[Cite as Pennell v. Brown Twp., 2016-Ohio-2652.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



                                                           JUDGES:
RUSSELL PENNELL, et al.                            :       Hon. Sheila G. Farmer, P.J.
                                                   :       Hon. William B. Hoffman, J.
                     Plaintiffs-Appellants         :       Hon. John W. Wise, J.
                                                   :
-vs-                                               :
                                                   :       Case No. 15 CAH 09 0074
BROWN TOWNSHIP, DELAWARE                           :
COUNTY, OHIO, et al.                               :
                                                   :       OPINION
                  Defendants-Appellees




CHARACTER OF PROCEEDING:                               Civil appeal from the Court of Common
                                                       Pleas, Case No. 15 CVH 06 0392


JUDGMENT:                                              Affirmed



DATE OF JUDGMENT ENTRY:                                April 21, 2016



APPEARANCES:

For Plaintiffs-Appellants                              For Defendants-Appellees

DAVID A. ISON                                          CAROL HAMILTON O’BRIEN
10 Village Pointe Drive                                DELAWARE COUNTY PROSECUTOR
Post Office Box 1108                                   MARK W. FOWLER
Powell, Ohio 43065-1108                                ASSISTANT PROSECUTING ATTORNEY
                                                       140 North Sandusky Street, 3rd Floor
                                                       Delaware, Ohio 43015
[Cite as Pennell v. Brown Twp., 2016-Ohio-2652.]


Wise, J.,

        {¶1}    Plaintiffs-Appellants Russell Pennell and Heather Pennell appeal the

 August 25, 2015, decision of the Court of Common Pleas, Delaware County, which

 granted the Civ.R. 12(B) Motion to Dismiss filed by Defendants-Appellees Brown

 Township, Brown Township BZA, and Zoning Inspector Susan Kuba.

                               STATEMENT OF THE FACTS AND CASE

        {¶2}    In August, 2014, Appellants Russell and Heather Pennell acquired and

 became the owners of real property known as 4690 Cackler Road, Delaware, Ohio

 43015, Parcel No. 518-100-01-067-000, in Brown Township, Delaware County, Ohio.

 Pennell's property consists of a residence, barn, structures, pond and other

 improvements on 5.17 acres of land, more or less.

        {¶3}    Prior to purchasing the Cackler Road property, Appellants cultivated and

 marketed nursery stock and continued to do so after moving onto the property.

        {¶4}    Appellants were cited by the Brown Township Zoning Inspector for violating

 the Township's Zoning Resolution for operating an unpermitted and prohibited

 landscaping business on their residential property. In response, Appellants filed for a

 conditional use permit seeking to continue their business operations on the property.

        {¶5}    On June 10, 2015, the Brown Township Board of Zoning Appeals ("BZA")

 conducted an administrative hearing on the application and, after private deliberation,

 voted in public to deny the application.

        {¶6}    Appellants did not file an administrative appeal to the court of common

 pleas, but instead filed an original action seeking an order prohibiting the Township from

 enforcing its Zoning Resolution and for monetary damages.
Delaware County, Case No. 15 CAH 09 0074                                                 3


      {¶7}   In their Complaint, Appellants alleged: 1) they are the subjects of targeted

enforcement by the Township and Inspector; 2) procedural errors occurred at the BZA

hearing on the application; 3) the BZA improperly deliberated in executive session at

the hearing and the executive session was not held for one of the authorized purposes

contained in R.C. § 121.22(0)(1)-(8); and, 4) the Inspector and BZA "acted in an arbitrary,

capricious, and unreasonable manner ... applying the zoning resolutions, conducting the

Hearing, and deciding the Formal Action."

      {¶8}   On July 17, 2015, Appellees filed a Motion to Dismiss pursuant to Civ.R.

12(B)(1) and (6).

      {¶9}   On July 31, 2015, Appellants filed a Memorandum Contra.

      {¶10} On August 7, 2015, Appellees filed a Reply to Appellants’ Memorandum

Contra.

      {¶11} By Judgment entry filed August 25, 2015, the trial court granted Appellees’

motion to dismiss

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

                                 ASSIGNMENTS OF ERROR

      {¶13} “I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTS'

MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION.

      {¶14} “II. THE TRIAL COURT ERRED WHEN IT CONSIDERED MATERIAL NOT

SUPPORTED BY AFFIDAVIT OR OTHER EVIDENCE.

      {¶15} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO CONSTRUE

FACTS UNOPPOSED BY CONTRARY AFFIDAVIT OR OTHER EVIDENCE FOR THE

NON-MOVING PARTY.”
Delaware County, Case No. 15 CAH 09 0074                                                  4


                                                I.

      {¶16} In their First Assignment of Error, Appellants argue that the trial court erred

in dismissing their Complaint for lack of subject matter jurisdiction. We disagree.

