D'Amico v. Cleveland Bd. of Zoning Appeals

Opinion

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

MICHAEL A. D’AMICO, ET AL., :

Plaintiffs-Appellants, :

No. 116119

v. :

CITY OF CLEVELAND, OHIO BOARD OF ZONING APPEALS, ET AL., :

Defendants-Appellees. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: September 3, 2026

Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-25-116309

Appearances:

Seely, Savidge, Ebert & Gourash LPA, Christopher M.

Corrigan and Gary A. Ebert, for appellants.

Mark Griffin, Cleveland Director of Law, and Carolyn M.

Downey, Assistant Director of Law, for appellee.

EILEEN A. GALLAGHER, J.:

Appellants Michael A. D’Amico (“D’Amico”) and Allstate Barber College, Inc. (“Allstate Barber”) (collectively “Appellants”) appeal issues with the trial court’s granting of the City of Cleveland’s (“the City”) motion to dismiss

Appellants’ administrative appeal for mootness. For the reasons that follow, we affirm.

Facts and Procedural History This appeal stems from a decision made by the City of Cleveland Board of Zoning Appeals (“BZA”) to grant a use variance to 2523 Market Corp. (“Market Corp”) and 2600 Lorain LLC (“Lorain LLC”) (collectively “the companies”) for the property located at 1950 and 1960 West 26th Street (“the premises”) in Cleveland. D’Amico owns and operates Allstate Barber College. The premises were a large parking lot used by customers of Allstate Barber.

The companies initially applied for a permit to build a hotel on the premises that was zoned as a local retail district. Pursuant to Cleveland Cod.Ord. 343.01, a hotel was not a permitted use in this kind of districting zone. The City denied the companies’ permit application and issued a notice of nonconformance. The companies appealed this denial and the notice of nonconformance to the BZA requesting a variance.

A public hearing was held on this matter. The companies presented their case to the BZA with testimony and exhibits. Opposition to the hotel was voiced. D’Amico “appeared before the BZA and/or provided written testimony opposing the variance.” After the hearing, and over these objections, the BZA granted the variance to permit the companies to build the hotel.

Appellants appealed this decision to the Cuyahoga County Court of Common Pleas, alleging that the grant of the variance was “unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.”

While this appeal was pending in the trial court, Cleveland City Council passed Cleveland Cod.Ord. 567-2025 (“Ordinance 567-2025”), which changed the use districts of parcels north and south of Lorain Avenue. It is undisputed that this ordinance changed the zoning of the premises into “Limited Retail Business,” which permitted uses such as a hotel. As a result of this ordinance, the zoning variance granted by the BZA and appealed by Appellants was no longer required to build a hotel on the premises.

After this ordinance took effect, the City filed a motion to dismiss the administrative appeal, arguing it was moot because there was no longer a live controversy for the trial court to consider as the core issue of the appeal had been resolved. Attached to the motion to dismiss was Exhibit A, which appeared to be one page of a larger document prepared by Kayla Flake, Senior Assistant City Planner — Zoning & Technology Division for the City verifying the premises redistricting under the new ordinance. Appellants opposed the motion, arguing Exhibit A was not properly authenticated and, as such, could not be considered by the court. Appellants did not address the City’s arguments regarding the mootness of the appeal. The trial court reviewed the motion, took judicial notice of the passing of Ordinance 567-2025, found that the controversy was moot, and granted the City’s motion and dismissed the appeal.

Appellants appeal the trial court’s journal entry dismissing the appeal, raising the two following assignments of error for our review:

Assignment of Error I

The court erred in considering the document attached to the motion to dismiss as it was not a part of complaint and it was not authenticated and the court did not advise the parties that it was treating the motions as one for summary judgment.

Assignment of Error II

The common pleas court erred in taking judicial notice of matter that is not supported by facts or evidence.

Law and Analysis Pursuant to R.C. 2506.01, a party may appeal an administrative decision to the court of common pleas. R.C. 2506.04 provides that if a party appeals an administrative decision, the common pleas court “may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.”

Pursuant to R.C. 2506.04, a common pleas court judgment may be appealed to an appellate court only on “questions of law.” “[T]he standard of review to be applied by the court of appeals in an R.C. 2506.04 appeal is narrower, more limited in scope, and more deferential to the lower court’s decision.” Mackay v. Romanini, 2016-Ohio-5251, ¶ 11 (8th Dist.). “A review by the court of appeals is limited to questions of law and does not include the same power to weigh the evidence.” Id.

As explained by the Ohio Supreme Court:

“An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited in scope and requires that court to affirm the common pleas court, unless the court of appeals finds, as a matter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative and substantial evidence.”

(Emphasis in original.) Cleveland Clinic Found. v. Bd. of Zoning Appeals of the City of Cleveland, 2014-Ohio-4809, ¶ 23, quoting Kisil v. Sandusky, 12 Ohio St.3d 30, 34 (1984).

R.C. 2506.04 provides that the common pleas court judgment may be appealed to an appellate court only “on questions of law.” ProTerra, Inc. v. Cleveland Bd. of Zoning Appeals, 2020-Ohio-6739, ¶ 18-19 (8th Dist.). “[T]he standard of review for courts of appeals in administrative appeals is designed to strongly favor affirmance. It 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 Found. at ¶ 30.

Before reviewing the assignments of error, we note at the outset that Appellants are not appealing the merits of the trial court’s dismissal for mootness but, rather, are specifically arguing that it was error for the trial court to consider Exhibit A, the document attached to the motion to dismiss and to take judicial notice of a matter not supported by facts or evidence.

