[Cite as Kent Investors, L.L.C. v. Kent Planning Comm., 2019-Ohio-410.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


 KENT INVESTORS, LLC,                                    :          MEMORANDUM OPINION

                  Appellee,                              :
                                                                    CASE NO. 2017-P-0075
         - vs -                                          :

 CITY OF KENT PLANNING                                   :
 COMMISSION, et al.,

                  Appellees,                             :

 SCOTT J. FLYNN, et al.,

                  Appellants.


 Civil Appeal from the Portage County Court of Common Pleas, Case No. 2017 CV
 00568.

 Judgment: Appeal dismissed.

 Stephen W. Funk, Roetzel & Andress, LPA, 222 South Main Street, Suite 400, Akron
 OH 44308 (For Kent Invertors, LLC, Appellee).

 Eric R. Fink, Assistant Law Director, City Of Kent Planning Commission, 319 South
 Water Street, Kent, OH 44240. (For Appellee).

 Stephen W. Funk, Roetzel & Andress, LPA, 222 South Main Street, Suite 400, Akron
 OH 44308 (For City of Kent, Appellee).

 Scott J. Flynn, Flynn, Keith & Flynn, 250 South Water Street, P.O. Box 762, Kent, OH
 44240 (For Appellants).


COLLEEN MARY O’TOOLE, J.

        {¶1}      Appellee, Kent Investors LLC, sought to develop an 8,500 square foot

property located at 1005 East Main Street in Kent, Ohio. It submitted a site plan to the
city’s planning commission, which rejected the plan. Thereafter, Kent Investors submitted

a revised site plan, which the planning commission again rejected. Kent Investors filed

an administrative appeal with the Portage County Court of Common Pleas, which set a

briefing schedule. After briefing had commenced, eight nearby property owners sought

to intervene.    1   By a judgment entry filed September 27, 2017, the trial court denied the

motion to intervene. By a judgment entry filed September 29, 2017, the trial court

reversed the planning commission’s denial of approval for the revised site plan, and

ordered the project to go forward pursuant to that plan. The reason for the denial was

that the board members who rejected the plan did so for reasons not contained in the

zoning code, and admitted this on the record.

          {¶2}   Appellants, the property owners timely noticed this appeal, assigning three

errors:

          “[1.] The trial court abused its discretion by determining that appellants’ motion to

intervene was not timely filed and did not comply with the other requirements of Civ.R.

24(A) and (C).

          “[2.] The trial court abused its discretion by holding that appellants lacked standing

to intervene.

          [3.] The trial court abused its discretion when it reversed the decision of the Kent

Planning Commission to deny the site plan.”

          {¶3}   We commence our analysis by considering the third assignment of error.




1. Scott Flynn, Randall Smith, Susan Smith, Mary Jacoby, Kim Sebaly, Fay Ann Sebaly, Terry Kuhn, and

Faith Lutheran Church.




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         {¶4}   A court of appeals reviews the judgment of the trial court in an administrative

appeals case to discover, whether as a matter of law, the trial court’s judgment is

supported by a preponderance of reliable, probative, and substantial evidence. Dinardo

v. Chester Twp. Bd. of Zoning Appeals, 186 Ohio App.3d 111, 2010-Ohio-40, ¶17 (11th

Dist.)

         {¶5}   In Dinardo, this court held that a zoning inspector cannot reject an

application for a zoning certificate for subjective reasons, but must follow the zoning code.

Id. at ¶30. Similarly, we hold that a board of zoning appeals cannot ignore the zoning

code, and reject a site plan subjectively.

         {¶6}   This disposition of the third assignment of error renders the first and second

moot.

         {¶7}   Further, a review of the record reveals that the property owners never

sought or received a stay of the trial court’s judgment, either in that court or this court.

         {¶8}   March 27, 2018, Kent Investors moved to dismiss this appeal as moot.

Attached to its motion is the affidavit of Gary O’Nesti, project manager for the subject

development.      In his affidavit, Mr. O’Nesti avers that Kent Investors commenced

construction of the development March 5, 2018, and that the footers were completed

March 26, 2018. Photographs of the construction are attached to the affidavit as exhibits.

In its motion, Kent Investor points to our decision in Smola v. Legeza, 11th Dist. Ashtabula

No. 2004-A-0038, 2005-Ohio-7059, ¶32, where we stated:

         {¶9}   “[C]ourts in Ohio have held that when an appeal involves the construction

of a building and the appellant fails to obtain a stay of execution of the trial court’s ruling,

and construction commences, the appeal is rendered moot. Poulson v. Wooster City

Planning Comm., 9th Dist. No. 04CA0077, 2005-Ohio-2976, at ¶7; Nextel W. Corp. v.

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Franklin County Bd. of Zoning Appeals, 10th Dist. No. 03AP-625, 2004-Ohio-2943, at

¶13; Pinkney v. Southwick Invs., 8th Dist. Nos. 85074 and 85075, 2005-Ohio-4167, at

¶14.”

        {¶10} Kent Investors further point to the opinion in Coates Run Properties, L.L.C.

v. Athens Bd. of Zoning Appeals, 4th Dist. Athens No. 12CA5, 2015-Ohio-4732, ¶14,

wherein the court held, inter alia, that a party could establish on appeal that a construction

project had commenced by way of affidavit testimony, in order to obtain dismissal.

        {¶11} Again, the property owners in this case have never obtained a stay of the

trial court’s judgment. They have not timely opposed this motion to dismiss.

        {¶12} The assignments of error lack merit, or are moot. The appeal is moot.

        {¶13} At this juncture, the property owners only potential remedy lies in having the

Supreme Court of Ohio overturn the law set forth in Dinardo, or possibly, by way of writ,

since, absence a reversal of the law set forth in Dinardo, no legal remedy remains.

        {¶14} Appellee’s motion to dismiss the appeal is granted.




TIMOTHY P. CANNON, J., concurs in judgment only with a Concurring Opinion,

DIANE V. GRENDELL, J., concurs in judgment only.


                            ___________________________


TIMOTHY P. CANNON, J., concurring in judgment only.

        {¶15} I concur with the decision to dismiss the appeal as moot due to appellants’

failure to obtain a stay. The opinion should be limited to this analysis. See, e.g., Nextel

W. Corp. v. Franklin Cty. Bd. of Zoning Appeals, 10th Dist. Franklin No. 03AP-625, 2004-

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Ohio-2943 (with limited exceptions, a court cannot entertain jurisdiction over a moot

question). I therefore disagree with any discussion as to the merits of the third assignment

of error.

       {¶16} Additionally, assuming we could entertain jurisdiction, the case upon which

the majority relies for its discussion of the third assignment of error has no application

here. In Dinardo v. Chester Twp. Bd. of Zoning Appeals, 11th Dist. Geauga No. 2009-G-

2884, 2010-Ohio-40, this court held a zoning inspector cannot deny a zoning permit to a

property owner for a permitted use based on his or her subjective belief that the owner

would violate the zoning resolution. Id. at ¶30. In the case sub judice, the issue raised is

whether the Board of Zoning Appeals properly or improperly considered numerous

factors, many of which require a subjective determination.        I respectfully concur in

judgment only.




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