COLUMBUS BITUMINOUS CONCRETE CORPORATION ET AL., APPELLANTS, v. HARRISON TOWNSHIP BOARD OF ZONING APPEALS ET AL., APPELLEES.
No. 2018-1008
Supreme Court of Ohio
March 11, 2020
2020-Ohio-845
O‘CONNOR, C.J.
Submitted July 9, 2019. APPEAL from the Court of Appeals for Pickaway County, No. 17CA15, 2018-Ohio-2706.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Columbus Bituminous Concrete Corp. v. Harrison Twp. Bd. of Zoning Appeals, Slip Opinion No. 2020-Ohio-845.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2020-OHIO-845
COLUMBUS BITUMINOUS CONCRETE CORPORATION ET AL., APPELLANTS, v. HARRISON TOWNSHIP BOARD OF ZONING APPEALS ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Columbus Bituminous Concrete Corp. v. Harrison Twp. Bd. of Zoning Appeals, Slip Opinion No. 2020-Ohio-845.]
Zoning—Townships—Township trustees may regulate mining under
(No. 2018-1008—Submitted July 9, 2019—Decided March 11, 2020.)
APPEAL from the Court of Appeals for Pickaway County, No. 17CA15, 2018-Ohio-2706.
{¶ 1} In this appeal, we consider whether appellee Harrison Township Board of Zoning Appeals (“BZA“) lawfully denied an application for a conditional-use permit to conduct sand-and-gravel mining based on general conditions applicable to all conditional uses set out in a Harrison Township zoning resolution. We conclude that it did not. We therefore reverse the judgment of the Fourth District Court of Appeals, vacate the orders issued by the BZA and the court of common pleas, and remand the cause to the BZA.
I. BACKGROUND
{¶ 2} Appellant Columbus Bituminous Concrete Corporation owns 178.9 acres of land in Harrison Township, on which it seeks to have appellant Shelly Materials, Inc., conduct quarrying and mining of sand and gravel. (We refer to appellants, Columbus Bituminous Concrete Corp. and Shelly Materials, Inc., collectively as “CBCC.“) CBCC sought approval from the BZA to engage in sand-and-gravel mining, but the BZA denied its request, and the court of common pleas and the Fourth District affirmed on appeal.
A. Relevant Laws
{¶ 3} Ohio townships have “‘no inherent or constitutionally granted police power, the power upon which zoning legislation is based. Whatever police or zoning power townships of Ohio have is that delegated by the General Assembly, and it follows that such power is limited to that which is expressly delegated to them by
1. Revised Code Provisions on Township Trustees’ Power to Adopt Regulations
{¶ 4}
{¶ 5} After setting out these grants of power,
For any activities permitted and regulated under Chapter 1513. or 1514. of the Revised Code and any related processing activities, the board of township trustees may regulate under the authority conferred by this section only in the interest of public health or safety.
(Emphasis added.) Id.
2. Revised Code Provisions on the Board of Zoning Appeals’ Power to Grant Conditional Zoning Certificates
{¶ 6} The Revised Code also empowers a township board 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 zoningresolution.”
{¶ 7}
require any specified measure, including, but not limited to, one or more of the following:
(1) Inspections of nearby structures and water wells to determine structural integrity and water levels;
(2) Compliance with applicable federal, state, and local laws and regulations; (3) Identification of specific roads in accordance with division (B) of section 303.141 of the Revised Code to be used as the primary means of ingress to and egress from the proposed activity;
(4) Compliance with reasonable noise abatement measures;
(5) Compliance with reasonable dust abatement measures;
(6) Establishment of setbacks, berms, and buffers for the proposed activity;
(7) Establishment of a complaint procedure;
(8) Any other measure reasonably related to public health and safety.
{¶ 8} Finally, the board of zoning appeals may “[r]evoke [a] * * * conditional zoning certificate granted for the extraction of minerals, if any condition of the * * * certificate is violated.”
