[Cite as Howard v. Greenville Twp. Bd. of Zoning Appeals, 2013-Ohio-4076.]




               IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO

SHANA L. HOWARD, et al.                                :

        Plaintiffs-Appellees                           :            C.A. CASE NO.   2012 CA 13

v.                                                     :            T.C. NO.   12CV391

GREENVILLE TOWNSHIP BD. OF                             :            (Civil appeal from
ZONING APPEALS                                                      Common Pleas Court)

        Defendant-Appellant                            :

                                                       :

                                             ..........

                                           OPINION

                        Rendered on the         20th       day of      September    , 2013.

                                             ..........

JONATHAN S. ZWEIZIG, Atty. Reg. No. 0069381, 18 East Water Street, Troy, Ohio
45373 Attorney for Plaintiffs-Appellees

NICOLE L. POHLMAN, Atty. Reg. No. 0086301, P. O. Box 158, Greenville, Ohio 45331
     Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.

                {¶ 1} The Greenville Township Board of Zoning Appeals (“the BZA”)

appeals from a May 31, 2012 judgment of the Darke County Court of Common Pleas, which
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“vacated” the BZA’s approval of a conditional use permit for Doug Fellers to operate an

automotive repair garage at 8560 U.S. Route 127 in Greenville Township.                For the

following reasons, the judgment of the trial court will be affirmed.

                                 Facts & Procedural History

               {¶ 2} Fellers has filed several requests for a conditional use permit for an

auto repair garage on the property in question, and the BZA has addressed his applications

each time. Interested landowners on nearby properties, including Shana L. Howard and

Susan M. Howell, have opposed the proposed use of the property.

       {¶ 3}     The BZA’s hearing on Fellers’s first application was on July 5, 2011. The

notice of the July meeting stated that Fellers had requested a conditional use of the property

as an auto service garage and that the property was “currently zoned rural residential;” at that

time, the application indicated (and the BZA believed) that the property in question was

zoned “rural residential.” Although an auto service garage is not a permitted conditional

use of land that is zoned rural residential, the BZA approved the conditional use, with the

requirement that Fellers install a privacy fence. It appears that Fellers began to operate his

business on the premises shortly thereafter. However, due to its failure to give proper

notice to all interested parties prior to the July 5 meeting, the BZA scheduled another

meeting on Fellers’s application on September 20, 2011.

       {¶ 4}     The notice of the September 20 meeting again stated that the BZA was to

consider Fellers’s application for a conditional use permit and that the property was zoned

rural residential.   At the meeting itself, however, the BZA stated that the issue of

conditional use had been decided on July 5 and that the “tenet” for the September meeting
                                                                                                                                         3

was discussion of the need for a fence, which had not yet been built.

         {¶ 5}          The BZA also announced at the September meeting that Fellers’s land was

zoned “business” rather than “rural residential.” The record showed that, in 1973, the BZA

had changed the zoning of the property to “commercial.” No evidence was presented as to

what conditional uses were permitted under the “commercial” property designation, and by

2011, the designation of “commercial” property no longer existed in the zoning resolution.

Sometime after 1973, the “commercial” designation had been abandoned in favor of

“industrial” and “business” designations, but no information was presented about how this

change was effectuated or what designation, if any, had been given to Fellers’s property.

The BZA voted at that September 20 meeting to declare that Fellers’s property was zoned

“business,” “leaving the conditional use in place.”1

         {¶ 6}          The interested landowners appealed to the court of common pleas from the

BZA’s September 2011 decision to grant Fellers a conditional use permit (Darke C.P. No. 11

CV 00628). The court identified numerous problems with the BZA’s actions. Specifically,

the court found that: 1) Fellers’s application was defective because it addressed only five of

the nine requirements for such an application, as set forth in Part XII of the Greenville

Township Zoning Resolution, 2) the notice of the July 2011 meeting was defective

(apparently because it was not served on all interested parties), 3) the notice of the

