[Cite as Tramontana v. Vermilion Fish & Game, 2015-Ohio-3301.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                      ERIE COUNTY


Marc Tramontana, etc., et al.                           Court of Appeals No. E-14-127

        Appellants                                      Trial Court No. 2012-CV-0921

v.

Vermilion Fish and Game, et al.                         DECISION AND JUDGMENT

        Appellees                                       Decided: August 14, 2015

                                               *****

        Daniel J. Gibbons, for appellants.

        Kevin J. Zeiher and Allen C. Tittle, for appellee Vermilion Fish
        and Game Association.

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Jason R. Hinners, Assistant Prosecuting Attorney, Vermilion
        Township Board of Zoning Appeals.

                                               *****

        JENSEN, J.

        {¶ 1} Plaintiffs-appellants, Marc and Allison Tramontana, individually and on

behalf of their minor child, appeal the October 22, 2014 judgment of the Erie County
Court of Common Pleas which affirmed the decision of defendant-appellee, Vermilion

Township Board of Zoning Appeals (“BZA”) granting a conditional use permit (“CUP”)

to defendant-appellee, Vermilion Fish and Game (“VFG”).1 For the reasons that follow,

we find that the BZA’s decision was not a final appealable order.

                                         I. Background

                                        A. The Dispute

         {¶ 2} VFG is located at 13617 Thompson Road in Vermilion, Erie County, Ohio.

It was founded in 1939 as a facility dedicated to the conservation of fish and wildlife. In

the 1950s it established a 100-yard shooting range, which it expanded to 300 yards with

land it acquired in the early 1970s. That expansion apparently began in 1997 or 1998, but

was not completed until 2000 or 2001.2

         {¶ 3} The Tramontanas’ home, which they purchased in 1999, is located on Briar

Lane in Vermilion Township. It abuts VFG. The firing position on the 300-yard

shooting range is situated 300 feet from their home. In 2009, the Tramontanas, along

with neighbor Eupha Kostyo, brought suit against VFG and Vermilion Township in the

Erie County Court of Common Pleas. In that suit, captioned 2009-CV-0826, they sought

damages and injunctive relief for physical, emotional, and financial harm allegedly


1
  The notice of appeal filed in this court also lists Eupha Kostyo as an appellant, but
appellants’ briefs reference only the Tramontanas. Kostyo appears to have been a party
to the appeal in the trial court. We see no indication that she dismissed that appeal,
nevertheless, we refer only to the Tramontanas in this decision.
2
    The record is not entirely clear with respect to these dates.




2.
caused by VFG’s operation of the 300-yard shooting range. Specifically, they claimed

that the proximity of the shooting range to residential property posed danger to nearby

homeowners because of the absence of protections against stray or ricocheting bullets and

due to the intensity of the noise produced, and that environmental hazards to the land

were not being addressed by VFG. They alleged that they had suffered hearing loss,

headaches, anxiety, and that their property values had decreased. They argued that the

land on which the shooting range is situated was zoned for agricultural use and that the

300-yard shooting range was an expansion and relocation of a non-conforming use of the

property. They also contended that deed restrictions on the property required that it be

used as a fish and game association and prohibited commercial use of the property.

       {¶ 4} On July 20, 2012, the trial court granted partial summary judgment in favor

of the Tramontanas and Kostyo and agreed that VFG’s use and operation of the property

as a 300-yard shooting range was the expansion and relocation of a non-conforming use.

It ordered VFG to cease operating the 300-yard shooting range unless it obtained a

variance from the BZA.

       {¶ 5} VFG applied for a variance, as well as a CUP, on October 23, 2012. The

BZA set the matter for a hearing to take place on November 19, 2012. The Tramontanas

received notice of that hearing on November 6, 2012. On November 14, 2012, they

asked the BZA to continue the hearing because Mr. Tramontana and his attorney were

unavailable on the hearing date, they were awaiting responses to public records requests,

and they needed additional time to prepare. They also asked the BZA to recuse itself




3.
because of an alleged conflict of interest which existed as a result of the litigation

pending against it, and because some BZA board members or their families likely had

been members of VFG or had used the shooting range at some point.

