BOARD OF ZONING APPEALS
GREENE COUNTY, OHIO
SPRING VALLEY TOWNSHIP
Case No. 001-00
ORDER GRANTING CONDITIONAL USE; FINDINGS OF FACT AND CONCLUSIONS OF LAW
IN THE MATTER OF:
AMERICAN AGGREGATES CORPORATION,
A wholly owned subsidiary of MARTIN MARIETTA MATERIALS, INC.,
APPLICATION FOR A CONDITIONAL USE
This application for a conditional use permit to operate a mineral extraction operation was filed on February 4, 2000 with the Spring Valley Township Board of Zoning Appeals (The "BZA" pursuant to Sections 1002 and 523 of the Spring Valley Township Zoning Resolution). The application was filed by American Aggregates Corporation and Martin Marietta Materials, Inc., and concerned an approximate 200 acre parcel owned by the applicant near Cook Road in Spring Valley Township, Greene County, Ohio. The original application was later supplemented by the applicant with 31 conditions by which the applicant intends to be bound.
Written notice via certified mail was sent to interested persons informing them of the scheduled hearing of on the application and proper public notice was also given. The first hearing was on March 27, 2000, and the matter was continued for additional hearings on April 24th, May 15th, June 5th, June 19th, and June 26, 2000. Proper public notices were published prior to each hearing date. The hearing included testimony and evidence submitted by the applicant, as well as testimony and evidence presented by persons opposed to the application. All proceedings were recorded by a registered court reporter who preserved the evidence. All testimony was presented under oath. The transcript of the proceedings constitutes the minutes of the BZA regarding the application. Deputies form the Greene County Sheriff’s Office were present at the hearings to preserve order.
On June 26, 2000, BZA board members Rhett Rohrer, David Wisecup, Harold Simison, Dale Henkener, and Roger Beam conducted the final hearing to determine whether the application, the supporting materials and the oral testimony supported the granting of the conditional use permit for mineral extraction.
Based upon the 1) Application 2) The addendum to the application 3) Exhibits, and 4) Evidence presented by witnesses at the hearing, the Board of Zoning Appeals makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE APPLICATION OF AMERICAN AGGREGATES CORPORTATION TO ESTABLISH A SAND AND GRAVEL MINING OPERATION IN AN A-10 AGRICULTURAL AND FP-FLOOD PLAIN ZONED DISTRICT IN SPRING VALLEY TOWNSHIP
The Board took testimony at multiple public hearings at which proponents and opponents provided testimony to the Board as well as exhibits. From the hearings, testimony and exhibits, the arguments of counsel, the Board makes the following findings:
- Mining of sand and gravel is a conditional use in the A-10 prime agricultural and FP-flood plain districts.
- The application of Martin Marietta and the subsequent commitments made by Martin Marietta through the hearing process meets all of the terms and conditions of Section 523 of the Spring Valley Township Zoning Code and Section 1002.2 of the Spring Valley Township Zoning Resolution.
- Of the approximately 200+ acre site, approximately 116 acres will be mined in accordance with the site plan filed with the application.
- Though designated as A-10 prime agricultural ground by way of zoning designation, the property is not prime agricultural productive soil based on the nature and conditions of the soil.
- Sand and gravel must be mined where it can be found.
- The mining use proposed is not an unnecessary encroachment that either limits land uses or establishes incompatible land use.
- Use of the property as proposed in the application does not pose by means of location or mode of operation a threat to surrounding agricultural activities or needless encroachment of prime agricultural soils.
- The operation will not have an adverse effect on any public or private water supply. In fact, by changing the use from agricultural to mining, nitrates used for fertilizers and other substances in farming may be eliminated or substantially reduced as a possible contaminant of the water well supply. The applicant has agreed to set up a monitoring program to insure water quantity and quality. The program includes the testing, repair, and replacement, at American Aggregates’ cost, any neighboring well water if the well is adversely affected by the applicants’ operations.
- American Aggregates Corporation has agreed to undertake road improvements to the surface road within the site itself as well as improvements on Cook Road in accordance with agreements with the county engineer. These improvements improve access both to the site and to the traveling public.
- The company has agreed to mound the site in accordance with the zoning ordinance by erecting mounds varying in height from ten (10) feet to twenty (20) feet in locations as shown on the site plan. The mounds will be effective sight and sound barriers.
