Preview
146906183
46906183
CUYAHOGA COUNTY, OHIO !tQ ,
EDWARD BIESIADA
Plaintiff
Judge: SHIRLEY STRICKLAND
CITY OF NORTH ROYALTON MAYOR ET AL
Defendant
JOURNALENTRY
96 DISP.OTHER - FINAL
DEFENDANTS-APPELLEES' MOTION TO DISMISS, FILED 04/11/2023, IS GRANTED. OSJ.
COURT COST ASSESSED TO THE PLAINTIFF(S).
PURSUANT TO CIV.R. 58(B), THE CLERK OF COURTS IS DIRECTED TO SERVE THIS JUDGMENT IN A MANNER
PRESCRIBED BY CIV.R. 5(B). THE CLERK MUST INDICATE ON THE DOCKET THE NAMES AND ADDRESSES OF ALL
PARTIES, THE METHOD OF SERVICE, AND THE COSTS ASSOCIATED WITH THIS SERVICE.
Judge Signature Date
-96
05/16/2023
Page 1 of 1
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
EDWARD BIESIADA, ) CASE NO. CV-23-975442
)
Plaintiff-Appellant, ) JUDGE SHIRLEY STRICKLAND
) SAFFOLD
-vs.- )
)
CITY OF NORTH ROYALTON ) ORDER ON DEFEND ANTS-
MAYOR, etal. ) APPELLEE’S MOTION TO DISMISS
)
Defendants-Appellees. )
This matter is before the Court on the motion to dismiss filed by Defendants-Appellees.
Plaintiff-Appellant opposes the motion. The motion has been fully briefed and is ripe for
consideration. For the reasons that follow, the Court grants the motion to dismiss.
I. BACKGROUND
Edward Biesiada (“Biesiada” or “Appellant”) appeals the City of North Royalton Board of
Zoning Appeals’ (“Board”) decision to grant a zoning variance to his neighbor, Penny Kurowski
("Kurowski"). The record of administrative proceedings before the Board was filed on March 23,
2023. The Board and City of North Royalton Mayor (jointly “City” or “Appellees”) move for
dismissal, arguing mootness of the issue under appeal. The relevant facts follow.
IL FACTS
The dispute giving rise to this appeal involves Kurowski’s request for a zoning variance to
permit the installation of a fence on her residence known as 12721 Patricia Drive in North
Royalton, Ohio (“Property”). The record of administrative proceedings indicates that on December
14,2022, Kurowski applied for a zoning variance from City of North Royalton Code of Ordinance
1
1467.05(d)(l)(A)(5) to allow for the proposed fence to extend to the front wall line of her home.1
The Board heard Kurowski’s request on January 19, 2023. Biesiada spoke at the hearing and
voiced his opposition to the request. He also submitted exhibits and asked that the variance be
conditioned upon a survey of the Property. After hearing Biesiada’s objections, the Chair
determined that Biesiada made assertions but failed to provide evidence to support same. At the
conclusion of the hearing, the Board granted Kurowski’s request and issued findings of fact,
applying the criteria for practical difficulties and the factors set forth in City of North Royalton
Code of Ordinance 1264.08(e)(1).
This administrative appeal followed. The City moves to dismiss, arguing that the appeal is
moot because Biesiada failed to move for a stay of the Board’s decision and the fence has been
installed on the Property. The City attached to its motion an affidavit from Building Commissioner
David Smerek (Affidavit of David Smerek, attached to the City’s motion at Exhibit A, hereinafter
“Smerek Affidavit.”). Mr. Smerek attached seven exhibits to his affidavit. As the custodian of the
City’s Building Department’s records, Mr. Smerek attests that he has personal familiarity with the
records, uses the records in his work, and personally contributes to the records on a regular basis.
(Smerek Affidavit at 3.)
