Rauch v. Jefferson Twp. Bd. of Zoning Appeals

[Cite as Rauch v. Jefferson Twp. Bd. of Zoning Appeals, 2018-Ohio-4233.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STEVEN R. RAUCH, et al. :
:
Plaintiff-Appellee/Cross- : Appellate Case No. 27743
Appellant :
: Trial Court Case No. 2016-CV-4930
v. :
: (Civil Appeal from
JEFFERSON TOWNSHIP BOARD OF : Common Pleas Court)
ZONING APPEALS, et al. :
:
Defendants-Appellants/Cross- :
Appellees :
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OPINION
Rendered on the 19th day of October, 2018.
...........
SCOTT A. KING, Atty. Reg. No. 0037582 and TERRY W. POSEY, JR., Atty. Reg. No.
0078292, Austin Landing I, 10010 Innovation Drive, Suite 400, Dayton, Ohio 45342
Attorneys for Plaintiff-Appellee/Cross-Appellant
JEFFREY C. TURNER, Atty. Reg. No. 0063154, DAWN M. FRICK, Atty. Reg. No.
0069068, and KEVIN A. LANTZ, Atty. Reg. No. 0063822, 8163 Old Yankee Street,
Suite C, Dayton, Ohio 45458
Attorneys for Defendants-Appellants/Cross-Appellees
.............
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TUCKER, J.
{¶ 1} Steven Rauch filed a request for a conditional use permit allowing him to
operate a commercial composting facility on his farm located in Jefferson Township. The
Jefferson Township Board of Zoning Appeals (BZA) issued the permit but included certain
restrictions and requirements therein. Rauch filed an administrative appeal. The
Montgomery County Court of Common Pleas affirmed three of the restrictions and
reversed three of the conditions. The BZA, along with the Jefferson Township Board of
Trustees and the Jefferson Township Zoning Director, filed an appeal. Rauch filed a
cross-appeal. For the reasons outlined below, we affirm.
I. Facts and Procedural History
{¶ 2} Steven Rauch is the owner of a 161.322-acre property located in Jefferson
Township. The property is zoned as agricultural. In March 2014, Rauch applied for a
zoning permit to develop a compost production facility on the property.1 According to the
application, the facility would produce commercial-grade compost for sale as well as for
use on the farming portion of the property. The facility would be licensed as a Class II
composting operation, regulated by the Ohio Environmental Protection Agency
(hereinafter “OEPA”). Ohio Adm.Code 3745-560-02(C)(2) provides that a Class II
composting facility is one “where the owner or operator may accept yard waste,
agricultural waste, animal waste, food scraps, bulking agents, additives, and authorized
alternative materials.”
1 Compost is a “mixture that consists largely of decayed organic matter and is used for
fertilizing and conditioning land.” Webster’s Ninth New Collegiate Dictionary, 270 (1988).
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{¶ 3} The application was denied, and Rauch appealed to the BZA. The BZA
conducted a public hearing on the application. Dan Wampler, Rauch’s partner, provided
information regarding the construction design plan. Rauch also presented testimony
from Ryan Morrissey, a civil engineer who performed the site grading for the facility, and
Mohammed Haque, an engineer with expertise in geo-technical engineering. Finally,
Rauch presented a video presentation of his expert, Dr. Fred Michel.2 Michel was an
associate professor at the Ohio State University Department of Food, Agricultural and
Biological Engineering. His position involved research and teaching in areas related to
solid waste management and composting. He had researched composting for 25 years,
including visiting 50 composting facilities in the United States and internationally. Since
2000, he had taught a class entitled “Ohio Compost Operator Educator Course.” He had
published peer-reviewed papers on composting and was an editor of a peer-review
journal titled Compost Science and Utilization. Michel had also served as an expert
witness in zoning board cases and had testified in state and federal courts regarding
composting materials and odor production.
{¶ 4} According to the record, the site design plan provided that the Rauch facility
would be limited to ten acres located in the center portion of the 161-acre property. The
properties to the north, south and west of the Rauch property were also farms. To the
east of the composting area was a large wooded area. Some single-family residences
were located beyond the wooded area, approximately one-half mile from the proposed
facility.
{¶ 5} The record contains evidence that the Rauch facility would accept
2 Michel was unable to attend the public hearing due to medical issues.
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compostable materials, known as feedstock, from outside sources. Feedstock is defined
as “a solid waste that will readily decompose during the composting process including but
not limited to yard waste, agricultural waste, animal waste, food scraps, animal carcasses,
raw rendering material, and mixed solid waste.” Ohio Adm.Code 3745-560-02(F)(1).
