Haueisen v. City of Worthington
| Decision Date | 10 December 2019 |
| Docket Number | No. 19AP-253,19AP-253 |
| Citation | 2019 Ohio 5085 |
| Parties | Steffanie and John Haueisen, Appellants-Appellants, v. City of Worthington, Ohio et al., Appellees-Appellees, [Robert and Deborah Tucker, Intervenors]. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
On brief: Sandra J. Dickinson, for appellants. Argued: Sandra J. Dickinson.
On brief: BakerHostetler, and Robert J. Tucker, for appellees. Argued: Robert J. Tucker.
On brief: Plank Law Firm, LPA, David Watkins, for intervenors. Argued: David Watkins.
APPEAL from the Franklin County Court of Common Pleas
{¶ 1} Appellants Steffanie and John Haueisen (collectively, "the Haueisens") appeal from a judgment of the Franklin County Court of Common Pleas dismissing as moot their appeal from a decision of appellee Board of Zoning Appeals for the city of Worthington ("BZA") related to property owned by intervenors-appellees Robert and Deborah Tucker (collectively, "the Tuckers"). For the following reasons, we deny the Tuckers' motion to dismiss the Haueisens' appeal to this court as moot, grant the Tuckers' motion to strike the Haueisens' supplemental reply brief, and affirm the judgment of the common pleas court.
{¶ 2} The dispute giving rise to this appeal involves construction of a single-family residence at 595 Fox Lane, Worthington, Ohio ("the Property") and the proximity of that residence to the neighboring parcel to the south.
{¶ 3} The Tuckers purchased the Property in February 2017. In July 2017, a building permit was issued for construction of a single-family residence on the Property. On September 7, 2017, the BZA granted variances for three window wells encroaching into the north side yard of the Property and an attached garage exceeding the square footage permitted under the Worthington zoning ordinance. That same date, the BZA found that the Property was an "existing lot of record" under the Worthington zoning ordinance, with a minimum side yard requirement of six feet.
{¶ 4} The Haueisens own 587 Fox Lane, which borders the Property to the south. On September 28, 2017, Steffanie Haueisen contacted the Worthington Chief Building Inspector ("Inspector") to assert the Property was not an existing lot of record and that an eight-foot side yard was required. She claimed the foundation for the residence was being constructed 70 inches (or five feet and ten inches) from the southern boundary of the Property. On October 2, 2017, the Inspector issued a decision that the Property was an "existing lot of record" when the Worthington zoning ordinance was adopted in 1971 and, therefore, was subject to a six-foot side yard requirement. The Inspector further decided the construction on the Property was in substantial compliance with this requirement because the foundation wall was being constructed 76.8 inches (or six feet and almost five inches) from the southern boundary of the Property. The Haueisens appealed the Inspector's decision to the BZA, asserting the Property was not an existing lot of record when the zoning ordinance was adopted because it was held in common ownership with two other parcels; therefore, the Haueisens argued, the Property was subject to an eight-foot side yard requirement.
{¶ 5} Based on the information contained in the Haueisens' appeal to the BZA, the Inspector revoked the building permit. The Tuckers then appealed the revocation of the building permit to the BZA. Both appeals were scheduled to be heard at the BZA's regular meeting on December 7, 2017. The BZA considered the Haueisens' appeal first, taking statements from the Haueisens, their attorney, the Tuckers' attorney, the Worthington Law Director, and neighboring property owners. The BZA voted to deny the Haueisens' appeal and affirm the Inspector's decision that the Property was an existing lot of record with a six-foot side yard requirement. The Inspector then wrote the Tuckers a letter informing them of the BZA's denial of the Haueisens' appeal and that he "hereby restore[d] Permit 23526 to construct a single-family dwelling" at 595 Fox Lane. (Feb. 18, 2019 Reply in Support, Ex. 2.) The Tuckers then withdrew their appeal of the Inspector's revocation of the building permit.
