[Cite as Osborne v. N. Canton, 2017-Ohio-1116.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



CHARLES OSBORNE, et al.                              JUDGES:
                                                     Hon. William B. Hoffman, P. J.
        Plaintiffs-Appellants                        Hon. John W. Wise, J.
                                                     Hon. Craig R. Baldwin, J.
-vs-
                                                     Case No. 2016 CA 00175
CITY OF NORTH CANTON, et al.

        Defendants-Appellees                         OPINION




CHARACTER OF PROCEEDING:                          Civil Appeal from the Court of Common
                                                  Pleas, Case No. 2015 CV 02535


JUDGMENT:                                         Dismissed



DATE OF JUDGMENT ENTRY:                           March 27, 2017



APPEARANCES:

For Plaintiffs-Appellants                         For Defendants-Appellees

ROBERT H. CYPERSKI                                TIMOTHY L. FOX
CAITLYN C. BENZO                                  145 North Main Street
1201 30th Street, NW, Suite 102-B                 North Canton, Ohio 44720
Canton, Ohio 44709

JAMES R. VAUGHN
Post Office Box 36135
Canton, Ohio 44635
Stark County, Case No. 2016 CA 00175                                                       2

Wise, J.

       {¶1}   Appellants Charles Osborne, et al. appeal the August 29, 2016, decision of

the Stark County Common Pleas Court affirming Appellee City of North Canton City

Council’s decision affirming the Planning Commission’s approval of a conditional use

permit.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   This administrative appeal concerns North Canton City Council's decision

to affirm the City Planning Commission's issuance of a conditional use permit. The permit

was granted by the Commission to Maple Street Commerce, LLC (Maple Street) for an

expansion of the Hoover District south parking lot.

       {¶3}   The procedural history, as set forth in the trial court’s judgment entry, is as

follows:

       {¶4}   On May 7, 2014, the Planning Commission held an adjudicatory/public

hearing regarding the permit application. Therein, the Commission took testimony and

comments from Maple Street's consultant and senior property manager for IRG Realty

Advisors, Frank Lanterman; Mike Wellman architect from TDA Architecture; City

Engineer, James Benekos; City Director of Permits, Eric Bowles; and 16 residents. At the

conclusion of the hearing, the Commission elected to table the matter to permit Maple

Street to meet with City residents and provide them with additional information regarding

its plans.

       {¶5}   On September 3, 2014, the Planning Commission held a second

adjudicatory/public hearing, wherein it took testimony. After reviewing Maple Street's

application and the evidence presented, the Planning Commission voted unanimously to
Stark County, Case No. 2016 CA 00175                                                       3


approve the site plan. However, the Planning Commission failed to vote on the application

for the conditional use permit during its September 3, 2014 meeting. As a result, the

Planning Commission met again on October 8, 2014 for the sole purpose of voting to

approve the conditional use permit application. The Planning Commission did not take

public comment at the October 8 meeting.

       {¶6}   On October 10, 2014, Appellant Osborne sent a letter to City Council stating

that he appealed the Planning Commission's approval of the conditional use permit.

       {¶7}   On November 7, 2014, Osborne sent a second letter to City Council,

wherein he set forth his issues for appeal. Additional individuals signed the form to join in

the appeal.

       {¶8}   Because North Canton's charter provides that its Zoning and Building

Standards Board of Appeals ("ZBOA") shall hear and decide appeals for exceptions to

and variations in the applications of ordinances, orders or regulations of administrative

officials or agencies governing building and zoning, Council transferred the appeal to its

ZBOA for resolution. Osborne, however, threatened the City with a lawsuit in a taxpayer's

demand letter, insisting therein that only City Council, not the ZBOA, hear the appeal.

       {¶9}   City Council agreed to hear the appeal. Council analyzed the record before

the Planning Commission and deliberated during its February 17, 23, March 9, and 23,

2015 Council meetings. City Council determined that Appellants did not have standing to

appeal and dismissed the appeal.

