[Cite as Simmons v. Fulk, 2014-Ohio-4908.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JEFFERY SIMMONS, ET AL., : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Appellees : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DENNIS D. FULK, P.S. PLAIN TOWNSHIP : Case No. 2014CA00064
ZONING INSPECTOR, ET AL., :
:
Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court
of Common Pleas, Case No.
2013CV02545
JUDGMENT: Dismissed
DATE OF JUDGMENT: November 3, 2014
APPEARANCES:
For Appellees For Appellants
Dennis D. Fulk, P.S. Plain Township
JOHN L. JUERGENSON Zoning Inspector and the Plain
John L. Juergensen Co., LPA Township Board of Zoning Appeals
Washington Square Office Park
6545 Market Avenue North JAMES F. MATHEWS
North Canton, OH 44721 Baker, Dublikar, Beck, Wiley & Mathews
400 South Main Street
North Canton, OH 44720
For Easton Village Company, LLC
JOHN J. RAMBACHER
Winkhart, Rambacher & Griffin
825 South Main Street
North Canton, OH 44720
Stark County, Case No. 2014CA00064 2
Baldwin, J.
{¶1} Appellants Plain Township Board of Zoning Appeals (hereinafter “BZA”),
Dennis D. Fulk, P.S. Plain Township Zoning Inspector and Easton Village Company,
LLC appeal a judgment of the Stark County Common Pleas Court granting a stay of its
decision pending appeal to appellees Jeffrey Simmons, Nancy Locke, Dean Mohler,
Cynthia Mohler, Robert Ernst, Trustee, and Sharon Ernst, Trustee.
STATEMENT OF FACTS AND CASE
{¶2} On August 5, 2013, James J. Ptacek of Larsen Architects requested two
conditional use permits with respect to property located at 6300-6306, Market Avenue
North, in Plain Township. The requests were submitted to the BZA. Larsen sought to
build a McDonald’s restaurant with an accompanying drive-thru on property owned by
appellant Easton, located on the corner of Market Avenue North and Grove Street, near
the intersection of Maple Street/Easton Avenue and Market Avenue North, and across
the street from Walsh College. The lot is zoned B-1 Neighborhood Business District,
and it abuts an R-1 Single Family Residential District. Appellees are residential home
owners on Grove Street.
{¶3} The property in question has a previously existing small strip plaza which
includes several business: Samantha’s Restaurant, Italo’s Pizza, Ferrell Pools & Spas,
Edward Jones, and the Bead Boutique. The strip plaza has been located on the
property for over 30 years. An abandoned bank building which had a drive-thru is also
located on the property. The bank building and part of the strip mall would be
demolished to construct the McDonald’s. Construction of the McDonald’s requires the
Stark County, Case No. 2014CA00064 3
granting of a conditional use permit for the property to be designated as a planned
commercial complex, as well as a conditional use permit for operation of a drive-thru.
{¶4} The BZA held a hearing on September 4, 2013. Following the hearing,
the conditional use permits were approved. Appellees filed an appeal to the Stark
County Common Pleas Court. The court found that the decision of the BZA was
supported by the testimony and by BZA’s interpretation of the Plain Township Zoning
Resolution. Appellees then filed an appeal of that decision to this Court (Stark App. No.
2014CA00041).
{¶5} On April 3, 2014, the trial court stayed its judgment and the September 4,
2014, decision of the BZA pending appeal to this Court. Appellants filed an appeal from
the judgment of stay, assigning a single error:
{¶6} “THE TRIAL COURT ERRED WHEN IT ENTERED A STAY INASMUCH
AS THE ZONING PERMITS WHICH WERE THE SUBJECT OF THE STAY HAD
ALREADY BEEN ISSUED AND WERE OUTSTANDING.”
Stark County, Case No. 2014CA00064 4
{¶7} The trial court issued the stay that is the subject of the instant appeal
pending appeal of the underlying judgment to this Court. This appeal is rendered moot
by our decision on the merits of the underlying appeal in Stark App. No. 2014CA00041.
The instant appeal is accordingly dismissed. Costs are assessed to appellants.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.
Simmons v. Fulk
Combined Opinion