Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Inc. v. Liberty Township Board of Trustees and Liberty Township Board of Zoning Appeals

Court of Appeals of Ohio, Twelfth District, Butler

August 26, 2019

SAFETY 4TH FIREWORKS, INC., Appellant,
v.
LIBERTY TOWNSHIP BOARD OF TRUSTEES AND LIBERTY TOWNSHIP BOARD OF ZONING APPEALS, Appellees.

          APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CV2018-06-1475

          Craig T. Conley, 604 Huntington Plaza, for appellant

          Frost Brown Todd LLC, Scott D. Phillips, Carly M. Sherman, for appellees

          OPINION

          M. POWELL, J.

         {¶ 1} Appellant, Safety 4th Fireworks, Inc. ("SFI"), appeals the judgment of the Butler County Court of Common Pleas dismissing its administrative appeal as untimely. For the reasons stated below, we reverse and remand for further proceedings.

         {¶ 2} SFI sought to build a "state licensed fireworks wholesale facility" in Liberty Township, Butler County, Ohio. The construction plans called for the facility to be located less than 200 feet from its property lines and less than 1, 000 feet from an abutting lot in a residential zoning district. However, the setback regulations of the Liberty Township Zoning Code ("the Zoning Code") prohibited this construction.

         {¶ 3} Consequently, on March 5, 2018, SFI filed an application with the Liberty Township Board of Zoning Appeals ("BZA") seeking variances from the aforesaid setback regulations. The BZA conducted a public hearing on the application on April 10, 2018. SFI's president, Eric Abdalla, and its legal counsel, Craig Conley, were present and participated in the hearing. Upon hearing the application, the BZA unanimously denied the requested variances and orally announced its decision.

         {¶ 4} On May 1, 2018, Conley mailed a transcript of the April 10, 2018 hearing to Bryan Behrmann, the Liberty Township Director of Planning. In his cover letter, Conley indicated SFI's intention to appeal the BZA's denial of the variances to the common pleas court and advised that "[a]lthough I believe Transcript pages 32 and 33 present a sufficient memorialization of the BZA's decision, I would appreciate receipt of the BZA s formal decision/resolution at your earliest possible convenience."

         {¶ 5} The next regular meeting of the BZA was scheduled for May 8, 2018. The tentative agenda for this meeting was published on the BZA's website and listed approval of the minutes of the BZA's April 10, 2018 meeting as an agenda item.

         {¶ 6} The minutes of the April 10, 2018 meeting were not approved at the May 8, 2018 meeting. Nevertheless, the minutes of the May 8, 2018 meeting reflect that a notice of the BZA's decision denying SFI's variances had been completed and distributed to the members of the BZA. With two abstentions, the BZA unanimously approved the notice of the decision denying SFI's requested variances.

         {¶ 7} On June 14, 2018, the BZA mailed a certified copy of its decision denying SFI's variances to SFI's address of record and to Conley. On June 15, 2018, apparently not yet in receipt of BZA's June 14, 2018 correspondence, Conley faxed Behrmann and requested "a copy of the BZA's written decision/resolution denying my client's Application."

         {¶ 8} After receiving the certified notice of the BZA's decision, SFI filed its notice of appeal with the BZA on June 27, 2018, and with the common pleas court on June 29, 2018. On July 25, 2018, the BZA filed a Civ.R. 12(B)(1) motion to dismiss the appeal as not having been timely filed.

         {¶ 9} On March 4, 2019, the common pleas court determined that the BZA decision denying the requested variances was a final appealable order on May 8, 2018, when the BZA approved the April 10, 2018 denial of the variances. Thus, the common pleas court determined that a notice of appeal was due to be filed with the BZA no later than June 7, 2018. As the notice of appeal was not filed with the BZA until June 27, 2018, the common pleas court found that the appeal had not been perfected and that it lacked subject-matter jurisdiction to consider the matter. Consequently, the court dismissed the appeal.

         {¶ 10} SFI now appeals the common pleas court's dismissal of its administrative appeal, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.