116.8 had been satisfied,
(4) concluding that the nuisance performance standard of Anderson Township Zoning
Resolution 116.10 had been satisfied with respect to fugitive dust, (5) concluding that
the nuisance performance standard of Anderson Township Zoning Resolution 116.10
and the “health, safety, and morals” considerations of Anderson Township Zoning
Resolution 184.7 had been satisfied with respect to increased truck traffic, and
(6) conditioning its approval, in part, on the Good Neighbor Fee. The court further
declared the BZA’s decision “null and void.”
{¶9} Martin Marietta now appeals to this court, assigning three errors. The
company argues that the court of common pleas erred in (1) reversing the BZA’s
decision on the above-listed grounds except that with respect to the Good Neighbor
Fee, (2) holding that the municipal appellees have standing to challenge the BZA’s
decision, and (3) concluding that the Good Neighbor Fee was impermissible and upon
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OHIO FIRST DISTRICT COURT OF APPEALS
this determination, failing to strike that condition and either allow the remainder of the
BZA’s decision to stand or remand the matter to the BZA for further consideration. We
address the assignments of error out of order.
Standard of Review
{¶10} In reviewing an administrative body’s decision under R.C. Chapter
2506, the court of common pleas must decide whether the agency’s decision was
“unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the
preponderance of substantial, reliable, and probative evidence on the whole record.”
R.C. 2506.04. Although the court must weigh the evidence, it “is bound by the nature
of the administrative proceedings to presume that the decision of the administrative
agency is reasonable and valid” and “should not substitute its judgment for that of the
agency.” Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals,
66 Ohio St.3d 452, 456, 613 N.E.2d 580 (1993).
{¶11} The court of appeals, however, applies a standard of review “more
limited in scope.” (Emphasis sic.) Henley v. Youngstown Bd. of Zoning Appeals, 90
Ohio St.3d 142, 147, 735 N.E.2d 433 (2000), quoting Kisil v. Sandusky, 12 Ohio St.3d
30, 34, 465 N.E.2d 848 (1984). Unlike the court of common pleas, the appellate court
reviews only questions of law. R.C. 2506.04; Hyde Park Neighborhood Council, Inc. v.
Cincinnati, 2012-Ohio-3331, 974 N.E.2d 1224, ¶ 9 (1st Dist.), citing Henley at 147.
Municipal Standing
{¶12} We first address Martin Marietta’s second assignment of error, which
challenges the standing of Indian Hill, Terrace Park, and Newtown. “Standing
determines whether a litigant is entitled to have a court determine the merits of the
issues presented.” Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975
N.E.2d 977, ¶ 20 (internal quotation marks and citations omitted). Despite our limited
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OHIO FIRST DISTRICT COURT OF APPEALS
standard of review in this administrative appeal, whether a party has standing is an
issue of law that we review de novo. Dinks II Co. v. Chagrin Falls Village Council, 8th
Dist. No. 84939, 2005-Ohio-2317, ¶ 16.
{¶13} Although R.C. Chapter 2506 generally provides for judicial review of
administrative determinations by political subdivisions, it “does not address the
question of who has standing to bring such an appeal.” Willoughby Hills v. C. C. Bar’s
Sahara, 64 Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992); see R.C. 2506.01 (“Every final
order * * * of any * * * board * * * of any political subdivision of the state may be
reviewed by the court of common pleas * * * .”). We, therefore, turn to the common
law for guidance. See id.; Lofino’s, Inc. v. Beavercreek, 2d Dist. No. 2008-CA-61,
2009-Ohio-4404, ¶ 20.
{¶14} The Ohio Supreme Court has held that in order to appeal from an
administrative determination under R.C. Chapter 2506, a litigant must have been
“directly affected” by the order. Schomaeker v. First Natl. Bank of Ottawa, 66 Ohio
St.2d 304, 311, 421 N.E.2d 530 (1981). In Schomaeker, a landowner challenged a
variance concerning contiguous property by seeking a declaratory judgment. The
supreme court held, however, that the landowner’s action was improper because she
could have appealed directly from the administrative decision. The court reasoned
Since the order affected and determined plaintiff’s rights
as a property owner, and she had previously indicated her
interest, both by a prior challenge to the grant of a
certificate of occupancy and by her presence with counsel
at the hearing on the variance, plaintiff is properly within
that class of persons with standing to bring a direct appeal
pursuant to R.C. Chapter 2506.
