     [Cite as Village of Terrace Park v. Anderson Twp. Bd. of Zoning Appeals, 2015-Ohio-4602.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



THE VILLAGE OF TERRACE PARK,                  :               APPEAL NOS. C-140741
OHIO,                                                                      C-140745
                                              :                TRIAL NO. A-1305724
THE VILLAGE OF NEWTOWN, OHIO,
                                              :
DEBORAH BLANKENSHIP,                                                O P I N I O N.
                                              :
MICHAEL BLANKENSHIP,
                                              :
JERRY L. BRANDHORST,
                                              :
DIANE C. 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.,                :
                   OHIO FIRST DISTRICT COURT OF APPEALS



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,                :

DANIEL G. HENDERSHOT,            :

ROBERTA A. HENDERSHOT,           :

TERRI L. HERBERT TR,             :

GARY LEE HICKS,                  :

GREGORY C. HOUNSHELL,            :

GAIL HOUNSHELL,                  :

WILLIAM E. HOUSER TR,            :

                                     2
                        OHIO FIRST DISTRICT COURT OF APPEALS



WILLARD HUGHETT,                      :

ANITA M. HUMPHRIES,                   :

THOMAS M. HUMPHRIES,                  :

MICHAEL JOHNSTON,                     :

PEGGY JOHNSTON,                       :

LEAWANDA D. KAZEE,                    :

W. STANLEY KAZEE,                     :

M.P. PROPERTIES, INC.,                :

JEFFREY H. NEELEY,                    :

CATHERINE ROPAR,                      :

JEFFREY ROPAR,                        :

JOYCE SCHIMPF,                        :

SIX KIDS INVESTMENTS LLC,             :

HELEN M. STEELE,                      :

ROBERT J. STEELE,                     :

JUDITH WINSTEL,                       :

THOMAS WINSTEL,                       :

LYNN WOODWARD,                        :

CATHY Y. ZISTLER,                     :

  and                                 :

JAMES A. ZISTLER,                     :

        Plaintiffs-Appellees,         :

        vs.                           :




                                          3
                       OHIO FIRST DISTRICT COURT OF APPEALS


ANDERSON TOWNSHIP BOARD OF                :
ZONING APPEALS,
                                          :
ANDERSON TOWNSHIP,
                                          :
ANDERSON TOWNSHIP BOARD OF
TRUSTEES,                                 :

  and                                     :

MARTIN MARIETTA MATERIALS,                :
INC.,

        Defendants-Appellants.            :




Civil Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Judgment Entered

Date of Judgment Entry on Appeal: November 6, 2015



Wood & Lamping LLP, Robert P. Malloy and Ryan F. Coutinho, for Plaintiff-
Appellee Village of Terrace Park, Ohio,

Donnellon, Donnellon, and Miller and R. Douglas Miller, for Plaintiff-Appellee
Village of Newtown, Ohio,

Timothy G. Mara for Plaintiffs-Appellees Deborah Blankenship, Michael
Blankenship, Jerry L. Brandhorst, Diane C. 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, Daniel G. Hendershot, 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, M.P. Properties, Inc., Jeffrey H.
Neeley, Catherine Ropar, Jeffrey Ropar, Joyce Schimpf, Six Kids Investments LLC,


                                              4
                      OHIO FIRST DISTRICT COURT OF APPEALS


Helen M. Steele, Robert J. Steele, Judith Winstel, Thomas Winstel, Lynn Woodward,
Cathy Y. Zistler, and James A. Zistler,

Gary E. Powell for Defendants-Appellants Anderson Township Board of Zoning
Appeals, Anderson Township, and Anderson Township Board of Trustees,

Kegler, Brown, Hill & Ritter, Richard C. Brahm and Catherine A. Cunningham,
Barrett & Weber and C. Francis Barrett, for Defendant-Appellant Martin Marietta
Materials, Inc.




Please note: this case has been removed from the accelerated calendar.




                                            5
                       OHIO FIRST DISTRICT COURT OF APPEALS


MOCK, Judge.


       {¶1}   In these consolidated administrative appeals, we are faced again with a

zoning dispute over a proposed underground limestone mining operation on the

eastside of greater Cincinnati. Defendants-appellants Martin Marietta Materials,

Inc., (“Martin Marietta”), Anderson Township, Anderson Township Board of

Trustees, and the Anderson Township Board of Zoning Appeals (“BZA”) appeal from

the trial court’s judgment reversing the BZA’s approval of Martin Marietta’s zoning

application. Plaintiffs-appellees the Villages of Terrace Park, Ohio, and Newtown,

Ohio, as well as more than 60 individuals and corporations urge us to affirm the trial

court’s decision.

       {¶2}   The trial court determined that the BZA had acted illegally by: (1)

permitting mining in a residential district, (2) characterizing mining tunnels as

“ingress and egress” through a residential district, (3) allowing storage of explosives,

(4) determining that the mine would meet the vibration-performance standard, and

(5) failing to review the entirety of the evidence presented at the public hearings.

