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William Lee, et al. v. Lafayette Township Board of Zoning Appeals

December 3, 2012

WILLIAM LEE, ET AL. APPELLANTS
v.
LAFAYETTE TOWNSHIP BOARD OF ZONING APPEALS, ET AL. APPELLEES



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 09CIV2436

The opinion of the court was delivered by: Whitmore, Presiding Judge.

Cite as Lee v. Lafayette Twp. Bd. of Zoning Appeals,

DECISION AND JOURNAL ENTRY

{¶1} Appellants, William and Nicole Lee ("the Lees"), appeal from an order of the Medina County Court of Common Pleas dismissing their appeal. This Court reverses. I

{¶2} The Schwab family had built a cottage on their Chippewa Lake property in the 1930s, but it was demolished after suffering severe storm damage in 1999. The property has since remained vacant. In 2006, the Lees purchased property adjacent to the vacant lot owned by Appellee, the Schwab Family Trust. After purchasing the property, the Lees made renovations to maximize their view of the lake. Subsequently, the Schwab Family Trust ("the Schwabs") sought several zoning variances so that it could rebuild on the vacant lot. The structure that was proposed would have interfered with the Lees' view of the lake.

{¶3} After a hearing, the Lafayette Township Board of Zoning Appeals ("the Zoning Board") granted the Schwabs the five requested variances. The Lees appealed the Zoning Board's decision to the Medina County Court of Common Pleas, which affirmed the Zoning Board. The Lees appealed to this Court and we reversed and remanded because the trial court did not consider the Zoning Board's "interpretation and application of Lafayette Township Zoning Resolution Section 706." Lee v. Lafayette Twp. Bd. of Zoning Appeals, 193 Ohio App.3d 795, 2011-Ohio-2086, ¶ 11 (9th Dist.). Section 706 is a provision which exempts certain properties that pre-date the adoption of the zoning resolution, thereby making certain variances unnecessary.

{¶4} On remand, the trial court determined that there was insufficient evidence from the Zoning Board's hearing to determine how, or if, Section 706 applied to the Schwabs' property. On June 27, 2011, the trial court "remand[ed] this matter back to the Lafayette Township Board of Zoning Appeals to conduct an evidentiary hearing to determine whether or not: 1) the property at issue is an eligible lot under Section 706; and 2) if it is an eligible lot, whether or not the lot would be exempt from certain area and width requirements, such that a variance would be unnecessary." The trial court did not reverse or vacate the Zoning Board's decision, nor did it close the case after it remanded.

{¶5} In compliance with the remand order, the Zoning Board held an evidentiary hearing on October 7, 2011, and determined that Section 706 did apply to the property, which made one of the five variances unnecessary. The board refused to address the merits of the remaining variances believing that was outside the scope of the remand. At the Zoning Board hearing, the attorneys disagreed about whether the Zoning Board's previous decision to grant the remaining four variances remained in effect. Attorneys for the Appellees expressed the opinion that the issue was still on appeal with the court of common pleas and that the "next step" was for the Zoning Board to file its decision with the trial court, which it did on January 6, 2012.

{¶6} On February 29, 2012, the Schwab Family Trust filed a motion to dismiss, arguing that the Lees failed to perfect an appeal within the required thirty days from the Zoning Board's January 2012 decision. The Lees opposed the motion to dismiss, arguing that the original appeal was still pending with the trial court and that the remand to the Zoning Board was merely to gather more information for the trial court to make its determination. The trial court granted the Schwab Family Trust's motion to dismiss, and the Lees now appeal, raising three assignments of error for our review. To facilitate the analysis, we consolidate the assignments of error.

II

Assignment of Error Number One

THE COMMON PLEAS COURT ERRED IN HOLDING THAT THE NOTICE FILED BY THE BOARD IN THE EXISTING CASE AFTER REMAND FOR THE PURPOSES OF AN EVIDENTIARY HEARING WAS A FINAL APPEALABLE ORDER.

Assignment of Error Number Two

THE DECISION OF THE COMMON PLEAS VIOLATES THE LEES' DUE ...


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