[Cite as Kratzer v. Westfield Twp., 2016-Ohio-3378.]


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

TIMOTHY L. KRATZER, et al.                                  C.A. No.   14CA0069-M

        Appellants/Cross-Appellees

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
WESTFIELD TOWNSHIP                                          COURT OF COMMON PLEAS
                                                            COUNTY OF MEDINA, OHIO
        Appellee/Cross-Appellant                            CASE No.   14CIV0173

                                 DECISION AND JOURNAL ENTRY

Dated: June 13, 2016



        MOORE, Judge.

        {¶1}     Timothy and Linda Kratzer appeal from the decision of the trial court, reversing

the decision of the Westfield Township Board of Zoning Appeals (“the Board”), and remanding

the matter for further proceedings. We affirm the decision of the trial court.

                                                       I.

        {¶2}     The Kratzers own real property on Greenwich Road in Westfield Township, Ohio.

The property is partly zoned for local commercial use, and primarily zoned for rural residential

use. It is adjacent to a freeway interchange. The Kratzers had used their land for farming, but

had suffered losses on the business. They then began a series of attempts to permit the land to be

used for larger scale business uses, which failed. Thereafter, in 2013, the Kratzers filed an

application for a zoning use variance.            The Board held public hearings on the Kratzers’

application. At the commencement of the first hearing, Mr. Kratzer spoke regarding his demand

that the Chairman of the Board, Michael Schmidt, and a Board member, Kevin Daugherty,
                                                 2


recuse themselves from involvement in deciding the Kratzers’ application because they had

publicly opposed a previous attempt by the Kratzers to use their land in accordance with the use

requested in the present application.      Mr. Schmidt and Mr. Daugherty declined to recuse

themselves.

       {¶3}      During the hearings on their application, the Kratzers presented witnesses who

testified that the permitted uses on their property were not economically feasible, and that larger

scale business use would be an economically feasible option. Thereafter, the public provided

testimony. The Kratzers’ counsel, the Board, and the public were permitted to ask questions of

the witnesses.

       {¶4}      After deliberating, the Board denied the application in a three-to-two vote, with

Mr. Schmidt and Mr. Daugherty both voting to deny the application. Thereafter, the Kratzers

filed an administrative appeal, naming the Township as administrative appellee, in the trial court.

In their notice of administrative appeal, the Kratzers alleged that the decision of the Board was

“unconstitutional, illegal, arbitrary, capricious, unreasonable, and unsupported by the

preponderance of substantial, reliable and probative evidence[.]” In their brief before the trial

court, the Kratzers assigned as error that “[t]he [Board] erred because its decision denying [the

Kratzers’] use variance is arbitrary, capricious, unreasonable, and unsupported by the

preponderance of substantial, reliable and probative evidence on the whole record.”

       {¶5}      The trial court determined that the bias of Mr. Schmidt and Mr. Daugherty

resulted in an unfair hearing, depriving the Kratzers of their due process rights. The court

remanded the matter to the Board for further proceedings before the Board without the

involvement of Mr. Schmidt and Mr. Daugherty. The Kratzers filed an appeal from the trial
                                                3


court’s decision, and the Township filed a cross-appeal. The parties each have assigned one

error for our review. We have consolidated the assignments of error to facilitate our discussion.

                                                II.

                       THE KRATZERS’ ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       REMANDING THE CASE TO THE [BOARD] FOR A NEW
       ADMINISTRATIVE HEARING WHEN [THE KRATZERS] DID NOT RAISE
       AS AN ASSIGNMENT OF ERROR ANY CONSTITUTIONAL ARGUMENT –
       E.G. , A PROCEDURAL DUE PROCESS CLAIM – AND DID NOT REQUEST
       OR SEEK A REMAND TO THE [BOARD] FOR A NEW ADMINISTRATIVE
       HEARING BUT INSTEAD, RAISED THE ISSUE OF BIAS OF TWO
       [BOARD] MEMBERS, AS ONE OF SEVERAL ARGUMENTS TO SUPPORT
       THE KRATZERS’ POSITION THAT THE [BOARD’S] DECISION SHOULD
       BE REVERSED AND THE VARIANCE GRANTED UNDER THE
       STANDARD SET FORTH IN R.C. 2506.04 BECAUSE THE [BOARD]’S
       DECISION AS SET FORTH IN ITS WRITTEN “NOTICE OF DECISION”
       AND “CONCLUSIONS OF FACT” IS UNSUPPORTED BY A
       PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE
       EVIDENCE ON THE WHOLE RECORD AND, THEREFORE, ARBITRARY,
       CAPRICIOUS AND UNREASONABLE.

