[Cite as Guenther v. Sheffield Lake Zoning Bd. of Appeals, 2015-Ohio-4521.]


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

KARL GUENTHER, et al.                                      C.A. No.           14CA010577

        Appellants

        v.                                                 APPEAL FROM JUDGMENT
                                                           ENTERED IN THE
SHEFFIELD LAKE ZONING BOARD OF                             COURT OF COMMON PLEAS
APPEALS                                                    COUNTY OF LORAIN, OHIO
                                                           CASE No.   13CV180627
        Appellee

                                 DECISION AND JOURNAL ENTRY

Dated: November 2, 2015



        MOORE, Judge.

        {¶1}    The following residents of Sheffield Lake: Karl Guenther, Maryellen Guenther,

Edward Rinderknecht, Melvin Doick, Elie Moussa, and Werner Wittman (collectively “the

Residents”) appeal from the decision of the trial court, affirming the decision of the Sheffield

Lake Board of Zoning and Building Appeals (“the Board”).1 We affirm.

                                                          I.

        {¶2}     Dearborn Land Investment, LLC (“Dearborn”) possesses an option to purchase

real property commercially zoned with a “B-2” designation in Sheffield Lake.               Dearborn

intended to construct a Dollar General retail store on the property, which the parties appear to



        1
         Although Mr. Rinderknecht’s surname is spelled “Rinderknect” in the lower court
filings by the Residents’ counsel, we note that the minutes of the Board, of which Mr.
Rinderknecht had been a member, spell his name as “Rinderknecht.” This Court will utilize the
spelling provided in the Board’s minutes. Mr. Wittman’s full name is spelled “Warner
Whitman” in the transcript of a Board hearing; however, the parties’ filings and the Board
minutes spell his name “Werner Wittman.” This Court will utilize the latter spelling.
                                                 2


agree is a permitted use on a B-2 zoned property. In November of 2011, Dearborn submitted an

application to the Board to review the size and location of the proposed store building for

purposes of complying with a former version of the City of Sheffield Lake Ordinance

(“Loc.Ord.”) 1139.06(c), pursuant to a notice from the Chief Building Official that Board

approval was required pursuant to this ordinance. At the time that Dearborn sought approval of

its site plan, Loc.Ord. 1139.06(c) required that, “[o]n a corner lot, which borders a residential

district the application for a permit to build on the lot shall be submitted to the Board of Zoning

and Building Appeals for its approval of the size and location of the proposed building.”2

       {¶3}    On November 16, 2011, the Board held a meeting, where Dearborn argued that

Loc.Ord. 1139.06(c) applied only to properties zoned B-1, and that Board approval was not

necessary for a permit for the property at issue, zoned B-2. However, Dearborn maintained that,

even if the Board approval were necessary, it met the size and location requirements of the local

ordinances. A representative of Dearborn, John Wojtila, explained how the proposed building

met the setback requirements contained in the local ordinances. Thereafter, the public was

permitted to comment, and Appellant Rinderknecht gave an oral and written presentation,

purportedly on behalf of most of the Residents named herein3, as well as others, detailing seven

areas of concern pertaining to the construction of a Dollar General, none of which appear to

pertain to size or location of the building. Appellant Moussa spoke regarding his concerns

pertaining to traffic and his opinion that an increased risk of crime would occur if the application




       2
         Loc.Ord. 1139.06(c) was amended effective July 23, 2013, and no longer contains this
provision requiring Board approval of the size and location of the building in these
circumstances.
        3
          All of the Resident-Appellants with the exception of Melvin Doick, are listed on the
written presentation that expresses the concerns raised by Appellant Rinderknecht.
                                               3


were approved. The Board then voted to “table” discussion of the issue until its February

meeting.

       {¶4}   At a meeting on January 18, 2012, the Chairperson of the Board indicated that

Mr. Rinderknecht had become a Board member. Because Mr. Rinderknecht had spoken at

length on the Dearborn issue, the Chairperson opined that he would have a conflict voting or

participating in this matter. The remainder of the Board then voted to “untable” the matter. A

board member then provided an explanation as to why the matter had been tabled at the last

meeting. The board member explained that certain areas affecting the Dearborn issue needed

further research. The board member indicated that the spirit of the provision in former Loc.Ord.

