Agenda - Planning Commission - 10/05/2006

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f~ .\. " ~.l' ( Z.B. August 25, 2006 - Page 5 cause it had no ownership interest in or control of the Waste Management facility. In addition, the court noted that a waste-transfer facility was apermis- sible use in a GI zoning district. The court found in favor of the county, but it stated that there were genuine issues of material fact with regard to the nuisance claim against Waste Manage- mentthathadto be determined by a jury. Waste Management appealed, asking again for judgment without a trial. Stanfield appealed also, claiming that the lower court had erred when it found in favor of the county. DECISION: Affirmed. Stanfield argued that the Waste Management facility had: generatedsignifi- cant amounts of noise, dust,. and odors; attracted pests an~ rodents; and caused the value of his home to go down. Waste Management argued that, due to the nature of solid waste collection and removatitwas possible for a waste-trans- fer facility to contribute to some of those claims, but its operation was legal. Waste Management argued further that the language "anything having an offensive order" in the nuisance ordinance made it unconstitutionally vague. The appeals court ruled that the ordinance conformed to generally accepted common law meanings and, taken in context,witsiJ.ot overly vague. The lower court's finding that a jury had to decide if Waste Management was violating the ordinance was affll1Iled. Also, the appeals court affIrmed the trial court's fInding that a solid waste transfer facility was an allowed use and the county, therefore, was not liable for damages. A county could be held liable for nuisance damages that amounted to a taking without compensation; however, the issuance of a building permit alone did not subject the county to liability. According to the zoning ordinance, industrial uses involving "manufactur- ing, pr<?cessing, or assembly operations, or the storage and sa1.e of heavy materials, products or equipment" were allowed uses. The zoning orditlance did allow for exceptions where certain uses had an external impact that might cause "injurious or obnoxious noise, vibration, smoke, gas, fumes, odor, dust, fire hazard, dangerous radiation or conditions objectionable to adjacent or nearby areas," but these exceptions were related to enforcement, not prevention. The ordinance could not be construed to require a county to speculate if these conditions would exist post-construction before granting a permit. Due Process - Township amends code to allow relocation of parking lot Avoids restrictive covenants regarding parking spaces Citation: SuperValu Holdings Inc. v. Jackson Center Associates, Court of Appeals of Ohio, 12th App. Dist., Clermont Co., Nos. CA2005-09-085 & CA2005-09-089 (2006) OHIO (07/03/06) - Wal-Mart Stores Inc. bought property in Union Township @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 73