RUSSELL PENNELL, et al., Plaintiffs-Appellants -vs- BROWN TOWNSHIP, DELAWARE COUNTY, OHIO, et al., Defendants-Appellees
Case No. 15 CAH 09 0074
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 21, 2016
2016-Ohio-2652
Hon. Sheila G. Farmer, P.J.; Hon. William B. Hoffman, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas, Case No. 15 CVH 06 0392; JUDGMENT: Affirmed
For Plaintiffs-Appellants
DAVID A. ISON
10 Village Pointe Drive
Post Office Box 1108
Powell, Ohio 43065-1108
For Defendants-Appellees
CAROL HAMILTON O’BRIEN
DELAWARE COUNTY PROSECUTOR
MARK W. FOWLER
ASSISTANT PROSECUTING ATTORNEY
140 North Sandusky Street, 3rd Floor
Delaware, Ohio 43015
{¶1} Plaintiffs-Appellants Russell Pennell and Heather Pennell appeal the August 25, 2015, decision of the Court of Common Pleas, Delaware County, which granted the
STATEMENT OF THE FACTS AND CASE
{¶2} In August, 2014, Appellants Russell and Heather Pennell acquired and became the owners of real property known as 4690 Cackler Road, Delaware, Ohio 43015, Parcel No. 518-100-01-067-000, in Brown Township, Delaware County, Ohio. Pennell’s property consists of a residence, barn, structures, pond and other improvements on 5.17 acres of land, more or less.
{¶3} Prior to purchasing the Cackler Road property, Appellants cultivated and marketed nursery stock and continued to do so after moving onto the property.
{¶4} Appellants were cited by the Brown Township Zoning Inspector for violating the Township’s Zoning Resolution for operating an unpermitted and prohibited landscaping business on their residential property. In response, Appellants filed for a conditional use permit seeking to continue their business operations on the property.
{¶5} On June 10, 2015, the Brown Township Board of Zoning Appeals (“BZA“) conducted an administrative hearing on the application and, after private deliberation, voted in public to deny the application.
{¶6} Appellants did not file an administrative appeal to the court of common pleas, but instead filed an original action seeking an order prohibiting the Township from enforcing its Zoning Resolution and for monetary damages.
{¶8} On July 17, 2015, Appellees filed a Motion to Dismiss pursuant to
{¶9} On July 31, 2015, Appellants filed a Memorandum Contra.
{¶10} On August 7, 2015, Appellees filed a Reply to Appellants’ Memorandum Contra.
{¶11} By Judgment entry filed August 25, 2015, the trial court granted Appellees’ motion to dismiss
{¶12} Appellants now appeal, assigning the following errors for review:
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION.
{¶14} “II. THE TRIAL COURT ERRED WHEN IT CONSIDERED MATERIAL NOT SUPPORTED BY AFFIDAVIT OR OTHER EVIDENCE.
{¶15} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO CONSTRUE FACTS UNOPPOSED BY CONTRARY AFFIDAVIT OR OTHER EVIDENCE FOR THE NON-MOVING PARTY.”
{¶16} In their First Assignment of Error, Appellants argue that the trial court erred in dismissing their Complaint for lack of subject matter jurisdiction. We disagree.
{¶17} In the case sub judice, the trial court granted Appellees’ motion to dismiss pursuant to
{¶18} When a party files a
{¶19} This court reviews the trial court‘s decision de novo. Revocable Living Trust of Mandel v. Lake Erie Util. Co., 8th Dist. Cuyahoga No. 97859, 2012–Ohio–5718, ¶ 17, citing Mellion v. Akron City School Dist. Bd. of Edn., 9th Dist. Summit No. 23227, 2007–Ohio–242, ¶ 6, citing Crestmont Cleveland Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th Dist.2000). That means this Court engages in an independent review without deference to the trial court‘s decision. Id.
Subject Matter Jurisdiction
{¶20} ” ‘Subject-matter jurisdiction of a court connotes the power to hear and decide a case upon its merits’ and ‘defines the competency of a court to render a valid judgment in a particular action.’ ” Cheap Escape Co. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008–Ohio–6323, 900 N.E.2d 601, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St.2d 86, 87, 290 N.E.2d 841 (1972). Because a court without subject-matter jurisdiction lacks the power to adjudicate the merits of a case, parties may challenge jurisdiction at any time during the proceedings. Pratts v. Hurley, 102 Ohio St.3d 81, 2004–Ohio–1980, 806 N.E.2d 992, ¶ 11. Whether a trial court possessed subject-matter jurisdiction is a question of law which we consider de novo. John Roberts Mgt. Co. v. Obetz, 188 Ohio App.3d 362, 2010–Ohio–3382, 935 N.E.2d 493, ¶ 8 (10th Dist.).
