[Cite as State ex rel. Restivo v. Avon, 2025-Ohio-594.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO, ex rel. PETER C.A. No. 23CA012035 RESTIVO, et al.
Appellants APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS CITY OF AVON, et al. COUNTY OF LORAIN, OHIO CASE No. 23CV209370 Appellees
DECISION AND JOURNAL ENTRY
Dated: February 24, 2025
STEVENSON, Presiding Judge.
{¶1} Appellants Peter Restivo, Brandon Vaverka, Hilliard Partnership LLC, and Stop
Avon Flooding Everywhere (SAFE) LLC (collectively “Restivo”), appeal from a judgment of the
Lorain County Court of Common Pleas granting the motions to dismiss filed by Appellees City of
Avon, Avon City Council, and the individual council members (collectively “the City”), and
Appellee Carnegie Residential Development Corporation (“CRDC”). We dismiss this appeal as
moot.
I.
{¶2} Restivo filed a complaint against the City and CRDC on June 26, 2023. The
allegations in the complaint pertain to Red Tail Subdivision No. 17 (“Red Tail No. 17”), which
consists of multiple single family residential lots located in the City of Avon. CRDC owns the land
and is the developer of Red Tail No. 17. Restivo challenges the Comprehensive Stormwater
Management Plan (“CSWMP”) contained within the final plat for Red Tail No. 17. 2
{¶3} In count one of its complaint, Restivo seeks a declaratory judgment that Red Tail
No. 17 and its CSWMP do not qualify as exemptions and fail to comply with Avon Codified
Ordinances. Restivo seeks in count two an injunction preventing the acceptance of any
improvements to Red Tail No. 17 and revoking the City’s final plat approval. Restivo lastly asserts
a taxpayers’ relief claim. Restivo asserts in count three that it brought its action on behalf of all
residents and “in furtherance of the public interests indicated by Cod. Ord. 133-16.”
{¶4} The City and CRDC moved to dismiss Restivo’s complaint pursuant to Civ.R.
12(B)(6). They argued in their motions that Restivo failed to exhaust administrative remedies,
lacked standing to pursue a statutory taxpayer action, and that, because Restivo could not prevail
on the underlying claims, there was no entitlement to the requested injunctive relief. Restivo
responded in opposition.
{¶5} The trial court granted the City and CRDC’s motions to dismiss. The trial court
found that dismissal was appropriate because Restivo “fail[ed] to exhaust administrative remedies”
and is “not entitled to injunctive relief.” In denying injunctive relief, the trial court noted that
“[t]he City considered the final plat and approved it[]” and it found that, “[b]alancing the interests
of others and the potential injury to the enjoined parties compared to the injury claimed by
[Restivo],” the requested injunctive relief could not be granted. The trial court also dismissed
Restivo’s taxpayer action, finding that the “fear of flooding and storm water damage[] does not
affect all taxpayers of Avon, but only those whose property lies within certain areas[.] . . .”
{¶6} Restivo appeals the trial court’s judgment granting the City and CRMC’s motions
to dismiss, asserting twelve assignments of error for review. Before this Court can reach the merits
of the case, we must consider the City and CRMC’s argument that this appeal is moot. 3
III.
{¶7} The Ohio Supreme Court established long ago that “[i]t is not the duty of the court
to answer moot questions [.] . . .” Miner v. Witt, 82 Ohio St. 237 (1910), syllabus. The Court
addressed in Miner the issue of when a matter become moot, stating:
‘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[] . . . 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.’
Id., at 238-239, quoting Mills v. Green, 159 U.S. 651, 653 (1895); see also Frank Novak & Sons,
Inc. v. Avon Lake Bd. of Edn., 2001 WL 1545505, *1 (9th Dist. Dec. 5, 2001). Hence, “[a] case is
moot when the issues presented are no longer live or the parties lack a legally cognizable interest
in the outcome.” (Internal citations and quotations omitted.) State ex rel. Gaylor, Inc. v.
