Posted by: Patricia Salkin | November 11, 2019

OH Supreme Court Holds Court of Appeals Exceeded Its Scope of Review Regarding Conditional Use Permit to Allow for Surface Mining

This post was authored by Matthew Loeser, Esq.

Appellant, Shelly Materials, Inc., entered into a mineral-rights lease in 2015 for an approximately 225-acre horse-farm property, commonly called Sahbra Farms. The property was zoned “RR, Rural Residential District,” which allowed surface mining as a conditional use upon the approval of an application for a conditional-use permit. Shelly leased the mineral rights of the Sahbra Farms land to engage in surface mining of sand and gravel. When Shelly entered into the lease, surface mining had been conducted on an adjacent property by a different company for a number of years as a permitted conditional use. Notwithstanding this, the Streetsboro Planning and Zoning Commission held that Shelly failed to establish by clear and convincing evidence that its proposed conditional use met the relevant standards outlined in the Streetsboro Codified Ordinances necessary for the issuance of a conditional use permit.

Following this determination, Shelly filed an appeal in the Portage County Court of Common Pleas. The court referred the case to a magistrate, who determined that Shelly had carried its burden of proof as to all six requirements in Streetsboro Codified Ordinance. The court of common pleas adopted the magistrate’s decision. The Eleventh District Court of Appeals then reversed the judgment of the court of common pleas. On appeal, Shelly’s principal argument was that the court of appeals exceeded the narrow scope of its review and conducted a de novo review of the commission’s findings by substituting its judgment for that of the common pleas court with respect to the dispositive issue of “whether the commission erred by finding that Shelly’s expert lacked credibility”.

The record reflected that the Eleventh District reversed the judgment of the court of common pleas on the grounds that the commission had a justifiable reason to reject Shelly’s expert’s opinion. Specifically, Shelly argued that the comparison properties utilized to form the experts’ opinion were further away from the surface mine than the properties at issue. The court found that this was not a question of law for the court of appeals to decide in an administrative appeal under R.C. 2506.04, but was instead a question concerning the weight of the evidence to be given to the expert’s opinion. Here, the court of common pleas weighed the expert’s opinion differently than the commission, despite having no authority to do so. Accordingly, the court reversed the judgment of the court of appeals on this issue.

Shelly Materials, Inc. v. City of Streetsboro Planning and Zoning Commission, 2019 WL 5699511 (OH 11/5/2019)

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