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OHIO FIRST DISTRICT COURT OF APPEALS
Schomaeker at 312. See generally Driscoll v. Austintown Assocs., 42 Ohio St.2d 263,
328 N.E.2d 395 (1975), paragraph four of the syllabus (holding that a landowner
generally must exhaust administrative remedies before commencing a declaratory-
judgment action that challenges the constitutionality of a zoning restriction).
{¶15} In Willoughby Hills, the supreme court later explained that
The ‘directly affected’ language in Schomaeker merely
serves to clarify the basis upon which a private property
owner, as distinguished from the public at large, could
challenge the board of zoning appeals' approval of the
variance. The private litigant has standing to complain
of harm which is unique to himself. In contrast, a
private property owner across town, who seeks reversal
of the granting of a variance because of its effect on the
character of the city as a whole, would lack standing
because his injury does not differ from that suffered by
the community at large. The latter litigant would,
therefore, be unable to demonstrate the necessary
unique prejudice which resulted from the board's
approval of the requested variance.
Willoughby Hills at 27.
{¶16} Since Willoughby Hills was decided, other appellate districts have
decided whether a litigant “falls within the class of directly affected persons” by looking
“beyond physical proximity to determine if the order constitutes a determination of the
rights, duties, privileges, benefits or legal relationships of a specified person.” Jenkins
v. Gallipolis, 128 Ohio App.3d 376, 382, 715 N.E.2d 196 (4th Dist.1998), quoting Am.
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OHIO FIRST DISTRICT COURT OF APPEALS
Aggregates Corp. v. Columbus, 66 Ohio App.3d 318, 322, 584 N.E.2d 26 (10th
Dist.1990). Accord Westgate Shopping Village v. Toledo, 93 Ohio App.3d 507, 513,
639 N.E.2d 126 (6th Dist.1994); Bishop v. Marion Twp. Bd. of Zoning Appeals, 3d Dist.
No. 5-97-29, 1997 Ohio App. LEXIS 5579 (Dec. 10, 1997).
{¶17} In this case, Indian Hill and Terrace Park assert different grounds for
standing than Newtown. The former contend that the proposed mine will directly
affect the value of real property owned by each municipality. Indian Hill owns an 80-
acre greenbelt on a hillside overlooking Martin Marietta’s property, and Terrace Park
owns a 60-acre nature center in the immediate vicinity. Moreover, during the BZA
proceedings, the city manager of Indian Hill and the mayor of Terrace Park raised
concerns about the effects of noise, light, dust, diesel exhaust, and vibrations from the
mining operation. Meanwhile, Newtown argues that the proposed mine will cause
increased truck traffic, which will adversely impact the village’s ability to maintain safe
roadways as required by statute. See R.C. 723.01 and 2744.02(B)(3).
{¶18} We first examine the standing of Indian Hill and Terrace Park. Several
Ohio courts have allowed landowners to appeal from zoning decisions that lower the
value of their property under R.C. Chapter 2506. In Jenkins, for instance, a man
alleged adequate grounds for standing to challenge a zoning decision that allowed a
Wal-Mart one-half mile from his property where increased traffic would reduce the
value of that property. Jenkins at 382-383, following Westgate Shopping Village at
513-514 (holding that “evidence that the value of an appellant's property may be
reduced by the enactment of a zoning ordinance will support a finding that an
appellant was directly affected by the zoning ordinance.”). Accord Anderson v.
Vandalia, 159 Ohio App.3d 508, 2005-Ohio-118, 824 N.E.2d 568, ¶ 21-24 (2d Dist.);
Raceway Video & Bookshop v. Cleveland Bd. of Zoning Appeals, 118 Ohio App.3d 264,
13
OHIO FIRST DISTRICT COURT OF APPEALS
272, 692 N.E.2d 656 (8th Dist.1997). We adopt this reasoning, and hold that Indian
Hill and Terrace Park, given their concerns and proximity to Martin Marietta’s
property, have sufficiently demonstrated that they have been directly affected by the
BZA’s decision.
{¶19} We turn next to the standing of Newtown, which relies on our holding
in Symmes Twp. Bd. of Trustees v. Hamilton Cty. Bd. of Zoning Appeals, 110 Ohio
App.3d 527, 674 N.E.2d 1196 (1st Dist.1996). In Symmes, the Hamilton County Board
of Zoning Appeals granted a zoning variance in Symmes Township to allow the
construction of a large illuminated sign closer to the roadway than the minimum set-
back otherwise required by zoning regulations. We held that the Symmes Township
Board of Trustees had standing to appeal from that decision under R.C. Chapter 2506
because the variance affected the board’s statutory duty to maintain safe and navigable
roadways in the township. See R.C. 5571.02, 5571.08 and 5571.09. Newtown argues
that the BZA’s decision similarly impairs its statutory duty to maintain safe roadways,
pointing to evidence that truck traffic will increase in the village due to the mine.