The facility would also accept materials known as bulking agents from outside sources.
Bulking agents consist of materials “added to a composting process to provide structural
support, improve aeration, or absorb moisture and includes wood chips, straw, clean
untreated wood, shredded newspaper, shredded cardboard, sawdust, shredded brush,
compostable containers, and stover.” Ohio Adm.Code 3745-560-02(B)(2).
{¶ 6} The proposed composting facility consisted of a storage area for finished
compost product; a feedstock and bulking agent storage area; and an active composting
area on a concrete pad. The active composting concrete pad would occupy
approximately three acres of the facility. The feedstock would be blended with bulking
agents and additives and then placed in elongated rows, referred to as windrows, on the
concrete pad.3 The windrows would then be covered with six inches of biofilter material,
which is defined as “material consisting of bulking agents, shredded yard waste, or
compost that is applied over the composting mixture to control odors, dust, or vectors.”
Ohio Adm.Code 3745-560-02(B)(1). Materials would be brought in daily by as many as
five trucks. Therefore, the facility would also have a wheel washing area for the trucks
to ensure that dust, mud and compost from the facility were not carried off the property
3 Additives are a “supplemental material mixed with or otherwise added to feedstocks
and bulking agents to create a favorable condition for the composting process and
includes urea, crushed egg shells, earthworms, and bacterial or fungal inoculum.” Ohio
Adm.Code 3745-560-02(A)(3).
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onto local roads. The entire facility would be designed to drain into a two and one-half
acre aerated leach pond. The pond would be constructed with a 3-foot compacted clay
liner to prevent seepage out of the pond. The ten acres would also be surrounded by a
four-foot berm constructed with a water-tight seal. The pond, along with the berm, would
be large enough to contain two years of rainwater.
{¶ 7} After the hearing, the BZA issued a decision denying the application, and
Rauch filed an administrative appeal in the Montgomery County Court of Common Pleas.
As authorized by R.C. 2506.03(A)(3), the court conducted a hearing during which Michel
was permitted to provide sworn testimony. Thereafter, the court reversed the decision
of the BZA and remanded the matter to the BZA with instructions to issue a conditional
use permit to Rauch. The BZA filed an appeal with this court, which we dismissed for
lack of standing. Rauch v. Jefferson Twp. Bd. of Zoning Appeals, 2d Dist. Montgomery
No. 26941, 2016-Ohio-967, appeal not allowed, 146 Ohio St.3d 1430, 2016-Ohio-4606,
52 N.E.3d 1205.
{¶ 8} On August 18, 2016, the BZA held a public hearing, following which it issued
a conditional use permit to Rauch with a list of conditions upon the proposed production
site. The conditions relevant to this appeal are:
Site Conditions:
1. The applicant shall submit a final site plan that is approved by the Ohio
EPA.
2. If there are any changes to the site plan during the licensing process,
the Board of Zoning Appeals must review and consider any modifications.
***
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Operations Conditions:
***
6. Off-site Feedstock and bulking agents cannot be brought onto the
composting site to be processed or prepared (chopping, chipping, or
grinding etc.). No equipment that can be used for such purposes
[examples industrial chippers, tub grinders etc.] can be stored or operated
at the site.
7. The approved list of Feedstock materials that may be processed at the
site is limited as follows:
A. Yard wastes – shall be limited to leaves, grass clippings, brush,
garden waste, woodchips, chips from the pruning from trees or shrubs, and
saw dust;
B. Agricultural waste – as defined in OAC 3745-560-02(A)(4), is
limited to be sourced from the Bear Creek operation only;4
C. Animal wastes – as defined in OAC 3745-560-02(A)(8), is limited
to be sourced from the Bear Creek operation only;
D. Food scraps – shall be limited to fruits and vegetables, grains
and grain derivatives, coffee and coffee derivatives, and tea and tea
derivatives;
E. The use of any materials beyond this list including an application
to the OEPA Director for Alternative materials will be considered an
4 The reference to “the Bear Creek operation” is due to the fact that a waterway known
as Bear Creek runs through the tree-line located to the east of the composting facility.
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application for the expansion of the conditional use, thus requiring approval
by the BZA.
***
10. Equipment Cleaning – An equipment cleaning area shall be provided
on the site. All equipment used in the operation shall be cleaned daily to
prevent odors and other nuisances or health hazards.
