Appellate Materials: SMITH FAMILY TRUST VS CITY OF HUDSON BOARD OF BUILDING AND

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“i COMMON PLEAS

Sua SUMMIT COUNTY, OHIO
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SMITH FAMILY TRUST, OuRTs CASE NO.: CV 2007-05-3641

Appellant, JUDGE JUDY HUNTER

9)

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) ORDER

) (final and appealable)
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v.

CITY OF HUDSON BOARD OF ZONING
AND BUILDING APPEALS

Appellee.

This matter comes before the Court pursuant to an Administrative Appeal from the City
of Hudson Board of Zoning and Building Appeal’s denial of the Appellant Smith Family
Trust’s request for zoning area variance for sub-lots 9, 10, 11, 12, and 13 of the Woodland
Estates Subdivision. The Court hears this case pursuant to R.C. 2506.01, et seq. The Court
has been advised, having reviewed the numerous briefs (pre-hearing and post-hearing), the
pleadings, certified record and transcript, hearing testimony and exhibits, and applicable law.
Upon due consideration, the Court finds Appellant’s appeal not well taken and it is denied. The
Court affirms the decision of the City of Hudson Board of Zoning and Building Appeals
denying Appellant’s request for zoning area variance regarding the sub-lots in question.

PROCEDURAL HISTORY

The Appellant Smith Family Trust has filed a timely appeal of the April 20, 2007 final

| | decision of the Hudson Board of Zoning and Building Appeal’s denying the Smith Family

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i Trust’s request for zoning variance for sub-lots 9, 10, 11, 12, and 13 of the Woodland Estates

| Subdivision located in Summit County, Ohio. This matter has been highly litigated betweenCOPY

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the parties, namely, before the Hudson Planning Commission, Hudson Board of Zoning and

Building Appeals, and herein. This Court has permitted additional discovery relating to

Appellant’s constitutional claims. After a series of extensions for discovery and possible

settlement, this Court set this matter for hearing on the constitutional claims for 4/9/08. This

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Court verbally denied Appellant’s Renewed Motion for Disqualification, Appellant’s Motion

for Continuance of Evidentiary Hearing, and Appellee’s Motion for Court view prior to said
hearing. Post hearing briefs and reply briefs have been filed. Appellee’s Motion to Strike
post-hearing Affidavit of Robert Smith is denied and Appellant’s Motion for Judicial Notice as
to hearing expert witness Tom Robinson is also denied. This matter is now ripe for review.

DISCUSSION AND ANALYSIS

Appellant has asserted both constitutional and non-constitutional challenges to the final

decision of the City of Hudson Board of Zoning and Building Appeals and various Land

Development Codes as applied. The Court will address each of these assignments of error

below.
When reviewing an administrative appeal in accordance with R.C. 2506.01,
et seq., this Court:
"[clonsiders the 'whole record,’ including any new or additional evidence admitted
under R.C. 2506.03, and determines whether the administrative order is
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by
the preponderance of substantial, reliable, and probative evidence."
Henley y. Youngstown Bd. of Zoning Appeals (2000), 90 Ohio St.3d 142, 147, 2000 Ohio
493, cited in Marsillo v. Stow City Council, 2005 Ohio 473, P9 (Ohio Ct. App. 2005).
Pursuant to R.C. 2506.04, this Court may only “affirm, reverse, vacate, or modify the

order *** or remand the cause to the officer or body appealed from with instructions to enter

an order *** consistent with the findings or opinion of the court." In doing so, this Court mustCOPY

take notice: first, that the City of Hudson’s denial of the zoning variance request is presumed to

' be reasonable and valid (see C. Miller Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio

St.2d 298); second, that Appellant has at all stages of the proceeding the burden of showing the
| unconstitutionality or unreasonableness of the ordinance (See Ketchel v. Bainbridge Twp.
(1990), 52 Ohio St.2d 239, 2450); and lastly, that this Court must affirm the administrative
decision of the City of Hudson if there is in the record, a preponderance of reliable, probative,

and substantial evidence to support it (see Dudokovich v. Lorain Metro Housing Auth. (1979),

58 Ohio St.2d 202, 207; and Singer v. Troy (1990), 67 Ohio App.3d 507).

TIME LINE

Before this Court will address Appellant’s assignments of error, the Court will list the

major time line of events that predate this appeal:
01/03/04 - Smith Trust purchased 12.77 acre property (Woodland Estates) in Hudson, Ohio.
09/03/04 — Planning Commission approves preliminary subdivision plat for Woodland Estates.
09/16/04 — Ohio H.B. 248 becomes effective.
10/12/04 - Smith Trust entered into oil & gas lease with Ohio Valley Energy Systems.
02/14/05 - Planning Commission verbal and written decision approved the revised preliminary
1 plan and final plat with the following pertinent conditions:
I - “To the extent permitted by applicable law Sublots 10 — 13 are subject to setback
requirements from any oil and gas equipment as set forth in the Land Development
| Code.”