                      THE TOWNSHIP’S ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT FAILED TO RULE THE [BOARD]
       LACKED AUTHORITY TO GRANT THE REQUESTED VARIANCE
       BECAUSE IT WAS A REQUEST FOR A LEGISLATIVE REZONING.

       {¶6}    In their assignment of error, the Kratzers maintain that the trial court erred in

deciding this matter on a constitutional error where that was not raised in their assignment of

error presented to the trial court and where the decision of the Board could have been reversed

on non-constitutional grounds. In the Township’s assignment of error, it argues that the trial

court should have determined that the use variance essentially amounted to rezoning, and thus

the trial court should have affirmed the decision of the Board denying the use variance on this

basis. The Township characterizes this as a “threshold” question pertaining to the “subject
                                                   4


matter jurisdiction” of the Board that the trial court should have reached prior to considering the

bias of the Board members.

       {¶7}    This appeal involves 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.

        {¶8}    “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.

        {¶9}    Here, the Kratzers filed an administrative appeal in the trial court. In their trial

court brief, the Kratzers maintained that the Board’s decision should be reversed because the
                                                 5


evidence submitted at the hearing established that their request for a variance should have been

granted. The Township responded that the request would have amounted to legislative rezoning.

       {¶10} “A sound distinction exists in law between the act of zoning, or rezoning, and the

act of granting or refusing a variance. The former constitutes a legislative act and the exercise of

a broad legislative discretion in adopting an ordinance or law.          The latter constitutes an

administrative or quasi-judicial act in applying the provisions of an existing ordinance or law

and, in such application, the exercise of a discretion limited by the provisions of such legislation

including such standards as are set forth therein.” (Internal citations omitted.) State ex rel.

Humble Oil & Refining Co. v. City of Marion, 4 Ohio App.2d 178, 180 (3d Dist.1965). The

legislature may vest an agency with authority to grant a variance, but the enabling legislation

“must set forth standards to be applied by the administrative agency.” Standard Oil Co. v. City

of Warrensville Heights, 48 Ohio App.2d 1, 15 (8th Dist.1976). R.C. 519.14(B) and Westfield

Township Zoning Resolution (hereinafter “Loc.Resolution”) 906(A) permit the Board to grant

variances:

       The [Board] may * * * [a]uthorize, upon appeal, in specific cases, such variance
       from the terms of the zoning resolution as will not be contrary to the public
       interest, where, owing to special conditions, a literal enforcement of the resolution
       will result in unnecessary hardship, and so that the spirit of the resolution shall be
       observed and substantial justice done[.]

       {¶11} With respect to use variances, Loc.Resolution 906(C) provides:

       Where the appeal requests a use variance, that is, a variance for the approval of a
       use which is not permitted in the district, then the following standards shall be
       considered and weighed in determining whether the grant of a variance is
       warranted to afford relief of an unnecessary hardship.