1139.06(c) requiring size and location approval from the Board, was to provide affected

homeowners with protection from undue hardship. The board member also indicated that that

there needed to be confirmation that the parcel was still commercially zoned. Further, the board

member expressed a belief that Loc.Ord. 1115.06 (pertaining to variances) may provide

protection to adjacent property owners that may be negatively affected by the commercial

development. Information was then provided to the Board that the parcel had been commercially

zoned since 1969, and continued to be commercially zoned. The matter was again tabled until

the February board meeting.

       {¶5}   At the February board meeting, the Chairperson indicated that she believed the

Board could interpret “this code,” which from context of the Board minutes appears to be a

reference to Loc.Ord. 1139.06(c), to deny the application even if Dearborn otherwise met the

size and location provisions contained in the local ordinances.     The Board voted to deny
                                                  4


Dearborn’s application, with Appellant Rinderknecht abstaining from voting. Dearborn filed an

administrative appeal from this denial with the trial court.4

       {¶6}    Thereafter, the Chief Building Inspector sent a letter to Dearborn entitled “Plan

Denial Notice[.]” Dearborn appealed the denial to the Board, challenging the applicability of

Loc.Ord. 1139.06(c) to the property at issue. The Board addressed this matter at a meeting held

on May 16, 2012, at which it permitted public comment on issues that had not already been

discussed. Appellant Guenther spoke at this meeting expressing concerns regarding storm-water.

The Board, with Appellant Rinderknecht abstaining, voted to deny the appeal. Dearborn filed an

administrative appeal from this decision with the trial court.5

       {¶7}    The trial court consolidated the administrative appeals filed from the February

2012 and May 2012 decisions of the Board. The trial court determined that Loc.Ord. 1139.06(c)

applied to the property at issue, but it concluded that the Board did not have discretion to deny

the permit on factors other than size and location. The trial court discussed “location” for

purposes of Loc.Ord. 1139.06(c) by reference to the setback provisions contained in the local

ordinances.6 The trial court remanded the case to the Board for a hearing as to the size and

location of the building.7

       {¶8}    At hearing before the Board, the Chairperson indicated that “Dearborn [] is only

before the [B]oard to have us approve the size and location of the building, and we are confined

and constrained to those parameters only.” At the meeting, counsel for Dearborn and Mr.

       4
          The trial court records from the appeal of the February, 2012 Board decision are not
included in the record of the present appeal.
        5
          The trial court records from the administrative appeal of the Board’s May, 2012
decision were not included as part of the record in the present appeal.
        6
          The court further concluded that, from the Board’s records, the proposed building met
the setback requirements.
        7
          The trial court’s decision is included as part of the Board’s record of proceedings in the
present appeal.
                                                 5


Wojtila again spoke, and the Board permitted comments from citizens, but it requested that the

comments be limited to one minute, and that they not repeat comments already made at the prior

meetings.     All of the Residents, except for Maryellen Guenther, spoke at the meeting.

Thereafter, the Board approved Dearborn’s application. The Residents filed an administrative

appeal to the trial court, naming the Board as the sole defendant. Thereafter, Dearborn moved to

intervene in the administrative appeal, and the trial court granted the motion. Dearborn and the

Board filed a joint motion to dismiss the administrative appeal for lack of standing, which the

trial court denied. The trial court then affirmed the decision of the Board.

       {¶9}    The Residents now appeal to this Court, raising three assignments of error for our

review. The Board and Dearborn have filed separate Appellee Briefs, and, in its brief, Dearborn

raises one cross-assignment of error.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION BY AFFIRMING THE
       BOARD’S DECISION WHERE [THE RESIDENTS] WERE DENIED THEIR
       RIGHT [TO] MEANINGFULLY [] PARTICIPATE IN THE PUBLIC
       MEETING AS GUARANTEED BY THE FIRST AND FOURTEENTH
       AMENDMENTS TO THE UNITED STATES CONSTITUTION.

       {¶10} In their first assignment of error, the Residents maintain that the Board violated

their First and Fourteenth Amendment rights by denying them the                right to meaningfully

participate at the public meeting following the remand of this case by the trial court. We

disagree.

       {¶11} Initially, we believe it prudent to emphasize that this case presents facts dissimilar

to many cases involving administrative appeals from zoning board decisions. Here, Dearborn

sought to develop land in compliance with the local zoning provisions. The record does not
                                                   6


indicate that Dearborn at any time sought a variance. Instead, it was the Residents who wished

to restrict Dearborn’s use of the land through the proceedings before the Board.

