Cleveland Skydiving Ctr., Inc. v. Troy Twp. Bd. of Zoning Appeals

2025 Ohio 435
CourtOhio Court of Appeals
DecidedFebruary 10, 2025
Docket2024-G-0044
StatusPublished
Cited by1 cases

This text of 2025 Ohio 435 (Cleveland Skydiving Ctr., Inc. v. Troy Twp. Bd. of Zoning Appeals) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cleveland Skydiving Ctr., Inc. v. Troy Twp. Bd. of Zoning Appeals, 2025 Ohio 435 (Ohio Ct. App. 2025).

Opinion

[Cite as Cleveland Skydiving Ctr., Inc. v. Troy Twp. Bd. of Zoning Appeals, 2025-Ohio-435.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY

CLEVELAND SKYDIVING CASE NO. 2024-G-0044 CENTER, INC, et al.,

Appellees, Civil Appeal from the Court of Common Pleas - vs -

TROY TOWNSHIP BOARD OF Trial Court No. 2021 A 000405 ZONING APPEALS,

Appellant.

MEMORANDUM OPINION

Decided: February 10, 2025 Judgment: Appeal dismissed

Thomas A. Barni and Andrew J. Yarger, Dinn, Hochman & Potter, LLC, 6105 Parkland Boulevard, Suite 100, Cleveland, OH 44124 (For Appellees).

Michael A. Lamanna, 17119 Northbrook Trail, Chagrin Falls, OH 44023 (For Appellant).

EUGENE A. LUCCI, J.

{¶1} Appellant, Troy Township Board of Zoning Appeals (“the Board”), appeals

the judgment of the Geauga County Court of Common Pleas, entered on April 17, 2023.

Appellees, Cleveland Skydiving Center, Inc., et al. (“the Center”), moved this court to

dismiss the underlying appeal as untimely. The Board duly opposed the motion. At issue

is whether the underlying judgment, which affirmed the Board’s decision in part and

remanded the matter in part to resolve an issue which was not litigated, was final and

appealable upon issuance of the judgment. If the judgment was final, this matter is untimely pursuant to App.R. 4(A) because the instant notice of appeal was filed some 570

days after the trial court’s order. For the reasons discussed in this opinion, we conclude

the judgment at issue was final on April 17, 2023 and therefore the Board’s notice of

appeal is untimely. The appeal is accordingly dismissed.

{¶2} The underlying matter was an administrative appeal filed pursuant to R.C.

Chapter 2406. The trial court’s order involved two separate determinations: one, a

disposition affirming the Board’s denial of the Center’s request for a use variance and,

two, a remand to the Board to determine if there was a preexisting, non-conforming use

– a use which might be validated via “grandfathering.” The preexisting, non-conforming

use argument was a matter not broached by the Board in its original determination.

{¶3} Because the Board did not render a decision on whether the property

qualified as a prior, non-conforming use, the only ostensible issue on appeal to the

Geauga County Court of Common Pleas was whether the Board’s failure to determine

whether the denial of a use-variance was arbitrary, capricious, or unreasonable. The trial

court found the Board’s decision on the use variance proper; the trial court also

acknowledged that the Center could have asserted its property qualified as a prior, non-

conforming use in its initial application, which it did not.

{¶4} The court nevertheless recognized that certain witnesses who testified at

the hearing before the Board that they had “lived in the area of [the Center] for decades,

no witness specifically testified that the campground had been in existence prior to the

enactment of the zoning resolution.” The trial court found the Board’s failure to consider

the issue of a prior, non-conforming use was error. The trial court determined:

[I]n light of both (the Center’s) apparent ignorance of this potential argument(,i.e., the prior, non-conforming use claim) 2

Case No. 2024-G-0044 to further their aim of maintaining a campground, and in light of the (Board’s) refusal to permit further consideration of the issue even after the possibility was raised at the hearing, the (Board’s) decision to proceed to a final determination without more evidence of the issue must be considered arbitrary and capricious. In a perfect world, all parties should have approached their application differently than what ensued. It is the Court’s desire to see justice done after consideration of all the facts and legal arguments, especially when considering zoning regulations which restrict the use of property.