Because we conclude that the trial court’s decision with respect to these issues is not

supported by a preponderance of reliable, probative, and substantial evidence, or is

otherwise contrary to law, we reverse the judgment of the trial court.

                      Background Facts and Procedural History

       {¶3}   Martin Marietta owns 480 acres of property in Anderson Township

near the Little Miami River (the “Property”), which is the subject of this appeal. The

Property sits between U.S. Route 50 and State Route 32, west of Interstate 275.

Broadwell Road, a county road, bisects the Property into northern and southern

halves. The Property had been used as a surface sand-and-gravel mine for more than


                                              6
                       OHIO FIRST DISTRICT COURT OF APPEALS



50 years, until sometime in the mid- to late-1990s, but is now vacant. In 2008,

Martin Marietta filed an application with Anderson Township for a conditional use

permit and variances to build an underground limestone mining operation and

surface processing plant on the Property.         The Anderson Township Zoning

Resolution (“ATZR”) Section 114.2 permits “[e]xtracting, excavating, mining or

processing of sand, rock and/or gravel” as a “conditional use” in an Industrial

Development District (“ID District”), subject to the issuance of a “special zoning

certificate” by the BZA. The majority of the Property is located within an ID District;

however, a strip of the Property abutting the southern edge of Broadwell Road is

located in a “B” Residence District. Mining is not permitted in the “B” Residence

District.

       {¶4}   In its application, Martin Marietta proposed to build two, side-by-side

tunnels on the Property. The tunnels would begin above ground at the processing

plant north of Broadwell Road, continue underneath Broadwell Road, and end south

of Broadwell Road in the underground limestone mine. Martin Marietta would use a

large drill to create the tunnels, and then install conveyor belts inside the tunnels.

The tunnels would be the only means to access the underground limestone housed

400 to 800 feet below ground level.

       {¶5}   Following over a year of hearings before the BZA, the BZA approved

Martin Marietta’s application, subject to certain conditions.      Various corporate

entities, individuals, and the Villages of Indian Hill, Newtown, and Terrace Park,

Ohio, filed administrative appeals from the BZA’s decision to the court of common

pleas under R.C. 2506.01, objecting to the BZA’s approval of the mine. One of the

many issues raised by the opponents of the mine in the first administrative appeal


                                              7
                       OHIO FIRST DISTRICT COURT OF APPEALS



included the BZA’s condition of the “Good Neighbor Agreement.”                 The Good

Neighbor Agreement allowed Anderson Township to collect five cents per every ton

of material sold by Martin Marietta in its mining operation. The opponents also

raised issues regarding dust, noise, traffic, pollution, and vibrations that the mine

might generate, as well as other issues.

       {¶6}   In the first administrative appeal, the trial court determined that the

BZA had exceeded its authority, and that the BZA’s decision was not supported by

substantial, reliable, and probative evidence. The trial court listed several reasons

for its conclusion, including, but not limited to, dust, noise, traffic, pollution, and

vibrations, and that the Good Neighbor Agreement was not authorized by law. Thus,

the trial court reversed the BZA’s decision and declared it “null and void.”

       {¶7}   Martin Marietta appealed to this court, raising several assignments of

error, including an assignment of error dealing solely with the Good Neighbor

Agreement. In that assignment, Martin Marietta argued that the trial court should

have stricken the Good Neighbor Agreement from the BZA’s decision and allowed

the BZA’s decision to remain intact, or, alternatively, that the trial court should have

remanded the matter to the BZA for further reconsideration, rather than declaring

the BZA’s decision null and void. A panel of this court agreed with the trial court’s

determination that the BZA could not condition its approval of Martin Marietta’s

application on the Good Neighbor Agreement; however, this court sustained Martin

Marietta’s assignment of error in so far as this court concluded that the trial court

erred in finding that the BZA’s decision was void in total. We instructed the trial

court to remand the matter to the BZA to decide “in the first instance” whether to

grant Martin Marietta’s application without the Good Neighbor Agreement. See


                                               8
                       OHIO FIRST DISTRICT COURT OF APPEALS



Citizens Against Blasting on Our Miami (CABOOM) v. Anderson Twp., 1st Dist.

Hamilton Nos. C-120011, C-120012, C-120013, C-120014 and C-120015, 2012-Ohio-

6145, ¶ 32.

       {¶8}   The BZA held an executive session to consider this court’s decision on

remand. The BZA then readopted its original decision in all respects, except to omit

the condition containing the Good Neighbor Agreement.

       {¶9}   The Villages of Terrace Park and Newtown, Ohio, as well as 62

corporate entities and individuals filed a joint administrative appeal in the case

numbered A-1305724, again challenging the BZA’s decision on multiple grounds.