        {¶12} The Residents filed the instant case as an administrative appeal pursuant to R.C.

2506.01, et seq. “R.C. Chapter 2506 governs appeals of decisions by agencies of political

subdivisions, such as township zoning boards.” Stace Dev., Inc. v. Wellington Twp. Bd. of Zoning

Appeals, 9th Dist. Lorain No. 04CA008619, 2005-Ohio-4798, ¶ 6. See, e.g., Earth ‘N Wood

Prods., Inc. v. City of Akron Bd. of Zoning Appeals, 9th Dist. Summit No. 21279, 2003-Ohio-

1801, ¶ 8. “Under R.C. 2506.01, a party may appeal a local agency’s final administrative

decision to the applicable court of common pleas.” Stace at ¶ 7. “Then, R.C. 2506.04 empowers

the court of common pleas to act with certain, limited appellate authority as to the challenged

administrative decision.” Id. See Summit Cty. Bd. of Health v. Pearson, 9th Dist. Summit No.

22194, 2005-Ohio-2964, ¶ 7.         “Under this construct, the common pleas court may act on

particular errors; those which it finds to be: ‘[1.] unconstitutional, [2.] illegal, [3.] arbitrary, [3.]

capricious, [4.] unreasonable, or [5.] unsupported by the preponderance of substantial, reliable,

and probative evidence on the whole record.’” Stace at ¶ 7, quoting R.C. 2506.04.

        {¶13} “Under R.C. 2506.04, a party may appeal to this Court only as to ‘questions of

law’ arising from the common pleas court’s R.C. 2506.04 review of the agency’s decision.”

Stace at ¶ 6. See Cabassa v. Elyria Twp., 9th Dist. Lorain No. 04CA008519, 2005-Ohio-713, ¶

6. “This Court reviews questions of law de novo.” Stace at ¶ 6, citing Maumee v. Public Util.

Comm., 101 Ohio St.3d 54, 2004-Ohio-7, ¶ 3

        {¶14} Here, the Residents challenge the Board’s restrictions on their speech at the public

meeting following remand by the trial court. At that meeting, Mr. Wojtila, explained how the

size and location of the proposed building met the requirements of the local ordinances, and he
                                                7


explained other concessions that Dearborn was prepared to make, although he stated that it was

not required to do so. The transcript notes that during questions directed to Mr. Wojtila, there

was “[t]alking occurring among the audience[,]” at which point the following exchange occurred

between the Board’s Chairperson and Attorney Michael Duff8:

       CHAIRPERSON JANCURA: Mr. Duff[], we have a court reporter, and your
       conversations are interrupting this court reporter’s ability to take the proceedings.
       So if you continue to have discussion, you do it outside.

       MR. DUFF[]: We will keep it low.

       CHAIRPERSON JANCURA: No. You need to do it outside of closed doors
       because you are interrupting this man’s ability to hear and to correctly get a
       transcript of this meeting. This man must sit here and take every little word that
       we say, and I want to make sure he can do his job properly.

       {¶15} After Dearborn’s presentation to the Board, the Chairperson then opened the

proceedings for public comment, limited to one minute, on issues not already addressed to the

Board. The City’s law director, David Graves, then commented on an issue pertaining to

Appellant Rinderknecht, as follows:

       MR. GRAVES: Madam Chair[person], as I discussed with Mr. Rinderknec[h]t, he
       is a member of the Board, it is not enough to abstain from voting, and you cannot
       participate in any of the discussions or deliberations on this matter.

       So as to avoid the appearance that you are trying to influence the Board and
       jeopardize the integrity of these proceedings my advice to you is not participate in
       these proceedings. You have raised a conflict, and you are a member of this
       Board.

       MR. RINDERKNEC[H]T: I am appearing as a private citizen, Law Director
       Graves, and if this is a conflict of interest I will resign from the Board at this
       moment and proceed as a private citizen. I consider myself withdrawn from the
       Board. I have now resigned.

       Does that clear up the conflict?

       8
         The transcript spells Mr. Duff’s name as “Duffy[.]” However, the record makes clear,
through the Board minutes and the filings of the parties, that the individual referred to as “Mr.
Duffy” in the transcript is Attorney Michael Duff, who serves as co-counsel for the Residents in
the present appeal.
                                         8


MR. GRAVES: No. No, it does not, and I think if you proceed, you are
jeopardizing the integrity of these proceedings.