{¶21}
{¶22} Here, it is undisputed that the Brown Township BZA is an administrative body. “Those who seek relief from a board of zoning appeals’ decision must, pursuant to
{¶23}
Except as otherwise provided in
sections 2506.05 to2506.08 of the Revised Code , and except as modified by this section andsections 2506.02 to2506.04 of the Revised Code , every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located as provided inChapter 2505. of the Revised Code .
{¶25} A common pleas court does not acquire subject-matter jurisdiction over the appeal unless and until the appeal is perfected. AT & T Communications of Ohio, Inc. v. Lynch, 132 Ohio St.3d 92, 2012–Ohio–1975, 969 N.E.2d 1166. When a statute confers the right to appeal, an appeal can be perfected only in the manner prescribed by the applicable statute. Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471, 2011–Ohio–1604, 946 N.E.2d 215, ¶ 14. Where a party appeals pursuant to
{¶26}
{¶27} In the case sub judice, the Brown Township Zoning Inspector issued written notice of the BZA’s decision to Appellants in a letter dated June 11, 2015. Subsequently,
{¶28} Appellants herein argue that June 10, 2015, BZA hearing was a public meeting and not a quasi-judicial administrative hearing. Appellants further argue that the BZA held an unlawful executive session in violation of the Open Meeting Act.
{¶29} In order for an administrative act to be appealable under
{¶30} In the case of Englewood v. Daily (1965), 158 Colo. 356, 361, 407 P.2d 325, 327, it was said that in deciding whether an act by an administrative agency is quasi judicial the ‘* * * most common test is to determine whether the function under consideration involves the exercise of discretion and requires notice and hearing,’ all elements being required to constitute a quasi-judicial act.
{¶31} In Zangerle v. Evatt, supra, 139 Ohio St. 563, at page 571, 41 N.E.2d at page 373, Turner, J., stated that:
{¶32} ‘* * * the various states, including Ohio, in establishing regulatory commissions, provided that the investigations by state boards and commissions should be in the nature of legal proceedings, including notice, hearing and opportunity to
{¶33} Judge Williams, in a concurring opinion in Zangerle, noted that the term, quasi-judicial, ‘* * * signifies, that the administrative boards, from which an appeal may be taken act similarly to a court, to wit, witnesses are examined, a hearing is had and a finding or decision made all in accordance with statutory authority.’
{¶34} Upon review, we find that the BZA hearing in this matter was a quasi-judicial hearing and not an open meeting. Here, the BZA scheduled and sent notice of a hearing to Appellants and nearby property owners to consider Appellants’ application for a conditional use. At the hearing, members of the public presented testimony in support or in opposition to the conditional use. After hearing the testimony and reviewing the evidence presented, the Board deliberated and then presented their decision denying same.
{¶35} Based on the foregoing, we find that the hearing was quasi-judicial and not an open meeting, as argued by Appellants.
{¶36} With respect to the zoning board‘s recess into executive session to discuss the conditional-use application, we find no Open Meeting Act violation. The action of a board of zoning appeals in reviewing an application for conditional use is a quasi-judicial function. Goff–Knight v. Bd. of Zoning Appeals of Liberty Twp., 5th Dist. No. 03CAH08042, 2004 WL 3465744 (June 14, 2004). The Sunshine Laws do not apply to deliberations on such applications. Id. Accordingly, Appellants’ complaints about the procedural aspects of the zoning board are without merit. In re Application for Additional Use of Property v. Allen Twp. Zoning Bd. of Appeals, 6th Dist. Ottawa No. OT-12-008, 2013-Ohio-722, ¶ 15
{¶37} Based on the foregoing, we find Appellants’ First Assignment of Error not well-taken. Appellant’s First Assignment of Error is overruled.
II., III.
{¶38} Appellant’s Second and Third Assignments of Error argue that the trial court erred in its consideration or lack of consideration of affidavits and other evidence in making its decision. We disagree.
{¶39} Based on our disposition of Assignment of Error I finding that the trial court lacked jurisdiction in this matter, we find Appellants Assignments of Error II and III moot.
{¶40} For the forgoing reasons, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed.
By: Wise, J.,
Farmer, P.J., and
Hoffman, J., concur.
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