The trial court again reversed the BZA’s decision approving Martin Marietta’s

application. The trial court determined that the BZA membership had changed since

the first BZA decision, and that the second panel of BZA members merely “rubber

stamped” the first BZA decision. The trial court also determined that the BZA erred

by: (1) permitting mining in a residential district; (2) characterizing the two

underground tunnels as “ingress and egress” to the limestone mine; (3) allowing the

storage of a one-month supply of explosives on the Property; and (4) determining

that Martin Marietta met the vibration standard set forth in the ATZR.

       {¶10} Martin Marietta has appealed from the trial court’s decision, and

Anderson Township, the Anderson Township Board of Trustees, and the BZA have

also filed an appeal. The Villages of Newtown and Terrace Park, Ohio, as well as the

corporate entities and individuals (the “Opponents”) filed a joint responsive brief as

appellees.




                                             9
                       OHIO FIRST DISTRICT COURT OF APPEALS



                      Judicial Review of Zoning Decisions

       {¶11} The General Assembly has delegated to boards of townships trustees

the authority to legislate land use within their townships under R.C. 519.02. A board

of township trustees, sitting as a legislative body, “is charged with the duty of

determining the wisdom of zoning regulations, and the judicial judgment is not to be

substituted for the legislative judgment in any case in which the issue or matter is

fairly debatable.” Willott v. Beechwood, 175 Ohio St. 557, 560, 197 N.E.2d 201

(1964).

       {¶12} Townships boards of zoning appeals also exist by way of statute under

R.C. 519.14. Pertinent to these appeals, R.C. 519.14(B) permits a board of zoning

appeals to grant variances from a zoning resolution “as will not be contrary to the

public interest, where, owing to special conditions, a literal enforcement of the

resolution will result in unnecessary hardship, and so that the spirit of the resolution

shall be observed and substantial justice done[.]”       Furthermore, R.C. 519.14(C)

permits a board of zoning appeals to grant a conditional zoning certificate for those

specific land uses permitted by a zoning resolution.

       {¶13} A person aggrieved by a decision of a township board of zoning appeals

has a right to appeal the board’s decision to the court of common of pleas under R.C.

2506.01. State ex rel. Travelcenters of Am., Inc. v. Westfield Twp. Zoning Comm.,

87 Ohio St.3d 161, 164, 718 N.E.2d 430 (1999). The court of common pleas reviews

the board’s decision to determine whether the decision “is unconstitutional, illegal,

arbitrary, capricious, unreasonable, or unsupported by the preponderance of

substantial, reliable, and probative evidence on the whole record.” See R.C. 2506.04.

Although R.C. 2506.04 empowers the trial court to weigh the evidence adduced at


                                              10
                        OHIO FIRST DISTRICT COURT OF APPEALS



the administrative level in determining whether a preponderance of substantial,

reliable, and probative evidence exists to support the decision of the board of zoning

appeals, the trial court “should not substitute its judgment” for that of the board in

the absence of such a finding. See Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465

N.E.2d 848 (1984). As this court has stated, a zoning board’s decision is “presumed

to be valid, and the burden is upon the party contesting the board’s determination to

prove otherwise.” Klein v. Hamilton Cty. Bd. of Zoning Appeals, 128 Ohio App. 3d

632, 636, 716 N.E.2d 268 (1st Dist.1998), citing Consol. Mgmt., Inc. v. City of

Cleveland, 6 Ohio St.3d 238, 240, 452 N.E.2d 1287 (1983).

       {¶14} An appellate court reviewing a trial court’s decision under R.C.

2506.04 has a more “limited function” than the trial court.         Kisil at 465.   The

appellate court can review the judgment of the trial court under R.C. 2506.04 only on

“questions of law,” which does not permit the appellate court “to weigh the

preponderance of substantial, reliable[,] and probative evidence.”             (Internal

quotations omitted.) Id. at fn. 4. The standard of review applied by the appellate

court in a R.C. 2506.04 administrative appeal “strongly favor[s] affirmance” of the

trial court, and the appellate court may only reverse the trial court if the trial court

“errs in its application or interpretation of the law or its decision is unsupported by a

preponderance of the evidence as a matter of law.” Cleveland Clinic Found. v. Bd. of

Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 30.

       {¶15} With this framework in mind, we address these appeals.




                                               11
                        OHIO FIRST DISTRICT COURT OF APPEALS



                         Appeal by Martin Marietta (C-140741)

       {¶16} In Martin Marietta’s first assignment of error, it contends that the trial

court erred in its determination that the BZA had illegally: (1) permitted mining in a

residential district; (2) characterized mining tunnels as “ingress and egress”; (3)

permitted the storage of explosives; and (4) concluded that Martin Marietta had met

the vibration standards. We will address each of these grounds in turn.

