[Cite as Marks v. Aurora Bd. of Zoning Appeals, 2016-Ohio-5182.]


                                  IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    PORTAGE COUNTY, OHIO


DOUGLAS MARKS, et al.,                                 :           OPINION

                 Appellant,                            :
                                                                   CASE NO. 2015-P-0048
        - vs -                                         :

CITY OF AURORA, BOARD                                  :
OF ZONING APPEALS, et al.,
                                                       :
                 Appellees.
                                                       :


Administrative Appeal from the Portage County Court of Common Pleas, Case No.
2013 CV 00840.

Judgment: Affirmed.


Richard C. Lombardi, 240 South Chestnut Street, Suite B, Ravenna, OH 44266 (For
Appellant).

Douglas K. Paul, Reitz, Paul, & Shorr, Attorneys at Law, 215 West Garfield Road,
Suite 203, Aurora, OH 44202, and Dean E. DePiero, Aurora Law Director, 130 South
Chillicothe Road, Aurora, OH 44202 (For Appellee, City of Aurora, Board of Zoning
Appeals).

Chad E. Murdock, 228 West Main Street, P.O. Box 248, Ravenna, OH 44266 (For
Appellee, Charles Marks).



DIANE V. GRENDELL, J.

        {¶1}     Plaintiff-appellant, Douglas Marks, appeals the judgment of the Portage

County Court of Common Pleas, sustaining the decision of defendant-appellee, Aurora

Board of Zoning Appeals, granting defendant-appellee, Charles F. Marks, an area
variance. The issue before this court is whether a party that fails to file a brief in an

administrative appeal before the common pleas court may raise arguments for the first

time on appeal before the court of appeals. For the following reasons, we affirm the

decision of the court below.

        {¶2}     On August 26, 2013, James E. Marks and Douglas Marks filed an

Administrative Appeal of the City of Aurora, Board of Zoning Appeals Resolution 2013-

07.

        {¶3}     On March 11, 2014, Charles was granted leave to intervene as an

appellee.

        {¶4}     On June 2, 2014, James filed a Brief in Support of Administrative Appeal.

        {¶5}     On June 30, 2014, Charles filed a Brief.

        {¶6}     On July 14, 2014, the Aurora Board of Zoning Appeals filed its Brief.

        {¶7}     On June 5, 2015, the Portage County Court of Common Pleas issued a

Judgment Entry, sustaining the decision of the Aurora Board of Zoning Appeals and

overruling the administrative appeal.1

        {¶8}     On July 6, 2015, Douglas filed a Notice of Appeal.

        {¶9}     On appeal, Douglas raises the following assignments of error:

        {¶10} “[1.] The trial court erred in sustaining the decision of the Aurora Board of

Zoning Appeals in granting a variance where the Board never sent the notice of hearing

to one of the owners.”

        {¶11} “[2.] The trial court erred in sustaining the decision of the Aurora Board of

Zoning Appeals where the court failed to hold a hearing where it was apparent on the


1. The signature line on this entry indicated that it was signed by the court magistrate, rather than the trial
court judge. On September 29, 2015, the trial court issued a Judgment Entry Nunc pro Tunc, in which the
signature line identified the signature as belonging to the trial court judge.

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face of the transcript that appellant, Douglas Marks, was not permitted to appear and be

heard in person and where the testimony adduced was not given under oath.”

      {¶12} “[3.] The trial court erred in sustaining the decision of the Aurora Board of

Zoning Appeals in granting a variance where the Board was instructed it was irrelevant

that the majority of owners were against the variance and that the court needed the

Board’s help and that the court was sending them the case.”

      {¶13} Preliminarily, the appellees assert that Douglas has waived the arguments

now raised before this court by not raising them before the trial court. We agree.

