STEVEN R. RAUCH, et al. v. JEFFERSON TOWNSHIP BOARD OF ZONING APPEALS, et al.
Appellate Case No. 27743
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
October 19, 2018
[Cite as Rauch v. Jefferson Twp. Bd. of Zoning Appeals, 2018-Ohio-4233.]
Trial Court Case No. 2016-CV-4930 (Civil Appeal from Common Pleas Court)
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
{¶ 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“).
{¶ 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
{¶ 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.”
{¶ 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
{¶ 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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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
C. Animal wastes – as defined in
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
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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.
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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.”
{¶ 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 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
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
{¶ 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
{¶ 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
{¶ 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
{¶ 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.
{¶ 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.
{¶ 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 [
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 inR.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 960777
Id. at ¶ 8.
{¶ 33} The Supreme Court further stated that “the additional language in
{¶ 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
{¶ 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
{¶ 39}
{¶ 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.
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FROELICH, J. and HALL, J., concur.
Scott A. King
Terry W. Posey, Jr.
Jeffrey C. Turner
Dawn M. Frick
Kevin A. Lantz
Daniel Brown
Hon. Mary Lynn Wiseman