A Warren County Common Pleas Court magistrate has reversed a Carlisle Planning Commission decision concerning the construction and operation of a gas station/convenience store. The Planning Commission was ordered to grant a conditional use permit that it denied as a result of a 3-3 tie vote. The magistrate said undersigned Magistrate to conclude that the decision of the Planning Commission is unsupported by the preponderance of substantial, reliable and probative evidence. He also said the decision was influenced by public opinion. FILE PHOTO

Long-debated Casey’s General Store near I-75 could move forward after court ruling

The Warren County Common Pleas Court magistrate reversed a split Carlisle Planning Commission decision that denied a permit needed for the development to move forward. He instructed the village’s planning commission to grant the application.

Carlisle’s law director said the decision was “legally correct” and doesn’t believe the municipality would be successful if it chose to file an objection to the decision.

Property owners Charles and Kim Harris filed an administrative appeal on June 29 after the planning commission made its May 3 decision concerning a variance for the former Pizza Hotline site at 767 Central Ave. Casey’s General Store wanted to purchase the property to build a new 10-pump, $4.5 million gas station/convenience store.

Residents from the Concerned Carlisle Citizens group was vocal in their objections to the variance at public hearings before the planning commission and Carlisle Village Council meetings.

MORE: Property owners fight decision against new gas station at former pizza eatery

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.”

MORE: Carlisle rejects zoning request for new gas station

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.”

MORE: Carlisle residents cite traffic, safety as reasons against proposed gas station/convenience store

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.

MORE: Carlisle delays decision on controversial gas station

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.

MORE: A convenience store wants to replace a pizza place in Carlisle. Some residents are fighting it.

Residents from the Concerned Carlisle Citizens group did not return a request for comment.

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