- “Any final comments by R. Todd Hunt, Assistant City Solicitor, and Charles Huber,
i City Engineer Consultant, must be addressed concerning the final subdivision plat.”

i ‘ 05/20/05 - Woodland Estate Plat w/ 19 lots & Block “A” covenants (retaining the right to drill
| a gas and/or oil well, and install all necessary equipment and appurtenances) recorded with

| Fiscal Office.
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li | 02/13/06 - Declaratory Judgment action filed by Glenmoore Builders, Inc. against Smith
| Family Trust in Summit County Common Pleas Court Case Number CV 2006-02-1001

| regarding the Woodland Estates and Block “A”.COPY

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11/08/06 - Smith Family Trust executes Stipulation in Glenmoore Builders case.
12/08/06 - Application for zoning variance from LDC §1207.19(c)(11) for lots 9 — 13.
04/20/07 - Hudson BZA Decision denying the above zoning variance.

05/21/07 - Administrative Appeal

ASSIGNMENTS OF ERROR AND DISCUSSION

Appellant’s first assignment of error is that Appellee’s decision is unconstitutional as

applied to sub-lots 9 — 13 for reason that the trust has a vested property right to develop these

| sub-lots and to sell them for single-family residential use. Appellant makes five related
arguments — first, that the planning commission’s verbal and written decision of 2/14/05 did
{ not include written findings of fact specifying the relevant code standards or criteria that the

Trust was to follow, in contravention with L.D.C. 1202.02(b)(4) and R.C. 711.09(C); second,

' that the Planning Commission, Community Development, and Mr. Hunt never notified the
Trust as to the applicable law pertaining to setback requirements from the oil/gas equipment

(pursuant to the 2/14/05 decision); third, that the Trust was not obligated to add language to the

plat regarding any applicable setbacks from the oil/gas equipment; fourth, that all conditions of

| plat approval are required to be complied with prior to the plat’s being recorded, pursuant to

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L.D.C. 1203.10(f)(3), and that the final plat was approved without applicable language
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: | the actual location of the oil and gas well prior to the final approval and recording of the plat

and is now estopped from enforcing the setback requirements set forth in L.D.C.

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I 1207.19(c)(10) & (11).

In the case at hand, the record clearly indicates that Planning Commission’s written

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i i decision placed Appellant on notice that it must comply with the setback requirements from
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4) any oil and gas equipment as set forth in the Land Development Code and any final comments
by R. Todd Hunt, Assistant City Solicitor, and Charles Huber, City Engineer Consultant, with
respect to Sublots 10 — 13 and the final subdivision plat. The Court finds Appellant’s assertion
that it did not know which sections of the Land Development Code were applicable
disingenuous. The record reflects that the City informed Appellant regarding its intent to

enforce the setback requirements in accordance with L.D.C. 1207.19(c)(10) & (11) should any

future new homes be built after the placement of any oil and gas wellhead and equipment.

Appellant was informed of the City’s position in writing prior to the Planning Commission
hearing, on the record at the Planning Commission hearing, and the Planning Commission
|| written decision reinforces said ongoing position.

Concerning which party is responsible to place the setback language on the plat, the
Court finds Appellant is responsible for said placement. (L.D.C. 1203.01(g) and L.D.C.
1203.10(f)(3)(a)). Although Appellant attempts to shift the responsibility to Appellee, via the
approval of the final plat without these setback restrictions, the ultimate responsibility lies with

Appellant. From a practical standpoint, Appellant is the party with knowledge of where the oil

and gas wellhead was to be placed in relation to Block A. Appellee cannot be held responsible

to assume where the placement of these structures was to occur and the record does not reflect

that Appellant ever provided the City or its employees with survey documents establishing the

, exact location for these structures by either the 4/15/05 deadline or by 5/13/05 final plat

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| submission and approval date. Due to the fact that Appellant did not place the locations of the
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| oil and gas well heads and equipment on the final plat, the City’s approval and recording of the

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| final plat was both appropriate and in accordance with applicable city and statutory regulations
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(L.D.C. 1203.10(f)(3)(a), R.C. 711.08, and R.C. 711.09) and its prior written and verbal
/ directions to the Smith Trust.

