[Cite as Ebersole v. Powell, 2019-Ohio-946.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


BRIAN EBERSOLE, et al.                             JUDGES:
                                                   Hon. John W. Wise, J.
        Appellants                                 Hon. Earle E. Wise, Jr., P. J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 18 CAH 08 0056
CITY OF POWELL, et al.

        Appellees                                  OPINION



CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Case No. 17 CVH 06 0381

JUDGMENT:                                      Dismissed


DATE OF JUDGMENT ENTRY:                         March 19, 2019


APPEARANCES:

For Appellants                                 For Appellee City

STEFANIA DENBOW-HUBBARD                        EUGENE HOLLINS
4388 Scenic Drive                              YAZAN S. ASHRAWI
Columbus, Ohio 43214                           THADDEUS M. BOGGS
                                               FROST BROWN TODD LLC
                                               10 West Broad Street, Suite 2300
                                               Columbus, Ohio 43215

                                               For Appellees Developers

                                               JOSEPH R. MILLER
                                               JOHN M. KUHL
                                               CHRISTOPHER L. INGRAM
                                               KARA M. MUNCY
                                               VORYS, SATER, SEYMOUR & PEASE
                                               52 E. Gay Street, P. O. Box 1008
                                               Columbus, Ohio 43216-1008
Delaware County, Case No. 18 CAH 08 0056                                                 2

Wise, John, J.

       {¶1}   Appellants Brian Ebersole and Thomas Happensack appeal the decision of

the Court of Common Pleas, Delaware County, which denied their motion for summary

judgment and granted judgment on the pleadings in favor of Appellees City Council of

Powell, Ohio, et al., in a declaratory judgment action pertaining to the development of a

certain 8.75-acre parcel of real property. The relevant facts leading to this appeal are as

follows.

                                        Subject Property

       {¶2}   The 8.75-acre parcel in question is located at 2470 West Powell Road, the

former site of a firearms range. In April 2015, Intervenor-Appellee Arlington Homes1

submitted a development plan regarding “Harper's Pointe,” a proposed residential

development consisting of 47 single-family condominium homes, along with a requested

change of zoning classification for the property from “R–Residential and Planned

Commercial” to “Planned Residential–PR.”

                                       Ordinance 2015-18

       {¶3}   On or about May 19, 2015, the city council of Powell adopted Ordinance

2015-18, which was entitled "An Ordinance Approving A Zoning Map Amendment And

Final Development Plan For The Development Of 47 Single Family Condominium Homes

On 8.75 Acres Off Of Beech Ridge Drive And To Change The Zoning Map From PC,

Planned Commercial District And R, Residence District To Reflect This Property To Be

PR, Planned Residence District."



1   Arlington Homes is the d/b/a name for Len Pivar Builders, Inc. Appellate counsel for
Arlington Homes also represents the entity LS Powell 2470, LLC.
Delaware County, Case No.18 CAH 08 0056                                                 3


      {¶4}   Appellants, Powell residents, thereafter circulated a referendum petition

and had Ordinance 2015-18 put to a popular vote on November 3, 2015. The voters

disapproved Ordinance 2015-18 at that time.

                                      Ordinance 2016–44

      {¶5}   In July 2016, Intervenor-Appellee Arlington Homes again submitted a

development plan for Harper's Pointe on the 2470 West Powell Road property. This plan

called for the construction of 47 single-family homes on the same 8.75 acres. Arlington

Homes' new application again sought to rezone the property as Planned Residential–PR,

but the zoning commission decided instead that the land should be rezoned to DR,

Downtown Residence District.

      {¶6}   On November 1, 2016, Ordinance 2016–44, intended to rezone the property

in question from Planned Commercial and Residence Districts to Downtown Residence

District, came before the Powell City Council. After clarification that the matter for

consideration was the proposed rezoning and that the council was not voting on the

proposed development plan at that time, the council approved Ordinance 2016–44.

                                      Ordinance 2017-14

      {¶7}   On June 6, 2017, the city council passed “Ordinance 2017-14,” which

approved a final development plan proposal prepared by Intervenor-Appellee LS Powell

2470 LLC concerning the property, based on the criteria set forth for the site's “Downtown

Residence District” zoning.

                                   Subsequent Proceedings

      {¶8}   Appellants filed a notice of administrative appeal with the Delaware County

Court of Common Pleas (hereinafter “trial court”) on July 5, 2017, challenging the
Delaware County, Case No.18 CAH 08 0056                                                  4


approval of the development plan. They relied in part on the Powell City Charter, Art. VI,

§6(B), which states as follows: "Ordinances rejected or repealed by an electoral vote shall

not be re-enacted, in whole or in part, except by an electoral vote." This provision thus

prohibits the city council from overturning a referendum vote without first obtaining voter

approval to do so through another popular vote.2 The administrative appeal has become

the subject of a separate appeal to this Court, under case number 18 CAH 02 0013.