       {¶10} This decision was appealed to the Court of Common Pleas, Case No.

2015CV00824. The court found that neither City Council nor the ZBOA approved or

affirmed the conditional use permit; therefore an appeal of the conditional use permit was
Stark County, Case No. 2016 CA 00175                                                     4


not properly before the court. In addition, the court further found Ohio's common law

doctrine of standing applied only to courts, not administrative agencies hearing appeals

of administrative decisions, and ordered Council to hear the appeal.

       {¶11} Thereafter, Council conducted an additional hearing taking testimony and

reviewing the record. City Council unanimously affirmed the Planning Commission's

approval of the conditional use permit.

       {¶12} On December 7, 2015, Appellants Charles Osborne, Rita Palmer, Maria

Harris, Clara Draper, James Blaine, Melanie Roll, Gretchen Bercaw, Thomas Hammen,

and Linda Hammen appealed Council’s decision to the Stark County Court of Common

Pleas Court, Case No. 2015CV02535.

       {¶13} On August 11, 2016, the Common Pleas Court conducted an evidentiary

hearing.

       {¶14} By Judgment Entry filed August 29, 2016, the Common Pleas Court found

that North Canton City Council's Decision to affirm the Planning Commission's Approval

of a Conditional Use Permit for Maple Street was “not unconstitutional, illegal, arbitrary,

capricious, unreasonable or unsupported by the preponderance of substantial, reliable

and probative evidence” and affirmed same. (J/E at 7).

       {¶15} Appellants now appeal, assigning the following errors for review:

                               ASSIGNMENT OF ERROR

       {¶16} “I. AS A MATTER OF LAW, THE TRIAL COURT ABUSED ITS

DISCRETION WHEN IT DETERMINED THE DECISION TO APPROVE THE SITE PLAN

AND THE CONDITIONAL USE PERMIT WAS SUPPORTED BY A PREPONDERANCE

OF SUBSTANTIAL, RELIABLE, AND PROBATIVE EVIDENCE.
Stark County, Case No. 2016 CA 00175                                                    5


       {¶17} “II. AS A MATTER OF LAW, THE TRIAL COURT ABUSED ITS

DISCRETION WHEN IT DETERMINED THE DECISION TO APPROVE THE SITE PLAN

AND THE CONDITIONAL USE PERMIT WAS SUPPORTED BY A PREPONDERANCE

OF SUBSTANTIAL, RELIABLE, AND PROBATIVE EVIDENCE.”

                                           I., II

       {¶18} Appellant's assigned errors raise common and interrelated issues;

therefore, we will address the arguments together.

                                      Standard of Review

       {¶19} Pursuant to R.C. 2506.04, in an administrative appeal, the common pleas

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

determines whether the administrative order is unconstitutional, illegal, arbitrary,

capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,

and probative evidence. In reviewing an appeal of an administrative decision, a court of

common pleas begins with the presumption the board's determination is valid, and the

appealing party bears the burden of showing otherwise. Hollinger v. Pike Township Board

of Zoning Appeals, Stark App. No. 09CA00275, 2010-Ohio-5097, 2010 WL 4111162.

       {¶20} As an appellate court, our standard of review to be applied in an R.C.

2506.04 appeal is “limited in scope.” Kisil v. Sandusky, 12 Ohio St.3d 30, 465 N.E.2d 848

(1984). “This statute grants a more limited power to the court of appeals to review the

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

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

probative evidence, as is granted to the common pleas court.” Id. Ultimately, the standard

of review for appellate courts in a R.C. 2506 appeal is “whether the common pleas court
Stark County, Case No. 2016 CA 00175                                                        6


abused its discretion in finding that the administrative order was or was not supported by

reliable, probative, and substantial evidence.” See Weber v. Troy Twp. Board of Zoning

Appeals, 5th Dist. Delaware No. 07 CAH 04 0017, 2008-Ohio-1163, 2008 WL 697384.