- The Board finds that U.S. 42 has an already established level of background noise in the area of the site. U.S. 42 is a highly traveled roadway, the traffic of which is expected to increase, whether the mining site is opened or not. The plant site will not add measurably to the background noise. In addition, American Aggregates Corporation has agreed to use the best available technology in the operation of the plant in question. A noise plan has been prepared and submitted which will result in the reduction or elimination of objectionable noises from the plant site.
- The applicant has agreed to limit its hours of operation from sunrise to sundown, six (6) days per week, Sunday excluded.
- The company has agreed to limitations in excess to those required by the zoning resolution in establishing its site. The company has entered into agreement with Little Miami, Inc. to provide Little Miami, Inc. a permanent easement 250 feet wide along the Little Miami River in order to preserve both the river itself and its scenic river status. In addition, the company has provided Little Miami, Inc. property it owns in another location in Spring Valley Township, which will allow further control and protection of the Little Miami River.
- The company investigated traffic and a traffic study was completed. There is little or no additional traffic concerns generated by the site. As this site is phased into operation, a site owned by the applicant in another area in Spring Valley Township will decline making truck traffic attributed to the applicant essentially the same as it is today.
- A noise study was done, and the Board finds that the noise developed by the plant site will not violate any federal or state standard. In addition, the company has undertaken a noise reduction program, which will eliminate or effectively control any noise generated on the site.
- The application is for a sand and gravel operation only and no asphalt or ready-mix batch plant will be located on site.
- The applicant will utilize all available dust control measures as allowed by the Ohio EPA. The control measures proposed will be effective to control dust.
- Surrounding real estate values will not be adversely effected by the proposed sand and gravel operation.
- Sand and gravel is a needed ingredient for construction projects in and around Spring Valley Township and Greene County.
- The applicant operates a highly regulated industry and permits from Ohio Department of Natural Resources, Ohio Environmental Protection Agency and other oversight groups are necessary before the permit on site is issued.
- The Board finds that the use as a sand and gravel mine is so designed and located and proposed to be operated so that the public health, safety, welfare and convenience will be protected.
- The current use of the property is agricultural. The mining use will not result in destruction, loss or damage of a natural, scenic, or historic feature of importance.
- The mining use is designed, constructed, operated and maintained so that it will not cause substantial injury to the value of the property in the area or neighborhood where it is to be located.
- The use is compatible with the adjoining development and the proposed character of the zoning district where it is located.
- The use is served adequately by essential public facilities and services such as highway, street, police, fire protection, drainage structure, refuse disposal, water and sewer, and schools and persons or agencies responsible for the establishment of the proposed use are able to provide any such services adequately.
- The use will not create excessive additional requirements at public costs for public facilities and services and is not detrimental to the economic welfare of the community. Taxes paid by the resulting sand and gravel operation far outweigh the taxes generated by the property in its current usage. In addition, the site will provide needed construction material for use in the area and its surroundings.
- Adequate landscaping and screening are provided as required by the Zoning Code in Article 5, Section 515.
- Adequate off-street parking and loading are provided and ingress and egress are so designed as to cause minimum interference with traffic on abutting streets.
- The use conforms to all of the applicable regulations governing the district in which it is located.
- The Board finds sand and gravel use is compatible with the standards, objectives and policies of the Greene County Regional Comprehensive Plan for land use.
- The use as proposed does not involve uses, activities, processes, materials, equipment or conditions of operation that are detrimental to any persons, property or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare, odors, or vibrations, and the site will be operated in accordance with the conditional use conditions which are made a part of these findings, and attached hereto.
CONCLUSIONS OF LAW
The Board finds as a matter of law:
- The application and commitments by the applicant, American Aggregated Corporation, wholly owned subsidiary of Martin Marietta Materials, complies with the policies and legal requirements of the Spring Valley Township Zoning Resolution; and
- The Board specifically finds, as a matter of law, that each and every criterion of the Zoning Resolution, including all of the provisions of Article 5 and Section 1002.2 have been met by the application and evidence and are supported by a preponderance of the substantial reliable and probative evidence on the record as a whole. The Board specifically finds, as a matter of law, that each of the conditions of Section 1002.2 relating to the conditional use standards has been met by the evidence produced by the hearings, and the Board therefore grants and makes a part of its findings of both fact and law the conditional use Final Approved Conditions, 31 in number, attached hereto and incorporated herin by reference; and
- The evidence produced at the hearing by the applicant was both credible and substantial. Expert witnesses who were qualified by their educational background and experience to express the opinions in the areas of their testimony supported the essential elements of the application.
