Appeals court hears arguments in Athens housing case

by Cari Armstrong and Stephanie Corbin
Staff writers

A Fourth District Court of Appeals ruling yesterday will keep an excavating company from continuing work at a Hope Drive site.

In common pleas court, Judge Alan Goldsberry ruled the excavating at a Hope Drive site was illegal because it was taking place in a residential zone, according to court records. The Athens Metropolitan Housing Authority originally filed the suit against city officials and J.B. Hayes Excavating and Pipeline, 758 W. Union St. The city then appealed the decision.

At that time, Goldsberry issued a permanent injunction barring Athens Code Enforcement from issuing similar permits to contractors who will excavate dirt for the purpose of off-site sales, according to court records. An injunction also covered surface mining in residential areas.

Steve Pierson, director of the Code Enforcement Office said the company had a surface mining permit from the state, allowing them to excavate.

Judge William Harsha asked John P. Lavelle, attorney for J. B. Hayes, if the guidelines of the permit included specific wording of the city code. Lavelle said the city's land ordinance does not cover any state surface mining permits, which J. B. Hayes Excavating received from the state.

Lavelle argued a decision issuing a permanent injunction should not be made from a summary judgement.

No items presented in common pleas court said this is an activity denied by the code, Lavelle said. Hayes did everything the city asked.

The city code is unclear, Lavelle said. The city's land ordinance does not cover any state surface mining permits.

Lavelle said his client went above code requirements by building an access road, putting up safety fencing and employing a flagger.

Hayes provided the fill dirt to Continental Properties, who is leasing property on East State Street where Wal-Mart is being built from Ohio University, Pierson said.

"The fact that (Hayes) is selling dirt off the site is a red herring," Lavelle said.

Pierson said his concern is where the property's developer will get fill dirt for phases two and three of the project if he cannot issue permits for it to come from city property.

No decision was handed down.