III. ANALYSIS
This Court must determine whether it has jurisdiction to consider this matter in light of the
City’s argument that it has been rendered moot by installation of the fence. “Courts of common
pleas’ jurisdiction is limited to ‘justiciable matters.’” Graham v. City of Lakewood, 2018-Ohio-
1850, P23, 113 N.E.3d 44, 52, 2018 Ohio App. LEXIS 1977, *11, 2018 WL 2149308,
quoting Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972). “Courts of common pleas
1 The ordinance mandates that fences be set back five feet from the front wall line of the residence.
2
do not have subject matter jurisdiction to hear cases that while once justiciable, have been resolved
and become moot.” Id., quoting Hirsch v. TRW, Inc., Sth Dist. Cuyahoga No. 83204, 2004-Ohio-
1125, H 11; see Pinkney v. SouthwickInvs., L.L.C., 2005-0hio-4167, P13,2005 Ohio App. LEXIS
3790, *7, citing Poulson v. Wooster City Planning Comm'n, Wayne App. No. 04CA0077, 2005
Ohio 2976 (internal citations omitted) (“As a general rule, courts will not resolve issues that are
moot.”); see Gajewski v. Bd. of Zoning Appeals, 2008-0hio-5270, P19-P20, 2008 Ohio App.
LEXIS 4446, *8-9, quoting Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21, 8 Ohio L. Rep. 71
(“The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon moot questions or abstract
propositions, or to declare principles or rules of law which cannot affect the matter in issue in the
case before it.”)
As an initial matter, Biesiada asserts that this Court cannot consider materials outside the
scope of the administrative appeal, including Mr. Smerek’s affidavit. While it is true that review
on appeal is limited to the record, “(wjhen it comes to deciding whether an event has caused an
issue to be moot, however, it may ‘be proved by extrinsic evidence outside the record.’” Gajewski,
2008-0hio-5270, P14,2008 Ohio App. LEXIS 4446, *6, quoting State ex rel. Cincinnati Enquirer,
Div. of Gannett Satellite Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002 Ohio 7041, 781
N.E.2d 163, 8; Graham, 2018-Ohio-1850, P15, 113N.E.3d44.
In support of his argument, Biesiada cites to Eye-Will, an Eleventh District Court of
Appeals decision affirming the lower court’s reversal of an administrative appeal. See Eye-Will
Dev., Inc. v. Lake County Planning, 2006-0hio-6103, 2006 Ohio App. LEXIS 6033. In Eye-Will,
Driftwood filed an administrative appeal of a decision of the Lake County Planning Committee.
In its brief, Driftwood asked the lower court to dismiss Eye-Will’s appeal as moot for failure to
3
obtain a stay of the decision. Driftwood attached an affidavit to its brief. Eye-Will moved to strike
the affidavit arguing that it contained information that was not related to the issue of mootness.
The lower court denied Eye-Will’s request to strike, conducted a limited review of the record and
reversed, finding that the decision was not supported by a preponderance of substantial, reliable,
and probative evidence. Id. at *24.
Driftwood appealed to the Eleventh District. Eye-Will cross appealed, asserting that the
administrative appeal was not moot. The appellate court affirmed, holding that the lower court did
not err in reversing the decision. The appellate court also noted that, “[wjhile the trial court
reversed the Planning Commission's decision on the merits, it did not address Driftwood's
argument that the administrative appeal was moot due to Eye-Will's failure to move to stay the
proceedings.” Id. at *10. The appellate court “assumed” the lower court found the mootness
argument without merit. Id. at *29. The appellate court was “troubled by the evidentiary nature of
the affidavit attached to Driftwood’s appellate brief,” and stated, “[t]he better practice would have
been for Driftwood to file a motion to dismiss the administrative appeal, with supporting
affidavits.” Id. at *33.
Biesiada argues that because the Eye-Will court frowned upon the affidavit, this Court
should not consider the affidavit submitted by the City. (Opposition, p. 5.) This argument ignores
two key points. First, the affidavit submitted by Driftwood was attached to its appellate brief.
