[Cite as Lee v. Lafayette Twp. Bd. of Zoning Appeals, 2012-Ohio-5563.]


STATE OF OHIO                    )                         IN THE COURT OF APPEALS
                                 )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

WILLIAM LEE, et al.                                        C.A. No.      12CA0028-M

        Appellants

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
LAFAYETTE TOWNSHIP BOARD OF                                COURT OF COMMON PLEAS
ZONING APPEALS, et al.                                     COUNTY OF MEDINA, OHIO
                                                           CASE No.   09CIV2436
        Appellees

                                 DECISION AND JOURNAL ENTRY

Dated: December 3, 2012



        WHITMORE, Presiding Judge.

        {¶1}    Appellants, William and Nicole Lee (“the Lees”), appeal from an order of the

Medina County Court of Common Pleas dismissing their appeal. This Court reverses.

                                                      I

        {¶2}    The Schwab family had built a cottage on their Chippewa Lake property in the

1930s, but it was demolished after suffering severe storm damage in 1999. The property has

since remained vacant. In 2006, the Lees purchased property adjacent to the vacant lot owned by

Appellee, the Schwab Family Trust. After purchasing the property, the Lees made renovations

to maximize their view of the lake. Subsequently, the Schwab Family Trust (“the Schwabs”)

sought several zoning variances so that it could rebuild on the vacant lot. The structure that was

proposed would have interfered with the Lees’ view of the lake.

        {¶3}    After a hearing, the Lafayette Township Board of Zoning Appeals (“the Zoning

Board”) granted the Schwabs the five requested variances. The Lees appealed the Zoning
                                                  2


Board’s decision to the Medina County Court of Common Pleas, which affirmed the Zoning

Board. The Lees appealed to this Court and we reversed and remanded because the trial court

did not consider the Zoning Board’s “interpretation and application of Lafayette Township

Zoning Resolution Section 706.” Lee v. Lafayette Twp. Bd. of Zoning Appeals, 193 Ohio App.3d

795, 2011-Ohio-2086, ¶ 11 (9th Dist.). Section 706 is a provision which exempts certain

properties that pre-date the adoption of the zoning resolution, thereby making certain variances

unnecessary.

       {¶4}    On remand, the trial court determined that there was insufficient evidence from

the Zoning Board’s hearing to determine how, or if, Section 706 applied to the Schwabs’

property. On June 27, 2011, the trial court “remand[ed] this matter back to the Lafayette

Township Board of Zoning Appeals to conduct an evidentiary hearing to determine whether or

not: 1) the property at issue is an eligible lot under Section 706; and 2) if it is an eligible lot,

whether or not the lot would be exempt from certain area and width requirements, such that a

variance would be unnecessary.” The trial court did not reverse or vacate the Zoning Board’s

decision, nor did it close the case after it remanded.

       {¶5}    In compliance with the remand order, the Zoning Board held an evidentiary

hearing on October 7, 2011, and determined that Section 706 did apply to the property, which

made one of the five variances unnecessary. The board refused to address the merits of the

remaining variances believing that was outside the scope of the remand. At the Zoning Board

hearing, the attorneys disagreed about whether the Zoning Board’s previous decision to grant the

remaining four variances remained in effect. Attorneys for the Appellees expressed the opinion

that the issue was still on appeal with the court of common pleas and that the “next step” was for

the Zoning Board to file its decision with the trial court, which it did on January 6, 2012.
                                                3


         {¶6}   On February 29, 2012, the Schwab Family Trust filed a motion to dismiss,

arguing that the Lees failed to perfect an appeal within the required thirty days from the Zoning

Board’s January 2012 decision. The Lees opposed the motion to dismiss, arguing that the

original appeal was still pending with the trial court and that the remand to the Zoning Board was

merely to gather more information for the trial court to make its determination. The trial court

granted the Schwab Family Trust’s motion to dismiss, and the Lees now appeal, raising three

assignments of error for our review. To facilitate the analysis, we consolidate the assignments of

error.

