A Pickaway County township cannot deny a gravel mining permit on grounds that the use does not conform with the general rules set out for uncommon land uses in the area. But violations of a condition in the permit related to public health or safety can lead to the permit’s revocation, the Ohio Supreme Court ruled today.

A unanimous Supreme Court reversed a Fourth District Court of Appeals decision affirming the Harrison Township Board of Zoning Appeals’ denial of a permit for mining sand and gravel on a 179-acre property near U.S. Route 23. The township’s appeals board had sided with Berger Health System, which objected to a proposal by Columbus Bituminous Concrete Corp. (CBCC) to have Shelly Materials mine the land.

Writing for the Court, Chief Justice Maureen O’Connor stated that state law allows townships to “regulate” mining activities in certain ways, but those regulations are limited to matters of public health and safety. A separate state law authorizes townships to grant conditional use permits with conditions that mining operations must meet, but townships cannot deny mining permits for failure to meet the general standards in a zoning resolution.

The Court remanded the case to the board, allowing it only to apply general standards related to public health and safety. Any general standards reflecting public-health-and-safety concerns must be addressed through conditions placed on an approved application.

Board Rejects Permit
R.C. Chapter 519 permits townships to adopt zoning regulations, and Harrison Township adopted a zoning resolution that created a “general business district.” The plan also allowed for conditional use exceptions for uncommon or infrequent types of land use that can be permitted within a zoning district as long as the property complies with certain standards and explicit conditions.

CBCC applied for a conditional use permit to engage in sand and gravel mining. After three hearings where numerous witnesses testified, the board denied the permit, and the company appealed to the Pickaway County Common Pleas Court. The trial court affirmed the board’s denial, noting that under R.C. 519.141(A), the board may require a conditional use permit for mining to comply with “any general standards” that apply to all conditional uses in the township.

The trial court explained that Harrison Township adopted six general standards, and the board found CBCC failed to meet three of them. Those standards related to uses that create excessive traffic, noise, fumes, glare, or odors; are not “harmonious and appropriate” with the character of the general vicinity; and are not consistent with any adopted comprehensive plan. The court cited a substantial increase in truck traffic; lack of sight and safety barriers at one end of the property; and the township’s area development plan that sought to limit mining to property west of Route 23. CBCC’s location is east of Route 23.

CBCC appealed the decision to the Fourth District, which affirmed the trial court’s ruling, and CBCC appealed to the Supreme Court, which agreed to hear the case.

Township’s Regulatory Authority Limited
CBCC maintained that while R.C. 519.02 grants townships general powers to adopt zoning regulations, R.C. 519.02(A) contains a specific restriction concerning coal and other surface mining operations. The law states that for any activities permitted by R.C. Chapters 1513 or 1514, which concern surface mining, townships may regulate “only in the interest of public health and safety.” Because this power is limited, CBCC cannot be denied a permit based on failing to meet “general standards.”

Chief Justice O’Connor wrote the Court had to determine whether the authority of townships to require compliance with general standards under R.C. 519.141(A) allows for the denial of a permit for failure to meet standards not related to public health or safety.

The opinion stated that R.C. 519.02(A) clearly limits the township’s regulation of mining to matters related to public health and safety. R.C. 519.141(A) does not expand or limit the township’s zoning power, so any general standard adopted must comply with powers granted to township trustees in other parts of state law, the Court stated.

Because of the limitations on townships regarding mining, only general standards related to public health and safety can apply to a conditional use permit for sand and gravel mining, the Court stated.

Law Only Allows Restriction, Not Prohibition of Mining
The Court also noted that R.C. 519.141(A) does not provide the township zoning appeals board with the right to deny a mining application for failing to meet general conditions. The law allows it to require compliance with the standards “as a condition of approval.”  The opinion noted that R.C. 519.14(D) allows the board to revoke a “conditional use certificate granted for the extraction of minerals, if any condition of the certificate is violated.”

2018-1008. Columbus Bituminos Cuoncrete Corp. v. Harrison Twp. Bd. of Zoning Appeals, Slip Opinion No. 2020-Ohio-845.

View oral argument video of this case.

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