Driftwood did not first move to dismiss as the City has done in the instant case. Second, the
appellate court was troubled by the substance of the information contained in the affidavit -
specifically, that the affidavit included information that was not related to the mootness argument.
Id. at *32. Such allegations are not present in the instant case. Even if this Court determined that
it could not consider Mr. Smerek’s affidavit, as discussed below, the dispositive facts are not
4
disputed. Biesiada failed to obtain a stay of the Board’s decision and the fence has since been
installed.
To prevent Kurowski from installing the fence until after the administrative appeal,
Biesiada needed to file a motion for and obtain a stay. See Gajewski, 2008-0hio-5270, Pl8, 2008
Ohio App. LEXIS 4446, *7. “It is well established that in cases involving construction, if a party
fails to obtain a stay of execution before construction commences, the case is moot.” Id., citing
Pinkney, 2005, Ohio 4167,2005 Ohio App. LEXIS 3790, *8. There are two recognized exceptions
to the mootness doctrine: cases involving issues capable of repetition, yet evading review, and
cases involving a matter of great public or general interest. Id. at *9, citing In re Suspension of
Huffer (1989), 47 Ohio St. 3d 12, 546 N.E.2d 1308.
Mr. Smerek attests that the Building Department did not receive a motion to stay or
injunction to halt construction of the fence. (Smerek Affidavit at 112.) The affidavit states that
Kurwoski commenced installation of the fence after a permit was issued on January 20, 2023.
(Smerek Affidavit at 10.) The affidavit further states that fence was “substantially completed”
on February 23, 2023. (Smerek Affidavit at 10.) The Building Department completed a final
inspection of the fence installation on April 5,2023. (Smerek Affidavit at 11.) Biesiada does not
dispute these facts.
Biesiada argues instead that the appeal is not moot because the fence was not fully
completed at the time this appeal was filed. As indicated above, in administrative appeals involving
construction, the appeal is moot if a party fails to obtain a stay before construction commences.
See Gajewski, 2008-0hio-5270, Pl 8,2008 Ohio App. LEXIS 4446, *7, citing Pinkney, 2005 Ohio
4167, 2005 Ohio App. LEXIS 3790, *8. It is undisputed that Biesiada failed to obtain a stay of
5
execution before the installation commenced and, at some point after the appeal was filed
installation of the fence was completed. Biesiada’s argument is not well-taken.
Biesiada further argues the appeal is not moot because it does not involve the construction
of a building. Biesiada points to Cloud Found., Inc. for the proposition that claims involving an
already constructed fence are not moot. Id.; see Cloud Found., Inc. v. Salazar, 738 F. Supp. 2d 35,
2010 U.S. Dist. LEXIS 87557. Cloud is not controlling nor is it applicable to the facts herein.2
Ohio case law does not support such a distinction and have long held that matters are rendered
moot where there is no longer any actual controversy. See Neighbors for Responsible Land Use v.
Akron, 9th Dist. No. 23191, 2006 Ohio 6966 (administrative appeal regarding a conditional use
request seeking approval to construct a telecommunication facility; construction of the
telecommunications tower completed; appellant failed to obtain a stay; appeal moot); Miner v.
Witt, 82 Ohio St. 237, 238, 92 N.E. 21, 21-22, 1910 Ohio LEXIS 122, *2 (administrative appeal
regarding the annexation of the village of Collingwood to the City of Cleveland; annexation
proceedings completed; appellant failed to obtain a stay; appeal moot); Walouke v. Mentor Bd. of
Bldg. & Zoning Appeals, 1984 Ohio App. LEXIS 12133,1984 WL 6515 (administrative appeal of
a zoning board’s grant of a variance to construct a garage; appellant failed to obtain a stay; garage
installed; appeal moot); State v. Univ, ofAkron, 1976 Ohio App. LEXIS 6147, 1976 WL 188839
2 In Cloud Found., Inc. v. Salazar, the United States District Court for the District of Columbia considered
a challenge to the federal management of wild horses on a horse range under The Wild Free-Roaming
Horses and Burros Act 738 F. Supp. 2d 35, 37, 2010 U.S. Dist. LEXIS 87557. The government argued that
because the horses were sold or given away, there was no relief to be granted and the action was moot. Id.
