Sunderland v. Liberty Twp. Bd. of Zoning Appeals
2021 Ohio 353
Ohio Ct. App.2021Background
- Thornwood, LLC built earthen/landscape mounds on property adjacent to Jay Sunderland’s residence.
- Liberty Township zoning inspector initially called the mounds “structures” requiring a permit, then concluded they were structures incident to agricultural use and exempt.
- Sunderland appealed the inspector’s determination to the Liberty Township Board of Zoning Appeals (BZA); the BZA upheld that the mounds were incident to agricultural use and thus outside zoning regulation.
- Sunderland appealed the BZA decision to the Delaware County Common Pleas Court. While that appeal was pending, Liberty Township amended its zoning resolution to expressly exclude earthen/landscape mounds from the definition of “structure.”
- The township moved to dismiss the common pleas appeal as moot; the trial court granted the motion and Sunderland appealed to the Fifth District Court of Appeals, which affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can the trial court consider the post‑BZA zoning amendment not in the administrative record? | Sunderland: Court erred by considering law outside the BZA record in violation of R.C. 2506.03. | Liberty Twp.: The enacted zoning resolution is public law the court may consult to decide mootness. | Court: Permissible to consider the current zoning resolution; not new evidentiary facts. |
| May Sunderland litigate the validity of the zoning amendment or add a declaratory‑judgment claim in the 2506 appeal? | Sunderland: Should be allowed to present evidence the amendment was invalid and to amend pleadings for declaratory relief. | Liberty Twp.: This is an administrative appeal under R.C. Ch. 2506, not a declaratory judgment action. | Court: R.C. Ch. 2506 appeal is not the proper vehicle for a facial challenge to adoption procedure; declaratory relief must be brought separately. |
| Did the amendment unlawfully impair Sunderland’s vested right to pursue the appeal (retroactivity)? | Sunderland: His right to prosecute the appeal vested when filed; the amendment cannot retroactively eliminate that right. | Liberty Twp.: The amendment does not create new burdens or liabilities; it prospectively removes regulatory authority and thus does not impair a vested right to the relief sought. | Court: No vested right to the substantive relief; amendment prospectively eliminates any meaningful remedy so retroactivity argument fails. |
| Was the appeal moot after the amendment? | Sunderland: Appeal should proceed on the merits; BZA decision was wrong. | Liberty Twp.: Amendment makes any successful ruling meaningless because township no longer may regulate such mounds. | Court: Appeal is moot because even if Sunderland prevailed, he cannot obtain effective relief. |
| Was Sunderland denied due process by dismissal without a hearing? | Sunderland: Dismissal occurred without notice/hearing. | Liberty Twp.: Sunderland had notice and filed extensive responses; court provided opportunity to be heard. | Court: No due‑process violation; Sunderland had notice and opportunity to respond. |
Key Cases Cited
- Yorkavitz v. Bd. of Tp. Trustees of Columbia Tp., 166 Ohio St. 349 (Ohio 1957) (township trustees’ zoning power and scope of resolutions)
- Karches v. Cincinnati, 38 Ohio St.3d 12 (Ohio 1988) (distinguishes administrative appeals under R.C. Ch. 2506 from declaratory‑judgment actions challenging an ordinance)
- Basista Holdings, LLC v. Ellsworth Twp., 107 N.E.3d 609 (Ohio Ct. App. 2017) (administrative appeal vs. facial challenge to ordinance adoption)
- Hamilton v. Fairfield Twp., 112 Ohio App.3d 255 (Ohio Ct. App. 1996) (vesting of the right to pursue certain statutory appeals)
- Vogel v. Wells, 57 Ohio St.3d 91 (Ohio 1991) (retroactivity and protection of vested rights)