                             Mining in a Residential District

       {¶17} Martin Marietta first argues that the trial court erred when it

determined that the BZA acted without authority by permitting Martin Marietta to

mine in a residential district. Martin Marietta owns a strip of property alongside the

southern edge of Broadwell Road, which is zoned residential. Neither party disputes

that mining is a prohibited land use in a residential district.

       {¶18} Martin Marietta’s original application requested to mine underneath

Broadwell Road, and both north and south of Broadwell Road, which would include

mining in the residential strip.      The vice president of Martin Marietta, Steve

Raffensperger, also testified at one of the first BZA hearings that mining would take

place north and south of Broadwell Road.            Later in the administrative process,

however, Raffensperger testified that Martin Marietta would not mine within 50 feet

of any roadway or property line, or within 200 to 250 feet of any residential property.

       {¶19} Regardless of the conflicting evidence presented before the BZA, the

BZA’s decision granting Martin Marietta a special zoning certificate limited mining

to the ID District south of Broadwell Road. Thus, the BZA did not authorize Martin

Marietta to mine in a residential district.




                                               12
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20} The Opponents argue that the tunnels, which will travel underground

through the residential strip, are an “integral” part of the mine and cannot logically

be excluded from “mining” under the ATZR. Martin Marietta does not dispute that

the tunnels will be integral to its overall mining operations; however, Martin

Marietta argues that the tunnels do not constitute “mining” under the plain meaning

of that term.

       {¶21} The application of a legislative enactment to the underlying facts, as

well as interpretation of a legislative enactment, are questions of law that an

appellate court reviews de novo. See Cleveland Clinic Found., 141 Ohio St.3d 318,

2014-Ohio-4809, 23 N.E.3d 1161, at ¶ 25; JP Morgan Chase Bank, Inc. v. Dublin,

10th Dist. Franklin No. 10AP-965, 2011-Ohio-3823, ¶ 11. Courts apply the same

rules of construction when reviewing a zoning ordinance as those applied in

reviewing a statute.   City of Columbiana v. J & J Car Wash, Inc., 7th Dist.

Columbiana No. 04 CO 20, 2005-Ohio-1336, ¶ 32.

       {¶22} Words in a legislative enactment must be accorded their usual,

customary meaning. Olentangy Local Schools Bd. of Edn. v. Delaware Cty. Bd. of

Revision, 141 Ohio St.3d 243, 2014-Ohio-4723, 23 N.E.3d 1086, ¶ 30. “Mining”

means “[t]o extract (ore or minerals) from the earth.”           American Heritage

Dictionary 1118 (4th Ed.2000). Raffensperger testified that the tunnels themselves

will not be mined and do not produce any marketable limestone or products. As a

result, we agree with Martin Marietta that the tunnels do not constitute “mining” as

that term is used in the ATZR.

       {¶23} Because the tunnels do not constitute “mining” in a residential district,

and the BZA’s decision reflects that mining shall occur south of Broadwell Road only,


                                             13
                       OHIO FIRST DISTRICT COURT OF APPEALS



the trial court’s determination that the BZA illegally permitted mining in a

residential district is unsupported by a preponderance of the evidence as a matter of

law.

                        Tunnels as “Ingress and Egress”

        {¶24} Martin Marietta next argues that the trial court erred when it

determined that the BZA acted illegally by characterizing the twin mining tunnels as

“ingress and egress,” and granting a special zoning certificate for that purpose.

        {¶25} ATZR Section 184.8-4-1 authorizes the BZA to grant a special zoning

certificate for “ingress and egress” to an ID District “through a more restricted

district.”   According to Martin Marietta’s application, Martin Marietta will dig

tunnels diagonally from the surface-processing plant north of Broadwell Road, under

Broadwell Road, and through the residential strip to the underground mine south of

Broadwell Road located in the ID District. The tunnels will be the only means to

access the mine, with one tunnel transporting workers and tools, and the other

transporting the mined product to the processing plant. The BZA relied on ATZR

Section 184.8-4-1 in determining that the tunnels constituted “ingress and egress”

under the ATZR.

        {¶26} The Opponents argue that ATZR Section 184.8-4-1 is a subsection of

ATZR Section 184.8-4, which permits the BZA to issue a special zoning certificate for

parking lots. Reading ATZR Section 184.8-4 and ATZR Section 184.8-4-1 together,

Opponents contend, permits the BZA to issue a special zoning certificate for ingress

and egress only for traffic to and from an approved parking lot. The Opponents

further argue that the BZA cannot issue a special zoning certificate for “ingress and




                                              14
                        OHIO FIRST DISTRICT COURT OF APPEALS



egress” through the residential district because Martin Marietta owns both the ID

District and the residential district.