***
Other Conditions:
1. The Board requires a 6-month review after the issuance of the Zoning
Certificate, and a one-year review to assess the impact of the proposed
facility to determine compliance with these conditions. * * *
Dkt. No. 16, Exh. A.
{¶ 9} The Ohio Administrative Code sets forth definitions of each type of compost
product that a Class II facility may accept. Yard waste is defined as “solid waste that
includes only leaves, grass clippings, brush, garden waste, tree trunks, tree stumps,
holiday trees, prunings from trees or shrubs, and vegetative waste resulting from the use
of commercial products, including but not limited to discarded flowers, potted flowers, or
grave blankets that do not include plastic, metal, styrofoam, or other non-biodegradable
material. Yard waste does not include wastes from industrial processing, agricultural
processing, or food processing.” Ohio Adm.Code 3745-560-02((Y). Agricultural waste
consists of “plant material including but not limited to stems, leaves, vines, or roots from
an agricultural operation.” Ohio Adm.Code 3745-560-02(A)(5). Animal waste includes
“animal excreta, bedding, wash waters, incidental waste feed, and silage drainage.”
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Ohio Adm.Code 3745-560-02(A)(9). Food scraps are “food residuals including but not
limited to vegetables, fruits, grains, dairy products, meats, and the compostable
packaging that may be commingled.” Ohio Adm.Code 3745-560-02(F)(2). Authorized
alternative materials consist of “waste that might be suitable for use as a feedstock,
bulking agent, or additive in the composting process including but not limited to animal
carcasses, raw rendering material, and exceptional quality biosolids.” Ohio Adm.Code
3745-560-02((A)(7).
{¶ 10} Rauch filed an administrative appeal in the common pleas court objecting
to the above-cited conditions. Rauch argued that there was no evidence to support the
imposition of the conditions.
{¶ 11} The court affirmed the BZA decision regarding Site Conditions 1 and 2 as
well as Other Conditions 1. The court, however, reversed the decision regarding
Operations Conditions 6, 7 and 10. An appeal was filed by the Jefferson Township BZA,
the Jefferson Township Board of Trustees, and the Jefferson Township Zoning Director.
Rauch filed a cross-appeal.
II. Standard of Review
{¶ 12} “The standards of review for a court of common pleas and an appellate court
differ considerably when an administrative appeal is involved.” Gem City Metal Spinning
Co. v. Dayton Bd. of Zoning Appeals, 2d Dist. Montgomery No. 22083, 2008-Ohio-181,
¶ 17. A common pleas court “must ‘determine whether there exists a preponderance of
reliable, probative, and substantial evidence to support’ [an agency's] decision.” In re
Application for Conditional Use of Watkins, 2d Dist. Montgomery No. 17723, 2000 WL
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192430, *2 (Feb. 18, 2000), quoting Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio
St.2d 202, 207, 389 N.E.2d 1113 (1979). “Further, the [common pleas] court must
presume that the agency decision is ‘reasonable and valid.’ ” Id., quoting Community
Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 66 Ohio St.3d 452, 456,
613 N.E.2d 580 (1993). When an R.C. Chapter 2506 administrative appeal is filed, the
common pleas court must “consider the whole record, including any new or additional
evidence admitted under R.C. 2506.03, and then determine whether the administrative
order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by
the preponderance of substantial, reliable, and probative evidence.” (Citation omitted.)
Durell v. Spring Valley Twp. Bd. of Zoning Appeals, 2d Dist. Greene No. 2012 CA 23,
2012-Ohio-5098, ¶ 21. However, an appellate court’s review of a common pleas court's
decision regarding an agency order is limited, on a question of fact, to an abuse of
discretion standard. Lamar Outdoor Advertising v. Dayton Bd. of Zoning Appeals, 2d
Dist. Montgomery No. 18902, 2002 WL 1349600, *2 (June 21, 2002). An abuse of
discretion occurs when the common pleas court's decision is unreasonable, arbitrary, or
unconscionable. Id., citing Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621, 614
N.E.2d 748 (1993). “However, regarding questions of law, our review is de novo.” Id.III. Township’s Contentions
{¶ 13} The Township’s sole assignment of error is as follows:
THE TRIAL COURT ERRED AS A MATTER OF LAW TO THE PREJUDICE
OF THE APPELLANTS/CROSS-APPELLEES WHEN IT REVERSED THE
BOARD OF ZONING APPEALS’ DECISION AS TO OPERATING
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CONDITIONS 6, 7 AND 10.
