[Cite as Surber v. Hines, 2024-Ohio-95.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY
GEOFFREY SURBER : : Appellant : C.A. No. 2023-CA-17 : v. : Trial Court Case No. 22-CV-00477 : JUSTIN HINES, ET AL. : (Civil Appeal from Common Pleas : Court) Appellees : :
...........
OPINION
Rendered on January 12, 2024
NICOLE L. POHLMAN, Attorney for Appellant
KATHLEEN F. RYAN, Attorney for Appellees
.............
TUCKER, J.
{¶ 1} Geoffrey Surber appeals from the trial court’s entry of summary judgment
against him on a claim for injunctive relief and statutory damages against the Greenville
Township Board of Zoning Appeals (BZA).
{¶ 2} Surber contends genuine issues of material fact exist as to whether BZA
members violated R.C. 121.22, which is known as the Open Meetings Act (OMA) or the -2-
“Sunshine Law,” by privately discussing his appeal from zoning-violation notices
immediately before conducting a hearing.
{¶ 3} We conclude that the OMA did not apply because the BZA members’
discussion was part of an exempt quasi-judicial proceeding. Accordingly, the trial court’s
judgment will be affirmed.
I. Background
{¶ 4} Surber filed a November 2022 two-count complaint against the Greenville
Township Board of Trustees and its members, Greenville Township fiscal officer Susan
Miles, and the Greenville Township BZA. The complaint alleged that Surber had erected
three buildings on his property after obtaining zoning permits. The complaint further
alleged that a Greenville Township zoning inspector issued him zoning-violation notices
with respect to the buildings after their completion.
{¶ 5} According to the complaint, Surber appealed the violation notices to the BZA.
The complaint alleged that Greenville Township had denied his public-record requests
related to the issue. It further alleged that BZA members had met privately for an hour
immediately before hearing his appeal on October 28, 2021 “to discuss the facts and
circumstances surrounding Plaintiff’s appeal and to make a decision concerning [his]
property.” The complaint alleged that BZA members subsequently paused the hearing
before its completion and went into executive session “to discuss personnel.” According
to the complaint, BZA members departed and entered a private room.
{¶ 6} Count one of the complaint asserted four public-record violations by the
Greenville Township Board of Trustees and fiscal officer Miles. Surber sought a writ of -3-
mandamus to compel production of the records. He also requested damages and
attorney’s fees. Count two alleged that the Greenville Township BZA had violated the
OMA by conducting a “pre-hearing” private meeting immediately before hearing his
appeal on October 28, 2021 and by pausing the hearing to enter executive session.
Surber requested injunctive relief, a determination that the BZA’s denial of his appeal was
“invalid” under the OMA, statutory damages of $500, and attorney’s fees.
{¶ 7} In June 2023, the trial court dismissed Surber’s mandamus claim as moot
with regard to two of his four public-record requests, as those records eventually had
been provided. The trial court noted, however, that the issue of damages resulting from
the initial denial of the records remained unresolved. With regard to the other two public-
record requests, the trial court found the Board of Trustees and fiscal officer Miles entitled
to summary judgment. Finally, the trial court found the BZA entitled to summary judgment
on the OMA claim in count two, reasoning:
Viewing the evidence most strongly in Plaintiff’s favor, this Court
finds reasonable minds can only conclude the following: On October 28,
2021, the Greenville Township Zoning Board of Appeals was acting in a
quasi-judicial capacity when it was considering and deciding upon Plaintiff’s
appeal of the zoning violation issued by Defendant, Scott Peele. This entire
adjudicatory hearing process was not a “meeting” under Ohio’s Open
Meetings Act. Therefore, neither the meeting prior to the public hearing, nor
the executive session, violated the OMA.
June 7, 2023, Decision, Order, and Entry at 18. -4-
{¶ 8} Surber appealed from the trial court’s ruling. Noting that the damages issue
remained pending on his public-record claim, we issued a show-cause order questioning
whether an appealable order existed. In response, Surber noted that he subsequently
had dismissed count one and that the trial court had filed a dismissal entry. In a
September 29, 2023 ruling, we deemed our show-cause order satisfied.
