Court of Appeals of Ohio, Eleventh District, Portage
STATE OF OHIO ex rel. ANTHONY J. MASIELLA, et al., Relators-Appellants,
BRIMFIELD TOWNSHIP BOARD OF TRUSTEES, et al., Respondent-Appellee.
Appeal from the Portage County Court of Common Pleas, Case
No. 2012 CV 00669.
J. Emershaw, Emershaw, Mushkat & Schneier, Quaker Square,
and Warner D. Mendenhall, (For Relators-Appellants).
F. Mathews, Baker, Dublikar, Beck, Wiley & Mathews,
Victor V. Vigluicci, Portage County Prosecutor, and
Christopher J. Meduri, Assistant Prosecutor, (For
COLLEEN MARY OTOOLE, J.
Appellants, Anthony J. Masiella, Janet Masiella, Erica
Montbach, Tim Montbach, Luther H. Myers, Jr., Patricia M.
Kennard, and Mindale Farms Co., appeal from the June 21, 2016
judgment of the Portage County Court of Common Pleas,
granting summary judgment in favor of appellee, Brimfield
Township Board of Trustees ("Board of
Trustees"). For the reasons stated, we affirm.
Appellants are owners of real property that abuts or is
located across the street from a large building in Brimfield
Township. The approximately 807, 000 square foot building is
currently being used by Rubbermaid as a manufacturing and
distribution center. Rubbermaid employs approximately 175
employees at the site. Rubbermaid made a substantial
investment in its project, in the range of 25 million
dollars, which has brought great economic benefit to
According to the affidavit of Dick Messner, Brimfield
Township Zoning Inspector, in order for the building to be
built, the original property owner, John "Paul"
Rhoades, sent an application on May 5, 2011 to the Brimfield
Township Zoning Commission ("Zoning Commission") to
rezone the land from Open Space Conservation (O-C) to Light
Industrial (L-1). Rhoades sought to sell his 93 acres of land
to the developer that eventually built the Rubbermaid
facility. On May 11, 2011, a copy of Rhoades' application
was sent to the Portage County Regional Planning Commission
("RPC") for its review. The RPC considered
Rhoades' application at its June 8, 2011 public meeting.
After the meeting, the RPC recommended to approve the
proposed zoning change.
On June 3, 2011, notice of a public hearing was published in
the local newspaper, the Record Courier. And on June
9, 2011, the Zoning Commission held its hearing. Rhoades'
application to rezone the property was considered. The Zoning
Commission recommended to the Board of Trustees that the
rezoning be approved.
On June 18, 2011, notice of a public hearing was published in
the Record Courier. And on June 29, 2011, the Board
of Trustees held a public hearing on the zone change request.
The Board of Trustees passed a resolution to rezone the
property from O-C to L-1. A memorandum was sent to the RPC on
August 3, 2011 confirming the zone change.
Thereafter, concerns were expressed to the Zoning Commission
that notice provisions set forth in the Ohio Revised Code
relating to the June 9, 2011 Zoning Commission public hearing
had not been fulfilled, i.e., that the record could not
confirm that notices had been delivered to adjacent property
owners and published in the local newspaper in a timely
manner. Zoning Inspector Messner indicated in his affidavit
that he brought this issue to the attention of the Zoning
Commission at a public Zoning Commission meeting on September
1, 2011. Messner also indicated the Zoning Commission decided
to commence another procedure to cure any potential error.
At a public meeting on September 8, 2011, the Zoning
Commission passed a motion to initiate the zone change from
O-C to L-1. A public hearing was scheduled for October 18,
2011. Notices of the public hearing were sent via first class
mail on September 28, 2011 to the property owners within,
contiguous to, and directly across the street from the area
of the Rhoades parcel. The notices advertised the date, time,
and place of the hearing. Appellants do not dispute that the
notices were sent.
The Zoning Commission also published a notice of its
scheduled public hearing in the Record Courier on
October 2, 2011. The Zoning Commission heard from members of
the public at the October 18, 2011 hearing. Appellants either
attended the hearing themselves, had a spouse attend for
them, or hired legal counsel to represent their interest.
After the hearing, the Zoning Commission voted to recommence
the zoning procedure on November 10, 2011.
Notices of the November 10, 2011 hearing were sent to the
property owners on October 24, 2011. Appellants do not
dispute that the notices were sent. The Zoning Commission
also published a notice of its scheduled public hearing in
the Record Courier on October 28, 2011. At the
November 10, 2011 hearing, the Zoning Commission again heard
from many members of the public. Appellants either attended
the hearing themselves, had a spouse attend for them, or
hired legal counsel to represent their interest. Following
the hearing, the Zoning Commission voted to recommend
approval of the zone change from O-C to L-1 and issued a
memorandum to the Board of Trustees.
At the November 16, 2011 regularly scheduled public meeting,
the Board of Trustees acknowledged notice of the Zoning
Commission's recommendation. At that meeting, the Board
of Trustees voted to set a public hearing on the issue for
November 30, 2011, i.e., the next regularly scheduled
meeting. A notice of the scheduled public hearing was
published in the Record Courier on November 19,
2011. The Board of Trustees held a public hearing on the
proposed rezone of the Rhoades property on November 30, 2011.
Appellants either attended the hearing themselves, had a
spouse attend for them, or hired legal counsel to represent
their interest. Attorney Ida McDonald presented a petition to
the Board of Trustees signed by appellants indicating they
were prepared to file a referendum or a lawsuit related to
the zoning amendment.
Following the hearing, the Board of Trustees passed a
resolution approving the zone change from O-C to L-1, which
became effective on December 30, 2011. The Board of Trustees
did not receive any petition for referendum. Also, appellants
did not file an injunction to stop construction of the
On June 11, 2012, appellants filed a complaint against the
Board of Trustees alleging three causes of action: Count one,
declaratory judgment and injunction (appellants sought a
judgment declaring that Brimfield Township's rezoning was
invalid because the Board of Trustees and the Zoning
Commission had not followed state law or the township's
zoning regulations, and an injunction to prevent the zoning
from taking effect); and Counts two and three, Ohio's
Open Meetings Act and R.C. 121.22 (alleging that the Board of
Trustees and the Zoning Commission violated the provisions).
The Board of Trustees filed an answer to the complaint.
Upon motion of the Board of Trustees, appellants filed an
amended complaint on October 28, 2013 against the Board of
Trustees and added ARC (the current owner of the property at
issue) and Rubbermaid as defendants. The Board of Trustees, ARC,
and Rubbermaid filed answers to the amended complaint.
The Board of Trustees, ARC, and Rubbermaid filed motions for
summary judgment. Appellants filed oppositions. Appellants
acknowledged that their declaratory judgment action was moot
due to their failure to obtain an injunction to prevent
construction of the Rubbermaid building. Thus, the
declaratory judgment action was dismissed. Appellants focused
on alleged wrongful conduct of the Zoning Commission with
regard to the Open Meetings Act.
On June 21, 2016, the trial court granted the Board of
Trustee's motion for summary judgment. Appellants filed
a timely appeal and assert the following assignment of
"The trial court committed reversible error when it
dismissed the Relators-Appellants' case in the face of
genuine issues of material fact as to whether the Brimfield
Township Zoning Commission violated Ohio's Open Meetings
Act by conducting a special meeting where the Commission
members deliberated 'recommencing' the rezoning
process without giving prior notice to the Ravenna
Record-Courier, and as to whether the Zoning
Commission later deliberated the zoning question outside the
public view, based on the court's view that the Zoning
Commission was a party that could have been named in the
This appeal involves the trial court's granting of the
Board of ...