{¶ 14} The Township contends the common pleas court erred in finding that
operating conditions 6, 7 and 10 were arbitrary and capricious and that they were not
supported by a preponderance of the reliable, probative and substantial evidence. The
essence of the Township’s argument is based upon its claim that the conditions were
designed to reduce the potential for foul odors emanating from the site by decreasing the
intensity of use on the proposed site. The Township contends that the testimony of
Wampler and Michel supported the imposition of the conditions.
{¶ 15} We turn first to operating condition 6, which banned the on-site processing
or preparation of off-site feedstock and bulking agents as well as the storage or operation
of equipment used for such purposes. The Township claims that Michel’s testimony
supports this ban as he testified that materials brought in from off-site are usually the
cause of odors at composting facilities and that the facility cannot control the odor of off-
site materials. The Township also contends Wampler testified that the facility did not
intend to process or prepare materials brought onto the site, and that such testimony
supported the imposed condition.
{¶ 16} Michel testified that, in his experience, when a composting facility is properly
operated, the odors caused by composting materials, if any, are minimal and do not go
past the concrete pad. He further testified that, in this case, if any odors did escape the
pad, they would not go beyond the property boundaries as the tree-line on the property
would be a significant odor buffer between the facility and the homes to the east of the
property. However, he also admitted that foul odors can occur if a supplier brings in
materials that have been permitted to decompose in an anaerobic manner. In such
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cases, Michel testified that the facility can only minimize the odor of such materials by
combining it into the windrows and covering the windrows with biofilters.
{¶ 17} Based upon this testimony, we understand that the Township’s ban upon
the on-site processing and preparation of off-site materials was intended to reduce the
amount of time such materials were permitted to be on-site before being combined into
the biofilter-treated windrows. In other words, the Township believed that any
unprocessed or unprepared odorous materials would have to be on-site for a longer
period before being combined into treated windrows than if brought on-site already
prepared and ready to be placed into the windrows.
{¶ 18} Significantly, Michel did not testify that material brought in from off-site was
necessarily odorous. Instead, he testified that it may be odorous. The ban on
processing all materials brought to the site necessarily excludes even materials that are
not odorous when brought to the facility. Further, such a ban does not automatically
eliminate the lag-time caused by processing and preparing. The record indicates that all
materials brought in on any given day should be incorporated into windrows by the end
of business that day in order to minimize odors. Thus, any materials brought to the site,
processed or unprocessed, would not necessarily be placed immediately into windrows
and could sit on-site for the same amount of time before being combined into a windrow.
Finally, the Township’s goal could have been achieved by a less broad condition such as
requiring Rauch to ensure that his suppliers did not bring any odorous materials onto the
site. Thus, we conclude that the court did not abuse its discretion in concluding that
Michel’s testimony did not support such a ban.
{¶ 19} The Township also claims Wampler testified the facility would not process
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or prepare any materials because it did not have the equipment for doing so. Thus, the
Township contends that the ban on preparation and processing of materials brought in
from off-site was in accord with Wampler’s testimony. The Township further argues that
because the court, in its decision, found that Wampler’s testimony was referring solely to
bulking materials, it improperly discounted the probative value of Wampler’s statements,
and thus, failed to consider the entire record when it invalidated the condition.
{¶ 20} A review of the record indicates, that when asked whether the facility would
make its own “woodchips or mulch or otherwise called bulking agent on the site,” Wampler
replied, “probably not.” Exh. B, p. 29. He then qualified the answer by stating that the
facility would bring in woodchips because it did not have the equipment for making them.
He also stated that the main bulking agents at the site would consist of woodchips and
corn stover. His testimony regarding the bulking material appeared to be restricted to
the processing of woodchips and not to the corn stover, but it certainly did not encompass
feedstock materials received from off-site.
{¶ 21} We find no basis for concluding that the court ignored or discounted
Wampler’s testimony by accurately noting what the actual testimony provided. Further,
we cannot say that the court abused its discretion by finding that Wampler’s testimony
did not support a ban on the processing or preparing of all materials brought in from off-
site.
{¶ 22} Based upon the record, we cannot say that the trial court abused its
discretion by determining that operating condition 6 was arbitrary and not supported by
the evidence.
{¶ 23} We next address operating condition 7 which, relevant to this appeal, limited
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the types of feedstocks available to the facility by omitting tree trunks, tree stumps and
holiday trees by using the Ohio Administrative Code definition of yard waste, and by
excluding dairy products, meats and compostable packaging, by using the Code’s
definition of food scraps. The Township contends that Wampler’s testimony supported
the exclusion related to yard waste because he testified that the facility would not recycle
Christmas trees. The Township further contends that the fire hazard presented by the
presence of tree trunks, stumps and Christmas trees necessitated the omission. The
Township further argues that Michel’s testimony supported the exclusion of dairy, meats
and compostable packaging.