II. Analysis
{¶ 9} In his sole assignment of error, Surber contends the trial court erred in finding
that BZA members were acting in a quasi-judicial capacity when they met privately and
discussed his case just before hearing his appeal. Surber concedes that public hearings
of the BZA are quasi-judicial and that deliberations occurring after such hearings are not
subject to the OMA. When the BZA members met before his hearing, however, he asserts
that they had not yet performed any quasi-judicial function and had nothing to deliberate.
He reasons that finding the pre-hearing meeting not subject to the OMA “would be akin
to finding that a jury could meet and discuss a case in private prior to hearing any
evidence on the record in a court of law.”
{¶ 10} Under Civ.R. 56(C), summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio
St.3d 181, 183, 677 N.E.2d 343 (1997). Appellate review of summary judgment is de
novo. Gilliland v. Adams, 2d Dist. Montgomery No. 29732, 2023-Ohio-3083, ¶ 24. -5-
{¶ 11} Upon review, we see no error in the trial court’s entry of summary judgment
against Surber. An adjudicatory proceeding before a zoning appeals board is quasi-
judicial, and the OMA does not apply to board members’ deliberations in such a case.
Pennell v. Brown Twp., 5th Dist. Delaware No. 15 CAH 09 0074, 2016-Ohio-2652, ¶ 34-
36. The quasi-judicial nature of such a proceeding arises from board members’ exercise
of discretion and the need to provide notice and a hearing. TBC Westlake, Inc. v. Hamilton
Cty. Bd. of Revision, 81 Ohio St.3d 58, 61, 689 N.E.2d 32 (1998). Although the actual
hearing may be open to the public, a board performing a quasi-judicial function “requires
privacy to deliberate, i.e., to evaluate and resolve, the disputes.” Id. at 62. “This privacy
frees the [board] from the open pressure of the litigants as it contemplates the case.
Privacy provides an opportunity for candid discussion between board members and staff
on the legal issues and the facts[.]” Id. “For these reasons, the Sunshine Law does not
apply to adjudications of disputes in quasi-judicial proceedings.” Id. In fact, “because a
quasi-judicial proceeding is not a meeting for purposes of R.C.
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[Cite as Surber v. Hines, 2024-Ohio-95.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT DARKE COUNTY
GEOFFREY SURBER : : Appellant : C.A. No. 2023-CA-17 : v. : Trial Court Case No. 22-CV-00477 : JUSTIN HINES, ET AL. : (Civil Appeal from Common Pleas : Court) Appellees : :
...........
OPINION
Rendered on January 12, 2024
NICOLE L. POHLMAN, Attorney for Appellant
KATHLEEN F. RYAN, Attorney for Appellees
.............
TUCKER, J.
{¶ 1} Geoffrey Surber appeals from the trial court’s entry of summary judgment
against him on a claim for injunctive relief and statutory damages against the Greenville
Township Board of Zoning Appeals (BZA).
{¶ 2} Surber contends genuine issues of material fact exist as to whether BZA
members violated R.C. 121.22, which is known as the Open Meetings Act (OMA) or the -2-
“Sunshine Law,” by privately discussing his appeal from zoning-violation notices
immediately before conducting a hearing.
{¶ 3} We conclude that the OMA did not apply because the BZA members’
discussion was part of an exempt quasi-judicial proceeding. Accordingly, the trial court’s
judgment will be affirmed.
I. Background
{¶ 4} Surber filed a November 2022 two-count complaint against the Greenville
Township Board of Trustees and its members, Greenville Township fiscal officer Susan
Miles, and the Greenville Township BZA. The complaint alleged that Surber had erected
three buildings on his property after obtaining zoning permits. The complaint further
alleged that a Greenville Township zoning inspector issued him zoning-violation notices
with respect to the buildings after their completion.
{¶ 5} According to the complaint, Surber appealed the violation notices to the BZA.
The complaint alleged that Greenville Township had denied his public-record requests
related to the issue. It further alleged that BZA members had met privately for an hour
immediately before hearing his appeal on October 28, 2021 “to discuss the facts and
circumstances surrounding Plaintiff’s appeal and to make a decision concerning [his]
property.” The complaint alleged that BZA members subsequently paused the hearing
before its completion and went into executive session “to discuss personnel.” According
to the complaint, BZA members departed and entered a private room.