       1. Whether uses permitted in the district may be reasonably established on the
       property and whether they are economically viable on the property in question
       without the variance;

       2. Whether the variance is the minimum variance which will afford relief to the
       property owner;
                                                6


       3. Whether the essential character of the neighborhood will be substantially
       altered or adjoining properties will suffer interference with their proper future
       development and rights as a result of the variance;

       4. Whether the property in question has unique or exceptional circumstances or
       conditions that do not generally apply to other properties in the vicinity and
       within the same district;

       5. Whether the hardship condition was created by actions of the applicant;

       6. Whether the spirit and intent of the Zoning Code will be observed and
       substantial justice done by granting the variance;

       7. Whether the use requested is similar in impact to the permitted uses in the
       subject district;

       8. Whether the subject property is adequate to meet the needs and requirements of
       the proposed use.

       {¶12}     It is well within the Board’s authority to determine whether to grant a variance

in accordance with these standards, and such a determination is dependent on the facts of each

case. See R.C. 519.14, Loc.Resolution 906(A), and Loc.Resolution 906(C). Accordingly, the

issue of whether the variance should properly issue in this case was not an issue of “subject

matter jurisdiction.” Drackett v. Danbury Twp. Zoning Bd. of Appeals, 6th Dist. Ottawa Nos.

OT-09-022, OT-10-014, 2010-Ohio-6506, ¶ 53 (“The filing of the application [for a variance]

gave the board of zoning appeals subject matter jurisdiction to determine whether or not to grant

a variance.”) Compare Drackett with Superior Hauling, Inc. v. Allen Twp. Zoning Bd. of

Appeals, 172 Ohio App.3d 313, 2007-Ohio-3109, ¶ 18, 32 (6th Dist.) (where former statute and

local ordinance had “expressly denied the township’s authority to zone the use of public-utility

properties,” zoning inspector’s requirement that public utility obtain a variance, and the board’s

denial of variance, exceeded the statutory authority and were subject to collateral attack).

Accordingly, to the extent that the Township argues otherwise in its cross-appeal, its assignment

of error is overruled.
                                                 7


       {¶13} In deciding the Kratzers’ administrative appeal, the trial court did not reach the

issue of whether the evidence supported the factors that would permit a variance to issue.

Instead, it concluded that the Kratzers received an unfair hearing due to the bias of Mr. Schmidt

and Mr. Daugherty, and it remanded the matter for a new hearing before the Board without the

involvement of Mr. Schmidt and Mr. Daugherty.

       {¶14} On appeal to this Court, the Kratzers argue that because they did not specifically

allege in their assignment of error or merit brief before the trial court that the Board’s decision

was “unconstitutional” or “illegal[,]” the trial court erred in resolving the appeal by finding that

they were denied their due process rights and remanding the matter.

       {¶15} However, our review of the record indicates that the Kratzers clearly raised the

argument relied upon by the trial court in support of their very broad assignment of error below.

The Kratzers dedicated five pages in their “Statement of Relevant Facts” to a discussion of the

purported bias of Board Members Schmidt and Daugherty.               Later, within the “Law       &

Argument” section of their trial court brief, under the subheading “An Administrative Entity’s

Decision Must Be Supported by Direct Evidence[,]” the Kratzers maintain that quasi-judicial

proceedings are subject to “due process[,]” and they cited Gibralter Mausoleum Corp. v. City of

Cincinnati, 1 Ohio App.3d 107, 109-110 (1st Dist.1981) for the proposition that “[t]he essence of

due process dictates, at the very least, that an individual have an opportunity to be heard and to

defend, enforce and protect his rights before an administrative body in an orderly proceeding.”

At the end of this subsection, the Kratzers maintain that “[i]n the case at bar, the record clearly

shows that the [Board] ignored the direct evidence presented by [the Kratzers] and their expert

witnesses and, instead, apparently based its decision upon the speculative comments of

Township residents who had no connection to the Property and the two [Board] members[’] own
                                                   8


speculative and biased comments since there are no facts to support its decision.” Then, as a

subheading to their assignment of error, the Kratzers maintained that “[t]he [Board’s] decision to

deny [the Kratzers’] use variance is arbitrary, capricious, and unreasonable as evidenced by the

bias of two of its members, and, therefore, should be reversed and the variance granted[,]” after

which the Kratzers provided two pages of argument regarding purported bias on the parts of

Board members Schmidt and Daugherty. The Kratzers concluded their argument in support of

their assignment of error in the trial court brief by stating:

        Based on the foregoing, the actions of [the Board] Chairman Schmidt and [Board
        m]ember Daugherty serve as an additional basis for this [c]ourt to reverse the
        decision of the [Board] as being arbitrary, capricious, and unreasonable under the
        standard set forth in R.C. 2506.04 and to order the granting of the variance.

