Simmons v. Fulk

2014 Ohio 4908

• Court: Ohio Court of Appeals
• Decided: November 3, 2014
• Docket: 2014CA00064
• Status: Published

Opinion

[Cite as Simmons v. Fulk, 2014-Ohio-4908.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

JEFFERY SIMMONS, ET AL., : JUDGES: : : Hon. W. Scott Gwin, P.J. Appellees : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : DENNIS D. FULK, P.S. PLAIN TOWNSHIP : Case No. 2014CA00064 ZONING INSPECTOR, ET AL., : : Appellants : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2013CV02545

JUDGMENT: Dismissed

DATE OF JUDGMENT: November 3, 2014

APPEARANCES:

For Appellees For Appellants Dennis D. Fulk, P.S. Plain Township JOHN L. JUERGENSON Zoning Inspector and the Plain John L. Juergensen Co., LPA Township Board of Zoning Appeals Washington Square Office Park 6545 Market Avenue North JAMES F. MATHEWS North Canton, OH 44721 Baker, Dublikar, Beck, Wiley & Mathews 400 South Main Street North Canton, OH 44720

For Easton Village Company, LLC

JOHN J. RAMBACHER Winkhart, Rambacher & Griffin 825 South Main Street North Canton, OH 44720 Stark County, Case No. 2014CA00064 2

Baldwin, J.

{¶1} Appellants Plain Township Board of Zoning Appeals (hereinafter “BZA”),

Dennis D. Fulk, P.S. Plain Township Zoning Inspector and Easton Village Company,

LLC appeal a judgment of the Stark County Common Pleas Court granting a stay of its

decision pending appeal to appellees Jeffrey Simmons, Nancy Locke, Dean Mohler,

Cynthia Mohler, Robert Ernst, Trustee, and Sharon Ernst, Trustee.

STATEMENT OF FACTS AND CASE

{¶2} On August 5, 2013, James J. Ptacek of Larsen Architects requested two

conditional use permits with respect to property located at 6300-6306, Market Avenue

North, in Plain Township. The requests were submitted to the BZA. Larsen sought to

build a McDonald’s restaurant with an accompanying drive-thru on property owned by

appellant Easton, located on the corner of Market Avenue North and Grove Street, near

the intersection of Maple Street/Easton Avenue and Market Avenue North, and across

the street from Walsh College. The lot is zoned B-1 Neighborhood Business District,

and it abuts an R-1 Single Family Residential District. Appellees are residential home

owners on Grove Street.

{¶3} The property in question has a previously existing small strip plaza which

includes several business: Samantha’s Restaurant, Italo’s Pizza, Ferrell Pools & Spas,

Edward Jones, and the Bead Boutique. The strip plaza has been located on the

property for over 30 years. An abandoned bank building which had a drive-thru is also

located on the property. The bank building and part of the strip mall would be

demolished to construct the McDonald’s. Construction of the McDonald’s requires the Stark County, Case No. 2014CA00064 3

granting of a conditional use permit for the property to be designated as a planned

commercial complex, as well as a conditional use permit for operation of a drive-thru.

{¶4} The BZA held a hearing on September 4, 2013. Following the hearing,

the conditional use permits were approved. Appellees filed an appeal to the Stark

County Common Pleas Court. The court found that the decision of the BZA was

supported by the testimony and by BZA’s interpretation of the Plain Township Zoning

Resolution. Appellees then filed an appeal of that decision to this Court (Stark App. No.

2014CA00041).

{¶5} On April 3, 2014, the trial court stayed its judgment and the September 4,

2014, decision of the BZA pending appeal to this Court. Appellants filed an appeal from

the judgment of stay, assigning a single error:

{¶6} “THE TRIAL COURT ERRED WHEN IT ENTERED A STAY INASMUCH

AS THE ZONING PERMITS WHICH WERE THE SUBJECT OF THE STAY HAD

ALREADY BEEN ISSUED AND WERE OUTSTANDING.” Stark County, Case No. 2014CA00064 4

{¶7} The trial court issued the stay that is the subject of the instant appeal

pending appeal of the underlying judgment to this Court. This appeal is rendered moot

by our decision on the merits of the underlying appeal in Stark App. No. 2014CA00041.

The instant appeal is accordingly dismissed. Costs are assessed to appellants.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.