Township's pond denial reversed

FINDLAY — Washington Township zoning officials' denial of a Fostoria waste hauler's request to build a pond was reversed by a judge this week as "arbitrary, capricious and unreasonable." Judge Reeve Kelsey ordered the Washington Township Zoning Appeals Board to grant Win Waste Innovations' request. Kelsey, a retired Wood County judge, was assigned to the case in Hancock County Common Pleas Court by the Ohio Supreme Court. In denying Win Waste's application to build a pond, Washington Township's zoning appeals board had cited several reasons. Kelsey shot holes in all of them. Among the judge's findings: • Washington Township's zoning rules "clearly" state that ponds and lakes, regardless of size, are permitted in areas zoned for agricultural use, Kelsey stated. "The BZA (Board of Zoning Appeals) cannot arbitrarily decide that ponds and lakes greater than 90 acres are not permitted in Agricultural Districts," he stated in his ruling. • Win Waste intends to use dirt excavated for the pond as cover in a neighboring landfill it operates. The zoning appeals board had said that the excavation associated with the pond (which zoning officials called a "borrow pit") would be "better suited" in an area zoned for industrial use. Judge Kelsey rejected the zoning appeals board's rationale as seeming to disregard its own zoning regulation. "Whether the landowner is excavating the soil for an industrial purpose elsewhere or creating the pond for the owner's private use does not make any difference under the Washington Township Zoning Regulations," Kelsey stated. "In both cases there will be excavating activities followed by a 90-acre pond. The landowner's subjective intent for construction of the pond cannot be considered by the BZA." "Similarly, if a use is permitted in an Agricultural District, the BZA cannot deny the application because it thinks the use would be 'better-suited' in an Industrial District," the judge stated. • Multiple times the board of zoning appeals based its denial on speculation of one kind or another, like potential adverse environmental impact on the pond, and potential future violations of zoning rules, Reeves said. "BZA cannot base the denial of an application upon the speculative future environmental impact upon the lake … BZA does not cite any legal authority for the proposition that it can deny an application based upon speculation that the project will violate zoning regulations in the future," the judge said. • Washington Township's zoning inspector had testified to the zoning appeals board that in his decades of pond construction experience, the largest pond had been about one acre, versus Win Waste's 90-acre proposal. The zoning appeals board said it concluded that Win Waste's was "not the type of 'pond' or 'lake' contemplated by the Washington Township Board of Trustees when enacting" the zoning rule. Judge Kelsey was not impressed. "The duties of the zoning inspector and the BZA are ministerial. They are not entitled to divine the contemplations of the township trustees who enacted the Washington Township Zoning Regulations," Kelsey said. He went on to point out that the township's zoning code states: "Artificial ponds or lakes shall be permitted in all use districts with review of the zoning inspector." "Clearly lakes were contemplated," Kelsey said. "Lakes are of indeterminate size." • The zoning appeals board had acknowledged that it lacked authority to consider a gas line proposed by Win Waste and then — in the very same sentence — went on to say that Win Waste "has not addressed this basic land use concern."