at *2. The plaintiffs argued that the capable of repetition yet evading review exception applied to the
mootness doctrine and sought leave to amend their complaint to add allegations related to a fence that had
not been constructed. Id at *4. The reviewing court found that the plaintiffs’ other claims were not moot,
including those related to the construction of fences to restrict horses. If the plaintiffs were to prevail on the
merits of those claims, the court could grant relief by requiring removal of existing fences or an order
restricting the construction of new fences. Id. at *10.
6
(appeal of a denial of a writ of mandamus; University awarded the contract to another company;
appeal moot); Frank Novak & Sons v. Avon Lake Bd. of Educ., 2001 Ohio App. LEXIS 5359,
2001-Ohio-1880 (appeal of denial of motion for a temporary restraining order and request for
preliminary injunction; contract awarded to another company; appeal moot).
Lastly, Biesiada argues the appeal is not moot because the Court could order the fence be
tom down. This Court’s authority is conferred by R.C. 2506.04 which provides, in part: “the court
may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence
on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify
the order, adjudication, or decision, or remand the cause to the officer or body appealed from with
instructions to enter an order, adjudication, or decision consistent with the findings or opinion of
the court.” Thus, this Court is tasked with reviewing the record to determine whether the
administrative order is “unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative evidence.”
Biesiada’s arguments are unavailing. He failed to seek a stay of the Board’s decision
granting the variance. This left Kurowski free to proceed with installation of the fence as this
appeal did not act as an automatic stay of the Board’s decision. The appeal is moot as a reversal
of the Board’s decision cannot affect the matter at issue. Further, the Court finds that neither
exception to the mootness doctrine applies to the facts herein because there are no issues capable
of repetition, yet evading review, and the issue before the Board, whether Kurowski was entitled
to a variance, does not qualify as an issue of “public or general interest.”
7
IV. CONCLUSION
For the reasons herein, the Court finds it is without jurisdiction over this matter, which has
been rendered moot. Accordingly, the Court grants the City’s motion and denies Biesiada’s request
to strike same. This appeal is hereby dismissed.
IT IS SO ORDERED.
Judge Shirley d Saffold Date
8
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146906183 46906183 CUYAHOGA COUNTY, OHIO !tQ , EDWARD BIESIADA Plaintiff Judge: SHIRLEY STRICKLAND CITY OF NORTH ROYALTON MAYOR ET AL Defendant JOURNALENTRY 96 DISP.OTHER - FINAL DEFENDANTS-APPELLEES' MOTION TO DISMISS, FILED 04/11/2023, IS GRANTED. OSJ. COURT COST ASSESSED TO THE PLAINTIFF(S). PURSUANT TO CIV.R. 58(B), THE CLERK OF COURTS IS DIRECTED TO SERVE THIS JUDGMENT IN A MANNER PRESCRIBED BY CIV.R. 5(B). THE CLERK MUST INDICATE ON THE DOCKET THE NAMES AND ADDRESSES OF ALL PARTIES, THE METHOD OF SERVICE, AND THE COSTS ASSOCIATED WITH THIS SERVICE. Judge Signature Date -96 05/16/2023 Page 1 of 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO EDWARD BIESIADA, ) CASE NO. CV-23-975442 ) Plaintiff-Appellant, ) JUDGE SHIRLEY STRICKLAND ) SAFFOLD -vs.