MR. HUNT [(counsel for Dearborn)]: Madam Chair[person], I object to the
testimony from this witness for the same reasons.

CHAIRPERSON JANCURA: Mr. Graves, should I ask that his testimony be
stricken from the record as it is a direct conflict?

CONCERNED CITIZEN: He just resigned.

MR. DUFF[]: He just resigned. It is not a direct conflict.

MR. GRAVES: He has asked to be approved. He has to be accepted by the
Mayor. He was a member of the Board up until just ten seconds ago. This could
be perceived as a member of the Board who has already raised a conflict of
interest, trying to steer the direction of the Board.

MR. RINDERKNEC[H]T: Well, Law Director Graves, you must be psychic,
because you have no idea what I am about to say.

MR. GRAVES: It doesn’t matter.         Any participation – and there are plenty
decisions –

CONCERNED CITIZEN: He participated at the last meeting.

MR. GRAVES: No, he did not.

CONCERNED CITIZEN: Yes, he did.

CHAIRPERSON JANCURA: Excuse me.                 At the time Mr. Rinderknec[h]t
presented or spoke –

MR. GRAVES: He was not on the Board at that time.

MR. GRAVES: He currently –

MR. DUFF[]: He has resigned.

CHAIRPERSON JANCURA: Mr. Rinderknec[h]t was not on the Board the last
time we spoke on this matter. In November of 2011, he was not a member of this
Board.

MR. DUFF[]: He is not any longer, he just resigned.

CHAIRPERSON JANCURA: Yes, he still is on.

MR. DUFF[]: But he just resigned.
                                               9


       CHAIRPERSON JANCURA: Attorney Duff[], you do not know the internal
       workings of this Board. He cannot just resign like that. There is a procedure that
       we have to not be on the Board any more, and Mr. Rinderknec[h]t has not met
       that standard. He is still a member of this Board.

       MR. DUFF[]: Don’t you think it is wiser –

       CHAIRPERSON JANCURA: Attorney Duff[]–

       MR. DUFF[]: Don’t you think it is wiser to listen to him? Let him have his say.
       He is a concerned property owner.

       CHAIRPERSON JANCURA: He is not to appear before this Board.

       MAYOR BRING: If this continues, I will call the police, and have you removed.
       (Directed to Mr. Duff[].)

       MR. DUFF[]: Call the police.

       MAYOR BRING: Then I will.

       MR. DUFF[]: Yeah. Good, Dennis. Good, Dennis.

       MAYOR BRING: You are out of hand.

       MR. DUFF[]: You are out of hand.

       {¶16} Thereafter, Appellant Karl Guenther9 addressed the Board as follows:

       MR. GU[E]NTHER: My question is, you know, we come here tonight and, I
       know I only have a minute to talk, which is wrong. We asked about looking at
       this stuff, and this presentation was for the members only. So you invite us here
       with a letter to ask if we can be part of this. Now we only have a minute to talk.

       The road is changed to now. Can the trucks handle this and everything else? You
       are bullying us. You are not even allowing us to talk, and I feel it is very wrong.
       This would not be happening in Bay Village, Westlake, nowhere.

       The old administration should have never allowed this to happen. I understand
       Mr. Kolleda should have a right to sell his property. He has never been offered
       anything or he has been. It should have been zoned residential, and what are we
       going to do with the shoreway that we developed, that we are developing?

       To put Dollar General spot zoning I think it is wrong.

       9
           Mr. Guenther’s surname is spelled “Gunther” in the transcript of a Board hearing;
however, the parties’ filings and the Board minutes spell his surname “Guenther[.]” This Court
will utilize the latter spelling.
                                               10


       CHAIRPERSON JANCURA: Sir, I understand your concerns, and I can
       completely appreciate them. But we are not allowed to address that matter.

       MR. GU[E]NTHER: I understand that. I mean it is just wrong. We come here to
       talk, and you only give me a minute to talk. It is like we don’t have a chance, so I
       guess you guys already got your mind made up.

       MAYOR BRING: Madam Chair[person], if you want, I will have Attorney Duff[]
       removed. Otherwise, we are going too –

       CHAIRPERSON JANCURA: I would like Attorney Duff[] removed. He is being
       extremely disrespectful.

       MR. DUFF[]: I am not. Dennis just said everybody should calm down, which is
       true.