{¶20} Martin Marietta argues that Symmes allows political subdivisions to
challenge zoning decisions only where they concern property within the political
subdivision’s territory, citing D & R Properties v. Burton Twp., 11th Dist. No. 2003-G-
2523, 2004-Ohio-6939. In D & R, two companies applied for various permits to build
and maintain an asphalt plant in Geauga County’s Burton Township. Adjacent
Newbury Township sought to intervene during appellate proceedings, claiming
standing “as a governmental entity with an interest in the health and safety of its
residents.” Id. at ¶ 21. The Eleventh Appellate District rejected the township’s
argument, holding that generalized public welfare concerns did not implicate a
“particularized duty on its part which would confer a legal interest or provide
14
OHIO FIRST DISTRICT COURT OF APPEALS
Newbury with standing to intervene * * * .” Id. at ¶ 24, citing Miami Twp. Bd. of
Trustees v. Miamisburg, 2d Dist. No. 8086, 1983 Ohio App. LEXIS 14058 (May 16,
1983). The court further suggested that Symmes was distinguishable because the
Symmes Township Board of Trustees challenged a zoning order that concerned land
within Symmes Township, as opposed to a neighboring political subdivision. Id. at ¶ 17.
{¶21} We reject this narrow reading of Symmes. Indeed we believe it
undermines the Ohio Supreme Court’s recent refusal to “limit standing to residents
of the municipality that zoned or rezoned the land” in the declaratory-judgment
context. See Moore, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, at ¶ 44,
following Cresskill v. Dumont, 15 N.J. 238, 247, 104 A.2d 441 (1954) (holding that
“[a]t the very least [the municipality] owes a duty to hear any residents and taxpayers
of adjoining municipalities that may be adversely affected by proposed zoning
changes and to give as much consideration to their rights as they would to [its own]
residents and taxpayers * * * . To do less would make a fetish out of invisible
municipal boundary lines * * * .”).
{¶22} We recognize that litigants may not rely on increased traffic by itself to
demonstrate the unique prejudice that confers standing under R.C. Chapter 2506. See
D & R Properties at ¶ 22; Macedonia at ¶ 9. But where increased traffic directly
affects the “rights, duties, privileges, benefits or legal relationships” of another person
or entity, including the statutory duty of municipalities to maintain safe roadways, that
person or entity has standing to challenge administrative decisions causing that
increase under R.C. Chapter 2506. See Jenkins at 383 (“Jenkins did not * * * base his
claim of standing solely on increased traffic. Rather, Jenkins asserted that his property
value would decrease due to an increase in traffic.”); Symmes at 529-530. Because
Newtown has established that the BZA’s decision will directly affect its ability to comply
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OHIO FIRST DISTRICT COURT OF APPEALS
with a statutory duty, we hold that the municipality has standing in this case. The
second assignment of error is, therefore, overruled.
The Good Neighbor Fee
{¶23} In its third assignment of error, Martin Marietta argues that the
common pleas court erred in (1) holding that the BZA exceeded its authority in
conditioning its decision on the Good Neighbor Fee, and (2) in so holding, failing to
strike only that provision.
{¶24} The Ohio Supreme Court has recognized that a township board of
zoning appeals may grant conditional zoning certificates only insofar as they are
authorized by the township’s zoning resolution. Gerzeny v. Richfield Twp., 62 Ohio
St.2d 339, 342, 405 N.E.2d 1034 (1980). See R.C. 519.14(C) (empowering township
boards of zoning appeals to “[g]rant conditional zoning certificates for the use of land,
buildings, or other structures if such certificates for specific uses are provided for in the
zoning resolution.”).
{¶25} The Ninth Appellate District recently considered the extent to which a
board of zoning appeals may impose conditions in Smith v. Richfield Twp. Bd. of
Zoning Appeals, 9th Dist. No. 25575, 2012-Ohio-1175. In Smith, the Richfield
Township Board of Zoning Appeals granted Smith a variance for a building that
violated the applicable rear-setback zoning provision, but included conditions on the
use of the property. The board argued that these conditions were permissible because
the township’s zoning resolution authorized the board to “impose such conditions as it
may reasonably deem necessary to protect the public health, safety, and morals in
furtherance of the purposes and intent of this Resolution.” Id. at ¶ 14. The Ninth
Appellate District held, however, that the specific conditions imposed by the board
must be “provided for, and specifically authorized by a zoning resolution which was
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OHIO FIRST DISTRICT COURT OF APPEALS
adopted by the township trustees—a legislative body.” Id. at ¶ 15, quoting Powerall,
Inc. v. Chester Twp. Trustees, 11th Dist. No. 1037, 1983 Ohio App. LEXIS 11199, *2
(Dec. 9, 1983), citing L & W Invest. Co. v. Cutler, 125 Ohio St. 12, 180 N.E. 379 (1932).