        {¶16} Therefore, although the assignment of error in their trial court brief did not

specifically state that they were presenting a constitutional challenge, the Kratzers clearly raised

the issue of bias (and they concede as much in their assignment of error to this Court).

        {¶17} The Township responded to this argument in its brief in the trial court,

maintaining that the record failed to reflect an unfair hearing in violation of the Kratzers’ due

process rights, and dedicating nearly three pages of its brief to arguing Members Schmidt and

Daugherty impartially applied the law and did not violate the Kratzers’ due process rights.

        {¶18} In their reply, the Kratzers made no indication that they were not challenging the

denial of their due process rights on the basis of bias, but instead provided an additional two

pages of argument concerning the bias of the members.

        {¶19} Accordingly, the issue of the bias of Mr. Schmidt and Mr. Daugherty was fully

briefed before the trial court. Although the Kratzers’ stated assignment of error before the trial

court did not specifically indicate that the Board’s decision was “unconstitutional” or “illegal[,]”
                                                 9


they have pointed to no authority binding a trial court to the specific language of an assignment

of error in deciding an administrative appeal. See App.R. 16(A)(7).

       {¶20} Furthermore, the parties maintain that courts should decide constitutional

questions only when “absolutely necessary.” Citing State ex rel. Debrosse v. Cool, 87 Ohio

St.3d 1,7, 1999-Ohio-239. The Kratzers argue that, here, it was unnecessary for the trial court to

reach the issue of bias because the Board’s decision was not supported by the evidence, while the

Township argues that the evidence was inadequate to establish the necessary criteria for granting

a variance.

       {¶21} Assuming, without deciding, that the principle that courts will not decide

constitutional questions unless absolutely necessary would apply in this case, and further

assuming, without deciding, that it would amount to error for the trial court to fail to follow this

principle, it appears from the trial court’s order that it found that addressing this error was

necessary. The trial court’s order appears to indicate that the bias of Mr. Schmidt and Mr.

Daugherty was so extensive that it skewed the proceedings before the Board to such a degree that

this matter could not properly be reviewed on its merits:

       Upon review of the transcript of the proceedings before the [Board], [Mr.]
       Schmidt and [Mr.] Daugherty took the most active roles in the proceedings out of
       the five [Board] members. Both [Mr.] Schmidt and [Mr.] Daugherty extensively
       cross-examined Mr. Kratzer and his expert witnesses. At times, the [Board]
       appeared to have views in opposition to witness testimony and the questioning
       then crossed over into a situation where [the Board] members were essentially
       testifying themselves. The [c]ourt understands that proceedings before the
       [Board] are quasi-judicial in nature, and therefore not subject to the same
       formalities of a court proceeding, but the extensive cross-examination and at
       times presentation of testimony by [Mr.] Schmidt and [Mr.] Daugherty, combined
       with the aforementioned public opposition to the previous rezoning of this
       property, tends to establish that the [Kratzers] did not get a fair hearing in front of
       an impartial tribunal.
                                                 10


In addition, the trial court concluded that Mr. Schmidt permitted members of the public to cross-

examine Mr. Kratzer and his witnesses, and during this cross-examination, Mr. Schmidt

permitted the public to interject their “subjective and unsubstantiated opinions.”

       {¶22} Accordingly, even assuming the accuracy of the parties’ premise that a trial court

errs as a matter of law by deciding a constitutional issue where it is unnecessary, we cannot say

that the trial court erred in determining it necessary to consider the issue of bias, insofar as it

pertains to whether the Kratzers received a fair hearing, under the circumstances present here.