September 2011 meeting was ineffective because the issues addressed at that meeting “were

significantly different” from those stated in the notice, particularly in that the BZA did not

              1
               The transcripts and written decisions, if any, resulting from the July 5 and September 20 BZA meetings are not
   contained in the record before us. Our statement of the facts related to these events is taken, in part, from the trial court’s judgment
   entry dated May 1, 2012.
                                                                                          4

treat the issuance of the conditional use permit as if it were still open for discussion and

voted to change the zoning of the property; and 4) an auto service garage is not a permitted

conditional use of rural residential property (as Fellers’s property was identified in the

notices). On May 1, 2012, the court vacated the BZA’s decisions at both the July and

September 2011 meetings, finding them to be “null and void” due to the procedural errors

and the failure of Fellers’s application to address all of the requirements contained in the

Greenville Township Zoning Resolution.

       {¶ 7}    On May 14, 2012, the interested landowners filed a motion in the trial court

to enforce the May 1 judgment entry, because Fellers’s automotive repair shop continued to

operate as of that date. On May 16, the BZA opposed the motion, asserting that it had

informed Fellers that he needed to cease operations and resubmit his application for a

conditional use permit. The BZA’s memorandum further stated that Fellers had resubmitted

his application and that the application had been set for a hearing on May 31, 2012. On

May 17, the trial court ordered the BZA “to take such action as is required to enforce the

Greenville Township Zoning Code.”

       {¶ 8}    On May 21, 2012, the BZA filed a notice of appeal from the trial court’s

May 1 judgment (Darke C.P. No. 2011 CV 00628).

       {¶ 9}    On May 31, 2012, the BZA conducted a hearing on Fellers’s resubmitted

application for a conditional use permit. Based on the transcript of the hearing, it appears

that at least some of the BZA members were unaware, at that time, of the trial court’s May 1

judgment with respect to the BZA’s previous decisions and were unaware of and had not

authorized the BZA’s pending appeal of that judgment. After discussion of several issues,
                                                                                            5

including questions from interested parties about Fellers’s intended use of the property and

information from the zoning officer about the reclassification of the property from rural

residential to commercial in 1973, the BZA again voted to approve the request for a

conditional use permit.

       {¶ 10}    On June 8, 2012, the BZA filed a Notice of Dismissal of its appeal from the

trial court’s May 1 decision.

       {¶ 11}    On June 15, the interested landowners appealed to the trial court from the

BZA’s May 31 decision (Darke C.P. No. 12 CV 00391).

       {¶ 12}    On November 30, 2012, the trial court found that the BZA’s action on

Fellers’s application at its May 31 meeting was improper in several respects. The court

found several problems, including the fact that Fellers’s application still did not include an

adequate site plan and details of the effects on adjoining property, as required by the

Greenville Township Zoning Resolution.        The court also noted that the BZA had not

“follow[ed] the Court’s guidance” as set forth in the May 1, 2012 judgment to determine

whether the “commercial” designation assigned to the property in 1973 was the same as a

“business” designation under the current zoning and to determine what conditional uses were

allowed for commercial property in 1973. These issues were not addressed at the hearing.

Additionally, the court noted that 1) evidence was presented for the first time at the May 31

hearing that Fellers was selling automobiles on the property, which was not reflected on

Fellers’s application and was not permitted by the Zoning Resolution, and 2) the BZA went

into executive session during the meeting in a manner that, in several respects, was not

according to law. The court held that the BZA’s May 31 decision granting Fellers’s
                                                                                           6

conditional use permit was “invalid” and “null and void.”