3. Regulation of Conditional Uses in Harrison Township
{¶ 9} Pursuant to
{¶ 10} Article XVII of the Zoning Resolution identifies uses that are specifically permitted on property zoned as a “general business district,” as CBCC‘s property is, as well as several “Conditional Uses.” A “Conditional Use” is “an uncommon or infrequent use which may be permitted in specific zoning districts subject to compliance with certain standards, explicit conditions, and the granting of a conditional use permit as specified in Article IX of this Resolution.” Id. at Article 2, Section 2.02. “Quarrying or mining operations” are among the conditional uses permitted in a general business district, “provided that all County, State and federal regulations are met and licenses are obtained.” Id. at Article XVII, Section 17.03(J).
{¶ 11} A property owner seeking permission to engage in a conditional use must file an application for review by the BZA. See id. at Article IX, Section 9.02. The application must contain specific information on the proposed conditional use and its impact on the surrounding area, id., and for applications to engage in mining in particular, a development plan is required, id. at Article XVII, Section 17.03(J).
{¶ 12} In addition to these provisions, the township trustees have enacted General Standards for Conditional Uses, which the BZA is also required toconsider. Id. at Article IX, Section 9.03 (“General Standards“). The General Standards require the BZA to “review the particular facts and circumstances of each proposed use in terms of [six specified standards] and * * * find adequate evidence that such use at the proposed location meets all of [those] requirements.” Id. Three of those six requirements are relevant to this case—subsections (B), (E), and (F). They require the BZA to find the following:
(B) The use will be designed, constructed, operated and maintained so as to be harmonious and
appropriate with the existing or intended character of the general vicinity and that such use will not change the essential character of the same area. * * *
(E) The use will not involve uses, activities, processes, materials, equipment and conditions of operation that will be detrimental to any persons, property, or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors.
(F) The use will be consistent with the objectives of this Zoning Resolution and any adopted comprehensive plan for the area.
Id. at Section 9.03.
{¶ 13} According to Article XI of the Zoning Resolution, “a conditional use shall be allowed [by the BZA] * * * when such use, its location, extent and method of development will not substantially alter the character of the vicinity, or unduly interfere with or adversely impact the use of adjacent lots.” Id. at Article XI, Section 11.02.04.
{¶ 14} In the course of considering the application, the BZA may hold a hearing. Id. at Section 9.05. In the end, the BZA “shall either approve, approve with supplementary conditions * * *, or disapprove the application as presented.” Id. at Section 9.06; Section 9.04 (“In granting any conditional use, the Board may prescribe appropriate conditions and safeguards in conformance with this Resolution“). Once an application is approved, the BZA may revoke the conditional-use certificate “upon written evidence by any resident or official of the Township of violation of the Zoning Resolution and/or written terms and conditions upon which approval was based.” Id. at Section 9.07.
B. The decisions in this case
{¶ 15} CBCC submitted an application for conditional use to the BZA, seeking approval to engage in quarrying and mining sand and gravel. The BZA held three hearings on the application, at which it received testimony from numerous witnesses. At the conclusion of the third hearing, the BZA denied the application. In doing so, however, it made no findings of fact and engaged in no discussion of the relevant law. It subsequently issued a written decision in which it stated only that CBCC “was unable to affirmatively prove all the requirements of [the General Standards contained in] the Harrison Township Zoning Resolution.” It provided no explanation of what facts supported that conclusion.
{¶ 16} CBCC appealed the BZA‘s decision to the Pickaway County Court of Common Pleas. The trial court held that the BZA appropriately required CBCC to show compliance with the General Standards contained in the Zoning Resolution. It also held that the BZA did not err when it found that CBCC had provided insufficient evidence of its proposal‘s compliance with the General Standards, pointing to the three General Standards noted above. See id. at Section 9.03(B), (E), (F). Unlike the BZA, however, the trial court identified evidence it believed supported the conclusion that CBCC had failed to meet theseGeneral Standards.1 The trial
{¶ 17} CBCC then appealed to the Fourth District Court of Appeals, which affirmed. The appellate court rejected CBCC‘s argument that the trial court inappropriately considered the Zoning Resolution‘s General Standards for Conditional Uses; it did so because
{¶ 18} CBCC then sought review by this court, and we granted jurisdiction over the following proposition of law:
A township‘s jurisdiction to regulate surface mining activities permitted and regulated under Chapter 1513. or 1514. through zoning is strictly limited to matters of public health or safety, whether mining is a permitted use or conditional use under the township zoning resolution. R.C. 519.02. A township may not regulate mining in the interest of general welfare, directly or indirectly through the creation of general zoning criteria that appl[y] to all permitted or conditionally permitted uses in the township, including mining. R.C. 519.02, 519.14, and 519.141.