       CHAIRPERSON JANCURA: As an attorney –

       MR. DUFF[]: Wait, wait, I want to hear from David. I want to hear from the Law
       Director. David, what do you say?

       MR. GRAVES: I don’t have any authority.

       MR. DUFF[]: Dennis, you are going to have me removed?

       MAYOR BRING: Yes, I am.

       MR. DUFF[]: Dennis, I am so ashamed of you. I am ashamed of you.

       CONCERNED CITIZEN: This is insane.

       MR. DUFF[]: Shame on you, buddy.

       {¶17} It is not clear from the transcript what was transpiring in the audience when the

Mayor offered to have Mr. Duff removed. It is unclear whether Mr. Duff was removed, as a later

statement is attributed to him in the transcript, but this statement is attributed to the Building

Inspector in the Board’s minutes.

       {¶18} Appellant Moussa then addressed the Board, at which point the Chairperson

indicated that he had already addressed the Board on this issue at a previous meeting. The

Chairperson indicated that the Board could not address the concerns he had previously expressed
                                                11


because it was not within the Board’s purview. The Chairperson reiterated that “the purview of

this meeting is the size and location of this building.” The following exchange then occurred:

       MR. MOUSSA: What’s the purpose of this meeting if you are not listening to –
       what good is this meeting if not listening to the concerned citizens?

       CHAIRPERSON JANCURA: Because we cannot do anything about your
       concerns.

       MR. MOUSSA: Really?

       CHAIRPERSON JANCURA: No, we cannot.

       MR. MOUSSA: I live in this City. I pay taxes in the City. My house value will
       drop because of this. This is – my kids will suffer continuous from cars and
       trucks.

       CHAIRPERSON JANCURA: Then move from Sheffield Lake. If you don’t like
       –

       MR. MOUSSA: Why don’t you move from Sheffield Lake?

       CHAIRPERSON JANCURA: I don’t – it doesn’t bother me, the Dollar General.

       {¶19} Mr. Moussa then continued, raising concerns about whether the road was

sufficient for a retail store and raising concerns as to the effect of a retail establishment on the

sewers and storm waters. The Chairperson and the Law Director indicated that the Board was

not reviewing those matters. Mr. Moussa then requested to inquire of the City Engineer into

these matters, and the Chairperson stated that he could not do so at that time, because those

issues were not before the Board. The following exchange then took place:

       MR. MOUSSA: Why can I not address him right now?

       CHAIRPERSON JANCURA: Because it is not within the purview of the Board.
       That’s not the reason for the meeting.

       You can have a seat.

       MR. MOUSSA: Oh, really?

       CHAIRPERSON JANCURA: We have a concerned citizen. Will you please
       come to the podium, and state your name?
                                               12


       Mr. Moussa you are dismissed. Thank you.

       {¶20} Appellant Doick then addressed the Board, and questioned Mr. Wojtila as to the

hours of operation of the store, and inquired as to whether deliveries were made solely within the

hours of operation. Counsel for Dearborn objected to the questions as irrelevant, but indicated

that Mr. Wojtila could likely answer the question, which he did. Mr. Doick responded “Thank

you[,]” and asked no more questions.

       {¶21} Appellant Wittman then addressed the Board and asked Mr. Wojtila if delivery

trucks would be left running and idling in between deliveries, and Mr. Wojtila responded that he

was unaware of idling delivery trucks. The law director also indicated that City ordinances

pertaining to unreasonable noise likely covered the issue of idling trucks.         Mr. Wittman

responded, “Thank you[,]” and made no further inquiry or comment.

       {¶22} In their brief, the Residents challenge the time limitation and subject restrictions

placed on their comments as unconstitutional. Although the Residents have structured their

argument as collectively being denied their Constitutional rights, our review of the record

indicates that their arguments on appeal do not apply with equal force to each of them. Based

upon each resident’s individual participation, or lack thereof, at the meeting, we must limit our

discussion as follows. First, as to Appellant Maryellen Guenther, nowhere in the transcript can

we discern that she was prevented from speaking, and the Residents have cited no portion of the

transcript where this can be located.     Accordingly, to the extent that the Residents’ first

assignment of error argues that Ms. Guenther’s constitutional rights were violated, it is

overruled. See App.R. 16(A)(7).