THEREFORE, upon a call of the roll at the June 26, 2000 meeting, the conditional use application of American Aggregates Corporation and Martin Marietta Materials was granted by a vote of 3-2, and the decision journalized by the Order Granting Conditional Use; Findings of Facts and Conclusions of Law.
SPRING VALLEY TOWNSHIP
ZONING BOARD OF APPEALS
Rhett Rhorer, BZA Chair No
David Wisecup, Member Yes
Harold Simison, Member No
Dale Henkener, Member Yes
Roger Beam, Member Yes
AMERICAN AGGREGATES CONDITIONAL USE PERMIT
(Final Approved Conditions)
June 26, 2000
The Board of Zoning Appeals of Spring Valley Township, having found that Sections 523 and 1002.2 of the Spring Valley Township Zoning Resolution (SVTZR) have been met, this Conditional Use Permit is then granted for 200+ acres of property owned by American Aggregates Corporation, a wholly owned subsidiary of Martin Marietta Materials, Inc. (a.k.a. Martin Marietta Aggregates) zoned A-10 Agricultural District which property is located in Spring Valley Township, Greene County, Ohio, Sections 18 and 24 Town 4 range 5 and recorded in Greene County Recorder Book No. 1210, 1360 pages 488, 713 consisting of Parcel Numbers K2800010006000500; 600; 700; 900; 1000; 1100; 1200; 1300; 1400; 1500; 1600; 1700; 1800, upon the following terms and conditions:
- This Conditional Use applies to the extraction and processing of minerals including top soil, overburden sand and gravel. (Section 523.1(f) SVTZR). This Conditional Use does not address or permit asphalt or ready-mix concrete batch plants.
- This permit shall become operational only upon the applicant securing from the Ohio Department of Natural Resources a permit for such activities. (Section 523.2 SVTZR).
- The processing plant shall be located behind site and sound berms as shown in the application. The processing plant shall utilize the "best available" technology as of the time of installation. All petroleum storage shall be in above ground storage tanks with secondary containment as described in the application. A Spill Prevention Plan (S.P.C.C.) shall be implemented for the site and employees shall be trained in its usage as stated in the application. The entrance roadway from Cook Road into the site shall be paved for approximately 1,800 feet. Dust suppression on internal roadways shall be by water or other approved methods as approved by the Ohio Environmental Protection Agency (OEPA). (Sections 523.3 and 523.4 SVTZR). The applicant shall employ a wheel wash for trucks leaving the site to minimize dust in accordance with Exhibit 41, and engineering drawing of the wheel wash itself. Sound and visual screening shall be by vegetated barrier berms and plantings as shown in the application. Noise will be controlled pursuant to a Noise Control Plan as submitted to the Board and made a part of this application.
- Mineral extraction shall not be conducted within 500 feet of any existing residential district. (Section 523.5 SVTZR).
- Temporary operational roads shall not be closer than 200 feet from any residential district or existing dwelling. (Section 523.6 SVTZR).
- Buildings and structures designed and constructed for mineral extraction, storage or processing for which no future use is contemplated and no other use is practical or feasible shall be demolished, dismantled and/or removed within six (6) months of the expiration of the Conditional Use Permit. (Section 523.7 SVTZR).
- No blasting shall occur on site. (Section 523.8 SVTZR).
- All sand and gravel excavations shall be located at least 100 feet and backfilled to at least 150 feet from the right-of-way of streets. No mining shall occur within the setbacks though the setbacks can be used for creation of mounding and planting of screened vegetation and fencing. (Section 523.9 SVTZR).
- The sand and gravel excavations shall be made to a minimum depth of five (5) feet below the water producing level. Backfilled surfaces shall be graded to three (3) feet horizontal to one (1) foot vertical slope to a depth of six (6) feet below the final water line of the water impoundment. (Section 523.10 SVTZR).