See 2018-Ohio-4092, 153 Ohio St.3d 1494, 108 N.E.3d 1103.
II. ANALYSIS
{¶ 19} We review questions of statutory interpretation de novo. Turner v. CertainTeed Corp., 155 Ohio St.3d 149, 2018-Ohio-3869, 119 N.E.3d 1260, ¶ 11.
{¶ 20} The dispute in this case focuses on two of the statutes discussed above.
{¶ 21} CBCC argues that a general standard that does not relate to public health or safety cannot be applied to deny a conditional-use application to engage in mining activities and that the Fourth District erred by holding to the contrary. CBCC asserts that because
{¶ 22} Appellees Harrison Township, the BZA, and the township zoning inspector respond by asserting that
{¶ 23} Appellee Berger Health System additionally argues that the General Assembly easily could have included an exception or limiting language making clear that
{¶ 24} We agree with CBCC.
{¶ 25} Because a township‘s authority to adopt zoning regulations “‘is limited to that which is expressly delegated * * * by statute,‘” Bainbridge Twp. Bd. of Trustees, 55 Ohio St.3d at 108, quoting Yorkavitz, 166 Ohio St. at 351, our analysis of whether the General Standards may be applied to deny CBCC‘s application must begin by recognizing the limited scope of the powers granted to the trustees by the General Assembly.
{¶ 26}
Any general standards with which the board may require compliance under
{¶ 27} Furthermore,
{¶ 28} This analysis leads to two conclusions relevant to the outcome of the present appeal. First, because township trustees may regulate mining under
{¶ 29} We therefore hold that the Fourth District erred by holding that compliance with the General Standards is required irrespective of whether such compliance is in the interest of public health and safety and by holding that the absence of such compliance provides a basis for denying CBCC‘s application.
III. CONCLUSION
{¶ 30} We reverse the decision of the Fourth District and remand the case to the BZA. On remand, the BZA shall consider CBCC‘s conditional-use application based on the evidence in the record, the provisions of the Revised Code, and the terms of the township Zoning Resolution. Consistent with this opinion, it must ensure that resolutions adopted pursuant to the powers granted in
Judgment reversed and cause remanded.
KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ., concur.
Kegler, Brown, Hill & Ritter, Co., L.P.A., and Catherine A. Cunningham; and Paul D. Rice, for appellants.
Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain, Assistant Prosecuting Attorney, for appellees Harrison Township Board of Zoning Appeals, Harrison Township Zoning Inspector Dale Hoover, and Harrison Township.
Bricker & Eckler, L.L.P., Anne Marie Sferra, and Jennifer A. Flint, for appellee Berger Health System.
Eastman & Smith, Ltd., Brian P. Barger, and Barry W. Fissel, urging reversal for amici curiae Ohio Aggregates and Industrial Minerals Association, Flexible Pavements of Ohio, Ohio Ready Mixed Concrete Association, and Ohio Contractors Association.
David P. Fornshell, Warren County Prosecuting Attorney, and Kathryn M. Horvath and Adam M. Nice, Assistant Prosecuting Attorneys, urging affirmance for amicus curiae Ohio Prosecuting Attorneys Association
Carlile, Patchen & Murphy, L.L.P., Carl A. Aveni, and Shaun P. Lyons, urging affirmance for amici curiae Pickaway County Board of Commissioners, village of Ashville, and village of South Bloomfield.
Brosius, Johnson & Griggs, L.L.C., Peter N. Griggs, Emily L. Butler, and Jennifer L. Huber, urging affirmance for amici curiae Ohio Township Association and County Commissioners Association of Ohio.