       {¶27} The Opponents’ argument regarding ATZR Section 184.8-4-1 as a

subsection of ATZR Section 184.8-4 is illogical based upon further reading of ATZR

Section 184.8. For example, ATZR Section 184.8-5 permits the BZA to issue a special

zoning certificate for “[r]iding stables or fishing lakes, including the sale of food and

refreshments.” The next section, ATZR Section 184.8-5-1, permits the BZA to issue a

special zoning certificate for “the location and erection and use of private radio

transmitter and/or tower in a district in which it is prohibited.” To apply Opponents’

interpretation of ATZR Section 184.8 to a scenario under ATZR Section 184.8-5, the

BZA could only issue a special zoning certificate for the location, erection, and use of

a radio transmitter in conjunction with a special zoning certificate for a riding stable

or fishing lake. Such an interpretation defies common sense. A court will not

interpret a legislative enactment in such a way that leads to an illogical result. AT&T

Communications of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92, 2012-Ohio-1975, 969

N.E.2d 1166, ¶ 18. Thus, despite a peculiar numbering scheme under ATZR Section

184.8, we reject Opponents’ argument that ATZR Section 184.8-4-1 is a subsection of

ATZR Section 184.8-4.

       {¶28} We similarly reject Opponents’ argument that ATZR Section 184.8-4-1

cannot apply because Martin Marietta owns both the ID District and the “more

restricted district” through which ingress and egress is sought. ATZR Section 184.8-

4-1 does not mention identity of ownership of the districts as a prerequisite to

application of “ingress and egress.” Courts will not add words into a legislative




                                               15
                       OHIO FIRST DISTRICT COURT OF APPEALS



enactment. Blair v. Bd. of Trustees of Sugarcreek Twp., 132 Ohio St.3d 151, 2012-

Ohio-2165, 970 N.E.2d 884, ¶ 19.

       {¶29} Applying a plain-meaning analysis, ingress is defined as “[a] means or

place of entering,” and egress is defined as “[a] path or opening for going out; an

exit.” American Heritage Dictionary 901, 571 (4th Ed.2000). According to the

evidence in the record, the tunnels will be used to enter and leave the underground

mine in the ID District, through the “B” Residence District. Therefore, the tunnels

will be used for ingress and egress to the ID District, through a more restricted

district, under a plain meaning of those terms.

       {¶30} Even if we were to find the meaning of “ingress and egress” under the

ATZR ambiguous, we would defer to the BZA’s interpretation of its own zoning

regulation. Glass City Academy, Inc. v. Toledo, 179 Ohio App.3d 796, 2008-Ohio-

6391, 903 N.E.2d 1236, ¶ 18 (6th Dist.) (“An administrative agency’s reasonable

interpretation of local zoning codes is recognized as an area of administrative

expertise.”); Elbert v. Bexley Planning Comm., 108 Ohio App.3d 59, 69, 670 N.E.2d

245 (10th Dist.1995) (Commission’s interpretation of a zoning ordinance “reasonable

and entitled to weight”); Union Twp.-Clermont Cty., C.I.C., Inc. v. Lamping, 2015-

Ohio-1092, 31 N.E.3d 116, ¶ 25 (12th Dist.). Here, the BZA determined that the

tunnels constituted ingress and egress, and that determination deserves deference in

the face of any ambiguity. Moreover, any ambiguity in zoning regulations must also

be construed in favor of the property owner. See Cleveland Clinic, 141 Ohio St.3d

318, 2014-Ohio-4809, 23 N.E.3d 1161, at ¶ 40. Thus, any ambiguity in the meaning

of ingress and egress in the ATZR would be construed to Martin Marietta’s benefit as

the property owner.


                                             16
                          OHIO FIRST DISTRICT COURT OF APPEALS



       {¶31} As a result, the decision of the common pleas court, finding that the

BZA erred in determining the tunnels constituted ingress and egress, is incorrect as a

matter of law, and is not supported by a preponderance of the evidence as a matter of

law.

                     Storage of Explosives in the ID District

       {¶32} Martin Marietta next argues that the trial court erred when it

determined that the BZA violated Ohio law and the ATZR by permitting storage of a

one-month supply of explosives on the Property.

       {¶33} The ATZR prohibits storage of explosives in the ID District under

ATZR Section 112.2.16. The BZA determined that because storage of explosives will

not be the “primary use” of the Property, but only an activity incidental to mining,

ATZR Section 112.2.16 does not apply. Article XII of the ATZR, however, makes no

distinction between a primary use and an incidental use.          Compare Cash v.

Brookshire United Methodist Church, 61 Ohio App.3d 576, 573 N.E.2d 692 (10th

Dist.1988) (where the applicable zoning code defined accessory use). We will not

interpret ATZR Section 112.2.16 in such a way to add the primary-versus-incidental

distinction where none exists. See Blair, 132 Ohio St.3d 151, 2012-Ohio-2165, 970

N.E.2d 884, at ¶ 19. Thus, we find ATZR Section 111.2.16 applicable to Martin

Marietta’s application.

