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State ex rel. Masiella v. Brimfield Township Board of Trustees

Court of Appeals of Ohio, Eleventh District, Portage

May 22, 2017

STATE OF OHIO ex rel. ANTHONY J. MASIELLA, et al., Relators-Appellants,
v.
BRIMFIELD TOWNSHIP BOARD OF TRUSTEES, et al., Respondent-Appellee.

         Civil Appeal from the Portage County Court of Common Pleas, Case No. 2012 CV 00669.

          George J. Emershaw, Emershaw, Mushkat & Schneier, Quaker Square, and Warner D. Mendenhall, (For Relators-Appellants).

          James F. Mathews, Baker, Dublikar, Beck, Wiley & Mathews, Victor V. Vigluicci, Portage County Prosecutor, and Christopher J. Meduri, Assistant Prosecutor, (For Respondent-Appellee).

          OPINION

          COLLEEN MARY OTOOLE, J.

         {¶1} 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").[1] For the reasons stated, we affirm.

         {¶2} 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 Brimfield Township.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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 Rubbermaid facility.

         {¶12} 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.

         {¶13} 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.[2] The Board of Trustees, ARC, and Rubbermaid filed answers to the amended complaint.

         {¶14} 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.

         {¶15} On June 21, 2016, the trial court granted the Board of Trustee's motion for summary judgment.[3] Appellants filed a timely appeal and assert the following assignment of error:[4]

         {¶16} "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 Relators-Appellants' suit."

         {¶17} This appeal involves the trial court's granting of the Board of ...


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