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Byers Dipaola Castle, LLC v. Ravenna City Planning Commission

Court of Appeals of Ohio, Eleventh District

September 16, 2013

BYERS DIPAOLA CASTLE, LLC, Appellant,
v.
RAVENNA CITY PLANNING COMMISSION, et al., Appellees.

Civil Appeal from the Portage County Court of Common Pleas. Case No. 2012 CV 0359.

Joel A. Holt and David E. Williams, Williams, Welser, Kratcoski & Can, L.L.C., (For Appellant).

Frank J. Cimino, (For Appellee Ravenna City Planning Commission).

Robert J. Paoloni, Paoloni & Lewis, (For Appellee Harvest Rose Limited Partnership).

OPINION

TIMOTHY P. CANNON, P.J.

(¶1} Appellant, Byers DiPaola Castle, LLC ("Byers"), appeals the judgment of the Portage County Court of Common Pleas affirming the decision of the Ravenna City Planning and Zoning Commission ("Commission"), which granted Harvest Rose Limited Partnership ("Harvest Rose") a conditional zoning certificate. For the following reasons, we affirm.

(¶2} For a detailed recitation of the factual history, refer to our opinion in Byers DiPaola Castle, LLC v. Ravenna City Planning Comm., 11th Dist. Portage No. 2010-P-0063, 2011-Ohio-6095 ("Byers I"). In Byers I, Harvest Rose appealed the judgment of the trial court reversing a decision of the Commission, which had granted Harvest Rose a conditional zoning permit.

(¶3} Byers had appealed the decision of the Commission to the trial court, contending, inter alia, that "[t]he Site Plan does not comply with 1262.05 Exhibit B, subsection D(4)(c)(4) in that it permits discharge onto Appellant's property without Appellant's permission." In Byers I, we recognized that Byers has continually objected to the proposed plans of Harvest Rose claiming that water drains from the project site onto Byers' property. Below, Byers argued that no discharge of storm water onto an abutting property is permissible without the abutting property owner's permission if the discharge is different from the existing conditions.

(¶4} In Byers I, the trial court concluded that the "decision of the Commission granting Harvest Rose a 'Covenant and Agreement' as a conditional use certificate to proceed with the development is illegal, unreasonable, and not supported by the preponderance of the substantial, reliable, and probative evidence on the whole record." Therefore, the trial court reversed the decision of the Commission granting Harvest Rose the authority to build its proposed apartment development.

(¶5} In Byers I, this court affirmed in part, reversed in part, and remanded the matter for further proceedings.

(¶6} Due to litigation, the conditional zoning certificate expired, as it becomes void after one year from the date of issuance unless construction is started and reasonably continued toward completion. Consequently, Harvest Rose again applied for a conditional use certificate to build the 40-unit elderly rental apartment complex (the "Project"). The Commission again approved the application.

(¶7} Byers filed an administrative appeal. As the basis for the appeal, Byers argued that, pursuant to the "Codified Ordinances of Ravenna, Ohio 1262.05, Appendix B, Subsection D(4)(c)(4), specifically provides that if the discharge point(s) of runoff from the Site are different from the existing condition onto private party, then written approval of the landowner is required."

(¶8} In affirming the decision of the Commission, the trial court found the following:

Appellant was particularly concerned that Harvest Rose's use of the stormwater pipe and easement would create more runoff onto its property. If additional runoff would change the existing conditions present on Appellant's property, Appellant ...

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