       {¶34} Even though we determine ATZR Section 112.2.16 applies, the BZA

nevertheless granted Martin Marietta a use variance allowing a one-month supply of

explosive storage.   A use variance authorizes a property owner to maintain an

otherwise prohibited land use on his or her property. Nunamaker v. Bd. of Zoning

Appeals of Jerusalem Twp., 2 Ohio St.3d 115, 443 N.E.2d 172 (1982). Under R.C.


                                             17
                       OHIO FIRST DISTRICT COURT OF APPEALS



519.14(B), a township may grant a variance from a zoning resolution “where, owing

to special conditions, a literal enforcement of the resolution will result in

unnecessary hardship”; “variance from the terms of the zoning resolution * * * will

not be contrary to the public interest”; and “the spirit of the resolution shall be

observed and substantial justice done.”

       {¶35} As a general rule, where a strict application of the zoning code results

in diminished profit for a commercial property owner, the property owner cannot

claim unnecessary hardship, as long other profitable alternatives for the property

exist. Consol. Mgmt., Inc., 6 Ohio St.3d 238, 452 N.E.2d 1287, paragraph two of the

syllabus. Moreover, a commercial property owner cannot receive a use variance for

self-imposed hardships where the property owner purchased the property with

knowledge of the zoning limitations. Id. at paragraph one of the syllabus.

       {¶36} ATZR Section 184.2 allows the BZA to grant a use variance for

unnecessary hardship for the reasons provided in R.C. 519.14(B). ATZR Section

184.2-1 lists four conditions that the BZA must consider and weigh when

determining whether a property owner has encountered unnecessary hardships: (1)

exceptional or extraordinary circumstances apply to the property that do not apply

generally to other properties in the same zoning district or vicinity; (2) the special

circumstances or conditions do not result from actions of the property owner or any

predecessors in title; (3) the variance is necessary for the preservation and

enjoyment of a substantial property right of the applicant that is possessed by owners

of other properties in the same zoning district or vicinity; and (4) the variance will

not be materially detrimental to the public welfare or injurious to nearby property.




                                             18
                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶37} The BZA in its decision considered all four conditions under ATZR

Section 184.2-1 in determining that unnecessary hardship existed.               In its

consideration of the first factor, exceptional or extraordinary circumstances, the BZA

noted that the Property had previously been used as a gravel-and-sand mine, and

that explosives would be necessary to extract the limestone. As to the second factor,

actions of the property owner, the BZA determined that Martin Marietta did not

create the special conditions related to the Property.       As to the third factor,

preservation and enjoyment of a substantial property right, the BZA found that the

use of explosives was necessary for Martin Marietta to preserve its valuable mineral

rights on the Property. The BZA placed the most emphasis on the fourth factor—

consideration of the public welfare. The BZA determined that the public in general

would be safer if Martin Marietta transported the explosives on a monthly basis,

instead of on a daily basis. Martin Marietta’s blasting expert had testified at the BZA

hearings that roadway transportation of explosives is a greater safety concern than

storage of explosives at the mine site. The BZA also noted that Martin Marietta

would be required to adhere to all applicable federal and state regulations in

transportation and storage of the explosives.

       {¶38} In overturning the BZA’s decision regarding the storage of explosives,

the trial court did not give any reasoning for its conclusion. Nor do Opponents

address the use variance granted by the BZA in their response to Martin Marietta’s

assignment of error. Thus, we do not have the benefit of reasoned argument as to

why the trial court determined the use variance to be illegal. Based upon our review

of the record and the BZA’s decision, however, we conclude that the decision of the

common pleas court overturning the BZA’s decision regarding a use variance for the


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storage of explosives is not supported by a preponderance of reliable, probative, and

substantial evidence.

       {¶39} Martin Marietta concedes that it could bring explosives to the Property

on a daily basis, and, presumably, Martin Marietta acquired the Property with

knowledge of the limitation on explosive storage, which would militate against a

finding of unnecessary hardship. See Consol. Mgmt., Inc., 6 Ohio St.3d 238, 452

N.E.2d 1287, at paragraphs one and two of the syllabus. Nevertheless, as the BZA

determined, the practical result of prohibiting Martin Marietta from storing

explosives would be detrimental to the public welfare—Martin Marietta would then

truck-in explosives on a daily basis over the public roadways. According to Martin

Marietta’s blasting expert, roadway travel of explosives is more dangerous than

explosive storage. Furthermore, according to the evidence in the record, the storage

of explosives is highly regulated by federal agencies, such as the Bureau of Alcohol,

Tobacco, Firearms, and Explosives.      The explosives must be stored in locked

containers, and only those individuals with specialized training can handle

explosives.

       {¶40} Thus, we determine that the trial court’s decision reversing the BZA’s

approval of a use variance for the storage of explosives is unsupported by a

preponderance of reliable, probative, and substantial evidence.

                          Vibration-Performance Standards

       {¶41} Martin Marietta next argues that the trial court erred when it

determined that the BZA violated Ohio law and the ATZR with regard to the level of

perceptible vibrations from the mine.