See Stace, 2005-Ohio-4798, at ¶ 6 (trial court’s ruling on an administrative appeal filed under

R.C. Chapter 2506 can be appealed to this court on questions of law).         Although the parties

appear to agree that no more evidence is needed in order to determine whether the variance

should or should not have been granted, the trial court did not remand for the purpose of taking

of additional evidence. It remanded the matter for a new hearing. Because this new hearing

would supply the relevant information for application of the factors in Loc.Resolution 906(C),

we cannot say the trial court erred to the extent that it did not resolve the ultimate issue of

whether a variance should be granted.

       {¶23} In addition, based upon the extent of the Kratzers’ arguments below pertaining to

the bias of Mr. Schmidt and Mr. Daugherty, we conclude that, if there were any error on the part

of the trial court in deciding the administrative appeal on the basis of the purported bias of the

Board members, it was invited by the Kratzers. Lester v. Leuck, 142 Ohio St. 91 (1943),

paragraph one of the syllabus (The invited error doctrine precludes a party from “tak[ing]

advantage of an error which he himself invited or induced the trial court to make.”). Having

directed the court to consider the bias of the Board members, the Kratzers cannot now complain

that the trial court erred by proceeding in this manner.
                                                11


       {¶24} Lastly, we note that, although the parties challenge the trial court’s decision to

remand this matter to the Board, it is well within the province of the trial court in an

administrative appeal to remand the matter to the administrative agency. See R.C. 2506.04

(common pleas court may affirm, reverse, vacate, or modify the agency’s decision “or remand

the cause to the officer or body appealed from with instructions to enter an order, adjudication, or

decision consistent with the findings or opinion of the court”); State ex rel. Chagrin Falls v.

Geauga Cty. Bd. of Commrs., 96 Ohio St.3d 400, 2002-Ohio-4906, ¶ 8-12; see also Stace, 2005-

Ohio-4798 at ¶ 5, 17-18 (authority to remand includes right to conduct a new hearing).

       {¶25} Accordingly, the parties’ assignments of error are overruled.

                                                     III.

       {¶26} The Kratzers’ assignment of error is overruled. The Township’s assignment of

error is overruled. 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 Medina, 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.
                                              12


       Costs taxed equally to both parties.




                                                   CARLA MOORE
                                                   FOR THE COURT



CARR, P. J.
CONCURS.

SCHAFER, J.
DISSENTING.

       {¶27} I would sustain the Kratzers’ assignment of error because, in my view, the

Kratzers did not raise a procedural due process violation in their administrative appeal.

Additionally, I would decline to address the Township’s assignment of error since it is not yet

ripe for review. Consequently, I respectfully dissent from the majority’s resolution of both

assignments of error.

          A. The Kratzers Did Not Raise Procedural Due Process in the Trial Court

       {¶28} It is axiomatic that “[c]ourts decide constitutional issues only when absolutely

necessary.” (Emphasis added.) State ex rel. DeBrosse v. Cool, 87 Ohio St.3d 1, 7 (1999). As a

result, this Court has consistently determined that if a party does not assert a constitutional

violation, including one that implicates due process, then the purported violation is forfeited.

E.g., State v. Davis, 9th Dist. Lorain No. 14CA010639, 2015-Ohio-4218, ¶ 23. I see no reason to

depart from these maxims in this matter.

       {¶29} I disagree with the majority’s conclusion that “the Kratzers clearly raised the

[bias/due process] argument relied upon by the trial court in support of their very broad

assignment of error below.” Majority Opinion at ¶ 15. The Kratzers’ filed a merit brief with the
                                                13


trial court asserting one assignment of error: “The BZA erred because its decision denying [their]

use variance is arbitrary, capricious, unreasonable, and unsupported by the preponderance of

substantial, reliable, and probative evidence on the whole record.”           I note that neither

“unconstitutional” nor “due process violation” appears in the language of the assignment of

error. The brief then delves into the evidence offered by the parties at the administrative hearing

and the Kratzers’ conclusion that “[t]he lack of evidentiary support for the Decision is striking.”

