The Liberty Township Board of Zoning Appeals (BZA) unanimously voted Wednesday affirming the zoning inspector’s decision to allow the construction of an earthen mound exceeding 18-inches in height without the submission of a permit.
In May 2018, Ms. Tracy Mullenhour, zoning inspector, determined that the large earthen landscaping mound constructed on a property located off of Taggart Road, behind the Olentangy Falls subdivision on Hyatts Road, was a structure “incident to the use of land for agricultural purposes.”
According to township zoning officials, the property is zoned for agricultural use and is being farmed.
Mullenhour promptly notified the owner, Thornwood Taggart Road, LLC of her decision and requested that a Claim of Agricultural Exemption be submitted in which was in June 2018.
Jay Sunderland, an adjoining property owner, filed an appeal with the BZA shortly afterward contesting Mullenhour’s ruling stating the mound did not comply with Liberty Township’s Zoning Resolution, Article 4, that states earthen mounds “exceeding 18 inches in height constitute structures.”
However, in July of 2018, trustees amending Zoning Resolution, Article 4 by removing the language of “exceeding 18 inches in height constitute structures.”
On June 25, 2019, the BZA conducted an evidentiary hearing on Sunderland’s appeal.
According to the BZA decision, “The sole issue on appeal is whether the earthen mounds constitute structures are incidental to agricultural use within the meaning of R.C. 5 1 9.21 such as to deprive the Township from regulating the structures.”
According to testimony given by Martin Savko, an adjacent property owner, the mound was created, with permission from Thornwood, to preserve the farmland and to keep water from streaming across his property during heavy rains.
“During heavy rains water would run onto my property due to how the farm field was contoured,” Savko stated in the BZA hearing. “While performing the work I needed an area to lose some of the dirt I was excavating so I decided to build a landscape mound.”
Savko served as the contractor for the Olentangy Falls East project in which some of the dirt came from.
In other testimony from the farmer farming the land, William Rodgers said he had farmed the land for three years, in which there had been challenges with “soil erosion.”
“In my opinion using a mound as a barrier and redirecting water would greatly influence/help prevent surface water runoff from the adjacent subdivision,” he stated. “The adjacent subdivision water runoff is contributing greatly to soil erosion.”
Given the fact the property the mound was constructed on is zoned farmland and the testimony given in the hearing, the BZA decided the property and mound was in accordance with Ohio Revised Code 519.21.
The code states, “… the revised code confer no power on any township zoning commission, board of township trustees, or board of zoning appeals to prohibit the use of any land … incident to the use for agricultural purposes …”
The BZA ruled that the mound was incident to the agricultural use of the property, denied Sunderland’s appeal, and affirmed Mullenhour’s decision.
“I don’t own the property, it’s our son’s property,” said Marty Savko, Martin Savko’s father. “I feel that as we go through life you always hope for a fair shake, I feel that justice was served. However, I just feel so bad, I really mean it, I feel deeply, sincerely, bad for all these people that had to go through all of this for what I consider to be nonsense because the state, from my understanding, clearly says if it’s over 10-acres, it’s agriculture.”
Savko added, “Do I think it’s over with? I don’t know.”
Contact D. Anthony Botkin at 740-413-0902. Follow him on Twitter @dabotkin.