      {¶9}   On June 19, 2017, appellants also filed a declaratory judgment action in the

Delaware County Court of Common Pleas, which is the subject of the within appeal (case

number 18 CAH 08 0056), heard by this Court at oral argument on the same day as 18

CAH 02 0013.

      {¶10} On July 25, 2017, the City filed a motion challenging appellants’ standing in

the case sub judice. The trial court denied the City’s motion on January 11, 2018

      {¶11} On April 30, 2018, the City filed a motion for judgment on the pleadings. On

the same day, appellants filed, inter alia, a motion for summary judgment.

       {¶12} On July 10, 2018, the trial court issued an eight-page judgment entry

granting the City’s motion for judgment on the pleadings and denying appellants’ motion

for summary judgment.

       {¶13} On August 3, 2018, appellants filed a notice of appeal with this Court.

       {¶14} Appellate briefs were filed, and the appeal was ultimately set for oral

argument on January 10, 2019. But on December 5, 2018, Intervenor-Appellees LS


2  The Ohio Supreme Court, in a prior mandamus challenge involving Art. VI, §6(B), held
that Appellant Ebersole's proper course of action was to “challenge the validity of
Ordinance 2016–44 by way of a suit for declaratory judgment ***.” See State ex rel.
Ebersole v. City Council of Powell, 149 Ohio St.3d 501, 2017-Ohio-509, 75 N.E.3d 1245,
¶ 13.
Delaware County, Case No.18 CAH 08 0056                                              5


Powell 2470 LLC and Len Pivar Builders Inc., d/b/a Arlington Homes, filed a motion with

this Court to dismiss the appeal as moot. Appellants filed a memorandum in opposition

on December 17, 2018. The aforesaid appellees filed a reply on December 26, 2018. See

infra.

         {¶15} Appellants herein raise the following five Assignments of Error:

         {¶16} “I. THE COMMON PLEAS COURT ERRED BY GRANTING THE CITY

APPELLEES JUDGMENT ON THE PLEADINGS AND FAILING TO GRANT

APPELLANTS SUMMARY JUDGMENT BECAUSE ORDINANCES 2016-44 AND 2017-

14 EACH VIOLATE POWELL CHARTER ART. VI, § 6(B) AND ARE THEREFORE VOID

AB INITIO. POWELL ORDINANCES 2016-44 AND 2017-14 RE-ENACT POWELL

ORDINANCE 2015-18 ‘IN WHOLE OR IN PART’ IN VIOLATION OF POWELL CHARTER

ART. VI, § 6(B) WHERE, AS HERE, ORDINANCE 2015-18 WAS REJECTED BY

REFERENDUM ELECTION, ORDINANCES 2016-44 AND 2017-14 APPROVE

MATERIALLY THE SAME REZONING CLASSIFICATION AND FINAL DEVELOPMENT

PLAN THAT VOTERS REJECTED THROUGH ORDINANCE 2015-18, AND VOTERS

NEVER APPROVED ORDINANCES 2016-44 OR 2017-14 THROUGH AN ELECTORAL

VOTE.

         {¶17} “II. THE COMMON PLEAS COURT ERRED AND ABUSED ITS

DISCRETION TO THE EXTENT THAT IT FOUND THAT THERE ARE LEGALLY

SIGNIFICANT DIFFERENCES BETWEEN THE ZONING CLASSIFICATION AND FINAL

DEVELOPMENT PLAN IN ORDINANCE 2015-18, ON THE ONE HAND, AND THE

ZONING CLASSIFICATION AND FINAL DEVELOPMENT PLAN IN ORDINANCES

2016-44 AND 2017-14, ON THE OTHER.
Delaware County, Case No.18 CAH 08 0056                            6


     {¶18} “III. THE COMMON PLEAS COURT ERRED BY GRANTING THE CITY

APPELLEES JUDGMENT ON THE PLEADINGS AND FAILING TO GRANT

APPELLANTS SUMMARY JUDGMENT BECAUSE ORDINANCE 2016-44 IS VOID,

INVALID, ILLEGAL, AND UNLAWFUL DUE TO THE CITY APPELLEES' FAILURE TO

COMPLY WITH EXPRESS REQUIREMENTS TO REZONE THE SUBJECT PROPERTY

UNDER POWELL ZONING CODE §§ 1143.16 AND 1143.18, INCLUDING BUT NOT

LIMITED TO THE REQUIREMENT TO OBTAIN THE WRITTEN RECOMMENDATION

OF THE POWELL HISTORIC COMMISSION BEFORE REZONING THE SUBJECT

PROPERTY.