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       {¶42} In granting a special zoning certificate for a conditional use, such as

mining, ATZR Section 184.7 requires the BZA to consider “the compatibility of such

uses with surrounding uses and the effect of such uses upon the health, safety, and

morals of the community,” as well as the “performance standards” listed under ATZR

Section 116.    These performance standards include ATZR Section 116.8, which

provides that “[n]o vibration or shock perceptible to a person of normal sensibilities

at or beyond the property line shall be permitted.”

       {¶43} Martin Marietta originally sought a variance from ATZR Section 116.8

based upon its proposed blasting vibration level of .2 inches per second. At the BZA

hearings, experts in occupational medicine, blasting, and vibration presented

conflicting testimony as to whether the proposed vibration level of .2 inches per

second would be felt at or beyond the Property. Martin Marietta then presented

testimony from Otto Crenwelge, a mechanical engineer and an expert in controlling

vibrations.    Crenwelge testified that the vibrations from the blasting could be

controlled with timing of the blasts and frequency levels so as to eliminate

perceptible vibration beyond the Property. Attorneys for the Opponents objected

that Crenwelge’s testimony had been added after Martin Marietta’s “case in chief,”

and that Crenwelge’s testimony went beyond the scope of “rebuttal,” because

Crenwelge testified to a “new” blasting technique. The BZA nevertheless considered

Crenwelge’s testimony.

       {¶44} Martin Marietta withdrew its request for a variance from ATZR

Section 116.8, and, instead, the BZA conditioned its approval of Martin Marietta’s

application on Martin Marietta’s agreement to “use a combination of frequency

control, charge weights, timing, and duration of blasts * * * to meet the standard” in


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                        OHIO FIRST DISTRICT COURT OF APPEALS



ATZR Section 116.8, consistent with the blasting technique testified to by Crenwelge.

The BZA’s decision also required Martin Marietta to maintain blasting records and

make those records available to Anderson Township.                Moreover, the BZA

conditioned its approval of Martin Marietta’s application on Martin Marietta’s

agreement to conduct pre-blast surveys by a qualified third party to establish

baseline blasting conditions.

       {¶45} The Opponents argue that Martin Marietta’s proposed blasting

technique permits “trial and error” with regard to perceptible vibrations; however,

this is merely lawyer argument without evidentiary support in the record.            The

Opponents also point this court to the trial court’s first decision on the discussion of

vibrations. In its first decision, the trial court relied upon a witness who testified at

the BZA hearings, who had lived one mile away from a Martin-Marietta-owned mine

in Carmel, Indiana.    The witness testified that she had felt vibrations from the

blasting done at that mine. The record indicates that the Martin Marietta mine in

Carmel, Indiana, was an open, surface mine, and not an underground mine.

Moreover, the witness had never made any formal complaints about the vibrations.

Thus, the testimony from the Carmel, Indiana, witness is not relevant to the issue of

whether vibrations from the proposed underground limestone mine will meet the

vibration standard under the ATZR.

       {¶46} The decision of the common pleas court, reversing the BZA’s

determination that Martin Marietta had met the ATZR vibration-performance

standard, is not supported by a preponderance of reliable, probative, and substantial

evidence.




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       {¶47} Therefore, the trial court’s decision determining that the BZA had

illegally permitted mining in a residential district, characterized mining tunnels as

“ingress and egress,” permitted the storage of explosives, and concluded that Martin

Marietta had met the vibration standard is not supported by a preponderance of

reliable, probative, and substantial evidence, and is incorrect as a matter of law. We

sustain Martin Marietta’s first assignment of error.

                               BZA’s Decision on Remand

       {¶48} In Martin Marietta’s second assignment of error, it argues that the trial

court erred as a matter of law in determining that the decision of the BZA was illegal,

capricious, arbitrary, unreasonable, and unsupported by a preponderance of the

evidence. Within this assignment of error, Martin Marietta argues that the trial

court erred in determining that the second panel of BZA members had obfuscated its

duty to review the evidence presented on Martin Marietta’s application. During the

appeal of the BZA’s first decision, the membership of the BZA changed. After this

court reversed the BZA’s condition containing the Good Neighbor Agreement and

remanded the case for the BZA to consider whether to grant Martin Marietta’s

application without the Good Neighbor Agreement, the second BZA panel held an

executive session.   The second BZA panel emerged from executive session and

adopted the decision of the first BZA panel, albeit without the Good Neighbor

Agreement. The trial court found reversible error with the second BZA panel’s

decision because nothing in the record demonstrated that the second BZA panel had

undertaken a review of the hearings before the first BZA panel.