Accord Genovese v. Beckham, 9th Dist. No. 22814, 2006-Ohio-1174.
{¶26} The Anderson Township Zoning Resolution empowers the BZA to
authorize “a Special Zoning Certificate for any of the Conditional Uses in the [ID
District] * * * . In authorizing such Conditional Uses, the [BZA] shall employ the
performance standards described in Sec. 116 et seq. and shall also consider the
compatibility of such uses with the surrounding uses and the effect of such uses upon
the health, safety, and morals of the community.” Anderson Township Zoning
Resolution 184.7.
{¶27} There are provisions of the Anderson Township Zoning Resolution that
grant the BZA broad discretion in imposing conditions on certain permits. For
instance, Anderson Township Zoning Resolution 184.8-8 authorizes the BZA, in
granting a special zoning certificate to allow particular uses in districts in which they
are prohibited, to “impose such special conditions as [the BZA] shall deem desirable
under the circumstances, to reduce the adverse effect of the above uses upon the
preservation of the character and development of the District in which such uses are
located.” In addition, Anderson Township Zoning Resolution 353 allows the BZA to
impose “reasonable conditions” in allowing conditional uses authorized for single and
multi-family residence districts.
{¶28} The Anderson Township Zoning Resolution does not, however,
generally authorize the BZA to impose conditions when issuing zoning certificates. Nor
does it authorize the BZA to impose conditions on special zoning certificates for
conditional uses in the ID District. We, therefore, hold that the BZA was without
17
OHIO FIRST DISTRICT COURT OF APPEALS
authority to condition its decision on Martin Marietta’s payment of the Good
Neighbor Fee.
{¶29} We, therefore, turn to what effect this error has on the disposition of
this matter. The common pleas court held that the BZA’s entire decision was “null
and void.” Martin Marietta, however, asks that we merely strike the Good Neighbor
Fee and uphold the remainder of the BZA’s approval. We hold, however, that the
common pleas court’s disposition was not supported by the law, and that Martin
Marietta’s alternative is untenable.
{¶30} “The effect of determining that a judgment is void is well established. It
is as though such proceedings had never occurred; the judgment is a mere nullity * * *
and the parties are in the same position as if there had been no judgment.” Romito v.
Maxwell, 10 Ohio St.2d 266, 267, 227 N.E.2d 223 (1967). Ohio courts have considered
judgments void only in very limited circumstances. See, e.g., Ohio Pryo, Inc. v. Ohio
Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 23 (“When
a judgment was issued without jurisdiction or was procured by fraud, it is void and is
subject to collateral attack.”); State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942
N.E.2d 332, ¶ 8 (identifying the “narrow, and imperative” rule that “a sentence that is
not in accordance with statutorily mandated terms is void”).
{¶31} In this case, the Anderson Township Board of Zoning Appeals imposed
a condition on its decision to allow a conditional-use special zoning certificate and
related permits that was not authorized by the Anderson Township Zoning Resolution.
Although this was certainly error, we cannot say that this infirmity is on par with a
jurisdictional defect or a sentence imposed without statutory authority. We, therefore,
hold that the common pleas court erred in concluding that the BZA’s decision was void.
Instead, it was merely error reversible on direct appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} We further decline to remedy this situation, as Martin Marietta
proposes, by simply striking the Good Neighbor Fee and issuing zoning permits
ourselves. In this complex administrative matter, we find it more appropriate to allow
the BZA to decide in the first instance whether to grant the zoning permits requested by
Martin Marietta without this condition. The third assignment of error is, therefore,
sustained in part and overruled in part.
Conclusion
{¶33} Because our disposition of the third assignment of error requires
further consideration of this matter by the BZA, we need not address the first
assignment of error, which challenges the common pleas court’s decision to reverse the
BZA’s decision on several grounds other than the unauthorized imposition of the Good
Neighbor Fee.
{¶34} The judgment of the common pleas court is, therefore, affirmed with
respect to its holdings that the municipal parties have standing, and that the BZA
exceeded its authority in conditioning its decision on the Good Neighbor Fee. The
judgment is reversed, however, with respect to the court’s holding that the BZA’s
decision is null and void. We remand this cause to the common pleas court with
instructions to remand this matter to the BZA for further proceedings in light of this
opinion. Finally, we stress that this opinion, which turns on very discrete aspects of the
common pleas court’s judgment, shall not be construed as broader approval of the
court’s other holdings.