{¶ 24} Michel did testify that food scraps used in composting create more potential
for odor production. However, he also testified that “the [Rauch] site is designed to
handle the types of feedstocks that are received. It’s controlled by the windrow size, use
of the biofilters and those sort of operating processes, the moisture content and other
things of the material.” Dkt. No. 16. As noted above, he also testified that a properly-
operated facility should not produce odors that leave the area of the concrete pad. He
testified that, as part of his work, he was involved with a similar operation which did not
produce odors that extended beyond the concrete pad. Michel also noted that the
property’s current agricultural zoning permits it to use manure as a fertilizer, which, he
noted, would produce stronger odors than the composting facility. In short, there was no
evidence presented that having dairy and meat products in the food scraps would, in a
proper composting operation, create more odor than any other type of waste or that it
would be more likely to escape the property boundaries. Further, there was absolutely
no evidence that compostable packaging would cause any odor.
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{¶ 25} With regard to the exclusion of trees, we note that Wampler merely testified
that the facility had “no plans” and “probably would not” utilize Christmas trees as
feedstock because they take longer to break down. Contrary to the Township’s claim,
Wampler did not, even when specifically asked, state that the facility would exclude such
trees. Wampler also testified that any fire hazards would be addressed by the fact that
the materials were on a concrete pad and that the facility was contemplating the
installation of a large water pump to deal with any potential fires. We also note that,
while the Township argues that common sense and personal experience permit the
finding that dry Christmas trees, tree stumps and trunks pose a fire hazard, there was no
expert testimony presented to indicate that compost windrows containing such material
have a higher potential for fire than windrows lacking such material. Indeed, the OEPA’s
inclusion of such products in its definition of usable materials tends to refute this claim.
{¶ 26} Again, we cannot conclude that the common pleas court abused its
discretion in determining that the evidence did not support the limitations operating
condition 7 placed on the types of materials used for composting or that such limitations
were arbitrary.
{¶ 27} Finally, we address operation condition 10, which required the facility to
wash, on a daily basis, all equipment used in the composting operation. The Township
argued that, since Rauch agreed to install a wheel-washing station to clean truck tires
leaving the site, common sense indicated that washing all equipment daily would reduce
odors. The Township states that “[e]ven lay people know that a good washing removes
odors.” It also argued that Michel testified that odiferous matter would be used by the
facility and that the facility had no control over odorous material brought onto the site.
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{¶ 28} Again, the record does not support a finding that the facility would actually
receive foul smelling materials. Further, there was no evidence that equipment used in
a properly operated composting facility would become odorous. Thus, we cannot
conclude that the court abused its discretion in finding that this limitation is arbitrary and
unsupported by the evidence in the record.
{¶ 29} The Township has failed to demonstrate that the court abused its discretion
or that the proposed limitations were supported by the record. Accordingly, the sole
assignment of error presented by the Township is overruled.
IV. Rauch’s Contentions
{¶ 30} Rauch advances the following as his sole assignment of error:
THE TRIAL COURT ERRED IN PERMITTING THE SECOND BZA
DECISION TO CONTAIN CONDITIONS THAT WERE NOT EXPRESSLY
AGREED TO.
{¶ 31} Rauch contends that all of the operations, site and other conditions listed in
the conditional use permit are barred by the doctrine of res judicata. He further contends
that the BZA lacked the power, on remand, to hold an additional hearing and take
additional evidence. Finally, he contends that the conditions permitting the BZA to
conduct reviews of the permit are illegal.
{¶ 32} We begin with the claim that the BZA was not permitted to conduct an
additional evidentiary hearing on remand. Rauch cites Mad River Sportsman’s Club, Inc.
