2018 Ohio 4238
Ohio Ct. App.2018Background
- Ohio Shore applied for a zoning certificate to build a Dollar General at 3147 N. East Catawba Rd.; the Zoning Inspector approved the application by letter on conditions.
- Smetzer appealed to the Catawba Island Township Board of Zoning Appeals, arguing the site plan violated the Zoning Resolution (placement of a fence, dumpster, and three parking spaces) and that the Zoning Inspector lacked authority to impose conditions.
- The Board of Zoning Appeals affirmed the Zoning Inspector: (1) fence and dumpster issues were moot/not within the approved scope; (2) the three parking spaces complied with the seven-foot boundary rule; and (3) the Zoning Resolution permits conditional zoning certificates.
- Smetzer appealed to the Ottawa County Court of Common Pleas, which affirmed the Board’s decision without extended analysis.
- Before this Court, Ohio Shore moved to dismiss the appeal as moot, submitting an affidavit that demolition and subsequent site work had commenced and costs incurred; Smetzer had not obtained a stay and did not contest the affidavit’s substance.
- The Sixth District concluded construction had begun, Smetzer failed to secure a stay, and thus the appeal was moot; the appeal was dismissed and costs were taxed to Smetzer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether three parking spaces violated Section 5(A)(1) (ingress/egress/spacing) | Smetzer: the three spaces did not provide adequate ingress/egress and violated the Zoning Resolution | Ohio Shore/Board: the spaces complied (located >7 feet from boundary) and were properly approved by the Inspector | Board and trial court found spaces compliant; Court dismissed appeal as moot and did not reach merits further |
| Whether fence and dumpster on the site plan were properly before the Board | Smetzer: fence and dumpster violated the Resolution and were part of the site plan approval | Ohio Shore/Board: fence and dumpster were outside the scope of the approved application and thus not approved by the Inspector | Board ruled these issues were not before it; Court did not decide merits due to mootness |
| Whether Zoning Inspector may issue zoning certificates subject to conditions | Smetzer: Inspector lacked authority to impose conditions on certificate | Ohio Shore/Board: Zoning Resolution permits conditional issuance of zoning certificates | Board, and trial court, found the Resolution permits conditional certificates; Court dismissed appeal as moot without further analysis |
| Whether the appeal is moot due to commencement of construction | N/A (procedural) Smetzer: construction commenced in violation of the approval and a stop-work order was issued, arguing the appeal should not be dismissed | Ohio Shore: demolition and substantial site work occurred; no stay was obtained; construction resumed after stop-work lift, rendering the appeal moot | Court held the appeal was moot because construction had commenced, no stay was obtained, and relief could not be granted; appeal dismissed |
Key Cases Cited
- Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21 (Ohio 1910) (courts will not decide moot controversies; dismissal appropriate when an outside event makes relief impossible)
- Tschantz v. Ferguson, 57 Ohio St.3d 131, 566 N.E.2d 655 (Ohio 1991) (definition and treatment of mootness; courts exercise restraint and dismiss when an event renders relief impossible)