       {¶ 13}    In summary, the timeline is as follows:

June 2011 (approx.) Fellers files application for conditional use permit

July 5, 2011                  BZA hearing on application; BZA voted to approve
                              conditional use but also to hold another hearing due to
                              concerns about adequate notice to interested landowners

Sept. 20, 2011        BZA’s 2nd hearing on Fellers’s conditional use application,
                           reaffirming approval of application

Oct. 2011                     interested landowners appeal BZA decision to Court of
                              Common Pleas (C.P. Case No. 11 CV 00628)

May 1, 2012                   trial court finds numerous problems with BZA decision and
                              vacates it as “null and void”

early May 2012                Fellers files a new or supplemented application for a
                              conditional use permit, which addresses some but not all of the
                              concerns expressed in the court’s May 1 judgment

May 14, 2012          interested landowners file motion in trial court seeking to enforce
                              judgment of May 1, 2012

May 16, 2012          BZA files a memorandum opposing the interested landowners’
                           motion to enforce

May 17, 2012          trial court orders BZA to enforce May 1, 2012 judgment and zoning
                              code

May 21, 2012          BZA files notice of appeal from trial court’s May 1, 2012 judgment in
                             Case No. 11 CV 00628

May 31, 2012          BZA holds a hearing on Fellers’s resubmitted application for a
                           conditional use permit and again approves such a permit

June 8, 2012          BZA voluntarily dismisses its appeal

June 15, 2012         interested landowners appeal from BZA May 31 decision (C.P. Case
                              No. 12CV00391)
Nov. 30, 2012         trial court finds BZA’s actions on May 31 “invalid,” “null and void”
                                                                                              7

Dec. 2012                     BZA appeals to this court from trial court’s Nov. 30 decision

         {¶ 14} The BZA appeals from the trial court’s judgment, raising one assignment of

error.

         THE TRIAL COURT ABUSED ITS DISCRETION BY RAISING

         CERTAIN ISSUES SUA SPONTE FOR THE FIRST TIME IN ITS ENTRY

         AND      DECISION,    THEREBY        DEPRIVING       THE     GREENVILLE

         TOWNSHIP BOARD OF ZONING APPEALS THE OPPORTUNITY TO

         BRIEF AND SET FORTH ARGUMENTS AS TO THOSE ISSUES.

{¶ 15} The BZA contends that the trial court erred in deciding the administrative appeal

based on issues that were not raised in the interested landowners’ brief. The interested

landowners had argued that 1) the BZA’s notice of appeal filed on May 21, 2012, stripped it

(the BZA) of any authority to act on Fellers’s application at its hearing on May 31, 2012, 2)

the BZA never properly addressed the distinction between the “commercial” and “business”

zoning classifications and what conditional uses were permitted under the “commercial”

designation, as the trial court instructed the BZA to do in the court’s May 1, 2012 entry, and

3) the Greenville Township Zoning Resolution required Fellers to wait one year to resubmit

an application following a “denial” of an application.

         {¶ 16}   In an administrative appeal pursuant to R.C. Chapter 2506, the common

pleas court considers the whole record, including any new or additional evidence admitted

under R.C. 2506.03, and determines whether the administrative order is unconstitutional,

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of

substantial, reliable, and probative evidence. Henley v. Youngstown Bd. of Zoning Appeals,
                                                                                         8

90 Ohio St.3d 142, 147-148, 735 N.E.2d 433 (2000); Mordick v. Dayton, 2d Dist.

Montgomery No. 24663, 2012-Ohio-289, ¶ 14.

       {¶ 17}     The Ohio Supreme Court has distinguished the standard of review to be

applied by common pleas courts and courts of appeals in R.C. Chapter 2506 administrative

appeals. R.C. 2506.04 “grants a more limited power to the court of appeals to review the

judgment of the common pleas court only on ‘questions of law,’ which does not include the

same extensive power to weigh ‘the preponderance of substantial, reliable, and probative

evidence.’” Henley at 147. In other words, as an appellate court, our standard of review in

an R.C. 2506.04 appeal is “more limited in scope.” Kisil v. Sandusky, 12 Ohio St.3d 30, 34,

465 N.E.2d 848 (1984). “The fact that the court of appeals * * * might have arrived at a

different conclusion than the administrative agency is immaterial.” Henley at 147, citing

Lorain City School Dist. Bd. of Edn. v. State Emp. Relations Bd., 40 Ohio St.3d 257, 261,

533 N.E.2d 264 (1988). See also Cox v. Miami Cty. Bd. of Zoning Appeals, 2d Dist. Miami

No.2010-CA-29, 2011-Ohio-2820, ¶ 5-6.