Judgment accordingly.
H ENDON , J., concurs.
C UNNINGHAM , J., concurs in part and dissents in part.
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OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , J., concurring in part and dissenting in part.
{¶35} Although I concur with nearly all of the majority’s opinion, I
respectfully dissent in one limited part.
{¶36} In its second assignment of error, Martin Marietta argues that the
nearby municipalities of Newtown, Terrace Park, and Indian Hill lack standing to
challenge the BZA’s decision. The majority correctly holds that this issue turns on
whether the BZA’s decision “constitutes a determination of [the municipalities’] rights,
duties, privileges, benefits or legal relationships.” See Jenkins v. Gallipolis, 128 Ohio
App.3d 376, 382, 715 N.E.2d 196 (4th Dist.1998). Although I agree with the majority’s
articulation of the law, as well as its application with respect to Newtown and Terrace
Park, I cannot say that Indian Hill has established its right to participate in these
proceedings.
{¶37} Indian Hill argues that the BZA’s decision directly affects the city’s real
property interests in 80 acres of land near the proposed mining site and its ability to
provide police and fire protection and safe and navigable roadways as required by
statute. Although these interests may be adequate grounds for standing, there is
insufficient evidence in our record to support these arguments.
{¶38} Indian Hill cites only the testimony of its city manager, Michael Burns.
Although Burns mentioned that Indian Hill owns 80 acres of land near Martin
Marietta’s property, he did not indicate how the property is used or how the mining
operation would directly affect it. When asked to clarify the city’s concerns, Burns
stated:
The main concerns that were raised during the process
have been talked about previously. We had a concern
about noise, we had a concern about the lighting plan
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OHIO FIRST DISTRICT COURT OF APPEALS
especially because they were very bright lights shown on
the site plan for this site that shine up into the air as
opposed to down. They are lighting up the process
operations and those same lights would shine up into the
homes on the ridge above in Indian Hill. Third, the dust
control was a concern that was immediate [sic] apparent
to us.
And, then finally, to a little bit more limited fashion, the
traffic, the truck traffic was a concern. We do have
regulations in place that prohibit through truck traffic but,
those are regularly disobeyed and it causes some
unfortunate issues but, generally we feel we could control
most of the trucks that might find their way through
Indian Hill.
{¶39} Also during his testimony, Indian Hill submitted and the BZA accepted
as evidence, a letter that had been sent to the BZA and signed by Burns that opposed
the proposed mining operation. The letter complained about the potential effects of
noise, light, dust, and truck traffic, but only with respect to the city’s residents—not any
right, duty, privilege, benefit, or legal relationship unique to the municipality. In fact,
the letter fails to refer to any city property at all. Nor does the letter raise any
foreseeable impact on the city’s ability to provide police and fire services. With respect
to traffic, the letter states that even though truck traffic will increase due to the mining
operation, it concludes that “[v]ery little or none of this traffic will find its way to Indian
Hill streets * * * but nearby major thoroughfares and primary roads will be negatively
impacted by the increased truck traffic.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} There is, therefore, no evidence in the administrative record to
demonstrate how the proposed mining operation would directly affect any statutory
duty of Indian Hill. Moreover, even though Burns testified that the Indian Hill owns
property in the general vicinity of Martin Marietta’s property, no evidence indicates
how this property would be affected by the mining operation. By contrast, Jay
Gohman, the mayor of Terrace Park, testified that his village owns property near the
site that is zoned “residential” and could be sold in the future. Gohman expressed
concern that dust, noise, diesel exhaust, and vibrations emanating from the mining
operation would reduce the value of the village’s property. Although this evidence is
somewhat speculative, I believe it was adequate grounds to establish Terrace Park’s
right to participate in these proceedings. See Jenkins, 128 Ohio App.3d at 383, 715
N.E.2d 196; Westgate Shopping Village v. Toledo, 93 Ohio App.3d 507, 514, 639
N.E.2d 126 (6th Dist.1994). Indian Hill, however, was clearly concerned only with the
impact of the mining operation upon its residents. Understandable as this may be,
such generalized concerns are not enough to implicate “rights, duties, privileges,
benefits or legal relationships” of the city.
{¶41} Accordingly, I would sustain Martin Marietta’s second assignment of
error with respect to the standing of Indian Hill. I join the majority’s opinion,
however, in all other respects.
Please note:
The court has recorded its own entry this date.
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