[Cite as Black v. Calvert, 2016-Ohio-2712.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

SUSAN K. BLACK, CO-TRUSTEE OF                     JUDGES:
THE SUSAN K. BLACK TRUST                          Hon. Sheila G. Farmer, P.J.
AGREEMENT, ET AL.                                 Hon. William B. Hoffman, J.
                                                  Hon. Craig R. Baldwin, J.
        Plaintiffs-Appellants
                                                  Case No. 15-CA-42
-vs-

AMY CALVERT, SECRETARY,                           OPINION
BOARD OF ZONING APPEALS, ET AL.

        Defendants-Appellees



CHARACTER OF PROCEEDING:                       Appeal from the Fairfield County Court of
                                               Common Pleas, Case No. 15CV290

JUDGMENT:                                      Reversed and Remanded

DATE OF JUDGMENT ENTRY:                        April 25, 2016

APPEARANCES:

For Plaintiffs-Appellants                      For Defendants-Appellees
                                               Margaret E. Hill, Trustee

RAY R. MICHALSKI                               JONATHAN C. CLARK
222 South Broad Street                         DANIEL A. YARMESCH
Lancaster, Ohio 43130                          130 E. Chestnut St.
                                               PO Box 1405
                                               Lancaster, Ohio 43130

                                                          And

        `                                      For Defendants-Appellees
                                               Amy Calvert, Secretary Board of Zoning

                                               R. KYLE WITT
                                               Law Director & City Prosecutor’s Office
                                               City of Lancaster, Ohio
                                               PO Box 1008
                                               Lancaster, Ohio 43130
Fairfield County, Case No. 15-CA-42                                                           2

Hoffman, J.


         {¶1}   Appellants Susan K. Black, Co-Trustee of the Susan K. Black Trust

Agreement, Dated July 17, 2000, as amended, et al., appeal the July 8, 2015 Entry

entered by the Fairfield County Court of Common Pleas, which dismissed their

administrative appeal. Appellees are Amy Clavert, Secretary, Board of Zoning Appeals,

et al.

                            STATEMENT OF THE FACTS AND CASE

         {¶2}   The Elizabeth H. Smith Trust dated September 4, 2010 (“the Trust”) owns

property located at 1531 Lancaster-Newark Road, Lancaster, Ohio ("the Property"). The

Property is situated across from a branch campus of the Ohio University and is zoned

Commercial General. Lancaster City Ordinance ("LCO") 1133.03(c)(2) provides, under

appropriate circumstances, land which is zoned Commercial General may be granted a

special exception for use of multi-family residences. Appellee Margaret E. Hill, who is

Trustee of the Trust, contracted with Annex Student Living, LLC, for the sale of the

Property. Annex Student Living proposed to construct a three story apartment building

to house students attending the branch of Ohio University.

         {¶3}   On February 23, 2015, in order to expedite a sale of the Property, Appellee

Hill filed an application with the City of Lancaster, Ohio, for such a special exception. The

Lancaster City Board of Zoning Appeals ("the BZA") scheduled a hearing on the

application for April 7, 2015. Notice of the filing of the application and of the public hearing

before the BZA was given to Appellants, among others. Appellants received the notices

because they own land which adjoins and abuts the Property.
Fairfield County, Case No. 15-CA-42                                                         3


       {¶4}   On April 7, 2015, Appellants, through counsel, appeared at the hearing and

stated their opposition to the special exception. Appellants did not present any evidence

the special exception would inhibit an existing use of their property, but instead,

expressed concerns the special exception might make it more difficult for them to develop

their adjacent commercial property in the future.     At the conclusion of the hearing, the

BZA publically voted to approve Appellee Hill’s application and granted the special

exception.

       {¶5}   On May 7, 2015, the thirtieth day after the BZA entered and noticed its

decision, and in accordance with R.C. 2505.07, Appellants filed a Notice of Appeal with

the Fairfield County Court of Common Pleas Court.

       {¶6}   On June 18, 2015, Appellees filed a Motion to Dismiss the appeal for lack

of subject matter jurisdiction, asserting the appeal was not filed within ten (10) days of the

BZA's decision as provided by LCO 1157.11. Appellees claimed the terms of the

ordinance control over R.C. 2505.07 as the statute provides the time requirement

contained therein will apply "unless otherwise provided by law" and because of the Home

Rule provisions of the Ohio Constitution.         On June 15, 2015, Appellants filed a

memorandum in opposition to Appellees' motion.