- All excavations which are not backfilled shall be sloped at a grade of not less than three (3) to one (1), a minimum of six (6) feet below water line. Spoil banks shall be graded and planted with trees, shrubs, legumes or grasses where revegetation is possible. (Section 523.11 SVTZR).
- An earthen berm shall be constructed around the property varying in height from ten (10) feet to twenty (20) feet as shown on Drawing 3 or as approved by the Ohio Department of Natural Resources (ODNR) or governmental agency having control over flood plain issues. The purpose of the berm is to restrict access and prevent trespassing on the property as well as to block visibility of the site and to act as a sound barrier. The applicant shall use a low profile plant or lower the production plant site by five (5) to ten (10) feet or a minimum of one (1) to three (3) feet above the water table, whichever is applicable to minimize plant visibility. The berm shall be located not less than twenty-five (25) feet from road rights-of-way or property boundaries. Gaps in the berms as well as the mine entrance shall be gated to control public ingress and egress from the property. The berms may be staggered if required by ODNR or a governmental agency having control over flood plain issues. A four (4) foot farm fence with posts will be placed around the perimeter of the property. (Section 523.12 SVTZR).
- Upon completion of the mining, excavated areas shall be left as a permanent water impoundment (lake) and shall be left in a condition so as to prevent collection of stagnation of water and to provide proper drainage without excessive soil erosion. Surface areas not affected by mining shall be utilized in accordance with the SVTZR and the established end use which shall be in accordance with the then existing zoning criteria. (Section 523.13 SVTZR).
- A performance bond shall be submitted to the Clerk of Spring Valley Township in the amount of $822,000 based on the cost estimate to meet the cost of the reclamation requirements as shown by the cost estimate submitted with the application and as certified by the professional engineer. The performance bond shall guarantee the applicant shall restore, reclaim and rehabilitate the property in accordance with the application. The applicant shall provide Spring Valley Township a maintenance bond of $25,000 to insure maintenance of the property between the time of the cessation of the operation and prior to the sale or determination of the end use. (Section 523.14 SVTZR).
- Unless otherwise modified to meet the requirements of the ODNR, the reclamation shall be in substantial compliance with the reclamation plan as shown in Drawing 4 submitted with the application. The areas affected and graded for reseeding shall be resoiled to a depth of six (6) to eighteen (18) inches. Grading shall be to a maximum of three (3) to one (1) slope. No rock banks shall be utilized unless required by the Ohio Department of Natural Resources (ODNR) as a wildlife shelter. Rip rap may be used to stabilize berms where necessary. (Section 523.15 SVTZR).
- Reclaimed slopes shall be a minimum of three (3) to one (1) as shown on the application, therefore, fences or barrier plantings shall not be required. (Section 523.15(e) SVTZR).
- The type and number of trees or shrubs on site shall be as required by the Board in consultation with the County Extension Agent. (Section 523.15(f) SVTZR).
- The ultimate end land use and physical improvements shall be in compliance with the then existing applicable zoning district regulations as determined in consultation with the Regional Planning and Coordinating Commission, County Engineer and Sanitary Engineer and Planning Commission. (Section 523.15(g) SVTZR).
- The areas of land affected that are not submerged under water shall be resoiled and reseeded with a mixture of grasses, legumes and nurse crops. Trees and shrubs shall be planted in locations as requested by the Greene County extension agent with BZA approval.
- Grading on site shall be in accordance with the reclamation plan as approved by the Ohio Department of Natural Resources (ODNR). (Section 523.15(f) SVTZR).
- The applicant shall maintain a 250 foot buffer area along the Little Miami River. The buffer area may be used for screening, berms and farm fence but no mining shall occur within the 250 foot set back area. No additional set backs from the 250 foot set back are required.
- The applicant shall meet all of the requirements of the Ohio Department of Natural Resources (ODNR), the Ohio EPA (including NPDS permits if necessary), the United States Army Corps of Engineers, the County Building Inspector, and the Ohio Department of Transportation and shall obtain all necessary permits from those organizations as conditions the this Conditional Use. To the extent ODNR, OEPA or the United States Army Corps of Engineers requires more stringent regulations or requires different elements of the reclamation plan, flood plain, berms or plant location, such rules and regulations shall apply and control this permit.