      {¶14} It is an established general rule that “[a]n appellate court will not consider

any error which a party complaining of a trial court’s judgment could have called but did

not call to the trial court’s attention at a time when such error could have been avoided

or corrected by the trial court.” LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d

121, 123, 512 N.E.2d 640 (1987). The rule applies in the administrative context, where

the court of common pleas exercises appellate jurisdiction. Compare State v. Wirick, 81

Ohio St. 343, 347, 90 N.E. 937 (1910) (“[w]here a cause has been brought up for review

from an intermediate court of appellate jurisdiction * * *, questions * * * which were

neither made in the court of first instance nor assigned for error in the intermediate

court, will not be considered”) (citation omitted). Thus, “[a] failure to raise an issue

during an administrative appeal before the common pleas court operates as a waiver of

the party’s right to assert the issue for the first time to an appellate court.” Gross

Builders v. Tallmadge, 9th Dist. Summit No. 22484, 2005-Ohio-4268, ¶ 36.

      {¶15} In the present case, Douglas did not file a brief in support of the

administrative appeal to the Portage County Court of Common Pleas. He has thereby

waived his right to challenge the lower court’s ruling on appeal to this court. We further


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reject Douglas’ claim that his brother, James, preserved his claim regarding inadequate

notice for appeal.

       {¶16} Before the zoning board and court of common pleas, Douglas was

represented by Attorney Richard C. Lombardi.         On March 13, 2014 (about seven

months after the administrative appeal was filed), Attorney Lombardi withdrew from his

representation of Douglas. As Douglas acknowledges in his brief before this court, “[a]t

that point, Mr. [Douglas] Marks was proceeding pro se.” Appellant’s brief at 14.

       {¶17} The evidence before the lower court was that the Marks brothers,

Douglas, James, and Charles, owned as tenants-in-common a parcel of land located at

908 Old Mill Road, Aurora, which was the subject of a pending partition action. The

location is zoned R-2 Residential which requires lots to have 250 feet of frontage.

Under a proposed partitioning of the property, Charles would receive a lot requiring a

19-foot frontage variance. Charles filed an Application for variance.

       {¶18} An initial meeting of the zoning board to consider Charles’ Application was

held on May 8, 2013, at which Attorney Lombardi was present on Douglas’ behalf. A

motion was approved that “the Board table this [matter] for 30 days,” as there was some

uncertainty as to whether the Application was properly before the zoning board or

whether it should be considered by the planning commission. The parties were advised

that they would be notified before the June meeting, which would take place on the

“second Wednesday” of the month. On July 8, 2013, Attorney Lombardi was emailed

notice that the zoning board would consider the requested variance at its July 10, 2013

meeting.




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       {¶19} At the July 10, 2013 meeting, the zoning board considered and granted

the variance (Resolution 2013-07).        Neither Attorney Lombardi nor Douglas were

present.

       {¶20} On July 12, 2013, Attorney Lombardi wrote the zoning board advising that

48 hours notice was inadequate for him or Douglas, a resident of Wisconsin, to attend

the meeting.

       {¶21} James did file a brief in support of the administrative appeal, in which he

refers to Douglas’ claim that he received inadequate notice of the July 10, 2013 meeting

of the zoning board whereat the merits of the requested variance were discussed. In

the last sentence of the brief’s Conclusion, it stated that Douglas “by virtue of the notice

sent to him and his counsel was deprived of his Constitutional Rights, i.e., to participate

in proceedings.” No further argument was presented.

       {¶22} On appeal before this court, Douglas claims that Charles’ Application for

variance was invalid because it did not identify him as a co-owner of the property and

that the zoning board failed to comply with Aurora Codified Ordinance 1139.06 (Uniform

Notice of Hearing) when issuing notice of the July 10, 2013 hearing.             Assuming,

arguendo, that James had standing to argue Douglas’ lack of notice before the common

pleas court, he presented neither the specific arguments now raised by Douglas nor

substantive argument regarding the alleged deprivation of due process in general.

       {¶23} Accordingly, Douglas has waived the arguments raised on appeal and the

assignments of error are without merit.

       {¶24} For the foregoing reasons, the judgment of the Portage County Court of

Common Pleas, sustaining the decision of the Aurora Board of Zoning Appeals, is

affirmed. Costs to be taxed against appellant.


                                             5
TIMOTHY P. CANNON, J., concurs in judgment only,

COLLEEN MARY O’TOOLE, J., dissents with a dissenting opinion.



                      ____________________________________



COLLEEN MARY O’TOOLE, J., dissents, with Dissenting Opinion.