\ Appellant asserts that the City is now estopped from enforcing these setback
requirements for lots 9 — 13 after the final plat was recorded on 5/20/05. However, it is well-
settled that the equitable principles of estoppel, waiver, and laches do not generally apply
against a state, its agencies, or other local governments in the exercise of a governmental
function because if a government agency is not permitted to enforce the law (because the

| conduct of its agents has given rise to an estoppel or other equitable defenses), the interest of
all citizens in obedience to the rule of law is undermined. Ohio State Bd. of Pharm. v. Frantz

(990), 51 Ohio St. 3d 143, 145-146.

Appellant’s second assignment of error is that the Appellee’s decision is

| unconstitutional as applied to the sub-lots in question for reason that L.D.C. 1207.19(c)(10)
and (11) are in conflict with R.C. 1509.02. Specifically, Appellant asserts that the Ohio

| Department of Natural Resources has the exclusive authority to regulate the permitting,

| location, and spacing of oil and gas wells in the State. As such, Appellant asserts that R.C.

A local regulation is in conflict with and is preempted by state law only if the local

| regulation permits what the state law forbids, or in the alternative, forbids what the state law
i permits. Struthers v. Sokol (1923), 108 Ohio St. 263, 268.

In the case at hand, R.C. 1509.02 does not conflict with the City of Hudson’s Land
i Development Code with respect to the placement of homes next to existing wells and

equipment.COPY

R.C. 1509.02 states in pertinent part:

“There is hereby created in the department of natural resources the
division of mineral resources management, which shall be
administered by the chief of the division of mineral resources
management. The division has sole and exclusive authority to
regulate the permitting, location, and spacing of oil and gas wells
within the state. The regulation of oil and gas activities is a matter
of general statewide interest that requires uniform statewide
regulation, and this chapter and rules adopted under it constitute a
comprehensive plan with respect to all aspects of the locating, drilling
and operating of oil and gas wells within this state, including site
restoration and disposal of wastes from those wells.”

LDC 1207.19(c)(10) states in pertinent part:

“No structure suitable for occupancy can be erected within 100 feet of any
existing unplugged oil and gas wellhead. If the well has been abandoned
and plugged, no habitable structure shall be erected within twenty-five
feet of the plugged wellhead.”

LDC 1207.19(c)(11) states in pertinent part:

“Tank batteries shall not be located or relocated closer than two hundred
feet to a structure suitable for occupancy, nor can any such structure be
erected within this distance.”

O.A.C. 1501:9-1-05, states in pertinent part:

“No well shall be drilled nearer than one hundred feet to any
inhabited private dwelling house; nearer than one hundred feet from any
public building which may be used as a place of resort, assembly,
education, entertainment, lodging, trade, manufacture, repair, storage,
traffic, or occupancy by the public; nearer than fifty feet to the traveled
part of any public street, road, or highway; nearer than fifty feet to a
railroad track; nor nearer than one hundred feet to any other well.”
(emphasis added).

O.A.C. 1501:9-9-05 states in pertinent part:

“(2) Oil production tanks shall be set *** a minimum of one hundred
(100) feet from existing inhabited structures.

(4)(h) The tank battery, separator and associated equipment may not
be placed closer than seventy-five (75) feet from any property not part
of the drilling unit unless the property owner and resident of the propertyCOPY

grants approval in writing of any proposed location closer than seventy-

five (75) feet, or the chief waives the seventy-five (75) foot set-back

requirements.” (emphasis added)

RC 1509.02, OAC 1501:9-1-05, and OAC 1501:9-9-05 all regulate the distance of new
wells and tank batteries to existing structures, including houses. L.D.C. 1207.19(c)(10)
regulates the location at which new homes can be constructed from an existing well head, it
does not regulate the location or operation of wells, plugged, unplugged, producing, or non-
producing. L.D.C. 1207.19(c)(11) regulates the location at which new homes can be
constructed from an existing tank battery or the location of a tank battery from an existing
home or other structure. Importantly, there is no statutory or administrative code provision
which regulates the distance that a new structure such as a house may be constructed from an
existing oil or gas well, or tank battery.