{¶ 6} Count one of the complaint asserted four public-record violations by the
Greenville Township Board of Trustees and fiscal officer Miles. Surber sought a writ of -3-
mandamus to compel production of the records. He also requested damages and
attorney’s fees. Count two alleged that the Greenville Township BZA had violated the
OMA by conducting a “pre-hearing” private meeting immediately before hearing his
appeal on October 28, 2021 and by pausing the hearing to enter executive session.
Surber requested injunctive relief, a determination that the BZA’s denial of his appeal was
“invalid” under the OMA, statutory damages of $500, and attorney’s fees.
{¶ 7} In June 2023, the trial court dismissed Surber’s mandamus claim as moot
with regard to two of his four public-record requests, as those records eventually had
been provided. The trial court noted, however, that the issue of damages resulting from
the initial denial of the records remained unresolved. With regard to the other two public-
record requests, the trial court found the Board of Trustees and fiscal officer Miles entitled
to summary judgment. Finally, the trial court found the BZA entitled to summary judgment
on the OMA claim in count two, reasoning:
Viewing the evidence most strongly in Plaintiff’s favor, this Court
finds reasonable minds can only conclude the following: On October 28,
2021, the Greenville Township Zoning Board of Appeals was acting in a
quasi-judicial capacity when it was considering and deciding upon Plaintiff’s
appeal of the zoning violation issued by Defendant, Scott Peele. This entire
adjudicatory hearing process was not a “meeting” under Ohio’s Open
Meetings Act. Therefore, neither the meeting prior to the public hearing, nor
the executive session, violated the OMA.
June 7, 2023, Decision, Order, and Entry at 18. -4-
{¶ 8} Surber appealed from the trial court’s ruling. Noting that the damages issue
remained pending on his public-record claim, we issued a show-cause order questioning
whether an appealable order existed. In response, Surber noted that he subsequently
had dismissed count one and that the trial court had filed a dismissal entry. In a
September 29, 2023 ruling, we deemed our show-cause order satisfied.
II. Analysis
{¶ 9} In his sole assignment of error, Surber contends the trial court erred in finding
that BZA members were acting in a quasi-judicial capacity when they met privately and
discussed his case just before hearing his appeal. Surber concedes that public hearings
of the BZA are quasi-judicial and that deliberations occurring after such hearings are not
subject to the OMA. When the BZA members met before his hearing, however, he asserts
that they had not yet performed any quasi-judicial function and had nothing to deliberate.
He reasons that finding the pre-hearing meeting not subject to the OMA “would be akin
to finding that a jury could meet and discuss a case in private prior to hearing any
evidence on the record in a court of law.”
{¶ 10} Under Civ.R. 56(C), summary judgment may be granted when the moving
party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party
is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made. State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio
St.3d 181, 183, 677 N.E.2d 343 (1997). Appellate review of summary judgment is de
novo. Gilliland v. Adams, 2d Dist. Montgomery No. 29732, 2023-Ohio-3083, ¶ 24. -5-
{¶ 11} Upon review, we see no error in the trial court’s entry of summary judgment
against Surber. An adjudicatory proceeding before a zoning appeals board is quasi-
judicial, and the OMA does not apply to board members’ deliberations in such a case.
Pennell v. Brown Twp., 5th Dist. Delaware No. 15 CAH 09 0074, 2016-Ohio-2652, ¶ 34-
36. The quasi-judicial nature of such a proceeding arises from board members’ exercise
of discretion and the need to provide notice and a hearing. TBC Westlake, Inc. v. Hamilton
Cty. Bd. of Revision, 81 Ohio St.3d 58, 61, 689 N.E.2d 32 (1998). Although the actual
hearing may be open to the public, a board performing a quasi-judicial function “requires
privacy to deliberate, i.e., to evaluate and resolve, the disputes.” Id. at 62. “This privacy
frees the [board] from the open pressure of the litigants as it contemplates the case.