Goodenow, 2010-Ohio-1844, ¶ 10.
{¶8} Restivo maintains that Red Tail No. 17 and its CSWMP fail to comply with Avon’s
codified ordinances and it seeks to revoke the City’s final plat approval. The City approved the
final plat on September 6, 2022. Restivo did not seek a stay or otherwise appeal the final plat
approval.
{¶9} Once the final plat was approved, CRDC posted a bond and completed numerous
public improvements on Red Tail No. 17. CRDC constructed streets, sidewalks, and infrastructure
utilities. CRDC completed construction of the public improvements in June 2023 at a cost of over
one million dollars. Avon City Council voted unanimously to accept the public improvements on
August 14, 2023, resulting in the City taking ownership of the public improvements. At no time
during CRDC’s construction did Restivo appeal or seek to stop the construction. 4
{¶10} The Ohio Supreme Court has established that, if the plaintiff “[i]n a construction-
related case[] . . . fails to obtain a stay of the construction pending judicial resolution of its claims
challenging the decision, and construction commences, the . . . action will be dismissed as moot.”
State ex rel. Gaylor, 2010-Ohio-1844, at ¶ 11; see also Schuster v. City of Avon Lake, 2003-Ohio-
6587, ¶ 8 (9th Dist.) (appeal and request for injunctive relief moot where movant did not obtain a
stay of execution and construction commenced); Poulson v. Wooster City Planning Comm., 2005-
Ohio-2976, ¶8-9 (9th Dist.) (appeal moot where plaintiffs never sought a stay of execution to
prohibit construction and construction was completed); Neighbors for Responsible Land Use v.
Akron, 2006-Ohio-6966, ¶ 6 (9th Dist.) (“if a party fails to obtain a stay of execution before
construction commences, the case is moot”); Frank Novak & Sons, Inc., 2001 WL 1545505, *2
(9th Dist.) (request for injunctive relief rendered moot where movant did not obtain a stay of
execution and contract was awarded to another bidder). Poulson is similar to the facts in this case.
{¶11} The plaintiffs in Poulson filed an administrative appeal from the decision of the
city commission approving a subdivision plat. Poulson at ¶ 2. The city commission moved to
dismiss the appeal arguing that, because construction was completed, the appeal was moot. Id. The
trial court agreed and this Court affirmed that judgment.
{¶12} This Court noted in Poulson that “in cases such as this, ‘where an appeal involves
the construction of a building or buildings and the appellant fails to obtain a stay of execution of
the trial court’s ruling and construction commences, the appeal is rendered moot.’” Poulson at ¶
7, quoting Schuster at ¶ 8. As in this case, the plaintiffs “never sought a stay of execution to
prohibit construction of the disputed property[]” and the construction was completed. Id. at ¶ 8.
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[Cite as State ex rel. Restivo v. Avon, 2025-Ohio-594.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )
STATE OF OHIO, ex rel. PETER C.A. No. 23CA012035 RESTIVO, et al.
Appellants APPEAL FROM JUDGMENT v. ENTERED IN THE COURT OF COMMON PLEAS CITY OF AVON, et al. COUNTY OF LORAIN, OHIO CASE No. 23CV209370 Appellees
DECISION AND JOURNAL ENTRY
Dated: February 24, 2025
STEVENSON, Presiding Judge.
{¶1} Appellants Peter Restivo, Brandon Vaverka, Hilliard Partnership LLC, and Stop
Avon Flooding Everywhere (SAFE) LLC (collectively “Restivo”), appeal from a judgment of the
Lorain County Court of Common Pleas granting the motions to dismiss filed by Appellees City of
Avon, Avon City Council, and the individual council members (collectively “the City”), and
Appellee Carnegie Residential Development Corporation (“CRDC”). We dismiss this appeal as
moot.
I.
