[Cite as Smetzer v. Catawba Island Twp. Bd. of Zoning Appeals, 2018-Ohio-4238.]




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


Richard Smetzer, et al.                                   Court of Appeals No. OT-17-033

        Appellant                                         Trial Court No. 2017 CV 015

v.

Catawba Island Township Board of
Zoning Appeals, et al.                                    DECISION AND JUDGMENT

        Appellees                                         Decided: October 19, 2018

                                                *****

        Jeffrey M. Stopar and Katrin E. McBroom, for appellant.

        James VanEerten, Ottawa County Prosecuting Attorney, and
        Daivia S. Kasper, Chief Assistant Prosecuting Attorney, for
        appellees Catawba Island Township Board of Zoning Appeals,
        Board of Trustees, and Zoning Inspector.

        David Watkins and Rebecca J. Mott, for appellee Ohio Shore
        Development Limited.

                                                *****
       JENSEN, J.
                                     I. Introduction

       {¶ 1} Appellant, Richard Smetzer, appeals the judgment of the Ottawa County

Court of Common Pleas, affirming the decision of the Catawba Island Township Board

of Zoning Appeals, which in turn upheld the Zoning Inspector’s issuance of a zoning

certificate to Ohio Shore Development, Limited (“Ohio Shore”).1 Also before the court

is a motion to dismiss filed by Ohio Shore.

                         A. Facts and Procedural Background

       {¶ 2} On October 13, 2016, Ohio Shore submitted an application for a zoning

certificate to the Catawba Island Township Zoning Inspector, seeking to construct a

Dollar General retail store at 3147 N. East Catawba Road, Port Clinton, Ohio. On

October 21, 2016, the Zoning Inspector sent Ohio Shore a letter, informing Ohio Shore

that its application had been approved subject to several conditions. The Zoning

Inspector stated: “Once these conditions have been complied with, the actual zoning

certificate will be issued and a building permit for the construction of the store may be

applied for and obtained from Ottawa County.”

       {¶ 3} Following the Zoning Inspector’s letter, appellant, along with another

landowner who is not a party to this appeal, timely appealed the matter to the Catawba

Island Township Board of Zoning Appeals. A hearing on the matter was held before the


1
 The appellees in this action include the Catawba Island Township Board of Zoning
Appeals, the Zoning Inspector, the Catawba Island Board of Trustees, and Ohio Shore
Development Limited.




2.
Board of Zoning Appeals on December 13, 2016. At that hearing, appellant argued that

the site plan that was attached to Ohio Shore’s application failed to comply with several

provisions of the Catawba Island Township Zoning Resolution (“Zoning Resolution”). In

particular, appellant took issue with the proposed placement of a fence, a trash bin, and

three parking spaces along the east side of the property. Appellant also asserted that the

Zoning Inspector did not have the legal authority to place conditions on the zoning

certificate.

       {¶ 4} In a decision dated December 14, 2016, the Board of Zoning Appeals

affirmed the Zoning Inspector’s decision after finding that the Zoning Inspector

appropriately approved Ohio Shore’s application. The Board of Zoning Appeals found

that appellant’s arguments surrounding the fence and the trash bin were moot because

these items were not within the scope of Ohio Shore’s application and were therefore not

yet approved by the Zoning Inspector. As to appellant’s parking spaces argument, the

Board of Zoning Appeals found that the three parking spaces at issue complied with the

Zoning Resolution as they were located more than seven feet from the boundary line.

Finally, the Board of Zoning Appeals found that the Zoning Resolution permits the

issuance of zoning certificates subject to conditions, thereby rejecting appellant’s

argument to the contrary.