        {¶21} “The standard of review for courts of appeals in administrative appeals is

designed to strongly favor affirmance” and “permits reversal only when the common pleas

court errs in its application or interpretation of the law or its decision is unsupported by a

preponderance of the evidence as a matter of law.” Cleveland Clinic Foundation v.

Cleveland Board of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d

1161.

                                              Mootness

        {¶22} However, this Court will not reach the merits of Appellant's appeal, as we

find the appeal is moot.

        {¶23} The Supreme Court of Ohio has addressed the issue of when a matter

becomes moot:

               The duty of this court, as of every other judicial tribunal, is to decide

        actual controversies by a judgment which can be carried into effect, and not

        to give opinions upon moot questions or abstract propositions, or to declare

        principles or rules of law which cannot affect the matter in issue in the case

        before it. It necessarily follows that when, pending an appeal from the

        judgment of a lower court, and without any fault of the defendant, an event

        occurs which renders it impossible for this court, if it should decide the case

        in favor of the plaintiff, to grant him any effectual relief whatever, the court

        will not proceed to a formal judgment, but will dismiss the appeal. And such
Stark County, Case No. 2016 CA 00175                                                        7


       a fact, when not appearing on the record, may be proved by extrinsic

       evidence. Miner v. Witt (1910), 82 Ohio St. 237, 238, 92 N.E. 21, quoting

       Mills v. Green (1895), 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293.

       {¶24} In the case sub judice, Appellants sought to have City Council’s decision

reversed and Ordinance 60-2015 vacated. At no time throughout this appeal process did

Appellants ever seek a stay of execution from City Council’s decision. At the evidentiary

hearing before the Common Pleas Court, it was revealed that construction/expansion of

the parking lot was complete. (Aug. 11, 2016, T. at 56)

       {¶25} It is well established that in cases such as this, where an appeal involves

the construction of a building or buildings involving construction, if a party fails to obtain

a stay of execution before construction commences, the appeal is rendered moot. See

Pinkney v. Southwick Investments, LLC, 8th Dist. Nos. 85074 and 85075, 2005-Ohio-

4167 (residents sought to prevent land development for certain use; trial court found there

were no restrictions on the use of the land; residents appealed, but did not seek a stay;

construction was substantially complete by the time the case was heard; appeal moot);

Neighbors for Responsible Land Use v. Akron, 9th Dist. No. 23191, 2006-Ohio-6966

(Akron approved the building of bus terminal; neighbor appealed, but did not seek stay;

appeal moot because construction completed); Walouke v. Mentor Bd. of Bldg. and

Zoning Appeals (Dec. 28, 1984), 11th Dist. No. 10-136 (neighbors objected to landowner

building a garage; zoning board granted variance, neighbors appealed, but did not

request a stay; garage was built during pendency of appeal; moot); Bd. of Commrs. of

Montgomery Cty. v. Saunders (Nov. 2, 2001), 2d Dist. No. 18592 (board sought and

obtained easements on landowner's property to construct drainage improvement;
Stark County, Case No. 2016 CA 00175                                                       8


landowner sought to enjoin the project, which trial court denied; landowner did seek a

stay of the denial pending appeal; appeal moot). See also Novak v. Avon Lake Bd. of Ed.,

9th Dist. No. 01CA007835, 2001-Ohio-1880. See, also, State ex rel. Wenger v. The Univ.

of Akron (July 8, 1976), 9th Dist. No. 8078.

       {¶26} The mootness doctrine contains two recognized exceptions. First, a case is

not moot if the issues are capable of repetition, yet evading review. In re Suspension of

Huffer (1989), 47 Ohio St.3d 12, 546 N.E.2d 1308. Second, a court may address a moot

issue if the case involves a matter of great public or general interest. Id. We do not find

that either of the exceptions to the mootness doctrine apply to the issues in this case.

       {¶27} Because this Court finds that the issues raised in this appeal are moot, the

appeal is dismissed.

       {¶28} Appeal dismissed.


By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.



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