       {¶ 18}     Although the BZA correctly points out that the reasons cited by the trial

court in its decision invalidating the BZA’s decision of May 31, 2012, are not those

specifically raised by the neighboring landowners’ brief to the court, the trial court was

justified in reaching the conclusions that it did.

       {¶ 19}     First, while the trial court did not address this issue, the BZA lacked

authority to take further action on May 31, 2012 with respect to Fellers’s application. The

Rules of Appellate Procedure generally apply to administrative appeals. R.C. 2505.03(B).

When a notice of appeal from a decision of an administrative agency has been filed, the
                                                                                                                                  9

agency is divested of its inherent jurisdiction to reconsider, vacate or modify the decision

unless there is express statutory language to the contrary. Van Leur v. Ohio Dept. of

Commerce, 2d Dist. Montgomery No. 20617, 2005-Ohio-915, ¶ 21, citing Lorain Edn. Assn.

v. Lorain City School Dist. Bd. of Edn., 46 Ohio St.3d 12, 15, 544 N.E.2d 687 (1989). On

May 21, 2012, the BZA filed a notice of appeal from the trial court’s May 1, 2012, decision

with respect to its actions on Fellers’s application. This notice of appeal prohibited the

BZA from taking further action on the application or another application aimed at correcting

errors in or modifying the prior application or proceedings, while the appeal was pending.2

         {¶ 20}        In response to the interested landowners’ argument in the trial court that the

BZA had lacked jurisdiction to act on May 31, the BZA attached to its brief an affidavit

from the Darke County Clerk of Courts. The Clerk, Cindy Pike, acknowledged in her

affidavit that a notice of appeal had been filed by the BZA on May 21, 2012; she stated,

however, that “said appeal was inadvertently never forwarded on” to the court of appeals.

Based on these facts, she concluded that “said appeal was never docketed or perfected.” In

other words, Pike’s affidavit suggests, and the BZA interprets it to state, that a procedural

error in the clerk’s office rendered the BZA’s notice of appeal ineffective, that, as a result,

no appeal was pending at the time of the BZA’s hearing and decisions on May 31, and that

the BZA therefore did not lack jurisdiction to act on Fellers’s renewed application at that

time.


             2
              The record of the May 31 hearing shows a lack of information on the part of the BZA or at least on the part of some of
   its members as to the existence and substance of the trial court’s May 1, 2012, judgment, as well as a lack of knowledge of the
   pending appeal. The trial court characterized this as an “incredible” “breakdown in communication between the BZA’s counsel
   and the BZA.” Although these facts are troubling, our resolution of this appeal does not require us to address this issue.
                                                                                              10

       {¶ 21}    App.R. 3(A) states that “[a]n appeal as of right shall be taken by filing a

notice of appeal with the clerk of the trial court within the time allowed * * *.” The BZA

satisfied this requirement.    R.C. 2505.04 governs the manner in which an appeal is

perfected. It provides: “An appeal is perfected when a written notice of appeal is filed, in

the case of an appeal of a final order, judgment, or decree of court, in accordance with the

Rules of Appellate Procedure * * *.” The timely filing of a notice of appeal is the only

jurisdictional requirement for perfecting a valid appeal. Transamerica Ins. Co. v. Nolan, 72