       {¶7}   Via Judgment Entry filed July 8, 2015, the trial court granted Appellees'

motion and dismissed Appellants' appeal. The trial court found R.C. 2505.07 provides for

modification of the thirty (30) day perfection period by other laws.

       {¶8}   It is from this judgment entry, Appellants appeal, assigning as error

              THE TRIAL COURT ERRED IN DISMISSING APPELLANTS'

       ADMINISTRATIVE APPEAL FOR LACK OF SUBJECT MATTER
Fairfield County, Case No. 15-CA-42                                                        4


       JURISDICTION BECAUSE THE NOTICE OF APPEAL WAS FILED

       WITHIN THE THIRTY (30) DAY TIME LIMIT PROVIDED BY R.C. 2505.07,

       RATHER THAN THE TEN (10) DAY TIME PERIOD PRESCRIBED BY

       LANCASTER CITY ORDINANCE 1157.11.



                                                 I

       {¶9}   We review the trial court's decision on a motion to dismiss for lack of subject

matter jurisdiction de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004–Ohio–

4362, 814 N.E.2d 44, ¶ 5.

       {¶10} R.C. 2505.07 provides:

       {¶11} After the entry of a final order of an administrative officer, agency, board,

department, tribunal, commission, or other instrumentality, the period of time within which

the appeal shall be perfected, unless otherwise provided by law, is thirty days. (Emphasis

added).

       {¶12} LCO 1157.11 provides, in pertinent part:

       {¶13} (a) Procedure. An appeal from any action, decision, ruling, judgment, or

order of the Board of Zoning Appeal may be taken by any person or persons aggrieved,

or any taxpayer or any officer, department, board or bureau of the City to the Common

Pleas Court of Fairfield County by filing with the City Clerk and with the Clerk of the Board

within ten days from the date of such action, a notice of appeal, which notice shall specify

the grounds of such appeal. (Emphasis added).

       {¶14} The trial court dismissed Appellants' appeal, finding, "While O.R.C. Section

2505.07 provides for a thirty day period, it also states 'unless provided by law.' Since
Fairfield County, Case No. 15-CA-42                                                        5


[LCO 1157.11] is in place specifying ten days rather than thirty days, this Court lacks

subject matter jurisdiction over the matter." July 8, 2015 Entry.

       {¶15} We find the inclusion of the phrase “unless otherwise provided by law” in

R.C. 2505.07 does not grant the City of Lancaster the authority to modify the 30–day

period set forth in that statute. See, Baker v. Mad River Twp. Bd. of Zoning Appeals,

Champaign App. No. 2008 CA 16, 2009-Ohio-3121. See, also, Austin Square, Inc. v.

Board of Zoning of Barberton (1967), 12 Ohio Misc. 129. The phrase “unless otherwise

provided by law” refers to an appeal period as set forth in another state statute. See, e.g.,

Iannarelli v. City of Wooster (1985), 18 Ohio St.3d 319, 320 (holding R.C. 124.34, rather

than R.C. 2505.07, governs appeals of suspensions by members of fire departments).

       {¶16} The Ohio Supreme Court’s holding in Village of Brewster v. Hill (1934), 128

Ohio St. 354, 191 N.E. 366, supports our decision. Therein, the Ohio Supreme Court

held the term “law” used in various sections of the Ohio Constitution and embraced in the

phrase “laws may be passed”, applies to statute law only and not to local municipal laws

or ordinances. Id. at 367. To conclude otherwise would allow each administrative board

or other division of a political subdivision to determine its own time to appeal, rendering

R.C. 2505.07 meaningless. To the extent LCO 1157.11 attempts to reduce the 30–day

period set forth in R.C. 2505.07, we find LCO 1157.11 is in conflict with R.C. 2505.07,

and the statute takes precedence. See, Dayton v. State, 157 Ohio App.3d 736, 2004-

Ohio-3141, at para. 83 (setting forth the test for when a state statute takes precedence

over a local ordinance).

       {¶17} Based upon the foregoing, we find the trial court had subject matter over

Appellants’ appeal.
Fairfield County, Case No. 15-CA-42                                                    6


      {¶18} Appellants’ sole assignment of error is sustained.

      {¶19} The judgment of the Fairfield County Court of Common Pleas is reversed

and the matter remanded for further proceedings consistent with this Opinion and the law.

By: Hoffman, J.

Farmer, P.J. and

Baldwin, J. concur
