{¶ 1} Plaintiff-appellant, Abdalla Enterprises, appeals from the decision of the Butler County Court of Common Pleas affirming the decision of defendants-
{¶ 2} In September 2004, Samuel T. Abdalla, who, at that time, was the owner of appellant, purchased 3.131 acres of land located at 5281 Hamilton-Middletown Road, Liberty Township, Butler County, Ohio, for $125,000.
{¶ 3} On March 17, 2005, the Liberty Township Zoning Department issued zoning certificate No. Z05-0215 to Samuel Abdalla certifying that his property, which he intended to use as the site for a fireworks retail store named “Prism Fireworks, Etc.,” conformed to “the applicable provisions of the Liberty Township Zoning Resolution.” At that time, the Liberty Township zoning resolution classified a fireworks retail store as a “permitted use.” The zoning certificate, while not specifying an expiration date, required Samuel Abdalla to obtain a building permit “prior to commencing work on the proposed improvement.”
{¶ 4} On April 7, 2005, appellant received a letter from the Ohio Department of Commerce, Division of State Fire Marshal, granting it preliminary authorization for construction for a new fireworks wholesale facility for fireworks wholesale license number 55-10-0002. Final approval, however, was subject to a “geographic transfer” of the fireworks license.
{¶ 5} On November 14, 2006, over a year after the Butler County building department received a building-permit application, appellant was issued building permit No. 2005-1055 authorizing it to begin construction of the fireworks retail store on the property. Although appellant had surveyed the land, obtained several necessary permits, and created site plans in preparation for development, the building permit expired on November 14, 2007, before any construction on the property had begun. Appellant did not request an extension to its building permit.
{¶ 6} Throughout this time, Safety 4th Fireworks, Inc., d.b.a. Country Fireworks, Inc., another corporation apparently owned by Samuel Abdalla, who, it should be noted, had died in the interim, was engaged in a lengthy legal battle regarding the geographic transfer of three wholesale fireworks licenses, including fireworks license No. 55-10-002, which, at that time, was held by Quality Fireworks and Novelty. See Ohio Pyro Inc. v. Ohio Dept. of Commerce, Div. of State Fire Marshal, Fayette App. Nos. CA2005-03-009 and CA2005-03-011,
{¶ 7} On August 7, 2009, the Liberty Township Board of Trustees enacted revisions to the Liberty Township zoning resolution reclassifying a fireworks retail store from a “permitted use” to a “conditional use.”
{¶ 8} On September 9, 2009, the zoning inspector for the Liberty Township zoning department sent a letter to Keith Eckles of Marquee Construction, an apparent agent of appellant, informing him “that Zoning Certificate Application # Z05-0215 for the construction of a retail/commercial building for retail fireworks sale is no longer in compliance with the Liberty Township Zoning Resolution.” The letter further notified Eckles that if “the owner’s (sic) wish to continue with the project, a new permit must be obtained that meets the current regulations in the Liberty Township Zoning Resolution that took effect on August 7, 2009.” On October 9, 2009, appellant appealed this decision to the Liberty Township Board of Zoning Appeals.
{¶ 9} On January 12, 2010, after holding a hearing on the matter, and upon reviewing the evidence submitted, which included, among other things, a letter from Eric A. Abdalla on Safety 4th Fireworks letterhead claiming that they had spent in excess of $100,000 in to develop the property, the board denied appellant’s appeal. In so holding, the board found that appellant had “failed to establish a vested, nonconforming use of the property for fireworks retail store purposes, and must now comply with the conditional use standards contained in the current Zoning Resolution.”
{¶ 10} On February 11, 2010, appellant appealed the board’s decision to the Butler County Court of Common Pleas. After briefing by both parties, and upon holding a hearing on the matter, the common pleas court overruled appellant’s appeal and affirmed the decision of the board. In so holding, the common pleas court found that appellant “did not demonstrate a substantial nonconforming use for the property and failed to show that it had established a vested right.” The common pleas court also found that appellant failed to establish the board’s decision as “ ‘unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported’ as set forth by Oh. Rev.Code § 2506.04.”
{¶ 11} Appellant now appeals from the common pleas court’s decision affirming the board’s decision finding Samuel Abdalla’s zoning certificate invalid in light of the newly enacted revisions to the Liberty Township zoning resolution, raising two assignment of error for review.
{¶ 12} “The trial court erred by upholding the [board’s] decision because it failed to either analyze or apply the correct legal standard for zoning regulation interpretation.”
{¶ 13} In its first assignment of error, appellant argues that the common pleas court erred by affirming the board’s decision by “disregarding its] critical argument on the issue of vague and ambiguous zoning regulation interpretation.” We disagree
{¶ 14} Appeals of administrative-agency decisions are governed by R.C. Chapter 2506. Mansour v. W. Chester Twp. Bd. of Zoning Appeals, Butler App. No. CA2009-03-073,
{¶ 15} Applying these principles, the common pleas court was not required to address each argument raised on appeal. See Dyke v. Shaker Hts., Cuyahoga App. No. 83010,
Assignment of Error No. 2
{¶ 16} “The trial court abused its discretion by failing to find appellant expended significant time, effort and money thus vesting its right to construct and by failing to apply the doctrine of estoppel in equity to appellees’ refusal to recognize the validity of appellant’s unexpired zoning certificate.”