From this formulation, it is apparent to me that the Kratzers only presented one basis for the

reversal of the BZA’s decision: the lack of evidence in the record to support a denial of their

variance request.

       {¶30} This view is further confirmed when one considers the sections of the Kratzers’

merit brief that refer to “due process.” In regard to due process, the Kratzers argued as follows:

       A quasi-judicial proceeding must afford an individual “due process” of law. * * *
       Consequently, an administrative board’s decision must be supported by direct
       evidence and not subjective comments or unsubstantiated public opinion
       presented at the hearing. * * * Oral arguments at hearings are not evidence upon
       which to base a decision.

This language demonstrates that the Kratzers only cited the concept of due process to point out to

the trial court that it could not consider “subjective comments or unsubstantiated public opinion”

when considering their evidentiary challenge to the BZA’s decision. It was not offered for the

purpose of arguing that there was procedural unfairness in the administrative hearing process.

       {¶31} The same goes for the Kratzers’ references in their merit brief to the “bias” of two

BZA members. The majority ascribes paramount importance to these references, pointing out

that “the Kratzers provided two pages of argument regarding purported bias on the parts of [the

BZA members].” Majority Opinion at ¶ 15. In my view, it is more appropriate to put paramount

importance on the following statement that the Kratzers included before putting forth the two
                                                 14


pages of argument: “This argument is made to demonstrate a basis for the BZA’s Decision not

being supported by the evidence in the record.” (Emphasis added.) The trial court had an

obligation to read the two pages of discussions regarding bias within the context of this critical

limitation. And, on appeal, we should give effect to these words by finding that the “bias”

argument was not offered for the purpose of asserting a procedural due process violation, but to

show that the “no” votes of Mr. Schmidt and Mr. Daugherty were arbitrary, unreasonable, and

capricious.

       {¶32} Based on the language contained within the Kratzers’ merit brief, I believe that it

is far from clear that the Kratzers raised the issue of a procedural due process violation. In fact, I

would find that they never asserted that the BZA’s decision should be vacated because there was

a procedural due process violation during the administrative hearings. Consequently, I would

find that by sua sponte vacating the BZA’s decision on an unraised constitutional issue, the trial

court erred. Accordingly, I would sustain the Kratzers’ assignment of error and remand this

matter to the trial court for it to decide whether the record contains a preponderance of

substantial evidence showing that the BZA should have granted their variance request.

       {¶33} Finally, I note that Township confessed error regarding the trial court’s reliance

on a procedural due process violation when deciding to vacate the BZA’s decision and remand

the matter for further administrative proceedings. Based on the Township’s concession and the

arguments asserted in the trial court, I cannot approve of the trial court’s avoidance of those

arguments. Instead of affirming that avoidance, I believe that we should instruct the trial court to

do what the parties requested it to do – consider the record and make a determination based on

the arguments actually advanced before it.
                                                 15


                  B. The Legislative Rezoning Issue Is Not Yet Ripe for Review

       {¶34} Because the trial court exclusively focused on the unraised issue of a procedural

due process violation, it never reached the Township’s argument that the Kratzers’ variance

request constituted an impermissible legislative rezoning. Therefore, the Township’s assignment

of error challenges aspects of the trial court’s judgment that flowed from its erroneous

determination to sua sponte vacate the BZA’s decision on the basis of an unraised constitutional

violation. Since I would sustain the Kratzers’ assignment of error and remand the matter, I

would conclude that consideration of the Township’s assignment of error is premature and

decline to address its merits.

       {¶35} In conclusion, I would sustain the Kratzers’ assignment of error and decline to

address the Township’s assignment of error since it is not yet ripe for appellate review. As a

result, I respectfully dissent from the majority’s conclusion to the contrary.


APPEARANCES:

R. TODD HUNT and AIMEE W. LANE, Attorneys at Law, for Appellants.

S. FORREST THOMPSON, Attorney at Law, for Appellants.

WILLIAM L. THORNE and MICHAEL K. LYONS, Attorneys at Law, for Appellee.
