The Harris’ claimed “the decision is unconstitutional, illegal, arbitrary, capricious, unreasonable and/or is unsupported by a preponderance of substantial, reliable, and probative evidence.”
Magistrate Andrew Hasselbach agreed, writing, “To the extent the Planning Commission’s denial of the application was influenced by public opinion, as voiced by residents attending the public meetings, such commentary, in and of itself, is not evidence required in an adjudication hearing.”
Hasselbach concluded the decision was “unsupported by the preponderance of substantial, reliable and probative evidence.”
In his decision, Hasselbach said, “The Planning Commission held public hearings on the application March 1 and April 5, 2018, at which time residents voiced their concerns on a number of matters including hours of operation, noise, odors, potential contamination of well water, health risks, property values, and the effect the proposed use might have on other businesses. These public comments were matters of opinion. The residents presented no substantive evidence.”
Hasselbach also said the reasons of increased traffic, another gas station or a public health concern cited by those members voting against the request were not supported by evidence, or was not a proper consideration to deny the request, or was “not considered substantial, reliable and probative evidence.”
He said the planning commission “may not deny a conditional use permit merely because the conditional permitted use is no longer desired for the proposed location.”
The planning commission’s 3-3 tie vote resulted in denying the request, as variances require four votes for approval. At that time, there was one vacancy on the commission.
In a Friday response to Carlisle Village Manager Julie Duffy, Law Director David Chicarelli said he felt the magistrate’s decision “should stand as it is legally correct.”
The municipality has until May 13 to appeal the decision to the county Common Pleas Court. Either side can appeal to the 12th District Court of Appeals in Middletown.
Residents from the Concerned Carlisle Citizens group did not return a request for comment.