     {¶19} “IV. THE COMMON PLEAS COURT ABUSED ITS DISCRETION BY

GRANTING THE CITY APPELLEES LEAVE TO FILE AN UNTIMELY ANSWER WHERE

THE CITY COULD NOT SHOW ‘EXCUSABLE NEGLECT’ BECAUSE THEY HAD

NOTICE OF THE ACTION, PARTICIPATED IN THE PROCEEDINGS, AND WERE

NOTIFIED EXPRESSLY IN WRITING OF THEIR FAILURE TO FILE AN ANSWER YET

CHOSE TO WAIT UNTIL THE PLAINTIFFS' [SIC] FILED A MOTION FOR DEFAULT

JUDGMENT TO SEEK LEAVE TO FILE THEIR ANSWER. THE COMMON PLEAS

COURT FURTHER ABUSED ITS DISCRETION BY FAILING TO GRANT THE

PLAINTIFFS-APPELLANTS DEFAULT JUDGMENT AGAINST THE CITY APPELLEES

WHERE THEY FAILED TO TIMELY FILE AN ANSWER AND THE APPELLANTS HAVE

CLEARLY ESTABLISHED THEIR RIGHT TO RELIEF BY UNCONTROVERTED

EVIDENCE IN THE RECORD.

     {¶20} “V. THE COMMON PLEAS COURT ERRED BY DENYING APPELLANTS'

MOTION TO STRIKE THE CITY APPELLEES [SIC] MOTION FOR JUDGMENT ON THE
Delaware County, Case No.18 CAH 08 0056                                                   7


PLEADINGS BECAUSE THE CITY APPELLEES' MOTION FOR JUDGMENT ON THE

PLEADINGS WAS FILED PRIOR TO FILING THEIR ANSWER.”

                                         I., II., III., IV., V.

                                       Mootness Doctrine

       {¶21} As an initial matter, we will address the claim, raised by Intervenor-

Appellees in their motion to dismiss the appeal, that this appeal has become moot.

Although this issue was brought to our attention after the record had been transmitted

and the briefs had been filed, we note that “[a]n event that causes a case to become moot

may be proved by extrinsic evidence outside the record.” State ex rel. Cincinnati Enquirer,

Div. of Gannett Satellite Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio-

7041, 781 N.E.2d 163, ¶ 8.

       {¶22} The issue of mootness is a question of law. Poulson v. Wooster City

Planning Comm., 9th Dist. Wayne No. 04CA0077, 2005-Ohio-2976, ¶ 5. In cases

involving challenges to land development or construction projects, there is no bright-line

rule as to when a case becomes moot; the issue of mootness must be determined on a

case-by-case basis. See Eye-Will Dev., Inc. v. Lake Cty. Planning Commission, 11th Dist.

Lake No. 2004-L-196, 2006-Ohio-6103, ¶ 46. But Ohio courts have recognized that “***

where an appeal involves the construction of a building or buildings and the appellant fails

to obtain a stay of execution of the trial court's ruling and construction commences, the

appeal is rendered moot.” Schuster v. City of Avon Lake, 9th Dist. Lorain No.

03CA008271, 2003-Ohio-6587, ¶ 8, citing Novak v. Avon Lake Bd. of Educ., 9th Dist.

Lorain No. 01CA007835, 2001-Ohio-1880. Accord, Kent Investors, LLC v. Flynn, et al.,

11th Dist. Portage No. 2017-P-0075, 2019-Ohio-410, ¶9. As cogently explained by the
Delaware County, Case No.18 CAH 08 0056                                                      8

Seventh District Court of Appeals: “The [appellant in Schuster] did not seek a stay of

execution of the ruling of the trial court. At oral argument, it was revealed that construction

had begun at the development. Thus, the Ninth District held that since construction was

occurring and there was no request for a stay, the appeal was moot.” Am. Energy Corp.

v. Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d 463 (7th Dist.), ¶ 29

(emphasis added).

       {¶23} Other appellate districts in Ohio have faced the issue before us. For

example, in the case of Smola v. Legeza, 11th Dist. Ashtabula No. 2004-A-0038, 2005-

Ohio-7059, the court noted that the construction of a disputed residence “had commenced

before the appeal to the trial court” and that “the foundation was underway.” In addition,

appellants’ counsel stated in an affidavit that he had personally observed “substantial

construction work” being performed on the property in question. The appellate court’s

review of the record revealed that no stay had been requested by appellants pending the

appeal; thus, the mootness doctrine was applied. Id. at ¶ 32.