       {¶23} Next, as to Appellant Rinderknecht, we can locate nothing in the record from

which we could discern that he was prevented from speaking on any basis other than that
                                                13


advanced by the Chairperson and the Law Director: that he was a member of the Board until the

Mayor accepted his resignation, and his involvement as a private citizen in this matter could taint

the proceedings.         The Residents do not develop an argument addressing Appellant

Rinderknecht’s unique circumstances in this case, and whether the reason advanced for the

restriction on his speech constituted reversible error. See App.R. 16(A)(7). Accordingly, to the

extent the Residents maintain that his Constitutional rights were violated, their first assignment

of error is overruled.

       {¶24} In addition, in their brief, the Residents reference the Chairperson “acting in

concert with the Mayor of Sheffield Lake – who had no authority to act for the Board –

schem[ing] to call the Sheffield Lake police to remove a respected member of the bar from the

meeting on the fallacious grounds that he was being ‘disrespectful’ in some unspecified manner.”

(Emphasis sic.)     This appears to be a reference to the exchange between Mr. Duff, the

Chairperson, and the Mayor. However, Mr. Duff is not a party to this appeal. The Residents

have not developed an argument as to how the exchange between Mr. Duff, the Chairperson, and

the Mayor violated the due process rights of the Residents named in this appeal, and we decline

to create and argument on their behalf. See App.R. 16(A)(7).

       {¶25} Further, although the Residents maintain in their brief that “[m]ultiple complaints

were made about the fact that insufficient time was provided[,]” they do not point to any portion

of the record to support this statement. See App.R. 16(A)(7). Our review of the record indicates

that only Mr. Guenther complained about the time limitations. Further, the Residents have not

directed this Court to any objection made by them to the Board as to the restrictions on the

subject matter. See App.R. 16(A)(7). From our review of the record, we can only discern an

objection to the restriction of the subject matter being raised by Mr. Moussa. Mr. Doick and Mr.
                                                14


Wittman raised no objection to the time or subject matter limitations. See Smith v. Richfield

Twp. Bd. of Zoning Appeals, 9th Dist. Summit No. 25575, 2012-Ohio-1175, ¶ 33. Therefore, to

the extent that the Residents challenge the limitations placed on Mr. Doick and Mr. Wittman,

their first assignment of error is overruled.

       {¶26} Based upon the foregoing, our discussion of the first assignment of error is limited

to Mr. Guenther and Mr. Moussa. We will address Mr. Guenther’s and Mr. Moussa’s arguments

pertaining to their due process rights and First Amendment rights separately.

Due Process Rights

       {¶27} “Before the state may deprive a person of a property interest, it must provide

procedural due process consisting of notice and a meaningful opportunity to be heard.” Ohio

Assn. of Pub. School Emps. v. Lakewood Cty. School Dist. Bd. of Edn., 68 Ohio St.3d 175, 176

(1994), citing Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532 (1985). “The inquiry into what

process is due depends on the facts of each case.” Ohio Assn. of Pub. School Emps. at 177,

citing Brock v. Roadway Express, Inc., 481 U.S. 252 (1987). Ohio Dept. of Transp. v. Storage

World, Inc., 9th Dist. Medina No. 11CA0002-M, 2012-Ohio-4437, ¶ 12.

       {¶28} Here, Mr. Guenther and Mr. Moussa argue that the limitations on their comments

denied them a meaningful opportunity to be heard. However, they have not identified in what

way the public meeting would have “deprived” them of a property interest, so as to implicate

their right to a meaningful opportunity to be heard. See Ohio Assn. of Pub. School Emps. at 177.

Even were we to assume that Mr. Guenther and Mr. Moussa had a protected property interest in

the Board’s determination on these matters, the hearing was specifically limited to the size and

location of the building. Neither of them assert that they were denied a meaningful opportunity
                                                 15


to be heard on those issues. Good News Club v. Milford Cent. School, 533 U.S. 98, 106-107

(2001) (State may properly limit discussion to agenda items).

       {¶29} Accordingly, to the extent that the Residents maintain that their due process rights

were violated, their first assignment of error is overruled.

Freedom of Speech

       {¶30} With respect to whether the Board’s actions violated Mr. Guenther’s or Mr.

Moussa’s First Amendment rights, the standard applicable to government regulation of speech

depends on the nature of the forum. Perry Edn. Assn. v. Perry Local Educators’ Assn., 460 U.S.