       {¶25} Finding merit in Douglas’ first assignment of error, I would reverse and

remand, with an order to the trial court to vacate the decision of the zoning board.

Douglas did not receive proper notice of the hearing regarding the zoning variance

requested by Charles, and was deprived of due process.

       {¶26} In State v. Mateo, 57 Ohio St.3d 50, 52 (1991), the Supreme Court of Ohio

stated:

       {¶27} “The United States Supreme Court has stated that the essence of due

process is notice and an opportunity to be heard: ‘For more than a century the central

meaning of procedural due process has been clear: “Parties whose rights are to be

affected are entitled to be heard; and in order that they may enjoy that right they must

first be notified.” (* * *) (Citations omitted.) It is equally fundamental that the right to

notice and an opportunity to be heard “must be granted at a meaningful time and in a

meaningful manner.” Armstrong v. Manzo (1965), 380 U.S. 545, 552.’ Fuentes v.

Shevin (1972), 407 U.S. 67, 80. See, also, Mathews v. Eldridge (1976), 424 U.S. 319,

333. ‘As a general rule, due process requires that the government give notice and an

opportunity to be heard before taking an individual’s liberty or property.’ (Emphasis sic.)

United States v. 141st Street Corp. (C.A.2, 1990), 911 F.2d 870, 874.             Likewise,


                                             6
‘(p)rocedural due process requires that all parties be given reasonable notice of the

pendency of an action and an opportunity for a hearing where their objections can be

presented.’ Faries v. Director, Office of Workers’ Comp. Prog. (C.A.6, 1990), 909 F.2d

170, 173. ‘Due process of law involves only the essential rights of notice, hearing or

opportunity to be heard before a competent tribunal.    (* * *)’ State v. Luff (1927), 117

Ohio St. 102, * * *, at paragraph four of the syllabus. See, also, State v. Edwards

(1952), 157 Ohio St. 175, 178, * * *, at paragraph one of the syllabus.”         (Parallel

citations omitted.)

       {¶28} In this case, the zoning board only emailed notice of the July 10, 2013

meeting at which Charles’ variance request was to be heard two days before the

meeting to Douglas’ attorney.    This does not comply with the zoning board’s own

regulations. Aurora Codified Ordinance 1139.03(c) provides, in pertinent part:

       {¶29} “When a notice of * * * variance has been filed in proper form with the

Clerk of the Board of Zoning Appeals, the Clerk shall immediately place the request for *

* * variance upon the calendar for hearing, and shall cause notices, to be issued as

provided in Section 1139.06, Uniform Notice of Hearing.”

       {¶30} Aurora Codified Ordinance 1139.06 requires that notices for variance

hearings be published in the newspaper and sent by mail ten days prior to hearing.

Aurora Codified Ordinance 1139.06(b)(1)-(2). It mandates notice by sign at the subject

property seven days prior to hearing. Aurora Codified Ordinance 1139.06(b)(3). It

makes no mention of email notification.

       {¶31} The zoning board knew, from the time of its prior May meeting, that

Douglas lived in Wisconsin. The two days notice provided to Douglas’ attorney in this

case did not merely contravene the zoning board’s own rules: it was clearly insufficient


                                           7
for Douglas and his attorney to prepare. I further note the record shows that Charles

and his attorney both received proper written notice of the July 10, 2013 meeting.

Neither Douglas and his attorney, nor James and his attorney, did.

      {¶32} In Shikner v. S & P Solutions, 11th Dist. Lake No. 2004-L-108, 2006-Ohio-

127, the trial court granted S & P’s oral motion for default judgment at hearing, without

Shikner’s counsel having been provided the seven day written notice mandated by

Civ.R. 55(A).   Id. at ¶19, 22-23.    This court reversed and remanded, holding that

Shikner’s “ability to show cause under Civ.R. 55(A) [for failing to file a responsive

pleading] was emasculated.” Id. at ¶23.

      {¶33} In this case, Douglas lost his right to oppose the variance sought by

Charles due to a complete lack of meaningful notice. Further, Charles, the one co-

owner of the property, and sole proponent of the variance, did receive such notice. This

was a deprivation of Douglas’ due process rights. Mateo, supra, at 52.

      {¶34} I respectfully dissent.




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