       {¶ 6} All but one of BZA’s members declined to recuse themselves, and the BZA

denied the Tramontanas’ request for a continuance. As far as the records, the

Tramontanas had sought a copy of VFG’s entire CUP application and copies of all CUPs

issued and denied by the BZA since the zoning laws came into effect. The BZA provided

VFG’s CUP application, but it declined to produce copies of all CUPs issued or denied,

claiming that the request was overbroad.

       {¶ 7} The hearing went forward as scheduled. The Tramontanas and Kostyo were

present with counsel. Several witnesses testified at that hearing, including Mrs.

Tramontana, Kostyo, VFG’s president and secretary, and owners of neighboring

properties. The Tramontanas’ counsel presented argument and offered a number of

exhibits into evidence for the BZA’s consideration, including medical records from

several of the Tramontanas’ medical providers, appraisals, shooting logs, VFG’s

amended bylaws broadening provisions for who could become a member of the club, and

reports from acoustics experts documenting the level of noise and its potential effects.

       {¶ 8} On December 11, 2012, the BZA issued findings of fact and conclusions of

law. It denied VFG’s application for a variance, but it granted it a CUP with the

following conditions:




4.
              a. The 300 Yard shooting range should remain in existing location.

              b. No shooting on Sundays all year. From April 1st to

       September 30th, shooting from 12:00 noon to 6:00 p.m. From October 1st to

       March 30th, shooting from 11:00 a.m. to 5:00 p.m.

              c. VFG must present design plan and specifications for a sound

       barrier to BZA for review and approval. VFG shall not use the 300 yard

       range until the sound barrier has been constructed per approved plans and

       specifications.

                           B. The Trial Court Appeal

       {¶ 9} The Tramontanas and Kostyo appealed the BZA decision to the Erie County

Court of Common Pleas, arguing (1) the BZA erred in granting the CUP; (2) the BZA

erred in denying the motion for a continuance of the hearing; and (3) the BZA erred in

not recusing the entire board, or alternatively, certain board members. The trial court

affirmed the BZA decision.

       {¶ 10} As to the BZA’s decision to grant the CUP, the court examined the

provisions of Article 9.2 of Vermilion Township’s Zoning Resolution which sets forth

requirements for obtaining a CUP. Those provisions require that an applicant for a CUP

present adequate evidence that use at the proposed location:

              1. Is in fact a conditional use as established under the provisions of

       Article 9 and appears on the Schedule Of District Regulations adopted for

       the zoning district involved;




5.
            2. Will be in accordance with the general objectives or with any

     specific objective, of the County’s Comprehensive and/or Zoning

     Resolution;

            3. Will be designed, constructed, operated and maintained so as to

     be harmonious and appropriate in appearance with the existing or intended

     character of the general vicinity and that such use will not change the

     essential character of the same area;

            4. Will not be hazardous or disturbing to existing or future

     neighboring uses;

            5. Will be served adequately by essential public facilities and

     services such as highways, streets, police and fire protection, drainage

     structures, refuse disposal, water and sewer and school; or that persons or

     agencies responsible for the establishment of the proposed use shall be able

     to provide adequately any such services;

            6. Will not create excessive additional requirements at public cost

     for public facilities and services and will not be detrimental to the economic

     welfare of the community;

            7. Will not involve uses, activities, processes, materials, equipment

     and conditions of operation that will be detrimental to any person, property

     or the general welfare by reason of excessive production of traffic, noise,

     smoke, fumes, glare or odors;




6.
                8. Will have vehicular approaches to the property which shall be so

       designed as not to create an interference with traffic on surrounding public

       thoroughfares;

                9. Will not result in the destruction, loss, or damage of a natural,

       scenic, or historic feature of major importance.