      {¶17} In the case sub judice, the trial court granted Appellees’ motion to dismiss

pursuant to Civ.R. 12(B)(1), finding that it did not have jurisdiction to hear Appellants’

Complaint for Declaratory Relief.

      {¶18} When a party files a Civ.R. 12(B)(1) motion to dismiss, the trial court must

decide “whether the complaint contains allegations of a cause of action that the trial court

has authority to decide.” Bank of Am. v. Macho, 8th Dist. Cuyahoga No. 96124, 2011–

Ohio–5495, ¶ 7. Unlike a motion to dismiss premised on Civ.R. 12(B)(6), the trial court

is not confined to the allegations of the complaint, but may consider any “ ‘material

pertinent to such inquiry.’ ” Id., quoting Southgate Dev. Corp. v. Columbia Gas Transm.

Corp., 48 Ohio St. 2d 211, 358 N.E.2d 526 (1976).

      {¶19} This court reviews the trial court's decision de novo. Revocable Living Trust

of Mandel v. Lake Erie Util. Co., 8th Dist. Cuyahoga No. 97859, 2012–Ohio–5718, ¶ 17,

citing Mellion v. Akron City School Dist. Bd. of Edn., 9th Dist. Summit No. 23227, 2007–

Ohio–242, ¶ 6, citing Crestmont Cleveland Partnership v. Ohio Dept. of Health, 139 Ohio

App.3d 928, 936, 746 N.E.2d 222 (10th Dist.2000). That means this Court engages in

an independent review without deference to the trial court's decision. Id.

                                    Subject Matter Jurisdiction

      {¶20} “ ‘Subject-matter jurisdiction of a court connotes the power to hear and

decide a case upon its merits' and ‘defines the competency of a court to render a valid

judgment in a particular action.’ ” Cheap Escape Co. v. Haddox, L.L.C., 120 Ohio St.3d
Delaware County, Case No. 15 CAH 09 0074                                              5

493, 900 N.E.2d 601, 2008–Ohio–6323, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St. 2d
86, 87, 290 N.E.2d 841 (1972). Because a court without subject-matter jurisdiction lacks

the power to adjudicate the merits of a case, parties may challenge jurisdiction at any

time during the proceedings. Pratts v. Hurley, 102 Ohio St. 3d 81, 806 N.E.2d 992, 2004–

Ohio–1980, ¶ 11. Whether a trial court possessed subject-matter jurisdiction is a

question of law which we consider de novo. John Roberts Mgt. Co. v. Obetz, 188 Ohio

App.3d 362, 935 N.E.2d 493, 2010–Ohio–3382, ¶ 8 (10th Dist.).

     {¶21} Article IV, Section 4(B) of the Ohio Constitution provides, “The courts of

common pleas * * * shall have * * * such powers of review of proceedings of

administrative officers and agencies as may be provided by law.”

     {¶22} Here, it is undisputed that the Brown Township BZA is an administrative

body. “Those who seek relief from a board of zoning appeals' decision must, pursuant to

R.C. 2506.01, appeal to a court of common pleas.” Kasper v. Coury, 51 Ohio St. 3d 185,

186, 555 N.E.2d 310, 311 (1990)

     {¶23} R.C. §2506.01(A) states:

             Except as otherwise provided in sections 2506.05 to 2506.08 of the

     Revised Code, and except as modified by this section and sections 2506.02

     to 2506.04 of the Revised Code, every final order, adjudication, or decision

     of any officer, tribunal, authority, board, bureau, commission, department,

     or other division of any political subdivision of the state may be reviewed by

     the court of common pleas of the county in which the principal office of the

     political subdivision is located as provided in Chapter 2505. of the Revised

     Code.
Delaware County, Case No. 15 CAH 09 0074                                                    6


      {¶24} As used in R.C. §2506.01(A), “final order, adjudication, or decision” means

“an order, adjudication, or decision that determines rights, duties, privileges, benefits, or

legal relationships of a person.” R.C. §2506.01(C).

      {¶25} A common pleas court does not acquire subject-matter jurisdiction over the

appeal unless and until the appeal is perfected. AT & T Communications of Ohio, Inc. v.

Lynch, 132 Ohio St. 3d 92, 969 N.E.2d 1166, 2012–Ohio–1975. When a statute confers

the right to appeal, an appeal can be perfected only in the manner prescribed by the

applicable statute. Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., 128
Ohio St. 3d 471, 946 N.E.2d 215, 2011–Ohio–1604, ¶ 14. Where a party appeals

pursuant to R.C. §2506.01, R.C. §2505.04 and §2505.07 govern the manner in which

the party must perfect the appeal. According to R.C. §2505.04, administrative appeals

are “perfected when a written notice of appeal is filed * * * with the administrative officer,

agency, board, department, tribunal, commission, or other instrumentality involved.”