{¶2} Restivo filed a complaint against the City and CRDC on June 26, 2023. The
allegations in the complaint pertain to Red Tail Subdivision No. 17 (“Red Tail No. 17”), which
consists of multiple single family residential lots located in the City of Avon. CRDC owns the land
and is the developer of Red Tail No. 17. Restivo challenges the Comprehensive Stormwater
Management Plan (“CSWMP”) contained within the final plat for Red Tail No. 17. 2
{¶3} In count one of its complaint, Restivo seeks a declaratory judgment that Red Tail
No. 17 and its CSWMP do not qualify as exemptions and fail to comply with Avon Codified
Ordinances. Restivo seeks in count two an injunction preventing the acceptance of any
improvements to Red Tail No. 17 and revoking the City’s final plat approval. Restivo lastly asserts
a taxpayers’ relief claim. Restivo asserts in count three that it brought its action on behalf of all
residents and “in furtherance of the public interests indicated by Cod. Ord. 133-16.”
{¶4} The City and CRDC moved to dismiss Restivo’s complaint pursuant to Civ.R.
12(B)(6). They argued in their motions that Restivo failed to exhaust administrative remedies,
lacked standing to pursue a statutory taxpayer action, and that, because Restivo could not prevail
on the underlying claims, there was no entitlement to the requested injunctive relief. Restivo
responded in opposition.
{¶5} The trial court granted the City and CRDC’s motions to dismiss. The trial court
found that dismissal was appropriate because Restivo “fail[ed] to exhaust administrative remedies”
and is “not entitled to injunctive relief.” In denying injunctive relief, the trial court noted that
“[t]he City considered the final plat and approved it[]” and it found that, “[b]alancing the interests
of others and the potential injury to the enjoined parties compared to the injury claimed by
[Restivo],” the requested injunctive relief could not be granted. The trial court also dismissed
Restivo’s taxpayer action, finding that the “fear of flooding and storm water damage[] does not
affect all taxpayers of Avon, but only those whose property lies within certain areas[.] . . .”
{¶6} Restivo appeals the trial court’s judgment granting the City and CRMC’s motions
to dismiss, asserting twelve assignments of error for review. Before this Court can reach the merits
of the case, we must consider the City and CRMC’s argument that this appeal is moot. 3
III.
{¶7} The Ohio Supreme Court established long ago that “[i]t is not the duty of the court
to answer moot questions [.] . . .” Miner v. Witt, 82 Ohio St. 237 (1910), syllabus. The Court
addressed in Miner the issue of when a matter become moot, stating:
‘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[] . . . 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.’
Id., at 238-239, quoting Mills v. Green, 159 U.S. 651, 653 (1895); see also Frank Novak & Sons,
Inc. v. Avon Lake Bd. of Edn., 2001 WL 1545505, *1 (9th Dist. Dec. 5, 2001). Hence, “[a] case is
moot when the issues presented are no longer live or the parties lack a legally cognizable interest
in the outcome.” (Internal citations and quotations omitted.) State ex rel. Gaylor, Inc. v.
Goodenow, 2010-Ohio-1844, ¶ 10.
{¶8} Restivo maintains that Red Tail No. 17 and its CSWMP fail to comply with Avon’s
codified ordinances and it seeks to revoke the City’s final plat approval. The City approved the
final plat on September 6, 2022. Restivo did not seek a stay or otherwise appeal the final plat
approval.
{¶9} Once the final plat was approved, CRDC posted a bond and completed numerous
public improvements on Red Tail No. 17. CRDC constructed streets, sidewalks, and infrastructure
utilities. CRDC completed construction of the public improvements in June 2023 at a cost of over
one million dollars. Avon City Council voted unanimously to accept the public improvements on
August 14, 2023, resulting in the City taking ownership of the public improvements. At no time
during CRDC’s construction did Restivo appeal or seek to stop the construction. 4
{¶10} The Ohio Supreme Court has established that, if the plaintiff “[i]n a construction-
related case[] . . . fails to obtain a stay of the construction pending judicial resolution of its claims
challenging the decision, and construction commences, the . . . action will be dismissed as moot.”