       {¶ 5} On January 12, 2017, appellant timely appealed to the Ottawa County Court

of Common Pleas, where he raised the same arguments that were argued before the

Board of Zoning Appeals. A hearing on the matter was held on July 20, 2017. At the




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conclusion of the hearing, the trial court took the matter under advisement. Three months

later, the trial court issued its decision, in which it stated:

               The Court has reviewed each of the proposed Assignments of Error

       set forth by Appellants and, upon review of the record in this matter, * * *

       the Court finds the decision of the Catawba Island Township Board of

       Zoning appeals is supported by a preponderance of substantial, reliable, and

       probative evidence and the Decision of [the Board of Zoning Appeals] is

       AFFIRMED.2

       {¶ 6} On November 22, 2017, appellant filed a timely notice of appeal.

Thereafter, on June 5, 2018, appellant filed a motion to stay in the trial court. The trial

court denied the motion to stay on June 22, 2018. A similar motion was then filed with

this court on June 28, 2018. We denied the motion to stay on August 9, 2018.

       {¶ 7} On September 11, 2018, Ohio Shore filed a motion to dismiss the appeal as

moot, as well as a motion to continue the September 20, 2018 oral argument date. On

September 17, 2018, we issued our decision denying Ohio Shore’s motion to continue,

and indicated that we would address the merits of the motion to dismiss in our final

decision. The following day, appellant filed his memorandum in opposition to Ohio

Shore’s motion to dismiss. Ohio Shore then filed its reply in support of its motion to

dismiss on September 19, 2018.


2
 The court provided no additional analysis in its decision upholding the decision of the
Board of Zoning Appeals.




4.
                                B. Assignments of Error

      {¶ 8} On appeal, appellant assigns the following errors for our review:

             First Assignment of Error: The Common Pleas Court and Board of

      Zoning Appeals erred by failing to address Smetzer’s argument that three

      parking spaces on the Site Plan did not adequately provide for ingress and

      egress as required by Section 5(A)(1) of the Catawba Island Township

      Zoning Resolution.

             Second Assignment of Error: The Common Pleas Court erred in

      upholding the Board of Zoning Appeals’ decision that the Site Plan meets

      the parking requirements of the Catawba Island Township Zoning

      Resolution.

             Third Assignment of Error: The Common Pleas Court erred in

      upholding the Board of Zoning Appeals’ Decision that Smetzer’s

      arguments that the proposed fence and dumpster depicted on the Site Plan

      were not properly before the Board of Zoning Appeals.

                                       II. Analysis

      {¶ 9} In appellant’s assignments of error, he argues that the trial court erred in

upholding the decision of the Board of Zoning Appeals because the site plan did not meet

the requirements of the Zoning Resolution. Before we can reach appellant’s assignments

of error, however, we must first address Ohio Shore’s motion to dismiss.




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       {¶ 10} In the motion to dismiss, Ohio Shore argues that this appeal is moot

because construction of the Dollar General retail store has already commenced. In

general, courts will not resolve issues that are moot. See Miner v. Witt, 82 Ohio St. 237,

92 N.E. 21 (1910). In Tschantz v. Ferguson, 57 Ohio St.3d 131, 566 N.E.2d 655 (1991),

the Supreme Court of Ohio set forth the following definition of “moot”:

              Ohio Courts have long exercised judicial restraint in cases which are

       not actual controversies. No actual controversy exists where a case has

       been rendered moot by an outside event. It is not the duty of the court to

       answer moot questions, and when, pending proceedings in error in this

       court, an event occurs without the fault of either party, which renders it

       impossible for the court to grant any relief, it will dismiss the petition in

       error. (Internal citations omitted.) Id. at 133.

       {¶ 11} Courts across this state have examined the issue presented in Ohio Shore’s

motion to dismiss, namely whether an appeal from a decision allowing construction of a

building to proceed becomes moot once construction is commenced. In such cases,

courts have held, “where an appeal involves the construction of a building or buildings

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

construction commences, the appeal is rendered moot.” Schuster v. City of Avon Lake,

9th Dist. No. 03CA008271, 2003-Ohio-6587, ¶ 8. Accord Bd. of Commrs. of

Montgomery Cty. v. Saunders, 2d Dist. Montgomery No. 18592, 2001 Ohio App. LEXIS

4887 (Nov. 2, 2001) (finding that landowner’s zoning appeal was moot where the board




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of commissioners completed construction of drainage tile and landowner’s request for an

injunction was denied by the trial court); Osborne v. City of N. Canton, 5th Dist. Stark

No. 2016 CA 00175, 2017-Ohio-1116 (appeal was rendered moot once construction of a

parking lot had been completed where appellant failed to obtain a stay of execution

before the construction commenced); Pinkney v. Southwick Investments, LLC, 8th Dist.