{¶5} The trial court therefore remanded the matter and instructed the Board to

conduct a hearing to determine whether the property qualified as a preexisting, non-

conforming use. Because the issue was not before the trial court, no dispositional reversal

was issued.

{¶6} On remand, additional evidence was taken and the Board determined that

the Center had not established a prior, non-conforming use. See p. 7, Judgment Entry

issued October 9, 2024. The Center appealed to the trial court and, under a separate

case number (Case No. 2023 A 000576) that was assigned to a different judge, the trial

court concluded the Board’s decision “is unconstitutional, illegal, arbitrary, capricious,

unreasonable, and unsupported by the preponderance of substantial, reliable, and

probative evidence on the whole record.” Id. at p. 13. The trial court accordingly reversed

the Board’s decision.

{¶7} Subsequently, the Board filed a notice of appeal on November 7, 2024. The

Board sought review of both the October 9, 2024 judgment and the April 17, 2023

judgment. The Board sought to consolidate both Case No. 2023 A 000576 and Case No.

2021 A 000405. The trial judge presiding over Case No. 2021 A 000405 denied the

motion, concluding any such motion should be made under case number 2023 A 000576.

Case No. 2024-G-0044 {¶8} On December 20, 2024, the Center moved this court to dismiss the appeal

filed in the instant case, which is derivative of the April 17, 2023 judgment remanding the

matter to the Board in Case No. 2021 A 000405. The Center maintained the appeal was

untimely because it was filed 570 days after the April 2023 order. The Center’s position

is founded upon its argument that the April 2023 order was final and appealable upon its

entry.

{¶9} Alternatively, the Board opposes the motion based upon its view that the

April 2023 judgment was not final and appealable. It claims that the remand order

conferred ultimate jurisdiction (post-remand) upon the court of common pleas to assure

compliance with the terms of the original order. As such, the Board maintains the April

2023 order was not final upon its initial issuance.

{¶10} “Under R.C. 2506.04, in an appeal from the board's decision, the common

pleas court ‘may affirm, reverse, vacate, or modify the order, adjudication, or decision, or

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

adjudication, or decision consistent with findings or opinion of the court.’” State ex rel.

Chagrin Falls v. Geauga Co. Bd. of Cmmrs., 2002-Ohio-4906, ¶ 8, quoting R.C. 2506.04.

In Superior Metal Products, Inc. v. Administrator of the Ohio Bureau of Employment

Services, 41 Ohio St.2d 143, 146 (1975), the Supreme Court of Ohio determined that “a

court’s remand effectuates a revival of jurisdiction over a cause which may enable the

subordinate tribunal or administrative body to conduct further proceedings and to render

a new decision.” Accord Stace Dev., Inc. v. Welling Twp. Bd. of Zoning Appeals, 2005-

Ohio-4798, ¶ 17 (9th Dist.) (an order remanding an issue to an administrative agency for

further hearing is authorized under R.C. 2506).

Case No. 2024-G-0044 {¶11} In Chagrin Falls, the court observed: “Although Superior Metal did not

involve an R.C. Chapter 2506 appeal, appellate courts have applied it and held that

common pleas courts have authority in R.C. Chapter 2506 administrative appeals to

remand for further proceedings, including a new hearing.” Chagrin Falls, at ¶ 8, citing

Neary v. Moraine Bd.

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Related

Cleveland Skydiving Ctr., Inc. v. Troy Twp. Bd. of Zoning Appeals
2025 Ohio 2808 (Ohio Court of Appeals, 2025)

Cite This Page — Counsel Stack

Bluebook (online)
2025 Ohio 435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-skydiving-ctr-inc-v-troy-twp-bd-of-zoning-appeals-ohioctapp-2025.