OH Appeals Court Finds Challenge to Amended Zoning Resolution was Moot

This post was authored by Matthew Loescher, Esq.

Thornwood, LLC owned property directly adjacent to residential property owned by Appellant. In November of 2017, Appellant brought the construction of earthen mounds on Thornwood’s property to the attention of Liberty Township, complaining the mounds violated the township zoning ordinance because Thornwood failed to obtain a zoning permit prior to their construction. Appellant claimed the earthen mounds were “structures” within the meaning of the zoning resolution and were not incident to an agricultural purpose, and were therefore impermissible absent a zoning permit. Lobert Township Board of Zoning Appeals held the township did not have the authority to regulate their construction, and the trial court dismissed the appeal as moot, finding that under the current zoning resolution, Thornwood could not be compelled to secure the township’s approval for the mounds currently existing on its property.

 On appeal, the court found the Appellant’s argument that the amended resolution was not adopted in accordance with Ohio law, while not a constitutional claim, was a challenge to the legality of the amendment as a whole on its face, and not a challenge to the application of the amended resolution. As such, the court held the claim was not appropriate for an administrative appeal.

Appellant next contended the trial court erred in applying the amended zoning resolution retroactively in order to find his appeal moot. Here, Appellant had no vested property interest in the property at issue in the instant case, which was his neighbor’s property. Additionally, the amended resolution did not create a new burden, duty, obligation, or liability; instead, it lessened a burden on the affected landowners in the township. Finally, the court held that the trial court did not apply the new resolution retroactively to find the action moot, but instead that the prospective application of the statute rendered the action moot, since Appellant would have no remedy even if he prevailed on the merits of his appeal.

Sunderland v Lobert Township Board of Zoning Appeals, 2021 WL 463635 (OH App. 2/5/2021)