- ) ) CITY OF NORTH ROYALTON ) ORDER ON DEFEND ANTS- MAYOR, etal. ) APPELLEE’S MOTION TO DISMISS ) Defendants-Appellees. ) This matter is before the Court on the motion to dismiss filed by Defendants-Appellees. Plaintiff-Appellant opposes the motion. The motion has been fully briefed and is ripe for consideration. For the reasons that follow, the Court grants the motion to dismiss. I. BACKGROUND Edward Biesiada (“Biesiada” or “Appellant”) appeals the City of North Royalton Board of Zoning Appeals’ (“Board”) decision to grant a zoning variance to his neighbor, Penny Kurowski ("Kurowski"). The record of administrative proceedings before the Board was filed on March 23, 2023. The Board and City of North Royalton Mayor (jointly “City” or “Appellees”) move for dismissal, arguing mootness of the issue under appeal. The relevant facts follow. IL FACTS The dispute giving rise to this appeal involves Kurowski’s request for a zoning variance to permit the installation of a fence on her residence known as 12721 Patricia Drive in North Royalton, Ohio (“Property”). The record of administrative proceedings indicates that on December 14,2022, Kurowski applied for a zoning variance from City of North Royalton Code of Ordinance 1 1467.05(d)(l)(A)(5) to allow for the proposed fence to extend to the front wall line of her home.1 The Board heard Kurowski’s request on January 19, 2023. Biesiada spoke at the hearing and voiced his opposition to the request. He also submitted exhibits and asked that the variance be conditioned upon a survey of the Property. After hearing Biesiada’s objections, the Chair determined that Biesiada made assertions but failed to provide evidence to support same. At the conclusion of the hearing, the Board granted Kurowski’s request and issued findings of fact, applying the criteria for practical difficulties and the factors set forth in City of North Royalton Code of Ordinance 1264.08(e)(1). This administrative appeal followed. The City moves to dismiss, arguing that the appeal is moot because Biesiada failed to move for a stay of the Board’s decision and the fence has been installed on the Property. The City attached to its motion an affidavit from Building Commissioner David Smerek (Affidavit of David Smerek, attached to the City’s motion at Exhibit A, hereinafter “Smerek Affidavit.”). Mr. Smerek attached seven exhibits to his affidavit. As the custodian of the City’s Building Department’s records, Mr. Smerek attests that he has personal familiarity with the records, uses the records in his work, and personally contributes to the records on a regular basis. (Smerek Affidavit at 3.) III. ANALYSIS This Court must determine whether it has jurisdiction to consider this matter in light of the City’s argument that it has been rendered moot by installation of the fence. “Courts of common pleas’ jurisdiction is limited to ‘justiciable matters.’” Graham v. City of Lakewood, 2018-Ohio- 1850, P23, 113 N.E.3d 44, 52, 2018 Ohio App. LEXIS 1977, *11, 2018 WL 2149308, quoting Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841 (1972). “Courts of common pleas 1 The ordinance mandates that fences be set back five feet from the front wall line of the residence. 2 do not have subject matter jurisdiction to hear cases that while once justiciable, have been resolved and become moot.” Id., quoting Hirsch v. TRW, Inc., Sth Dist. Cuyahoga No. 83204, 2004-Ohio- 1125, H 11; see Pinkney v. SouthwickInvs., L.L.C., 2005-0hio-4167, P13,2005 Ohio App. LEXIS 3790, *7, citing Poulson v. Wooster City Planning Comm'n, Wayne App. No. 04CA0077, 2005 Ohio 2976 (internal citations omitted) (“As a general rule, courts will not resolve issues that are moot.”); see Gajewski v. Bd. of Zoning Appeals, 2008-0hio-5270, P19-P20, 2008 Ohio App. LEXIS 4446, *8-9, quoting Miner v. Witt (1910), 82 Ohio St. 237, 92 N.E. 21, 8 Ohio L. Rep. 71 (“The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.”) As an initial matter, Biesiada asserts that this Court cannot consider materials outside the scope of the administrative appeal, including Mr. Smerek’s affidavit. While it is true that review on appeal is limited to the record, “(wjhen it comes to deciding whether an event has caused an issue to be moot, however, it may ‘be proved by extrinsic evidence outside the record.’” Gajewski, 2008-0hio-5270, P14,2008 Ohio App. LEXIS 4446, *6, quoting State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002 Ohio 7041, 781 N.E.2d 163, 8; Graham, 2018-Ohio-1850, P15, 113N.E.3d44. In support of his argument, Biesiada cites to Eye-Will, an Eleventh District Court of Appeals