Privacy provides an opportunity for candid discussion between board members and staff
on the legal issues and the facts[.]” Id. “For these reasons, the Sunshine Law does not
apply to adjudications of disputes in quasi-judicial proceedings.” Id. In fact, “because a
quasi-judicial proceeding is not a meeting for purposes of R.C. 121.22, the Sunshine Law
is inapplicable from the outset.” State ex rel. Ross v. Crawford Cty. Bd. of Elections, 125
Ohio St. 3d 438, 2010-Ohio-2167, 928 N.E.2d 1082, ¶ 30.
{¶ 12} Surber does not dispute the foregoing authority. He contends it is
inapplicable, however, because the Greenville Township BZA met privately before his
hearing. Surber concedes that the OMA does not apply to board deliberations after a
hearing. But where BZA members meet privately before a hearing, Surber reasons that
no quasi-judicial act has occurred, that the members have nothing to deliberate, and that
the OMA applies. As noted above, he analogizes to jurors improperly discussing a case -6-
before hearing evidence.
{¶ 13} We find Surber’s argument to be unpersuasive. In our view, the entire
proceeding before the BZA was quasi-judicial in nature. Surber’s appeal from the zoning-
violation notices entitled him to a hearing where he could present evidence to the BZA,
which exercised discretion in resolving the matter. Although the cases cited on appeal
involve deliberations occurring after a hearing, none of them hold that pre-hearing
deliberations in quasi-judicial proceedings are subject to the OMA. As set forth above,
deliberating encompasses both evaluating and resolving disputes. TBC Westlake at 62.
It involves “candid discussion between board members * * * on the legal issues and the
facts[.]” Id.
{¶ 14} Contrary to Surber’s argument, we see no legal impediment to the BZA
members conducting private, preliminary, pre-hearing deliberations to evaluate his case
and to discuss the issues in preparation for taking evidence. The entire proceeding before
the BZA was quasi-judicial in nature, and “the Sunshine Law [was] inapplicable from the
outset.” Ross at ¶ 30. Although Surber’s appellate brief does not specifically address the
BZA’s “executive session” during his hearing, the OMA would be equally inapplicable to
those private deliberations for the same reason. See, e.g., In re Application for Additional
Use of Prop. v. Allen Twp. Zoning Bd. of Appeals, 6th Dist. Ottawa No. OT-12-008, 2013-
Ohio-722, ¶ 15 (“With respect to the zoning board’s recess into executive session to
discuss the application, there is 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.
* * * The Sunshine Laws do not apply to deliberations on such applications.”) -7-
{¶ 15} Surber’s analogy to jury deliberations fails to persuade us otherwise. He
suggests that allowing the BZA members to meet privately before hearing his appeal is
akin to holding that jurors can discuss a case privately before hearing any evidence. Even
if we presume that the two situations are analogous, premature jury deliberations are still
deliberations. Similarly, even if the BZA members’ pre-hearing deliberations were
improper, they were still part of the quasi-judicial proceeding involving Surber’s appeal
from the zoning-violation notices. Assuming, arguendo, that the BZA members’ pre-
hearing deliberations violated procedural due process, Surber conceivably might have
grounds to invalidate the board’s decision through a direct appeal. But we see no OMA
violation. Compare Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1215-1216 (Pa
Commonwealth Ct. 2011) (finding written pre-hearing deliberations permissible and
concluding that even if the communications were improper the remedy would be
invalidation of the board’s decision through an appeal, not compelled disclosure of the
internal, pre-decisional communications).1
{¶ 16} Surber may be correct in asserting that due-process violations and OMA
violations are not mutually exclusive. Construing the evidence and all reasonable
inferences in his favor, however, we simply see no genuine issue of material fact as to
whether the Greenville Township BZA violated the OMA. Consequently, the trial court
correctly entered summary judgment against him.
1 In Kaplin, the court rejected an “argument that Board members may not consider or
discuss the evidence in, or merits of, a proceeding on a conditional use application prior to the close of hearings,” while also concluding that “even if the law did support such a principle, this would not serve to transform deliberative, albeit impermissible under that interpretation, communications into non-deliberative communications.” Kaplin at 1215. -8-
{¶ 17} Based on the reasoning set forth above, Surber’s assignment of error is
overruled.
III. Conclusion
{¶ 18} The judgment of the Darke County Common Pleas Court is affirmed.
LEWIS, J. and HUFFMAN, J., concur.