Assignment of Error I

Appellants argue that the trial court erred in considering Exhibit A as it was not a part of the complaint and not authenticated. We first note there is no “complaint” in this administrative appeal. Rather, Appellants properly filed a notice of appeal in the common pleas court, and we assume this is what they are referring to as the complaint. They also argue that the court did not advise the parties it was treating the motion as one for summary judgment.

Appellants’ argument appears to be premised on the erroneous presumption that the City filed, and the court granted, a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Review of the record shows that is not what happened in this case. The City moved the trial court to dismiss the case “as being moot.” At no point did the City cite to Civ.R. 12(B)(6) in its motion. While it is true that on a motion to dismiss pursuant to Civ.R. 12(B)(6), a court’s factual review is confined to the four corners of the complaint, the City’s motion to dismiss was not made pursuant to Civ.R. 12(B)(6) and was instead pursuant to the doctrine of mootness. Rankin v. Rosolowski, 2016-Ohio-7490, ¶ 6 (8th Dist.).

As such, the trial court did not need to comport with the requirements of Civ.R. 12(B)(6) to grant said motion and the court was permitted to consider exhibits. Ergo, the first part of Appellants’ argument is without merit. See Johns v. Allen, 2013-Ohio-2045, ¶ 10 (11th Dist.) (“[A]lthough it would usually be inappropriate to consider evidentiary materials in ruling on a motion to dismiss under Civ.R. 12(B)(6), such materials can be reviewed when the basis of the dismissal motion is mootness.”).

Further, the trial court never converted the motion to dismiss to a motion for summary judgment. Such a mechanism only occurs pursuant to the civil rules when a 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted is filed and presents matters outside the pleadings. Civ.R. 12(B); see Rankin at ¶ 8. Such a motion was never filed here; the court did not convert anything to a summary judgment motion and, therefore, the trial court was not required to advise the parties of any conversion. As such, Appellants’ argument regarding this matter is also without merit.

Appellants also argue that Exhibit A, which was attached to the City’s motion to dismiss, was not properly authenticated and it was improper for the trial court to consider it. While the document does not appear to be authenticated as required by Evid.R. 901, and even assuming arguendo that it was not, the trial court made clear in its journal entry that even if Exhibit A was unauthenticated, the trial court took judicial notice of the passing of the ordinance and relied upon that in its decision. As such, even if stricken from the City’s motion to dismiss, the trial court still had a separate, independent basis upon which to determine the matter was moot and properly dismissed the case. Wherefore, we find this argument is without merit.

Appellants’ first assignment of error is overruled.

Assignment of Error II

In their second assignment of error, Appellants argue that the trial court erred by taking judicial notice that Ordinance 567-2025 was passed, changing the districting of the premises. Appellants argue that this matter was not “supported by facts or evidence.” We disagree.

In their brief, Appellants cite to Evid.R. 201, which governs judicial notice of adjudicative facts, to support their entire argument under this assignment of error. This citation is incorrect. “Civ.R. 44.1(A)(1) governs the court’s ability to take judicial notice of law.” Cleveland v. Schmidt, 2013-Ohio-1547, ¶ 32 (8th Dist.). Civ.R. 44.1(A)(2) provides that “[a] court may . . . take judicial notice of its own rules or of a municipal ordinance within the territorial jurisdiction of the court without advance notice in the pleading of a party or other written notice.” ‘“The court in taking judicial notice of a municipal ordinance . . . within this state may inform itself in such manner as it deems proper . . . .”’ State v. Endicott, 2026-Ohio-2215, ¶ 23 (7th Dist.), quoting Civ.R. 44.1 (A)(2).

In its judgment entry of dismissal, the trial court stated that “[t]his Court acknowledges the passage of Ordinance 567-2025 as its validity is generally known within the territorial jurisdiction of the trial court and capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” (Emphasis in original.) The trial court noted that the adoption of such an ordinance was available online and readily available to Appellants and the general public. Despite citing the wrong rule, we find that “[t]he trial court was permitted to take judicial notice of municipal ordinances within its own territorial jurisdiction regardless of whether a party provided advance notice or request.” Id. Similarly, the trial court was permitted to inform itself in any manner it deemed proper. Id.

Appellants provide no arguments or legal citations to demonstrate why the trial court’s taking judicial notice pursuant to Civ.R. 44.1(A)(2) of the passing of Ordinance 567-2025 and its effect on the premises was an error. It is not an appellate court’s duty to construct or develop arguments for an appellant as the burden is on the appellant, not the appellate court, to construct legal arguments necessary to support an assignment of error. Cleveland Hts. v. Watts, 2026-Ohio- 126, ¶ 8 (8th Dist.); App.R. 16(A)(7). Furthermore, Appellants do not dispute that the judicial notice the trial court took was true, i.e., that Ordinance 567-2025 was passed or that it changed the districting of the premises to permit the hotel.

Accordingly, because the trial court was permitted to take judicial notice to inform itself in any manner it deemed proper of the ordinance pursuant to Civ.R. 44.1(A) and Appellants provide no legal citation or argument as to why this was improper, Appellants’ second assignment of error is overruled.

This court is required to affirm the trial court’s judgment because the decision of the trial court was a correct application of the law. Cleveland Clinic Found., 2014-Ohio-4809, at ¶ 30.

Judgment affirmed.

It is ordered that appellee recover from Appellants costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

_________________________

EILEEN A. GALLAGHER, JUDGE

LISA B. FORBES, P.J., and EMANUELLA D. GROVES, J., CONCUR