decision affirming the lower court’s reversal of an administrative appeal. See Eye-Will Dev., Inc. v. Lake County Planning, 2006-0hio-6103, 2006 Ohio App. LEXIS 6033. In Eye-Will, Driftwood filed an administrative appeal of a decision of the Lake County Planning Committee. In its brief, Driftwood asked the lower court to dismiss Eye-Will’s appeal as moot for failure to 3 obtain a stay of the decision. Driftwood attached an affidavit to its brief. Eye-Will moved to strike the affidavit arguing that it contained information that was not related to the issue of mootness. The lower court denied Eye-Will’s request to strike, conducted a limited review of the record and reversed, finding that the decision was not supported by a preponderance of substantial, reliable, and probative evidence. Id. at *24. Driftwood appealed to the Eleventh District. Eye-Will cross appealed, asserting that the administrative appeal was not moot. The appellate court affirmed, holding that the lower court did not err in reversing the decision. The appellate court also noted that, “[wjhile the trial court reversed the Planning Commission's decision on the merits, it did not address Driftwood's argument that the administrative appeal was moot due to Eye-Will's failure to move to stay the proceedings.” Id. at *10. The appellate court “assumed” the lower court found the mootness argument without merit. Id. at *29. The appellate court was “troubled by the evidentiary nature of the affidavit attached to Driftwood’s appellate brief,” and stated, “[t]he better practice would have been for Driftwood to file a motion to dismiss the administrative appeal, with supporting affidavits.” Id. at *33. Biesiada argues that because the Eye-Will court frowned upon the affidavit, this Court should not consider the affidavit submitted by the City. (Opposition, p. 5.) This argument ignores two key points. First, the affidavit submitted by Driftwood was attached to its appellate brief. Driftwood did not first move to dismiss as the City has done in the instant case. Second, the appellate court was troubled by the substance of the information contained in the affidavit - specifically, that the affidavit included information that was not related to the mootness argument. Id. at *32. Such allegations are not present in the instant case. Even if this Court determined that it could not consider Mr. Smerek’s affidavit, as discussed below, the dispositive facts are not 4 disputed. Biesiada failed to obtain a stay of the Board’s decision and the fence has since been installed. To prevent Kurowski from installing the fence until after the administrative appeal, Biesiada needed to file a motion for and obtain a stay. See Gajewski, 2008-0hio-5270, Pl8, 2008 Ohio App. LEXIS 4446, *7. “It is well established that in cases involving construction, if a party fails to obtain a stay of execution before construction commences, the case is moot.” Id., citing Pinkney, 2005, Ohio 4167,2005 Ohio App. LEXIS 3790, *8. There are two recognized exceptions to the mootness doctrine: cases involving issues capable of repetition, yet evading review, and cases involving a matter of great public or general interest. Id. at *9, citing In re Suspension of Huffer (1989), 47 Ohio St. 3d 12, 546 N.E.2d 1308. Mr. Smerek attests that the Building Department did not receive a motion to stay or injunction to halt construction of the fence. (Smerek Affidavit at 112.) The affidavit states that Kurwoski commenced installation of the fence after a permit was issued on January 20, 2023. (Smerek Affidavit at 10.) The affidavit further states that fence was “substantially completed” on February 23, 2023. (Smerek Affidavit at 10.) The Building Department completed a final inspection of the fence installation on April 5,2023. (Smerek Affidavit at 11.) Biesiada does not dispute these facts. Biesiada argues instead that the appeal is not moot because the fence was not fully completed at the time this appeal was filed. As indicated above, in