Cuyahoga Nos. 85074 and 85075, 2005-Ohio-4167 (residents failed to seek a stay to

prevent development of nearby land, and construction was substantially complete by the

time the case was heard, causing the appeal to be moot, in part); Neighbors For

Responsible Land Use v. City of Akron, 9th Dist. Summit No. 23191, 2006-Ohio-6966

(finding that resident’s appeal from ordinance approving a conditional land use

application was moot where resident’s motion to stay execution was denied and

construction of bus shelter and parking lot had already been completed by the time the

appeal was heard); Nextel West Corp. v. Franklin Cty. Bd. of Zoning Appeals, 10th Dist.

Franklin No. 03AP-625, 2004-Ohio-2943 (dismissing zoning appeal where

telecommunications tower had already been constructed); Redmon v. City Council of City

of Columbus, 10th Dist. Franklin No.05AP-466, 2006-Ohio-2199 (dismissing appeal

arising from variance dispute where construction of a Wendy’s restaurant had already

occurred by the time the appeal was heard); Walouke v. Mentor Bd. of Zoning Appeals,

11th Dist. Lake No. 10-136, 1984 Ohio App. LEXIS 12133 (Dec. 28, 1984) (dismissal as

moot of an appeal to the court of common pleas of a board of zoning appeals decision for

failure to obtain a stay of execution pending appeal); compare Roberts v. Put-In-Bay




7.
Planning Comm., 6th Dist. Ottawa No. 93OT040, 1994 Ohio App. LEXIS 3115 (July 15,

1994) (zoning appeal is not moot despite the completion of the construction where

construction was completed after a zoning violation was issued and before the builder

was granted a variance).

       {¶ 12} In this case, Ohio Shore has presented evidence that construction of the

Dollar General store at issue has commenced. In an affidavit attached to Ohio Shore’s

motion to dismiss, the builder’s Chief Operating Officer, Michael Major, states that a

preexisting structure has been demolished at a cost of $22,800. Additionally, Major

indicates that additional work has been commenced on the site at a cost of $251,063 as of

September 10, 2018.

       {¶ 13} Appellant does not challenge the substance of Major’s affidavit, which

demonstrates that construction has commenced in this case. Moreover, appellant has

failed to obtain a stay of execution, having unsuccessfully sought such a stay both in the

trial court and in this court. Therefore, consistent with the above-referenced case law, we

find that the present appeal is moot, and must be dismissed.

       {¶ 14} Appellant argues that this case is distinguishable from the cases cited above

because Ohio Shore commenced construction in violation of the Zoning Inspector’s site

plan approval letter, prompting the issuance of a stop work order. While it is true that a

stop work order was previously issued, affidavits attached to Ohio Shore’s reply in

support of its motion to dismiss cast significant doubt on appellant’s contention that Ohio

Shore’s initial commencement of construction violated the Zoning Inspector’s site plan




8.
approval letter. Furthermore, the stop work order has since been lifted, and construction

has recommenced.

       {¶ 15} Upon due consideration, Ohio Shore’s motion to dismiss is well-taken, and

is hereby granted. This appeal is dismissed as moot.

                                     III. Conclusion

       {¶ 16} For the foregoing reasons, this appeal is dismissed as moot. Appellant is

ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                        Appeal dismissed.




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




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
James D. Jensen, J.
                                               _______________________________
Christine E. Mayle, P.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.supremecourt.ohio.gov/ROD/docs/.




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