{¶ 6} The Haueisens appealed to the common pleas court pursuant to R.C. Chapter 2506, naming the BZA and the city of Worthington as appellees. The Tuckers moved to intervene as appellees before the common pleas court. The court granted the Tuckers' motion, finding they had an interest in the matter as owners of the Property, they were so situated that disposition of the action might impair or impede their ability to protect that interest, and their interest was not adequately represented by the BZA and the city of Worthington.
{¶ 7} The parties filed briefs in the common pleas court addressing the merits of the Haueisens' appeal. The Tuckers also filed a motion to dismiss, arguing the appeal was moot because the Haueisens failed to obtain a stay or injunction of the BZA's decision and construction of the Tuckers' residence was substantially complete. The Haueisens filed a memorandum in opposition, asserting the BZA decision they appealed would not have been subject to a stay or injunction and that the appeal was not moot because it presented matters of great public concern. The common pleas court dismissed the appeal, finding it was moot because it involved construction and the Haueisens had failed to obtain a stay or injunction pending appeal. The court further held the appeal did not present an issue of great public importance.
{¶ 8} The Haueisens appeal and assign the following four assignments of error for our review:
{¶ 9} Before we consider the Haueisens' appeal of the common pleas court's decision, we must address two preliminary matters. First, the Tuckers have moved to dismiss the present appeal as moot. Second, the Tuckers have also moved to strike a supplemental reply brief filed by the Haueisens following oral argument.
{¶ 10} The Tuckers moved to dismiss the Haueisens' appeal to this court as moot, reiterating the argument they made in the common pleas court—i.e., that the appeal from the BZA decision is moot because it involved construction and the Haueisens failed to obtain a stay or injunction pending appeal. In support of their motion, the Tuckers cite several of the decisions relied on by the common pleas court in dismissing the BZA decision as moot. The Tuckers' motion to dismiss this appeal misconstrues the meaning of those decisions. As discussed below, this court has held that an appeal involving construction is rendered moot when construction commences and the appellant fails to obtain a stay of execution of the trial court's ruling or an injunction pending appeal. TP Mechanical Contrs., Inc. v. Franklin Cty. Bd. of Commrs., 10th Dist. No. 08AP-108, 2008-Ohio-6824, ¶ 20. However, the cases applying that principle have involved situations where the common pleas court issued a decision on the underlying administrative appeal rather than dismissing the appeal as moot; therefore, the dismissal due to mootness occurred on appeal to this court. By contrast, in the present case, the common pleas court concluded the Haueisens' appeal from the BZA decision was moot and dismissed the appeal on that basis. Under those circumstances, we have jurisdiction to review the common pleas court's determination that the Haueisens' appeal was moot.
{¶ 11} Accordingly, we deny the Tuckers' motion to dismiss this appeal.
{¶ 12} Next, we turn to the Tuckers' motion to strike the Haueisens' supplemental reply brief. After oral argument, the Haueisens moved for leave to file a supplemental brief instanter on October 4, 2019, and this court granted the motion. The entry granting the Haueisens' motion also authorized the Tuckers and the BZA to file supplemental response briefs. The Tuckers filed a supplemental response brief on October 15, 2019. The Haueisens then filed a reply to the Tuckers' supplemental response brief. The Tuckers moved to strike the Haueisens' reply to their supplemental response brief, asserting the issues were fully briefed and the Haueisens did not request leave to file a reply brief. The Haueisens filed a memorandum in opposition, asserting a reply brief was permitted under the Rules of Appellate Procedure and that they were entitled to file a reply brief because the Tuckers raised a new legal argument in their supplemental response brief.
{¶ 13} The Haueisens argue they were entitled to file a reply brief pursuant to App.R. 16, which provides for the filing of an appellant's brief, an appellee's brief, and an appellant's reply brief. The Haueisens assert this structure also applies to supplemental briefs—i.e., an appellant's supplemental brief, an appellee's supplemental brief, and an appellant's supplemental reply brief. However, after designating aforementioned briefing structure, App.R. 16(C) states that "[n]o further briefs may be filed except with leave of court." The entry granting the...
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