37, 44 (1983); Good News Club at 106; Dayton v. Esrati, 125 Ohio App.3d 60, 72 (2d

Dist.1997). Here, the Residents indicate that the public meeting could be viewed as a “limited

public forum” for purposes of a First Amendment analysis, and the Board and Dearborn do not

dispute this classification. See Esrati at 72 (“Limited public fora consist of public property that

the government has opened for use by the public as a place for expressive activity.”). As the

parties have structured their arguments in this manner, we will review this issue by assuming,

without deciding, that the public meeting amounted to a “limited public forum[.]”

       {¶31} In a limited public forum, “[t]he State may be justified ‘in reserving [its forum]

for certain groups or for the discussion of certain topics.’” Good News Club at 106, quoting

Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995). “The State’s

power to restrict speech, however, is not without limits. The restriction must not discriminate

against speech on the basis of viewpoint * * * and the restriction must be reasonable in light of

the purpose served by the forum.” (Internal quotations and citations omitted.) Good News Club

at 106-107.
                                                  16


          {¶32} Here,     the instructions to the Board on remand specifically limited its

consideration at the hearing to whether the plans met the size and location provisions of the

zoning ordinances. We conclude that it was reasonable, under these circumstances, once the

evidence of the size and location provisions of the proposed building had been presented and not

disputed, to limit the public comments to one minute. See id. It was also reasonable to require

the comments pertain to the size and location of the building, and not to issues already addressed.

See id.

          {¶33} Our review of the record does not indicate that any limitation was placed on Mr.

Guenther or Mr. Moussa which discriminated against their speech on the basis of their points of

view. Instead, the limitations appear to have been based upon whether the issues had already

been discussed and whether the issues discussed were on topic. Further, although the Residents

appear to challenge the Chairperson’s remarks to Mr. Moussa, where she suggested that he could

move from Sheffield Lake and later advised him that he was “dismissed[,]” we cannot discern in

what way her remarks to him limited his speech on the topic issues of size and location. Instead,

her comments, when read in context, appear to attempt to limit Mr. Moussa to the issues within

the Board’s purview pursuant to the trial court’s remand order.

          {¶34} Therefore, the Residents’ first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

          THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY NOT
          ADDRESSING WHETHER THE RECORD TENDERED BY COUNSEL FOR
          THE BOARD MET THE REQUIREMENTS OF R.C. 2506.02 AND WHETHER
          THE RECORD CONTAINED DOCUMENTS AND INFORMATION NOT
          CONSIDERED BY THE BOARD IN REACHING ITS MAY 15, 2013
          DECISION.

          {¶35} In their second assignment of error, the Residents allege that the trial court erred

by not addressing issues pertaining to the administrative record below.
                                                17


       {¶36} R.C. 2506.02 provides:

       Within forty days after filing a notice of appeal in relation to a final order,
       adjudication, or decision covered by division (A) of section 2506.01 of the
       Revised Code, the officer or body from which the appeal is taken, upon the filing
       of a praecipe by the appellant, shall prepare and file in the court to which the
       appeal is taken, a complete transcript of all the original papers, testimony, and
       evidence offered, heard, and taken into consideration in issuing the final order,
       adjudication, or decision. The costs of the transcript shall be taxed as a part of the
       costs of the appeal.

       {¶37} Based upon the language of R.C. 2506.02, the Residents argue that the “Notice of

Filing Transcript” was defective because it was not transmitted by the Board, it was not certified

by anyone with authority to act for the Board, and it did not certify that the record contained a

“complete transcript of all the original papers, testimony, and evidence offered, heard and taken

into consideration in issuing the final order, adjudication, or decision.” R.C. 2506.02.

       {¶38} First, we note that the filing entitled “Notice of Filing Transcript” was submitted

by the Law Director of Sheffield Lake on behalf of the Board, and stated that the Board gave

notice “of the filing of the Transcript of all the original papers, testimony, and evidence offered,

heard, and taken into consideration by the [Board] in issuing its final decision on May 15, 2013

pursuant to [R.C.] [] 2505.08 and [] 2506.02.” Given the content of this Notice, we cannot

discern in what way the Residents contend that Notice was not transmitted by the Board.

       {¶39} The Residents’ arguments pertaining to the “certify[ication]” of the administrative

record appear to challenge a document entitled “Verification” that was included with the Board’s

record. The verification was signed by an individual named “Kay Fantauzzi” and reads as

follows:

       I, Kay Fantauzzi, duly appointed Clerk of Committees for the City of Sheffield
       Lake, hereby certify that the accompanying documents are true and exact copies
       of original documents contained within the records of the City of Sheffield Lake.
                                               18


       {¶40} The Residents maintain that Ms. Fantauzzi is not authorized to act for the Board,

and that her certification was incomplete pursuant to R.C. 2506.02. However, nothing in R.C.

