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Judge reversed in Streetsboro surface mining controversy
TRACEY BLAIR
Legal News Reporter
Published: January 24, 2018
A Portage County Common Pleas Court judge committed reversible error by adopting a magistrate’s decision that reversed the city of Streetsboro’s Planning and Zoning Commission regarding a surface mining project, according to the 11th District Court of Appeals.
Prior to April 2016, appellee Shelly Materials, Inc., an extractor of natural resources, had a lease to the mineral rights for a 226-acre former horse farm near State Route 14 and Diagonal Road.
Appellate court records show the tract is zoned as a rural/residential district. Since 1981, surface mining has been a permitted conditional use in rural/residential districts. When Shelly Materials first signed the lease, a surface mine was being operated by another business called Jefferson Materials, Inc.
Since Jefferson’s property abuts the northwest corner of the tract, Shelly Materials agreed to transfer all sand and gravel extracted at the proposed site to Jefferson Materials for processing.
A public meeting was held to explain the project to neighboring property owners. One homeowner, George Mitchell IV, hired an attorney and asked the city to amend its zoning ordinance to ban surface mining as a permitted conditional use throughout Streestboro.
The commission passed a resolution banning surface mining on April 12, 2016. Three months later, the Planning Commission adopted the amendment.
Since Shelly Materials had filed its application for a conditional use permit before the amendment was passed, the amendment banning surface mining was not applied to his application.
In June 2016, the Commission held an initial hearing on the application, using unsworn statements by those in attendance. A three-day evidentiary hearing was then held in which Shelly Materials presented an expert who testified that surface mining would have no adverse effect on the value of homes in the immediate vicinity.
The Commission denied the application, finding surface mining not consistent with the city’s general “spirit.” It also found Shelly Materials failed to meet at least four of the six requirements required in the city’s zoning ordinance for a conditional permit.
Shelly Materials appealed the decision, and the magistrate recommended reversing the Commission’s ruling not to grant the company a surface mining permit. The magistrate found the Commission erred by basing its decision partially on improper, non-evidentiary materials.
However, the appellate court found the Commission was justified to reject the unchallenged testimony of Paul Bidwell, a certified residential and commercial appraiser.
Although Bidwell claimed the surface mine would not harm property values in the immediate vicinity, the Commission found the testimony was based on an invalid comparison.
“There was a justifiable reason for the Commission to reject Bidwell’s opinion,” 11th District Judge Thomas R. Wright stated. “… Bidwell acknowledged that the comparison properties utilized to form his opinion were further away from the surface mine than the properties at issue. Specifically, the properties in his comparison were between 2,000 and 3,000 feet from the surface mining, while the properties at issue here are much closer, approximately 500 feet. Moreover, Bidwell acknowledged that some of the properties in the comparison group were probably separated from mining operations by natural buffers, such as woods, further distinguishing the comparison properties from the properties at issue. Based upon this, the Commission justifiably found Bidwell’s comparison to be lacking, and his opinion unpersuasive.
“The Commission had a justifiable reason to reject Bidwell’s opinion. Therefore, since appellee failed to carry its burden, the Commission did not err in denying the application.”
Appellate Judge Colleen Mary O’Toole concurred with Judge Wright’s opinion to reinstate the Commission’s decision.
Eleventh District Judge Diane V. Grendell dissented, finding the lower court’s ruling was justified.
“The Commission, comprised of laymen, essentially determined that it knew more about property valuation than an appraiser with 30 years of experience,” Judge Grendell stated in her dissenting opinion.
Judge Grendell also accused her colleagues on the appellate court of “recklessly and improperly” interfering with the lower court’s right to review decisions in administrative matters.
“There exists a serious concern that the Commission’s decision was impacted by non-legal factors not properly before it for consideration,” the dissenting judge added. “… The timing of the changes to the zoning ordinances, as well as the commentary throughout the hearings on that change and the request for the permit, should give pause to anyone reviewing the record. It raises serious questions as to whether Shelly Materials truly had a fair chance to receive a permit.”
The case is cited Shelly Materials, Inc. v. Streetsboro Planning & Zoning Comm., 2017-Ohio-9342.