       {¶ 11} The BZA determined that items 1, 2, 3, 5, 6, 8, and 9 had been satisfied,

and the court concluded that there was no compelling evidence requiring a different

conclusion. Like the BZA had, it focused its attention on items 4 and 7. The conditions

the BZA imposed in its order granting the CUP were aimed at satisfying those

requirements.

       {¶ 12} The trial court expressed that the issue was a close call. It recognized that

the Tramontanas had provided a number of exhibits showing alleged adverse health

effects and the diminution of property values resulting from VFG’s operation of the

shooting range, however, it remarked that it was difficult to distinguish the extent to

which the harm resulted from the operation of the shooting range generally (which use

was “grandfathered” and in conformity with the law) or from the expansion and

relocation of the non-conforming use to include the 300-yard range. The court also

observed that (1) the evidence submitted to the BZA had been generated for the

underlying tort suit; (2) the experts’ reports were conflicting; (3) the evidence was

presented via written reports only, thereby preventing the BZA from making credibility

determinations; and (4) some of the reports were inconclusive as to cause and effect. It




7.
concluded that the BZA was not required to accept the evidence advanced by the

Tramontanas “at face value” and were free to find that “these bald reports” were not

reliable, probative, or substantial. The court also took into account the measures the BZA

was requiring of VFG to reduce the noise levels.

      {¶ 13} As to the request to continue the hearing, the trial court recognized that

whether to grant a continuance was within BZA’s discretion. It observed that the

Tramontanas and their counsel were present at the hearing despite representing that they

were unavailable, they failed to show how they had been disadvantaged by the

incomplete public records request, and they identified no additional evidence that they

would have been able to present had they had more time to prepare. The court also

expressed skepticism as to the probative value of the unrelated CUP decisions that the

Tramontanas requested.

      {¶ 14} Finally, as to the Tramontanas’ request for recusal, the trial court found no

conflict of interest because it was Vermilion Township—not the BZA—that had been

sued; summary judgment had already been granted in favor of the township on the

Tramontanas’ request for money damages; the BZA was the required and proper body to

hear the case; and the Tramontanas failed to show any prejudice, bias, or impropriety.

      {¶ 15} The Tramontanas appealed the trial court’s decision to this court under

R.C. 2506.04 and they assign the following errors for our review.




8.
          ASSIGNMENT OF ERROR NO. 1

          THE TRIAL COURT ERRED TO THE PREJUDICE OF

     APPELLANTS BY UPHOLDING THE BOARD OF ZONING

     APPEALS’ GRANT OF A CONDITIONAL USE PERMIT TO

     APPELLANT [sic], VERMILION FISH AND GAME.

          ASSIGNMENT OF ERROR NO. 2

          THE TRIAL COURT ERRED TO THE PREJUDICE OF

     APPELLANTS BY UPHOLDING THE BOARD OF ZONING

     APPEALS’ REFUSAL TO GRANT APPELLANTS’ REQUEST FOR A

     CONTINUANCE OF THE ADMINISTRATIVE PROCEEDINGS IN

     ORDER TO HAVE ADEQUATE TIME TO PREPARE AND PRODUCE

     EVIDENCE.

          ASSIGNMENT OF ERROR NO. 3

          THE TRIAL COURT ERRED TO THE PREJUDICE OF

     APPELLANTS IN NOT FINDING THAT SOME OR ALL OF THE

     MEMBERS OF THE BOARD OF ZONING APPEALS HAD

     CONFLICTS OF INTERESTS WHICH SHOULD HAVE CAUSED

     THEM TO RECUSE THEMSELVES FROM THE DECISION TO

     GRANT A CONDITIONAL USE PERMIT TO APPELLANT [sic],

     VERMILION FISH AND GAME.