- Hours of operation shall be from daylight until sundown, six (6) days per week, Monday through Saturday.
- The applicant shall improve Cook Road from its entranceway to the site to the intersection of Cook Road and Centerville Road by expanding the Cook Road roadway width, installing a concrete apron on Cook Road at the intersection of Centerville Road and adding additional courses of asphalt from the applicant’s entrance road to the intersection as approved by the county engineer.
- Dewatering for mining shall not be conducted.
- American Aggregates shall establish water level monitoring wells on American Aggregates’ property between its operation and its neighbors to the south and west.
- The applicant shall establish and administer a water well protection program for residents as set out in Exhibit 16, attached hereto, and made a part hereof. To be considered for the program, residents in the determined area affected must allow American Aggregates to do a pre-operation water survey. If a claim of dewatering is made, American Aggregates shall investigate the claim at no cost to the owner. If the well loss is confirmed and determined to be caused by American Aggregates, the company shall replace the owner’s well at American’s cost as detailed by Exhibit 16.
- American Aggregates shall utilize "down lighting" on the site as described in the lighting plan submitted to the Board.
- The applicant shall comply with all federal, state, and local laws in the operation of the site.
- The applicant recognizes that once the reclamation plan and other approvals are obtained from ODNR and the Ohio Department of Transportation, a site plan, in accordance with the zoning text, shall be filed with the zoning inspector.
- The applicant shall remove any excess sand and gravel from the roadways at the intersection of Centerville and Cook Road and Centerville and Route 42 on a daily basis. If necessary, the applicant shall obtain the permission of Ohio Department of Transportation or the County Engineer for such removal.
- The applicant shall operate and maintain the site in accordance with its application as modified through the Conditional Use process.
END OF FINAL APPROVED CONDITIONS
WATER WELL PROTECTION PROGRAM
PROPOSED COOK ROAD SAND AND GRAVEL
SPRING VALLEY, GREENE COUNTY OHIO
Martin Marietta Materials, Inc. (MMM) has developed a ground-water monitoring program to insure that all water supplies for residences in the vicinity of the proposed Cook Road sand and gravel operation are protected and that any complaints regarding the quality and reliability of their water source are promptly addressed. If MMM is determined to be the cause of well failure and/or have an adverse impact on the water quality of any well in the vicinity of the proposed operation, a mitigation plan will be implemented by MMM at no cost to the homeowner.
The proposed water well protection program consists of three principal components: 1) A comprehensive ground water monitoring program at the operation, 2) Pre-mining home owner well survey for any residence located within 2000 ft. of the proposed extent of mining, 3) Well complaint mitigation and resolution procedures. This plan is a comprehensive approach to insure that any and all adverse impacts on domestic wells will be addressed and resolved.
Groundwater Monitoring Program
MMM will install six ground-water monitoring wells up to a depth of 70 ft. The location of these wells will be finalized during the Ohio DNR mine permit application process. In general, the monitoring wells will be located on MMM property between the extent of mining and the property line. A total of six wells will be installed: four, located along the western and southern boundary of the proposed operation. Two wells will be located along the eastern property boundary down gradient of the plant processing area and the dredge lake, along the western side of Cook Road. A seventh well, the existing domestic well near the farmhouse and existing buildings, may be utilized as an additional monitoring point after well inspection indicates that it has the proper construction to provide reliable monitoring results.
Monitoring Well Construction
The monitoring wells will be constructed using the guidelines and protocols established by Ohio EPA for monitoring well design and construction. Each of the six monitoring wells will be constructed using a hollow-stem auger drilling method. Using four-inch diameter PVC casing and screen, a fifteen-foot screen with a riser pipe will be installed to a depth of 70 feet below ground surface. The screened interval will be backed filled with fine sand to hold back the gravel formation and the casing riser pipe will be grouted in place. The well will be developed using an airlift method of well development to stabilize the sand pack and insure the well produces clear water. A concrete pad will be placed around the wellhead to eliminate surface water infiltration. Each well will be fitted with an outside protective casing and locking gap.
