Pennell v. Brown Twp. , 2016 Ohio 2652 ( 2016 )

[Cite as Pennell v. Brown Twp., 2016-Ohio-2652.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
RUSSELL PENNELL, et al. : Hon. Sheila G. Farmer, P.J.
: Hon. William B. Hoffman, J.
Plaintiffs-Appellants : Hon. John W. Wise, J.
:
-vs- :
: Case No. 15 CAH 09 0074
BROWN TOWNSHIP, DELAWARE :
COUNTY, OHIO, et al. :
: OPINION
Defendants-Appellees
CHARACTER OF PROCEEDING: Civil appeal from the Court of Common
Pleas, Case No. 15 CVH 06 0392
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 21, 2016
APPEARANCES:
For Plaintiffs-Appellants For Defendants-Appellees
DAVID A. ISON CAROL HAMILTON O’BRIEN
10 Village Pointe Drive DELAWARE COUNTY PROSECUTOR
Post Office Box 1108 MARK W. FOWLER
Powell, Ohio 43065-1108 ASSISTANT PROSECUTING ATTORNEY
140 North Sandusky Street, 3rd Floor
Delaware, Ohio 43015
[Cite as Pennell v. Brown Twp., 2016-Ohio-2652.]
Wise, J.,
{¶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 Civ.R. 12(B) Motion to Dismiss filed by Defendants-Appellees Brown
Township, Brown Township BZA, and Zoning Inspector Susan Kuba.
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.
Delaware County, Case No. 15 CAH 09 0074 3
{¶7} In their Complaint, Appellants alleged: 1) they are the subjects of targeted
enforcement by the Township and Inspector; 2) procedural errors occurred at the BZA
hearing on the application; 3) the BZA improperly deliberated in executive session at
the hearing and the executive session was not held for one of the authorized purposes
contained in R.C. § 121.22(0)(1)-(8); and, 4) the Inspector and BZA "acted in an arbitrary,
capricious, and unreasonable manner ... applying the zoning resolutions, conducting the
Hearing, and deciding the Formal Action."
{¶8} On July 17, 2015, Appellees filed a Motion to Dismiss pursuant to Civ.R.
12(B)(1) and (6).
{¶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.”
Delaware County, Case No. 15 CAH 09 0074 4
I.
{¶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 Civ.R. 12(B)(1), finding that it did not have jurisdiction to hear Appellants’
Complaint for Declaratory Relief.
{¶18} When a party files a Civ.R. 12(B)(1) motion to dismiss, the trial court must
decide “whether the complaint contains allegations of a cause of action that the trial court
has authority to decide.” Bank of Am. v. Macho, 8th Dist. Cuyahoga No. 96124, 2011–
Ohio–5495, ¶ 7. Unlike a motion to dismiss premised on Civ.R. 12(B)(6), the trial court
is not confined to the allegations of the complaint, but may consider any “ ‘material
pertinent to such inquiry.’ ” Id., quoting Southgate Dev. Corp. v. Columbia Gas Transm.
Corp., 48 Ohio St. 2d 211, 358 N.E.2d 526 (1976).
{¶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
Delaware County, Case No. 15 CAH 09 0074 5
493, 900 N.E.2d 601, 2008–Ohio–6323, ¶ 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, 806 N.E.2d 992, 2004–
Ohio–1980, ¶ 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, 935 N.E.2d 493, 2010–Ohio–3382, ¶ 8 (10th Dist.).
{¶21} Article IV, Section 4(B) of the Ohio Constitution provides, “The courts of
common pleas * * * shall have * * * such powers of review of proceedings of
administrative officers and agencies as may be provided by law.”
{¶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
R.C. 2506.01, appeal to a court of common pleas.” Kasper v. Coury, 51 Ohio St. 3d 185,
186, 555 N.E.2d 310, 311 (1990)
{¶23} R.C. §2506.01(A) states:
Except as otherwise provided in sections 2506.05 to 2506.08 of the
Revised Code, and except as modified by this section and sections 2506.02
to 2506.04 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 in Chapter 2505. of the Revised
Code.
Delaware County, Case No. 15 CAH 09 0074 6
{¶24} As used in R.C. §2506.01(A), “final order, adjudication, or decision” means
“an order, adjudication, or decision that determines rights, duties, privileges, benefits, or
legal relationships of a person.” R.C. §2506.01(C).
{¶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, 969 N.E.2d 1166, 2012–Ohio–1975. 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, 946 N.E.2d 215, 2011–Ohio–1604, ¶ 14. Where a party appeals
pursuant to R.C. §2506.01, R.C. §2505.04 and §2505.07 govern the manner in which
the party must perfect the appeal. According to R.C. §2505.04, administrative appeals
are “perfected when a written notice of appeal is filed * * * with the administrative officer,
agency, board, department, tribunal, commission, or other instrumentality involved.”
{¶26} R.C. §2505.07 prescribes the time period for perfecting an appeal and
provides, “After the entry of a final order of an administrative officer, agency, board,
department, tribunal, commission, or other instrumentality, the period of time within
which the appeal shall be perfected, unless otherwise provided by law, is thirty days.”
Failure to file a written notice of appeal with the instrumentality involved within 30 days
of the entry of a final order deprives a common pleas court of subject-matter jurisdiction
over the appeal.
{¶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,
Delaware County, Case No. 15 CAH 09 0074 7
on June 16, 2015, the Brown Township Zoning Inspector sent a corrected notice1. Using
the latest date of June 16, 2015, Appellant had until July 16, 2015, to appeal the decision
of the BZA to the Court of Common Pleas pursuant to R.C. 2506.01.
{¶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 R.C. §2506.01
such act must be the product of quasi-judicial proceedings. It, therefore, becomes
necessary to ascertain whether the administrative action taken by the board here was
the result of quasi-judicial proceedings.
{¶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
1 The first notice included the wrong Ohio Revised section, stating that Appellants had the
right to appeal pursuant to R.C. 2501 instead of R.C. 2506. The second notice also cited
to the relevant Brown Township Zoning resolutions.
Delaware County, Case No. 15 CAH 09 0074 8
introduce testimony through witnesses. Thus these boards and commissions came to be
known as possessing quasi-judicial functions.’
{¶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
Delaware County, Case No. 15 CAH 09 0074 9
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.
JWW/d 0405