{¶ 18} Unlike a common pleas court, an appellate court’s review of an administrative appeal is “more limited in scope,” for it does not weigh the evidence or determine questions of fact. Henley v. Youngstown Bd. of Zoning Appeals (2000),
{¶ 19} Appellant initially argues that the doctrine of estoppel precluded the common pleas court from affirming the board’s decision because it was advised by a “representative of Liberty Township zoning office” that renewing its building permit was unnecessary since it had a valid zoning certificate. However, as the Ohio Supreme Court previously stated, “[The doctrine] of equitable estoppel * * * [is] inapplicable against a political subdivision when the political subdivision is engaged in a governmental function.” Hortman v. Miamisburg,
{¶ 20} Next, appellant argues that the common pleas court erred by failing to find that appellant had a vested right to build a fireworks retail store on the property. We disagree.
{¶ 22} The first limitation was pronounced by the Ohio Supreme Court in Smith v. Juillerat (1954),
{¶ 23} “The rule seems to be that where no substantial nonconforming use has been made of property, even though such use is contemplated, and money has been expended in preliminary work to that end, a property owner has acquired no vested right to such use and is deprived of none by the operation of a valid zoning ordinance denying the right to proceed with his intended use of the property.” Id. at 431.
{¶ 24} The court again limited what can be considered a vested right in Torok v. Jones (1983),
{¶ 25} In applying these principles, Ohio courts, including this court, have found it “[unnecessary] for a person to substantially complete a structure in order
{¶ 26} In this case, it is undisputed that appellant had yet to begin actual construction of the fireworks retail store before its building permit expired on November 14, 2007, or before the August 7, 2009 amendments to the Liberty Township zoning resolution took effect. In turn, appellant can establish its alleged vested right to build a fireworks retail store only by showing that it had changed its position, expended significant time, effort, or money, or incurred significant obligations. See id., citing Torok at paragraph two of the syllabus. To that end, appellant claims that it spent over $100,000 in “developing [the] property, protecting its state issued fireworks license, and other consultant fees,” as well as making “significant expenditures for protracted litigation.” The record, however, fails to support such claims.
{¶ 27} Here, although the record does indicate that there was significant protracted litigation regarding the geographic transfer of three fireworks licenses, appellant, while apparently in line to receive one of the fireworks licenses in dispute, was not a party to the litigation. Furthermore, while the record does contain a letter from Eric Abdalla claiming Safety 4th Fireworks spent in excess of $100,000 developing the property, the record is devoid of any evidence indicating what position, if any, Eric Abdalla holds with appellant, or of any evidence establishing the corporate structure connecting appellant to Safety 4th Fireworks.
{¶ 28} In Nextel Communications, this court found that a property owner had established a vested right to complete a telecommunications tower even though it had not begun actual construction of the tower. In so holding, this court found that the property owner presented evidence demonstrating that it had “engaged in extensive bidding and negotiations” in seeking a firm to construct the tower, in securing the lease to the property, in surveying and preparing the construction site at a cost of $53,223, and in obtaining the necessary permits. Id. at 13-14.
{¶ 29} In this case, however, and as noted above, the extraordinarily sparse record merely indicates that appellant procured preliminary authorization from the Ohio Department of Commerce for the construction, received a permit from the Ohio EPA to install a septic tank, surveyed the property and obtained site plans, and received a building permit after paying $2,986.46 to the Butler County Building Department. Nothing in the record convinces this court that such rudimentary actions establish a change in position, nor does this evidence demonstrate that appellant expended significant time, effort, or money, or incurred significant obligations allowing it to establish a vested right to building a fireworks retail store on the property. Moreover, while the record does refer to protracted litigation regarding the geographic transfer of three fireworks licenses, appellant was not a party to this litigation. Sitting as an idle observer to protracted litigation is insufficient to preserve one’s rights. Therefore, while our holding is issued with some trepidation, because the common pleas court’s decision affirming the board’s decision was supported by a preponderance of reliable, probative, and substantial evidence, we find no error in the lower court’s decision.
{¶ 30} Accordingly, appellant’s second assignment of error is overruled.
Judgment affirmed.
Notes
. Pursuant to Loc.R. 6(A) of the Twelfth District Court of Appeals, we sua sponte remove this case from the accelerated calendar and place it on the regular calendar for purposes of issuing this opinion.
. We note that although often applied interchangeably, the doctrine of estoppel and that of vested rights are separate and distinct legal concepts, for the "defense of estoppel is derived from equity, but the defense of vested rights reflects principles of common and constitutional law.” Heeter, Zoning Estoppel: Application of the Principles of Equitable Estoppel and Vested Rights to Zoning Disputes, 1971 Urban L.Ann. 63, 64-65; Hanes, On Vested Rights to Land Use and Development (1989), 46 Wash. & Lee L.Rev. 373, 379-380. Appellant's claims, therefore, will be addressed separately.
. Appellant also claims that it "was enjoined by a court and ordered not to transfer its fireworks license to Butler County.” (Emphasis sic.) According to the record before this court, it seems apparent that appellant is confusing itself with Safety 4th Fireworks and Liberty Fireworks, Inc., both of whom were subject to protracted litigation regarding the geographic transfer of their respective fireworks licenses. However, as noted above, appellant was not a party to this litigation.
. We note that our holding may have very well been different had the record contained evidence indicating that appellant and Safety 4th Fireworks were, in fact, the same party.