       {¶24} The case of Smetzer v. Catawba Island Twp. Bd. of Zoning Appeals, 6th

Dist. Ottawa No. OT-17-033, 2018-Ohio-4238, involved a dispute over the building of a

retail store. One of the parties “presented evidence that construction of the Dollar General

store at issue has commenced.” Id. at ¶ 12. Specifically, an affidavit by the builder’s COO

stated that a preexisting structure had been demolished at a cost of $22,800, and that

“additional work [had] been commenced on the site at a cost of $251,063” as of a certain

date. The appeal was ultimately dismissed as moot. Id. at ¶ 16.

       {¶25} In Coates Run Property LL, L.L.C. v. Athens Bd. of Zoning Appeals, 4th

Dist. Athens No. 15CA5, 2015-Ohio-4732, an appeal was brought to prevent construction
Delaware County, Case No.18 CAH 08 0056                                                    9


of a planned student-housing development. The appellate court dismissed the appeal as

moot, noting that “[i]n the absence of an order staying or enjoining the construction,

Athens River Gate demolished the former church located on the property, substantially

completed site development, and commenced construction.” Id. at ¶ 7.

                                             Analysis

       {¶26} In the case sub judice, the motion to dismiss the present appeal indicates

that Appellee LS Powell 2470 has at this juncture, among other things, installed perimeter

fencing and erosion controls on the property, demolished the existing buildings at the site,

cleared trees, accomplished grading work, commenced environmental remediation, and

entered into architectural contracts for the single-family homes planned. See Len Pivar

Affidavit at ¶ 5 - ¶ 11.

       {¶27} Despite this undisputed information in the Pivar affidavit, appellants’ lengthy

response to the motion to dismiss this appeal does not seem to directly tackle the

mootness concerns brought about by Schuster and its progeny. Appellants first present

the general claim that injunctive relief can be used to remove or demolish existing

structures, but they correspondingly initially avoid discussion of the problem of the lack of

a stay under the circumstances of this appeal.

       {¶28} Appellants, in their response, also direct us to R.C. 2721.09, which states

in pertinent part that “*** whenever necessary or proper, a court of record may grant

further relief based on a declaratory judgment or decree previously granted under this

chapter. ***.” Appellants urge that in light of R.C 2721.09, there is no need for them to

obtain a stay, citing in part Olen Corp. v. Franklin Cty. Bd. of Elections, 43 Ohio App.3d

189, 541 N.E.2d 80, 90 (10th Dist.1988), a case involving a property owner’s attempt to
Delaware County, Case No.18 CAH 08 0056                                                  10


prevent the submission of a rezoning application to the voters. However, the question of

a lack of a stay appears to play no significant role in the Olen decision.

       {¶29} Appellants also add the rather abrupt claim that since they were acting on

behalf of a public body (citing R.C. 733.59), a stay would have been mandatory and would

not have required the posting of a bond. However, this again fails to answer the question

of why they did not therefore seek a stay under App.R. 7. Appellants then provide the

unusual assurance, at this stage of the appellate proceedings, that they “are also happy

to file a motion to stay in the trial court if this Court finds it necessary.” Appellants’

Memorandum in Opposition at 6, f.n. 2.

       {¶30} The remainder of appellants’ response to the motion to dismiss largely

attempts to revisit and further develop their aforesaid arguments, and asks that should

we deem the appeal moot, that we consider a public interest or equitable exception to the

mootness doctrine. We note an appellate court is vested with jurisdiction to address moot

issues that are capable of repetition yet evade review or issues that involve an important

public right or interest. See Am. Energy Corp. v. Datkuliak, supra, at ¶ 34, citing Citizens

Word v. Canfield Twp., 152 Ohio App.3d 252, 2003-Ohio-1604, 787 N.E.2d 104, ¶ 8.

However, while any new housing development will almost certainly alter the pattern of life

for those who have established homes and businesses in the surrounding community, we

find no basis to invoke the aforesaid exceptions under Ohio law in these circumstances.
Delaware County, Case No.18 CAH 08 0056                                             11


      {¶31} Accordingly, we find that the issues raised in appellants’ Assignments of

Error are moot, and the appeal will be dismissed.

      {¶32} For the reasons stated in the foregoing opinion, the appeal of the judgment

of the Court of Common Pleas, Delaware County, Ohio, is hereby dismissed.


By: Wise, John, J.

Wise, Earle, P. J., and

Delaney, J., concur.



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