9.
                              II. Standard of Review

       {¶ 16} Our review of an appeal of a decision of an administrative agency under

R.C. 2506.01 is limited and is much narrower than the standard of review applied by the

common pleas court. Adams Quality Heating & Cooling v. Erie Cty. Health Dept., 6th

Dist. Erie No. E-12-040, 2014-Ohio-2318, ¶ 10, citing Henley v. Youngstown Bd. of

Zoning Appeals, 90 Ohio St.3d 142, 147, 735 N.E.2d 433 (2000). The common pleas

court examines the evidence, including any new or additional evidence admitted under

R.C. 2506.03. Id. Based on its review of the whole record, it then determines whether

the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or

unsupported by the preponderance of substantial, reliable, and probative evidence. Id.

       {¶ 17} By contrast, we review the judgment of the common pleas court only on

questions of law. Id.; R.C. 2506.04. We will not weigh the evidence and we may not

substitute our judgment for that of the administrative agency or the common pleas court,

regardless of whether we may have arrived at a different conclusion. Id. Our role is

limited to reviewing questions of law, employing a de novo standard, and determining

whether the trial court abused its discretion in applying the law. Id. at ¶ 11. “Abuse of

discretion” suggests more than an error of law or judgment; it implies that the court’s

attitude is unreasonable, arbitrary or unconscionable. Id., citing Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).




10.
                               III. Law and Analysis

       {¶ 18} The Tramontanas assert that the trial court erred in affirming the BZA’s

decision. They argue that the trial court’s judgment upholding the BZA decision was not

supported by a preponderance of substantial, probative, and reliable evidence because

VFG failed to establish requirements 1-4, and 7 of the zoning resolution. They also urge

that they were denied due process by the BZA’s refusal to continue the hearing to allow

them sufficient time to prepare their evidence and that they were denied a fair hearing

due to the BZA’s refusal to recuse itself.

       {¶ 19} VFG and the BZA address the Tramontanas’ assignments of error, but

VFG contends first that we are without jurisdiction to review the trial court judgment

because the BZA decision upon which it was based did not constitute a final appealable

order. Specifically, VFG argues that the BZA conditioned its approval of the CUP on

VFG submitting—and the BZA approving—a design plan for a sound barrier. Because

no plan has yet been submitted for the BZA’s approval, VFG contends that the order

granting the application for the CUP is not final and appealable.

       {¶ 20} Under R.C. 2506.01(A), “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.” A “final order, adjudication, or decision” is “an

order, adjudication, or decision that determines rights, duties, privileges, benefits, or legal




11.
relationships of a person * * *.” R.C. 2506.01(C). R.C. 2505.02(B) provides that an

order is final and subject to review when it is one of the following:

                (1) An order that affects a substantial right in an action that in effect

       determines the action and prevents a judgment;

                (2) An order that affects a substantial right made in a special

       proceeding or upon a summary application in an action after judgment;

                (3) An order that vacates or sets aside a judgment or grants a new

       trial;

                (4) An order that grants or denies a provisional remedy and to which

       both of the following apply:

                (a) The order in effect determines the action with respect to the

       provisional remedy and prevents a judgment in the action in favor of the

       appealing party with respect to the provisional remedy.

                (b) The appealing party would not be afforded a meaningful or

       effective remedy by an appeal following final judgment as to all

       proceedings, issues, claims, and parties in the action.

                ***

       {¶ 21} According to VFG, a “substantial right” of the Tramontanas has not been

affected because the 300-yard range is not currently being used and cannot be used until

the BZA approves plans for the sound barrier. It claims that it may be subjected to a

second appeal following the BZA’s approval of the design and specifications for the




12.
sound barrier. The Tramontanas respond to VFG’s argument by insisting that the trial

court’s order was final and appealable, for the most part ignoring the issue of whether the

administrative order upon which the trial court’s order was based was actually final and

appealable. They briefly argue that a contempt order or injunctive relief could remedy

any failure by VFG to abide by the conditions set forth by the BZA.

