Judge: Mulch-Making Operation in Newbury Prohibited
Some court cases are stinkers and the one Common Please Judge David Fuhry ruled on and filed Feb.19 falls in that category. But the…
Some court cases are stinkers and the one Common Please Judge David Fuhry ruled on and filed Feb.19 falls in that category.
But the unpleasant smell of aging mulch was not the official reason Fuhry ruled against Green Vision Materials Inc. and in favor of the Newbury Township Board of Zoning Appeals.
Rather, he upheld the BZA’s denial of a use variance requested by Newbury Investment Company based on the township’s zoning resolution section that states creating, coloring, storing, and transporting wood fiber mulch is composting and is not a permitted use in commercial/business or residential districts, according to the court order.
The case had its start in September 2011 when Green Vision owner Beau Gibney applied for a zoning certificate from Newbury Township Zoning Inspector Karen Endres.
He planned to run the mulch operation at property previously occupied by Manfredi Motor Transit Company east of Newbury Town Center.
Endres’ reasons for denying the application, other than the zoning resolution not allowing mulching/composting, included set-backs, lot coverage and driveway violations on the site.
Green Vision appealed the denial and the hearing that started on Jan. 24, 2012, was continued to Jan. 27 and again to March 13.
A variety of witnesses insisted what Green Vision does with wood does or doesn’t constitute composting.
In his finding, Fuhry explains Green Vision stated the property had been used as a landscape business on the leased premises called TRC Landscaping, which was a permitted use.
That developed into a business that collects wood waste materials and processes it into mulch.
“Much discussion appears in the minutes and in the parties’ arguments as to whether or not what (Green Vision) does with the wood fibers constitutes ‘composting.’ Composting is a prohibited use in any district in the township, as aforesaid,” Fuhry wrote. “Chip Hess, who was apparently acting as expert or agent on behalf of — or at least in support of — the appellant stated that mulching is not composting.”
The judge was referring to the 150 pages of transcript connected to the case.
When Geauga County Health District personnel walked through the property on Sept. 21, 2011, they agreed there was evidence of composting, he said.
Also, Green Vision holds a Class IV Ohio EPA composting facility permit, the judge wrote.
“Green Vision maintains, however, that composting involves a decomposition process, and that making mulch as it does is far removed from that,” he said. “There doesn’t appear to be a definition in the Newbury zoning resolution that defines ‘composting.'”
George Smerigan, retained by the township as an expert witness, summed his point up on page 125.
“It is difficult to see how authorization of a use variance to permit a use which is specifically prohibited in any zoning district in both the R-1 residential district and the B-1 commercial business district can be consistent with the spirit and intent of the zoning resolution,” he wrote.
On March 13, the BZA voted 4-1 to deny the variance, based on their finding of facts.
Fuhry found the BZA decision to be supported by the evidence, that the BZA was within its rights to deny the request for a variance and Green Vision had plenty of opportunity to present its case.
Endres, who is currently zoning inspector for Bainbridge Township, said Green Vision has 30 days from Feb. 19 to file an appeal to Fuhry’s decision.
An appeal could drag on for some time.
“The ball’s in Green Vision’s court now,” she said.
The mountains of malodorous material are assets and the company can sell it off, Endres said.
If Green Vision doesn’t close it down or file an appeal, the company will be in contempt of court, she said.
Beginning March 19, Zoning Inspector Mike Joyce will know if he will be defending the township against an appeal or working with Green Vision to decommission the mulch operation.