Well Sampling and Monitoring Program
MMM will monitor water level fluctuations in the six wells using automatic water-level instrumentation devices. Pressure transducers and data loggers will be installed in each well and setup to record the water elevation every four hours yielding a total of six measurements per day. This type of monitoring system will provide a nearly continuous record of the water elevation fluctuations within each well. MMM will take annually a groundwater sample from each of the six monitoring wells and submit the samples for analytical testing, to an Ohio EPA certified laboratory, for the following constituents: pH, Total Coliform Bacteria, Alkalinity, Chloride, Sulfate, Nitrate, Phosphorus, Potassium, Sodium, Magnesium, Calcium, Iron, and Manganese. The samples will also be tested for Petroleum-Type compounds using both USEPA Method 8270 for Base Neutral Organic compounds and USEPA Method 602 for Gasoline (BTEX with additives). The dredge lake will be sampled quarterly for Total Coliform Bacteria.
Data Reporting and Documentation
MMM will develop a sampling and analysis plan, which will follow the protocols outlined in the OEPA Groundwater Monitoring guidance documents. This sampling and analysis plan will specify the procedures for sampling the groundwater monitoring wells, decontamination of sampling equipment, and the analytical methodologies and protocols. All monitoring data will be compiled in electronic form to facilitate data storage, analysis, reporting, and retrieval. The groundwater level data will be compiled on a quarterly basis and be readily available for inspection by the public at the office of the proposed Cook Road Sand and Gravel operation.
Annual monitoring reports will be compiled which summarize water level and analytical laboratory data for the site for the year. The annual monitoring report will address water level fluctuations for each specific monitoring well, the overall effect of the sand and gravel operation on the water-table, if any, and will summarize the groundwater sample results. Copies of the annual monitoring reports will be maintained at the plant office and filed with the Greene Department of Health.
Pre-Operation Homeowner Well Survey
MMM will conduct, at no cost to the homeowner, a pre-operation survey of each domestic well located west of the Little Miami River and within 2000 feet of the proposed extent of mining. The survey will consist of taking a water level measurement, taking a water quality sample, and confirming the operational condition(s) of the pump and well casing. To be eligible for the Well Complaint Resolution Program, residents must live within 2000 feet to the proposed mining extent and must give permission to MMM to conduct the survey within 30 days of receiving a certified letter request. A form for scheduling the pre-mining survey will be included in this letter request. The survey test results will be mailed to all residents within the prescribed distance by certified mail with return receipt.
Well Complaint Resolution Program
MMM will develop and provide to the Spring Valley Township Zoning Inspector a written document, which specifies the procedures that MMM is committed to follow to resolve any domestic water well complaints. This document will provide a telephone and e-mail list of multiple contacts within the MMM-Mid America Division management organization for the residents and the township officials. In the event of a residential complaint of a diminished or lost water supply from a domestic well, MMM will respond within 48 hours to the homeowner and begin to evaluate the complaint by providing, at a minimum, a temporary source of bottled drinking water, taking both a water level in the well and a water sample submitting the sample for analysis for the same testing protocols as used for the on-site monitoring wells.
The criteria to determine if impact has occurred will be based upon a comparison of the established baseline data for ground water elevation and water quality as measured in the monitoring wells on the proposed MMM site against the homeowner specific well results of the pre-mining water well survey and those measurements and samples taken by MMM in the domestic well at the time of the complaint. The resolution of complaint will be dependent upon several criteria regarding the domestic water well: (1) the percentage of the total water column loss in the well, (water level decline in the well from baseline), (2) The concentration of water quality parameters has increased to above regulatory standards for drinking water, which will be addressed on a case-by-case basis, if the domestic well has not experienced any water level decline, and (3) Operational conditions of the well and the pump which will be addressed on a case-by-case basis if the domestic well has not experienced water level declines as specified above. The occurrence of pump failure dons not indicate causation by MMM unless the pump failure is due to the loss of water saturation within the subject well as specified in (1) above.
Replacement of Groundwater Supply
If the analysis and the evaluation of the well complaint leads to the determination that an adverse impact did occur and was caused by the proposed Cook Road operation, MMM will replace the domestic water supply at the subject residence by the following, but not limited to, methods at no cost to the homeowner: 1) make the necessary mechanical repairs to the well casing, well screen, or pump, to put the well into acceptable operating condition, 2) deepen the existing well or drill a replacement well at the residence, 3) provide another source of reliable water by drilling a community well or using a publicly available water supply for the residence.