       {¶49} In urging an affirmance of the trial court, the Opponents argue that the

second BZA must consider all of the evidence presented before the first BZA, as


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stated in State ex rel. Ormet Corp. v. Indus. Comm. of Ohio, 54 Ohio St.3d 102, 561

N.E.2d 920 (1990). In Ormet Corp., the Supreme Court considered whether a

disability-benefits claimant’s due-process rights were violated where one hearing

commissioner on a panel had been absent from the evidentiary hearing and failed to

consider the evidence that had been presented. The record in Ormet Corp. showed

that the commissioner did not attend the evidentiary hearing, the hearing had not

been transcribed, no summary of the hearing had been prepared, and no other

meeting had occurred between the absent commissioner and the other panel

members. In holding that the claimant’s rights had been violated, the court held that

a decision maker “must, in some meaningful manner, consider evidence obtained at

hearing.”   Id. at 107.    The court rejected any requirement that the absent

commissioner personally review the evidence. Id. at 104.

       {¶50} Assuming that Ormet Corp. can be invoked by the Opponents in this

case, Ormet Corp. is nevertheless distinguishable. First, Ormet Corp. dealt with a

panel member who failed to attend an evidentiary hearing attended by the other

decision makers; here, we have a new panel of decision makers, none of whom

attended the evidentiary hearings, faced with a decision overturned on appeal.

Turnover among administrative decision makers is common while administrative

decisions are appealed. City of Alliance v. Lexington Twp. Bd. of Trustees., 5th Dist.

Stark No. 10-CA-289, 2011-Ohio-3328, ¶ 29. Second, although the BZA met in

executive session to consider this court’s remand order, nothing in the record

suggests that the second BZA panel failed to consider the evidence presented. The

hearing commissioner in Ormet Corp. admitted that he had not considered “in any

manner” the evidence presented at the hearing. Ormet Corp. at 107.


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                        OHIO FIRST DISTRICT COURT OF APPEALS



         {¶51} Moreover, this court’s remand order presented the second BZA panel

with a discrete question: Would the BZA grant Martin Marietta’s application without

the illegal Good Neighbor Agreement? In answering “yes” to that question, the

second BZA panel could rely on the detailed analysis and conclusions contained in

the 16-page decision issued by the first BZA panel, and readopt that decision without

the Good Neighbor Agreement condition. The condition was ancillary to the other

contested issues in the zoning application, and nothing in this court’s original

remand order required the BZA to hold further public hearings on the matter.

         {¶52} Therefore, we conclude that the trial court’s determination that the

BZA had obfuscated its duty to review the evidence presented on Martin Marietta’s

application is contrary to law and unsupported by a preponderance of the evidence

as a matter of law. Therefore, we sustain Martin Marietta’s second assignment of

error.

                      Appeal by Anderson Township (C-140745)

         {¶53} In a single assignment of error, Anderson Township, the Anderson

Township Board of Trustees, and the BZA argue that the trial court erred in

overturning the BZA’s decision. At the outset, we note that the BZA itself lacks

standing to appeal from the trial court’s judgment reversing its decision. See A.

DiCillo & Sons v. Chester Zoning Bd. of Appeals, 158 Ohio St. 302, 109 N.E.2d 8

(1952). Nevertheless, Anderson Township and its Board of Trustees have an interest

in enforcing its zoning laws, which gives them standing to appeal from the trial

court’s decision overturning the decision of the BZA. See Parker v. Swancreek Twp.

Bd. of Zoning Appeals, 6th Dist. Fulton Nos. F-04-035, F-04-036 and F-04-038,

2005-Ohio-538.


                                            25
                         OHIO FIRST DISTRICT COURT OF APPEALS



       {¶54} The arguments raised by the Anderson Township appellants in their

assignment of error essentially revisit the arguments made by Martin Marietta.

Thus, for the reasons stated in the disposition of Martin Marietta’s assignments of

error, we also sustain the Anderson Township appellants’ assignment of error.

                                       Conclusion

       {¶55} The judgment of the common pleas court is reversed, and under

App.R. 12(B), we enter the judgment that the trial court should have rendered,

affirming the decision of the BZA.

                                                               Judgment accordingly.


DEWINE, J., concurs.
HENDON, P.J., concurs separately.


HENDON, P.J., concurring separately,

       {¶56} Because the appellees chose not to raise the issue of the trial court’s

failure to include findings related to the evidence presented on the ancillary

byproducts of the mining operation, i.e. traffic, dust, and noise, I am able to concur

in the majority’s decision. Those issues remain unresolved to my satisfaction even

after the trial court’s ruling.

       {¶57} In addition, I continue to be apprehensive about the BZA’s decision

that the tunnels do not constitute “mining” because they are an acknowledged

integral part of the mining operation as proposed. Had I been part of the BZA, I may

have reached a different conclusion on this subject; however, I am constrained by the

standard of review applicable in administrative appeals.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶58} Consequently, I am compelled to concur in the majority’s analysis and

well-reasoned decision.




Please note:
 The court has recorded its own entry on the date of the release of this opinion.




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