Ohio St.3d 320, 649 N.E.2d 1229 (1995), syllabus. The Rule further provides that “the

failure of an appellant to take any step other than the timely filing of a notice of appeal does

not affect the validity of the appeal, but is ground only for such action as the court of appeals

deems appropriate.” App.R. 3(A). “‘[T]he determination as to the appropriateness of an

appeal lies solely with the appellate court.’” Daugherty v. Daugherty, 4th Dist. Hocking

No. 11CA18, 2012-Ohio-1520, ¶ 14, citing State ex rel. Electronic Classroom of Tomorrow

v. Cuyahoga Cty. Court of Common Pleas, 129 Ohio St.3d 30, 2011-Ohio-626, 950 N.E.2d

149, at ¶ 16.

       {¶ 22}    Daugherty held that a trial court judge’s opinion that the order appealed

from is not a final, appealable order does not alter the fact that the filing of the notice of

appeal divests the trial court of jurisdiction to proceed with the adjudication during the

pendency of the appeal. If an error on the part of the appellant or a trial judge does not

affect the validity of the appeal, an error on the part of the clerk may not do so. The clerk of

courts’ conclusion (as reflected in her affidavit) that the appeal was not perfected because

she failed to forward the notice of appeal to this court is not binding upon this court.
                                                                                            11

Pursuant to App.R. 3(A) and R.C. 2505.04, the BZA had satisfied the requirement for filing

an appeal prior to May 31, 2012. Notwithstanding any error on the part of the clerk’s office

with respect to its handling of the appeal, the BZA had no authority to take further action on

the application on that date.

         {¶ 23}   The BZA also attempted to “voluntarily dismiss” its appeal by its own

motion on June 8, 2012, and a judge of the common pleas court signed the notice of

dismissal. We note, however, that an appeal to this court can be dismissed only by an order

of this court. App.R. 28. The appellate rules do not provide a mechanism for voluntary

dismissal such as that available in the trial court pursuant to Civ.R. 41(A). Thus, the appeal

of the BZA from the trial court’s May 1, 2012 judgment in Case No. 11 CV 00628 remains

pending, although the clerk has not docketed it or forwarded the notice of appeal to this

court.

         {¶ 24}   Because none of the parties has objected to the dismissal of the BZA’s

appeal from the trial court’s May 1, 2012 judgment, and all have proceeded as if the appeal

were properly dismissed, we will address the ineffective dismissal of this appeal in the trial

court as follows: 1) we hereby order that the Darke County Clerk of Courts assign a case

number to the BZA’s appeal from the May 1, 2012 judgment and forward the BZA’s notice

of appeal to this court, pursuant to the usual procedures for the handling of a notice of

appeal; 2) upon completion of the previous task, the clerk shall notify the parties of the case

number assigned to this appeal; and 3) the BZA’s attorney shall promptly submit a motion

and entry to this court requesting the dismissal of that appeal. Upon receipt of the BZA’s

motion, this court will dismiss the appeal of the May 1, 2012 judgment in Darke C.P. No. 11
                                                                                            12

CV 00628 in accordance with App.R. 28 and, in doing so, eliminate any question regarding

the authority of the BZA or the trial court to address future matters related to Fellers’s

property.

       {¶ 25}    Because the trial court judgment from which the BZA appeals in this case

did not rely on the BZA’s lack of authority to act, and because the parties have proceeded as

if the BZA dismissed its appeal from the trial court’s May 1 judgment, we will briefly

address the trial court’s findings with respect to the substantive errors in the administrative

proceedings related to Fellers’s applications for a conditional use permit.

       {¶ 26}    The trial court correctly found that the notices provided to interested

landowners with respect to the BZA’s consideration of the conditional use permit were

inadequate. The BZA essentially conceded that notice of its hearing on July 5, 2011, was

inadequate in that it was not given to all interested parties; the inadequacy of the notice was

the reason for the September 20 hearing. The notice for the September hearing incorrectly

identified the current zoning of the property as rural residential. It is unclear from the

record before us what the notice of the May 31 hearing said about the current zoning

classification of the property. Although Fellers’s resubmitted application stated that it was

zoned B-1, the trial court’s May 1 judgment indicated that the classification was unclear, and

the additional evidence offered at the hearing did not make the classification clear. This

uncertainty prompted the BZA to take an impromptu vote on the zoning, about which no

notice had been given.

