[Cite as Simmons v. Fulk, 2014-Ohio-4908.]

                                      COURT OF APPEALS
                                     STARK COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

JEFFERY SIMMONS, ET AL.,            :              JUDGES:
                                    :
                                    :              Hon. W. Scott Gwin, P.J.
     Appellees                      :              Hon. John W. Wise, J.
                                    :              Hon. Craig R. Baldwin, J.
-vs-                                :
                                    :
DENNIS D. FULK, P.S. PLAIN TOWNSHIP :              Case No. 2014CA00064
ZONING INSPECTOR, ET AL.,           :
                                    :
     Appellants                     :              OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court
                                                   of Common Pleas, Case No.
                                                   2013CV02545


JUDGMENT:                                          Dismissed


DATE OF JUDGMENT:                                  November 3, 2014



APPEARANCES:

For Appellees                                      For Appellants
                                                   Dennis D. Fulk, P.S. Plain Township
JOHN L. JUERGENSON                                 Zoning Inspector and the Plain
John L. Juergensen Co., LPA                        Township Board of Zoning Appeals
Washington Square Office Park
6545 Market Avenue North                           JAMES F. MATHEWS
North Canton, OH 44721                             Baker, Dublikar, Beck, Wiley & Mathews
                                                   400 South Main Street
                                                   North Canton, OH 44720

                                                   For Easton Village Company, LLC

                                                   JOHN J. RAMBACHER
                                                   Winkhart, Rambacher & Griffin
                                                   825 South Main Street
                                                   North Canton, OH 44720
Stark County, Case No. 2014CA00064                                                    2


Baldwin, J.

      {¶1}    Appellants Plain Township Board of Zoning Appeals (hereinafter “BZA”),

Dennis D. Fulk, P.S. Plain Township Zoning Inspector and Easton Village Company,

LLC appeal a judgment of the Stark County Common Pleas Court granting a stay of its

decision pending appeal to appellees Jeffrey Simmons, Nancy Locke, Dean Mohler,

Cynthia Mohler, Robert Ernst, Trustee, and Sharon Ernst, Trustee.

                            STATEMENT OF FACTS AND CASE

      {¶2}    On August 5, 2013, James J. Ptacek of Larsen Architects requested two

conditional use permits with respect to property located at 6300-6306, Market Avenue

North, in Plain Township. The requests were submitted to the BZA. Larsen sought to

build a McDonald’s restaurant with an accompanying drive-thru on property owned by

appellant Easton, located on the corner of Market Avenue North and Grove Street, near

the intersection of Maple Street/Easton Avenue and Market Avenue North, and across

the street from Walsh College. The lot is zoned B-1 Neighborhood Business District,

and it abuts an R-1 Single Family Residential District. Appellees are residential home

owners on Grove Street.

      {¶3}    The property in question has a previously existing small strip plaza which

includes several business: Samantha’s Restaurant, Italo’s Pizza, Ferrell Pools & Spas,

Edward Jones, and the Bead Boutique.        The strip plaza has been located on the

property for over 30 years. An abandoned bank building which had a drive-thru is also

located on the property.    The bank building and part of the strip mall would be

demolished to construct the McDonald’s. Construction of the McDonald’s requires the
Stark County, Case No. 2014CA00064                                                       3

granting of a conditional use permit for the property to be designated as a planned

commercial complex, as well as a conditional use permit for operation of a drive-thru.

      {¶4}   The BZA held a hearing on September 4, 2013. Following the hearing,

the conditional use permits were approved. Appellees filed an appeal to the Stark

County Common Pleas Court.         The court found that the decision of the BZA was

supported by the testimony and by BZA’s interpretation of the Plain Township Zoning

Resolution. Appellees then filed an appeal of that decision to this Court (Stark App. No.

2014CA00041).

      {¶5}   On April 3, 2014, the trial court stayed its judgment and the September 4,

2014, decision of the BZA pending appeal to this Court. Appellants filed an appeal from

the judgment of stay, assigning a single error:

      {¶6}   “THE TRIAL COURT ERRED WHEN IT ENTERED A STAY INASMUCH

AS THE ZONING PERMITS WHICH WERE THE SUBJECT OF THE STAY HAD

ALREADY BEEN ISSUED AND WERE OUTSTANDING.”
Stark County, Case No. 2014CA00064                                                  4

      {¶7}   The trial court issued the stay that is the subject of the instant appeal

pending appeal of the underlying judgment to this Court. This appeal is rendered moot

by our decision on the merits of the underlying appeal in Stark App. No. 2014CA00041.

The instant appeal is accordingly dismissed. Costs are assessed to appellants.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.
