Court of Appeals of Ohio, Twelfth District, Butler
FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No.
T. Conley, 604 Huntington Plaza, for appellant
Brown Todd LLC, Scott D. Phillips, Carly M. Sherman, for
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
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
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
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, ...