v. Jefferson Twp. Bd. of Zoning Appeals, 92 Ohio App.3d 273, 277, 634 N.E.2d 1046 (3d
Dist.1993) for the proposition that “[t]here is nothing in this statute [R.C. 2506.04]
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authorizing the common pleas court to remand the case to the administrative body for an
additional hearing and then to issue an order consistent with the facts established at that
hearing.” Id., citing Williamson v. Chester Twp. Trustees, 18 Ohio App.2d 188, 247
N.E.2d 789 (11th Dist.1969); Ruggiero v. Brooklyn Bd. of Zoning Appeals, 197 N.E.2d
828 (8th Dist.1964). However, as noted by the common pleas court, the Mad River
holding has been abrogated by State ex rel. Chagrin Falls v. Geauga Bd. of Commrs., 93
Ohio St.3d 400, 2002-Ohio-4906, 775 N.E.2d 512, wherein the Supreme Court of Ohio
stated:
In Superior Metal Products, Inc. v. Ohio Bur. of Emp. Serv., 41 Ohio St.2d
143, 146, 324 N.E.2d 179 (1975), we held that “a court's remand effectuates
a revival of jurisdiction over a cause which may enable the subordinate
tribunal or administrative body to conduct further proceedings and to render
a new decision. Although Superior Metal did not involve an R.C. Chapter
2506 appeal, appellate courts have applied it and held that common pleas
courts have authority in R.C. Chapter 2506 administrative appeals to
remand for further proceedings, including a new hearing. See, e.g., Neary
v. Moraine Bd. of Zoning Appeals (July 30, 1999), 2d Dist. No. 17428, 1999
WL 960777Id. at ¶ 8.
{¶ 33} The Supreme Court further stated that “the additional language in R.C.
2506.04 regarding remanding the cause with instructions to ‘enter an order, adjudication,
or decision consistent with the findings or opinion of the court’ does not prohibit the
administrative tribunal or officer to which a cause is remanded from conducting further
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proceedings[.]” Id. at ¶ 10, citing Neary v. Moraine Bd. of Zoning Appeals, 2d Dist.
Montgomery No. 17428, 1999 WL 960777 (July 30, 1999), at *12-13.
{¶ 34} Thus, we conclude that Rauch’s argument in this regard lacks merit.
{¶ 35} We next turn to the claim that the conditions imposed by the BZA are barred
by the doctrine of res judicata. In support, Rauch argues that the conditions were noted
in the BZA’s Staff Comments made during the first hearing before the BZA, and that the
BZA failed to raise the conditions in its first administrative appeal to the common pleas
court. We agree with the conclusion of the common pleas court that the “issue previously
litigated was not the imposition of conditions, but whether a preponderance of the
evidence supported the denial of a conditional use permit.” Dkt. No. 28, p. 17. Thus,
we conclude that res judicata does not bar the imposition of conditions by the BZA.
{¶ 36} Finally, Rauch contends that Site Conditions 1 and 2, and Other Conditions
1 are illegal because review of a conditional use permit is not authorized under the
Township’s zoning regulations and because R.C. 519.24 and 519.23 are the only
enforcement mechanisms available after the issuance of a conditional use permit.
{¶ 37} Section 406.05 of the Township Zoning Resolution provides:
In granting a conditional use certificate, the Board may impose such
conditions, safeguards and restrictions upon the premises benefitted by the
Conditional Use as may be necessary to comply with the standards set out
in Subsection 406.04 to reduce or minimize potentially injurious affects [sic]
of such Conditional Uses upon other property in the neighborhood and to
carry out the general purpose and intent of this Resolution.
{¶ 38} We agree with the common pleas court that the Township Zoning
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Resolution is broad enough to allow the BZA to impose conditions, such as a review, that
it deems necessary to ensure compliance with the zoning standards.
{¶ 39} R.C. 519.24 creates a cause of action to enjoin or abate violations of zoning
regulations against landowners who use or propose to use their property in violation of
R.C. 519.01 through 519.99. The statute also applies to a violation of “any regulation or
provision adopted by any board of township trustees.” Id. Similarly, R.C. 519.23
creates a criminal cause of action for the use of a building or land in violation of a township
zoning resolution. Neither of these statutes are inconsistent with a zoning regulation or
resolution allowing a BZA to review the use of property to ensure that it complies with its
zoning regulations.
{¶ 40} We conclude that the court did not err in concluding that Other Conditions
1 and Site Conditions 1 and 2 were valid.
{¶ 41} We conclude that the record supports the findings of the court regarding the
conditions contested by Rauch. Accordingly, Rauch’s sole assignment of error is
overruled.
V. Conclusion
{¶ 42} The assignments of error raised by both parties being overruled, the
judgment of the court of common pleas is affirmed.
.............
FROELICH, J. and HALL, J., concur.
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Copies sent to:
Scott A. King
Terry W. Posey, Jr.
Jeffrey C. Turner
Dawn M. Frick
Kevin A. Lantz
Daniel Brown
Hon. Mary Lynn Wiseman