Appellant has not sustained its burden regarding the unconstitutionality or

unreasonableness of the ordinances in question. The City of Hudson has an interest and right

|| to adopt it’s own health and safety regulations, including the right to regulate the distance that

a new structure suitable for occupancy may be constructed from an existing oil or gas well or
tank battery. Appellant’s applicable land development codes do not conflict and are not
preempted by the asserted state regulations relating to the sub-lots in question.

Appellant’s third assignment of error is that the Appellee’s decision is unconstitutional

| as applied for reason that L.D.C. 1207.19(c)(10) is void for vagueness, namely that a person of

ordinary intelligence cannot know what is meant by the termed “unplugged well head”.

Upon review, the Court finds that the term “unplugged” well head is not vague. L.D.C.

i 1207.19(c)(10) provides for two different set back requirements depending on whether the well

! head is an “existing unplugged well head” as opposed to a well head that has been “abandonedCOPY

|) and plugged”. Specifically, LDC 1207.19(c)(10) provides that no habitable structure shall be
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| erected within 100 feet of an existing unplugged oil and gas well head and twenty-five feet
from an abandoned and plugged well head. By implication, for an abandoned and plugged
| well head to have a different set back requirement from an unplugged well, it is reasonable to
assume that an unplugged well head to be an “operable well head.” Given the terms usual and
customary meaning, the City properly determined that the above referenced code section
{| applied to any existing well head that was plugged, be it producing or non-producing.
Appellant’s fourth assignment of error is that the Appellee’s decision is
unconstitutional as applied for reason that both LDC 1207.19(c)(10) and (11) are arbitrary,
unreasonable, and bear no substantial relation to the public health, safety, moral, or general
welfare of the community.
Appellant has not sustained its burden of proof regarding this assignment of error for
the reasons previously addressed in the prior assignment above and based upon the expert
testimony from Thomas Robinson (Village of Gates Mills Fire Chief) and Mark Majewski

(professional consultant) at hearing before this Court, and Mr. Kolar, Mr. McMakin, and Mr.

Lindner before the BZBA on 3/15/07. Although Appellant argues that the Hudson Fire Chief

| Carter and Community Development Director King had opposing views regarding the
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appropriate set back from exiting tank batteries (100 feet versus 200 feet), this Court notes that,

| i experience with respect to oil and gas wells. Upon review, the Court finds that the BZBA

: \ decision is not unconstitutional, arbitrary, unreasonable, and bears a substantial relation to the

public health, safety, moral, or general welfare of the community. As it relates to the specific

testimony of the above individuals and the record as a whole, the Court finds that the BZBACOPY

{| decision is supported by a preponderance of substantial, reliable, and probative evidence as it
relates to public health, safety, moral, or general welfare of the community.

Appellant’s fifth assignment of error is that the Appellee’s decision denying the
requested variances is against the preponderance of substantial, reliable, and probative
evidence. This matter involves the City of Hudson BZBA’s denial of the Appellant Smith
Family Trust’s request for zoning variance for sub-lots 9, 10, 11, 12, and 13 of the Woodland
Estates Subdivision.

“An applicant for an area variance need not establish unnecessary hardship; it is
sufficient that the application show practical difficulties.” Kisil v. City of Sandusky, et al.
(1984), 12 Ohio St.3d 30, syllabus. However, a property owner is not deprived of the right to
establish practical difficulties by virtue of the fact that the owner purchased the property
knowing of the zoning restrictions that it now seeks to alter by application of the zoning
variance. Kisil, 12 Ohio St. 3d at 33.

The Supreme Court has adopted a list of factors to be considered in determining

whether an applicant for an area variance has encountered practical difficulties. The factors
include, but are not limited to: "(1) whether the property in question will yield a reasonable
|| return or whether there can be any beneficial use of the property without the variance; (2)

whether the variance is substantial; (3) whether the essential character of the neighborhood

! would be substantially altered or whether adjoining properties would suffer a substantial

detriment as a result of the variance; (4) whether the variance would adversely affect the

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delivery of governmental services (e.g., water, sewer, garbage); (5) whether the property owner
| purchased the property with knowledge of the zoning restriction; (6) whether the property

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owner's predicament feasibly can be obviated through some method other than a variance; (7)
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| whether the spirit and intent behind the zoning requirement would be observed and substantial

justice done by granting the variance." Duncan y. Village of Middlefield (1986), 23 Ohio St.3d

| 83, 86, cited in Langan v. Bd. of Zoning Appeals, 2005 Ohio 4542, P13, 9th Dist. CA No.
05CA008640, P13. No one factor is dispositive or controlling for reason that each case has
| different facts and circumstances. Duncan, 23 Ohio St.3d at 86.