       {¶ 22} In urging that the BZA decision was not a final appealable order, VFG

relies on the Ohio Supreme Court’s decision in State ex rel. Harpley Builders, Inc. v. City

of Akron, 62 Ohio St.3d 533, 584 N.E.2d 724 (1992), where the court held that the Akron

Department of Planning and Urban Commission’s decision to rescind its preliminary

approval of a subdivision plan was not a final appealable order. In Harpley Builders, the

planning commission had voted unanimously to preliminarily approve the subdivision

plan, subject to a number of conditions. Id. at 533-534. In the meantime, numerous

citizens expressed concern about the planned subdivision at a planning commission

meeting. Id. at 534. The developer satisfied the originally-articulated conditions,

however, the commission voted to rescind its preliminary approval based on

noncompliance with a number of other subdivision regulations. Id. at 534. On appeal,

the developer argued that the Akron Subdivision Plan and Regulations provided that the

planning commission was required to grant final approval after the developer fulfilled all

conditions provided in the preliminary approval. Id. at 535-536. The court of appeals

held that the original grant of preliminary approval was a final appealable order that




13.
could not be reconsidered by the planning commission once the time for filing an appeal

had passed. Id. at 536. The Supreme Court disagreed. Id. It explained:

                 Preliminary approval is but one step in the approval process. Once

       preliminary approval is granted, the developer must fulfill the Planning

       Commission’s conditions, and then submit a final plat for approval. * * *

       These further steps are persuasive evidence that the decision to grant

       preliminary approval is not final. Preliminary approval does not determine

       the final rights and duties of the developer until further action is taken. Id.

       at 537.

       {¶ 23} Harpley is arguably distinguishable from the present case because the

regulations at issue made clear that preliminary plans required final approval. But our

decision in Seckler v. Catawba Island Twp. Bd. of Zoning, 6th Dist. Ottawa No. OT-82-

18, 1986 WL 7134 (June 20, 1986), provides additional guidance.

       {¶ 24} In Seckler, the Harbor Island Development Corp. sought a CUP from the

Catawba Island Township BZA to build 56 boat docks to be part of the Nor Easter

Country Club. Id. at *1. At a BZA meeting where that request for a CUP was discussed,

a number of safety concerns were identified, and discussion of the application was tabled

until the next month’s meeting. Id. At the next BZA meeting, on February 17, 1983, the

developer presented a plan for addressing some, but not all, of the safety concerns. Id.

The BZA decided to approve the developer’s application for the CUP, but it qualified its

approval as follows:




14.
             THAT THIS CONDITIONAL USE BE APPROVED WITH THE

      APPROVAL TO TAKE EFFECT WHEN THE NOR EASTER CLUB

      COMES UP WITH, AND IS READY TO IMPLEMENT, A PLAN TO

      INSURE THE SAFE AND UNIMPEDED PASSAGE OF EMERGENCY

      VEHICLES TO AND FROM HARBOR ISLAND, THIS PLAN TO BE

      SATISFACTORY TO THE BOARD OF ZONING APPEALS.

             * * * Id.

      {¶ 25} The developer submitted a plan to the BZA, and at the March meeting, the

BZA passed a resolution referencing that the CUP had been granted the prior month with

conditions; a plan had been satisfactorily proposed by the developer; a permit would be

issued without delay; and the permit would be issued subject to the previously-articulated

conditions and was revocable if the conditions were not met at completion. Id. at *1-2.