2506.02 requires an administrative body to include a certification of the record on transmittal to

the trial court, and the Residents have offered no authority addressing any requirement of a

certification of the Board’s record. See App.R. 16(A)(7). Instead, in their reply brief, the

Residents maintain that from the language of R.C. 2506.02, “[o]f necessity, the officer or body

from which appeal is taken must certify that the record as transmitted is complete as described

above.” (Emphasis sic.) However, again, the Residents do not explain in what way R.C.

2506.02 requires a certification of the administrative record, and the plain language of that

provision creates no express requirement. Further the Residents do not explain how they were

prejudiced by the purportedly improper certification. See Yachanin v. Cleveland Civ. Serv.

Comm., 8th Dist. Cuyahoga No. 99802, 2013-Ohio-4485, ¶ 23-27 (noting that R.C. 119.12,

inapplicable to that case, requires a certification of an agency’s record in appeals brought

pursuant to that section, but, even where R.C. 119.12 does apply, the failure to properly certify

does not result in reversal absent prejudice). We decline to construct an argument on their

behalf. See App.R. 16(A)(7).

       {¶41} Accordingly, the Residents’ second assignment of error is overruled.

                               ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY
       PERMITTING DEARBORN TO INTERVENE.

       {¶42} In their third assignment of error, the Residents argue that the trial court erred in

permitting Dearborn to intervene in their administrative appeal. We disagree.

       {¶43} Civ.R. 24(A) provides as follows:
                                                19


       Upon timely application anyone shall be permitted to intervene in an action * * *
       when the applicant claims an interest relating to the property or transaction that is
       the subject of the action and the applicant is so situated that the disposition of the
       action may as a practical matter impair or impede the applicant’s ability to protect
       that interest, unless the applicant’s interest is adequately represented by existing
       parties.

       {¶44} Here, Dearborn alleged that it had an interest in the appeal of its permit approval.

However, the Residents appear to argue that Dearborn’s interests were adequately represented by

the Board because the primary issue on appeal pertained to whether the Board violated the

Residents’ due process and First Amendment rights.

       {¶45} Because the Residents filed this action as an administrative appeal of the Board’s

decision to approve Dearborn’s permit, Dearborn clearly had an interest “relating to the property

or transaction that is the subject of the action[.]” See Civ.R. 24(A). We cannot agree that

Dearborn’s interests were adequately represented by the Board. The Board initially denied

Dearborn’s request for approval for its permit, resulting in the previous administrative appeals to

the trial court. From this procedural history, where the Board and Dearborn were diametrically

opposed in their positions until the trial court ordered the Board to consider only whether the size

and location of the building met the requirements of the zoning ordinances, we cannot say that

Dearborn’s interests were adequately represented by the Board. Accordingly, the Residents’

third assignment of error is overruled.

                             CROSS-ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED BY DENYING THE JOINT MOTION TO
       DISMISS APPEAL FILED BY DEARBORN AND THE [BOARD].

       {¶46} In its cross-assignment of error, Dearborn argues that the trial court erred by

failing to grant its motion to dismiss the administrative appeal. The Residents respond that this

argument is not properly raised as a cross-assignment of error.
                                                20


       {¶47} Assuming without deciding that this challenge is properly raised as a cross-

assignment of error, Dearborn has specifically asserted this cross-assignment of error as

conditional for our consideration only if we were to sustain one of the Residents’ assignments of

error. In light of our disposition of the appeal, the purported cross-assignment of error is moot,

and we decline to address it. See App.R. 16(A)(7).

                                                     III.

       {¶48} The Residents’ assignments of error are overruled. The cross-assignment of error

is moot. The judgment of the trial court is affirmed.

                                                                             Judgment affirmed.



       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 Lorain, 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.

       Costs taxed to Appellants.




                                                        CARLA MOORE
                                                        FOR THE COURT
                                          21




HENSAL, P.J.
SCHAFER, J.
CONCUR

APPEARANCES:

BRENT L. ENGLISH, Attorney at Law, for Appellants.

DAVID M. GRAVES, Attorney at Law, for Appellee.