      {¶26} R.C. §2505.07 prescribes the time period for perfecting an appeal and

provides, “After the entry of a final order of an administrative officer, agency, board,

department, tribunal, commission, or other instrumentality, the period of time within

which the appeal shall be perfected, unless otherwise provided by law, is thirty days.”

Failure to file a written notice of appeal with the instrumentality involved within 30 days

of the entry of a final order deprives a common pleas court of subject-matter jurisdiction

over the appeal.

      {¶27} In the case sub judice, the Brown Township Zoning Inspector issued written

notice of the BZA’s decision to Appellants in a letter dated June 11, 2015. Subsequently,
Delaware County, Case No. 15 CAH 09 0074                                                     7


    on June 16, 2015, the Brown Township Zoning Inspector sent a corrected notice1. Using

    the latest date of June 16, 2015, Appellant had until July 16, 2015, to appeal the decision

    of the BZA to the Court of Common Pleas pursuant to R.C. 2506.01.

          {¶28} Appellants herein argue that June 10, 2015, BZA hearing was a public

    meeting and not a quasi-judicial administrative hearing. Appellants further argue that

    the BZA held an unlawful executive session in violation of the Open Meeting Act.

          {¶29} In order for an administrative act to be appealable under R.C. §2506.01

    such act must be the product of quasi-judicial proceedings. It, therefore, becomes

    necessary to ascertain whether the administrative action taken by the board here was

    the result of quasi-judicial proceedings.

          {¶30} In the case of Englewood v. Daily (1965), 158 Colo. 356, 361, 407 P.2d 325,

    327, it was said that in deciding whether an act by an administrative agency is quasi-

    judicial the ‘* * * most common test is to determine whether the function under

    consideration involves the exercise of discretion and requires notice and hearing,’ all

    elements being required to constitute a quasi-judicial act.

          {¶31} In Zangerle v. Evatt, supra, 139 Ohio St. 563, at page 571, 41 N.E.2d at

    page 373, Turner, J., stated that:

          {¶32} ‘* * * the various states, including Ohio, in establishing regulatory

    commissions, provided that the investigations by state boards and commissions should

    be in the nature of legal proceedings, including notice, hearing and opportunity to




1 The first notice included the wrong Ohio Revised section, stating that Appellants had the
right to appeal pursuant to R.C. 2501 instead of R.C. 2506. The second notice also cited
to the relevant Brown Township Zoning resolutions.
Delaware County, Case No. 15 CAH 09 0074                                                 8


introduce testimony through witnesses. Thus these boards and commissions came to be

known as possessing quasi-judicial functions.’

      {¶33} Judge Williams, in a concurring opinion in Zangerle, noted that the term,

quasi-judicial, ‘* * * signifies, that the administrative boards, from which an appeal may

be taken act similarly to a court, to wit, witnesses are examined, a hearing is had and a

finding or decision made all in accordance with statutory authority.’

      {¶34} Upon review, we find that the BZA hearing in this matter was a quasi-judicial

hearing and not an open meeting. Here, the BZA scheduled and sent notice of a hearing

to Appellants and nearby property owners to consider Appellants’ application for a

conditional use. At the hearing, members of the public presented testimony in support

or in opposition to the conditional use. After hearing the testimony and reviewing the

evidence presented, the Board deliberated and then presented their decision denying

same.

      {¶35} Based on the foregoing, we find that the hearing was quasi-judicial and not

an open meeting, as argued by Appellants.

      {¶36} With respect to the zoning board's recess into executive session to discuss

the conditional-use application, we find no Open Meeting Act violation. The action of a

board of zoning appeals in reviewing an application for conditional use is a quasi-judicial

function. Goff–Knight v. Bd. of Zoning Appeals of Liberty Twp., 5th Dist. No.

03CAH08042, 2004 WL 3465744 (June 14, 2004). The Sunshine Laws do not apply to

deliberations on such applications. Id. Accordingly, Appellants' complaints about the

procedural aspects of the zoning board are without merit. In re Application for Additional
Delaware County, Case No. 15 CAH 09 0074                                                  9

Use of Property v. Allen Twp. Zoning Bd. of Appeals, 6th Dist. Ottawa No. OT-12-008,

2013-Ohio-722, ¶ 15

      {¶37} Based on the foregoing, we find Appellants’ First Assignment of Error not

well-taken. Appellant’s First Assignment of Error is overruled.

                                              II., III.

      {¶38} Appellant’s Second and Third Assignments of Error argue that the trial court

erred in its consideration or lack of consideration of affidavits and other evidence in

making its decision. We disagree.

      {¶39} Based on our disposition of Assignment of Error I finding that the trial court

lacked jurisdiction in this matter, we find Appellants Assignments of Error II and III moot.

      {¶40} For the forgoing reasons, the judgment of the Court of Common Pleas of

Delaware County, Ohio, is affirmed.



By: Wise, J.,

Farmer, P.J., and

Hoffman, J., concur.


JWW/d 0405