      {¶ 26} Harbor Island Association, Inc., and one of its members appealed the

BZA’s February decision. Id. at *2. Among appellants’ arguments was that one of the

BZA members had a conflict of interest based on his membership in the West Harbor

Association, thus the decision of the BZA was void. Id. The trial court agreed and

reversed the granting of the CUP. Id. The BZA appealed and argued, among other

things, that the February decision was not a final appealable order. Id. We agreed and

held that the common pleas court lacked jurisdiction to hear the appeal. Id. at *3-4. We

reasoned:




15.
              By its very terms the February 17, 1983 decision stated that it was

       not to take effect until the presentation of a safety plan which met the

       approval of the Board. Such plan was not presented until March 17, 1983

       and the permit finally granted on that day. The whole merits of the request

       were finally decided on March 17, 1983. As of the February 17, 1983

       decision the issue was “retained * * * to ascertain some matter of fact,” that

       is, the sufficiency of the petitioner’s safety plan upon which the final

       granting of the permit was made contingent. This was to be determined at a

       later time. The parties’ rights were finally settled and no further

       proceedings on the matter were to be held after the March 17, 1983

       granting of the permit. Furthermore, in a journal entry dated April 27,

       1983, the Ottawa County Court of Common Pleas held that, “[n]o final

       appealable action was undertaken by the Board of Zoning Appeals of

       Catawba Island Township until March 17, 1983 * * *.” Id. at *4.

       {¶ 27} Although in the present case the BZA did not articulate that approval of the

CUP would not take effect until VFG’s plan was submitted and approved, it specifically

prohibited VFG from operating the 300-yard range until a plan was devised, submitted to

the BZA, approved by the BZA, and implemented by VFG. The conditions placed on the

approval of the CUP are not self-effectuating; they require further action by both VFG

and the BZA. The practical effect is that approval will not take effect until those

conditions are met. Moreover, it is foreseeable that additional BZA proceedings will take




16.
place once VFG submits its plans, and additional review of the BZA’s decision may be

sought after VFG’s plans are approved.

       {¶ 28} We also question whether VFG has yet been issued the CUP. Sections 9.6

and 9.9 of the zoning resolution state:

                9.6    Action by the Board of Zoning Appeals

                Within thirty (30) days after the date of the public hearing required

       in Section 9.30, the board shall take one of the following actions:

                1. Approve issuance of the conditional use permit by making an

       affirmative finding writing that the proposed conditional use is to be

       located in a district wherein such use may be conditionally permitted. Such

       written finding may also prescribe supplementary conditions and

       safeguards as specified in Section 9.7. Upon making an affirmative finding,

       the Board shall direct the Zoning Inspector to issue a conditional use

       permit for such use which shall list all conditions and safeguards specified

       by the board for approval. (Emphasis added.)

                9.9    Certificate for Conditional Use

                a. The Zoning Inspector shall upon his own initiative, or shall upon

       the request of any owner, issue a certificate for any conditional use deemed

       valid.

       {¶ 29} There is nothing in the record to suggest that the zoning inspector has

issued the CUP. While not addressed by any of the parties, we presume that this is




17.
because approval has not, in fact, taken effect given that VFG’s plans for the sound

barrier have not yet been submitted or approved.3

      {¶ 30} We, therefore, find that under the facts of this case, the December 11, 2012

decision of the BZA was not a final appealable order, and the Erie County Court of

Common Pleas lacked jurisdiction to consider the Tramontanas’ appeal. Our decision

renders the Tramontanas’ assignments of error moot.

                                 {¶ 31} CONCLUSION

      {¶ 32} For the foregoing reasons, we reverse the October 22, 2014 judgment of the

Erie County Court of Common Pleas and remand this matter for proceedings consistent

with this decision. Pursuant to App.R. 24, the Tramontanas shall pay the costs of this

appeal.


                                                                       Judgment reversed.




3
 We note that Section 9.9 of the zoning resolution provides that a CUP will
automatically expire “if such conditionally permitted use has not been instituted or
utilized within one year of the date on which the permit was issued, or if for any reason
such use shall cease for more than two years.” The Tramontanas moved to stay execution
of the CUP pending appeal to the common pleas court. It is not clear whether that motion
was granted and, again, it is not clear from the record whether the zoning inspector has
yet issued a CUP.




18.
                                                               Tramontana v. Vermilion
                                                               Fish and Game
                                                               C.A. No. E-14-127




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




19.