       {¶ 27}    The trial court also found that the BZA had failed to adequately inquire into

the distinction between the “commercial” classification of Fellers’s property in 1973, which
                                                                                               13

no longer existed, and its alleged current classification as “business,” including what

conditional uses had been permitted in a commercial zone. Because the trial court had

addressed the need for information about this distinction in its May 1 judgment, which the

BZA largely ignored, the trial court acted within its discretion in revisiting this issue, even if

it was not raised by the interested landowners in their brief to the court. The BZA cannot

reasonably assert that it “was never afforded the opportunity” to address this concern, when

the court had previously instructed the BZA to address it.

       {¶ 28}    The BZA attached to its brief in the trial court in support of its May 31

decision some materials that were not before it at the hearing, but which it apparently

believed bolstered its decision. An appellate court reviews a lower court’s or agency’s

decision to determine if error were committed. Almost by definition, this type of review

precludes our consideration of facts not before that lower court or agency.

       {¶ 29}    However, if we were to consider this new material, one of the documents

was an affidavit of the Darke County Zoning Inspector, Curtis Yount, who stated that the

property in question was rezoned “commercial” in 1973, and that in 1989, “commercial

districts were split and changed to either a business or an industrial zoning designation.”

Yount further stated that Fellers’s property had been given a “business” designation at that

time and continued to have that classification.           (Yount had provided less detailed

information about this progression and timeline at the hearing.) Yount’s affidavit contains

no specific information as to how the zoning change was effectuated, so as to allow an

independent assessment of whether proper notice and other procedural requirements were

satisfied at the time of the alleged reclassification from commercial to business.            His
                                                                                            14

affidavit also did not specifically address what conditional uses were permitted in a business

zone.

        {¶ 30}   The “Commercial Districts” section of a zoning code was also attached to

the BZA’s brief in the trial court. There is no date on this partial document, which states

that a “repair garage” is a “permitted use” (not a “conditional use”) in a commercial district.

This document presumably addressed, in part, the court’s interest in whether a garage had

been a permitted use in a commercial district. However, this information was not before the

BZA at the May 31 hearing, and the BZA did not know, at that time, whether an auto repair

garage had been permitted on commercial property. Furthermore, the BZA’s effort to rely

in its brief to the court on the “commercial” classification of the property, which it claimed

no longer existed, and its vote to change the property’s classification to “business” in the

midst of the proceedings, supported the trial court’s implicit conclusion that the BZA did not

have a clear, workable understanding of the zoning classification of the property when it

granted the conditional use permit, and that such information was essential to a valid

determination that such use was permitted.

        {¶ 31}   Finally, the court noted that the BZA went into executive session during its

May 31 meeting, but that the executive session was not conducted according to law.

Specifically, the court noted that the reason for the executive session was unclear, and that

there was no record of the adjournment of the executive session or of a roll call vote to exit

the session. The transcript of the hearing supports these conclusions.

        {¶ 32}   Thus, in addition to the impropriety of the BZA’s proceeding with a hearing

while an appeal was pending, the record supports the trial court’s conclusions that the BZA
                                                                                           15

failed to provide adequate notice of the issues it intended to consider and failed to consider

Fellers’s application in accordance with the applicable zoning regulations.

       {¶ 33}    The assignment of error is overruled.

       {¶ 34}    The judgment of the trial court will be affirmed.

                                         ..........

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Jonathan S. Zweizig
Nicole L. Pohlman
Hon. Charles D. Steele (by assignment)
Hon. Jonathan P. Hein