Upon review of the record, this Court finds that the City of Hudson and the BZBA
properly addressed the above referenced factors and that the BZBA’s decision denying the area
variance is supported by a preponderance of substantial, reliable, and probative evidence.

First, the record reflects that Appellant will receive some beneficial use and reasonable return
for the sub-lots in question. Appellant has entered into an oil and gas lease with Ohio Valley
| Energy Systems Corp. and receives royalties from these lease operations. Appellant made a

business decision in entering into the oil and gas lease, deciding where to place said oil and gas

well heads in relation to Block A and the subplots, and with full knowledge that it must comply

with the Land Development Code and the Planning Commission’s limitations. Appellant’s
royalties from the lease operations over time and the return from the other 14 sub-lots zoned
for single family homes certainly make up for the loss of return and use for the five lots in

‘1 question.

Second, the requested variance is substantial. The BZBA specifically found that the

| Tequested variances would exceed even Hudson Fire Chief Carter’s 100’ minimum safety

i setback from the oil and gas equipment. Furthermore, although Appellant states that the City

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The record indicates herein and before the BZBA an overriding safety concern should the
setback variances be granted to permit homes to be erected next to the existing tank battery.

Third, regarding the essential character of the neighborhood, the record indicates that
the enforcement of the oil and gas well head set back requirements for the lots in question is
consistent with the character of the surrounding residential neighborhoods.

Fourth, the record reflects that the requested variance would affect the delivery of
essential government services, namely fire protection and emergency services, should the
safety concern over oil and gas well explosions come into fruition.

Fifth, there is no question that the Appellant purchased and subdivided the properties
with knowledge of the zoning restrictions. See assignment of error one.

Sixth, the record reflects that Appellant's predicament could be feasibly obviated
through some method other than a variance, namely, Appellant could plug the well, relocate

the oil and gas head and/or tank battery, or file an application with the Planning Commission to

| amend the final plat to redesign the Subdivision so that subplots in question would be in

compliance with L.D.C. 1207.19(c)(10) and (11).

Seventh, the spirit and intent behind the City of Hudson’s zoning requirement would

| not be observed, and substantial injustice would not be done, by granting the variance. The

granting of the variances would be in contravention with the underlying safety concerns that
L.D.C. 1207.19(c)(10) and (11) were adopted to protect.

Lastly, Appellant’s sixth assignment of error is that Appellee’s decision denying the
requested variance is arbitrary, capricious, and unreasonable.

Upon review of the certified record in whole, this Court cannot find that the City of

Hudson’s decision in denying the area variance to be to be arbitrary or capricious orCOPY

unreasonable. Appellant makes reference to one instance in 1993 in which the Township of
Hudson settled a lawsuit in which 11 residential properties within a subdivision were granted
area variances from the 200’ setback requirements from tank batteries.

The record indicates that Appellant failed to address in any detail before the Zoning
Board why this or any other variance should apply herein. Appellant refers to an unsigned
draft settlement agreement from the transcript in support herein. Furthermore, this Court notes
that each area variance case has unique facts and circumstances. Duncan, 23 Ohio St.3d at 86
and Carrolls Corp. v. Bd. of Zoning Appeals, City of Willoughby, 2006-Ohio-3411, 11th App.

Dist. No. 2005-L-110, P 20. See also L.D.C. 1207.06(e)(2). In the case at hand, the BZBA

determined that the concerns for safety and other enumerated concerns override Appellant’s

need for area zoning variances for the five lots in question.

Wherefore, this Court finds that the record as a whole contains a preponderance of

| substantial, reliable, and probative evidence to support the City of Hudson Board of Zoning and

Building Appeal’s denial of the zoning area variance for the sub-lots in question. Furthermore,
this Court cannot find the City of Hudson Board of Zoning and Building Appeal’s denial of the
zoning area variance to be unconstitutional, illegal, arbitrary, capricious, or unreasonable. The

Court affirms the decision of the City of Hudson Board of Zoning and Building Appeals

|} denying Appellant’s request for zoning area variance regarding the sub-lots in question.

This is a final appealable judgment entry. There is no just reason for delay. Pursuant

! | to Civil Rule 58 (B), the Clerk shall serve upon all parties not in default for failure to appear

‘| notice of this judgment entry upon the journal of the Court.

So Ordered.

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cc: Attorney Charles Riehl

Attorney Karen Edwards-Smith

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JYDGE 1ypy HUNTER