                                                II

                                Assignment of Error Number One

         THE COMMON PLEAS COURT ERRED IN HOLDING THAT THE NOTICE
         FILED BY THE BOARD IN THE EXISTING CASE AFTER REMAND FOR
         THE PURPOSES OF AN EVIDENTIARY HEARING WAS A FINAL
         APPEALABLE ORDER.

                                Assignment of Error Number Two

         THE DECISION OF THE COMMON PLEAS VIOLATES THE LEES’ DUE
         PROCESS RIGHTS.

                               Assignment of Error Number Three

         THE COMMON PLEAS COURT ERRED IN HOLDING THAT THE LEES
         WERE AGGRIEVED BY THE JANUARY 6, 2012 NOTICE, AND
         THEREFORE WOULD BE ABLE TO APPEAL FROM THAT NOTICE.

         {¶7}   In their three assignments of error, the Lees argue that the trial court erred in

finding that they were required to appeal from the Lafayette Township Board of Zoning Appeals’

January 2012 decision. Because the trial court’s remand exceeded its statutory authority, we

reverse without reaching the merits of the Lees’ arguments.

         {¶8}   “Under R.C. 2506.04, in an appeal from the board’s decision, the common pleas

court ‘may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the
                                                  4


cause to the officer or body appealed from with instructions to enter an order, adjudication, or

decision consistent with findings or opinion of the court.’” State ex rel. Chagrin Falls v. Geauga

Cty. Bd. of Commrs., 96 Ohio St.3d 400, 2002-Ohio-4906, ¶ 8, quoting R.C. 2506.04.

       {¶9}    Previously, this Court reversed and “remanded [this case] for the trial court to

address Section 706.” Lee, 193 Ohio App.3d 795, 2011-Ohio-2086, at ¶ 15. The trial court

subsequently remanded the case to the Zoning Board “to conduct an evidentiary hearing to

determine whether or not: 1) the property at issue is an eligible lot under Section 706; and 2) if it

is an eligible lot, whether or not the lot would be exempt from certain area and width

requirements, such that a variance would be unnecessary.” The trial court’s order did not

reverse, vacate, or modify the previous Zoning Board decision, nor did the trial court remand

with instructions for the Zoning Board to enter a decision consistent with its findings or opinion.

See R.C. 2506.04. In short, the trial court had no statutory authority to remand the case to the

Zoning Board for the purpose of conducting an evidentiary hearing. Id.

       {¶10} R.C. 2506.03 specifies certain circumstances in which the trial court may accept

additional evidence on an appeal from an administrative decision. In this case, there is no

indication in the record that any of these circumstances existed. Therefore, the trial court was

left with the statutory options listed in R.C. 2506.04, i.e., to affirm, reverse, vacate, or modify the

Zoning Board’s decision. Because the trial court’s remand order went beyond its statutory

authority, we vacate the order and the Zoning Board’s decision that followed.

       {¶11} Having concluded that the trial court exceeded its authority in remanding the case

to the Zoning Board for an evidentiary hearing, the Lees’ assignments of error are moot.

       {¶12} In reviewing the record, we note some confusion about the effect of this Court’s

previous decision on the variances granted by the Zoning Board. To be clear, the Zoning
                                                 5


Board’s original decision to grant the variances is unaffected by either our prior decision or this

decision today.

                                                III


       {¶13} The trial court’s order remanding the matter to the Zoning Board for an

evidentiary hearing is vacated. The Lees’ assignments of error are moot. The judgment of the

Medina County Court of Common Pleas is reversed and the cause is remanded for the trial court

to address the applicability of Section 706, or to reverse the original decision of the Zoning

Board and remand the case to the Zoning Board to consider Section 706 in the first instance.


                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellees.




                                                BETH WHITMORE
                                                FOR THE COURT



MOORE, J.
CARR, J.
CONCUR.


APPEARANCES:

J. DOUGLAS DRUSHAL and ANDREW P. LYCANS, Attorneys at Law, for Appellants.

MICHAEL L. LARIBEE, Attorney at Law, for Appellee.

TOM J. KARRIS, Assistant Prosecuting Attorney, for Appellee.