State ex rel. Gaylor, 2010-Ohio-1844, at ¶ 11; see also Schuster v. City of Avon Lake, 2003-Ohio-
6587, ¶ 8 (9th Dist.) (appeal and request for injunctive relief moot where movant did not obtain a
stay of execution and construction commenced); Poulson v. Wooster City Planning Comm., 2005-
Ohio-2976, ¶8-9 (9th Dist.) (appeal moot where plaintiffs never sought a stay of execution to
prohibit construction and construction was completed); Neighbors for Responsible Land Use v.
Akron, 2006-Ohio-6966, ¶ 6 (9th Dist.) (“if a party fails to obtain a stay of execution before
construction commences, the case is moot”); Frank Novak & Sons, Inc., 2001 WL 1545505, *2
(9th Dist.) (request for injunctive relief rendered moot where movant did not obtain a stay of
execution and contract was awarded to another bidder). Poulson is similar to the facts in this case.
{¶11} The plaintiffs in Poulson filed an administrative appeal from the decision of the
city commission approving a subdivision plat. Poulson at ¶ 2. The city commission moved to
dismiss the appeal arguing that, because construction was completed, the appeal was moot. Id. The
trial court agreed and this Court affirmed that judgment.
{¶12} This Court noted in Poulson that “in cases such as this, ‘where an appeal involves
the construction of a building or buildings and the appellant fails to obtain a stay of execution of
the trial court’s ruling and construction commences, the appeal is rendered moot.’” Poulson at ¶
7, quoting Schuster at ¶ 8. As in this case, the plaintiffs “never sought a stay of execution to
prohibit construction of the disputed property[]” and the construction was completed. Id. at ¶ 8.
This Court accordingly concluded “that the trial court did not err when it dismissed Appellants’ 5
appeal as moot.” Id. at ¶ 9. In this case, Restivo failed to seek a stay of execution to prohibit
construction.
{¶13} Once the City approved the final plat, CRDC posted bond and completed
construction. Again, Restivo did not seek a stay to prohibit construction. Accordingly, we
conclude that the issues in this appeal are moot.
{¶14} The Supreme Court of Ohio has recognized two exceptions to the mootness
doctrine. In re Appeal of Suspension of Huffer from Circleville High School, 47 Ohio St.3d 12
(1989). First, “[a] case is not moot if the issues are capable of repetition, yet evading review.”
(Internal quotations and citation omitted.) Id. at 14. Second, a case is not moot if it “involves a
matter of public or great general interest[.]” Id. Restivo does not argue that either exception applies
in this case and we will not construct such an argument on its behalf. See Neiderst v. Neiderst,
2024-Ohio-5297, ¶ 28 (9th Dist.), citing App.R. 16(A)(7). Rather, Restivo argued at oral argument
that the case is not moot because the CSWMP creates a public nuisance. Restivo argued in its
response to the motion to dismiss that various statutes give the court the authority to vacate the
plat. These arguments, however, are merely attempts to overturn the City’s decision to approve
the plat and revoke the acceptance of the improvements. The time to challenge those City actions
has passed. Accordingly, this action is moot.
{¶15} Based on the foregoing, we conclude that the issues raised in this appeal are moot
and we dismiss the appeal on this basis.
Appeal dismissed. 6
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellants.
SCOT STEVENSON FOR THE COURT
CARR, J. SUTTON, J. CONCUR.
APPEARANCES:
GERALD W. PHILLIPS, Attorney at Law, for Appellants.
MATTHEW A. DOOLEY and STEPHAN M. BOSAK, Attorneys at Law, for Appellee.
JOHN P. SLAGER, ANTHONY R. VACANTI, and LINDSEY E. SACHER, Attorneys at Law, for Appellee.
KREIG BRUSNAHAN, Attorney at Law, for Appellee.
JOHN GASIOR, Attorney at Law, for Appellees.