administrative appeals involving construction, the appeal is moot if a party fails to obtain a stay before construction commences. See Gajewski, 2008-0hio-5270, Pl 8,2008 Ohio App. LEXIS 4446, *7, citing Pinkney, 2005 Ohio 4167, 2005 Ohio App. LEXIS 3790, *8. It is undisputed that Biesiada failed to obtain a stay of 5 execution before the installation commenced and, at some point after the appeal was filed installation of the fence was completed. Biesiada’s argument is not well-taken. Biesiada further argues the appeal is not moot because it does not involve the construction of a building. Biesiada points to Cloud Found., Inc. for the proposition that claims involving an already constructed fence are not moot. Id.; see Cloud Found., Inc. v. Salazar, 738 F. Supp. 2d 35, 2010 U.S. Dist. LEXIS 87557. Cloud is not controlling nor is it applicable to the facts herein.2 Ohio case law does not support such a distinction and have long held that matters are rendered moot where there is no longer any actual controversy. See Neighbors for Responsible Land Use v. Akron, 9th Dist. No. 23191, 2006 Ohio 6966 (administrative appeal regarding a conditional use request seeking approval to construct a telecommunication facility; construction of the telecommunications tower completed; appellant failed to obtain a stay; appeal moot); Miner v. Witt, 82 Ohio St. 237, 238, 92 N.E. 21, 21-22, 1910 Ohio LEXIS 122, *2 (administrative appeal regarding the annexation of the village of Collingwood to the City of Cleveland; annexation proceedings completed; appellant failed to obtain a stay; appeal moot); Walouke v. Mentor Bd. of Bldg. & Zoning Appeals, 1984 Ohio App. LEXIS 12133,1984 WL 6515 (administrative appeal of a zoning board’s grant of a variance to construct a garage; appellant failed to obtain a stay; garage installed; appeal moot); State v. Univ, ofAkron, 1976 Ohio App. LEXIS 6147, 1976 WL 188839 2 In Cloud Found., Inc. v. Salazar, the United States District Court for the District of Columbia considered a challenge to the federal management of wild horses on a horse range under The Wild Free-Roaming Horses and Burros Act 738 F. Supp. 2d 35, 37, 2010 U.S. Dist. LEXIS 87557. The government argued that because the horses were sold or given away, there was no relief to be granted and the action was moot. Id. at *2. The plaintiffs argued that the capable of repetition yet evading review exception applied to the mootness doctrine and sought leave to amend their complaint to add allegations related to a fence that had not been constructed. Id at *4. The reviewing court found that the plaintiffs’ other claims were not moot, including those related to the construction of fences to restrict horses. If the plaintiffs were to prevail on the merits of those claims, the court could grant relief by requiring removal of existing fences or an order restricting the construction of new fences. Id. at *10. 6 (appeal of a denial of a writ of mandamus; University awarded the contract to another company; appeal moot); Frank Novak & Sons v. Avon Lake Bd. of Educ., 2001 Ohio App. LEXIS 5359, 2001-Ohio-1880 (appeal of denial of motion for a temporary restraining order and request for preliminary injunction; contract awarded to another company; appeal moot). Lastly, Biesiada argues the appeal is not moot because the Court could order the fence be tom down. This Court’s authority is conferred by R.C. 2506.04 which provides, in part: “the court may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from with instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the court.” Thus, this Court is tasked with reviewing the record to determine whether the administrative order is “unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence.” Biesiada’s arguments are unavailing. He failed to seek a stay of the Board’s decision granting the variance. This left Kurowski free to proceed with installation of the fence as this appeal did not act as an automatic stay of the Board’s decision. The appeal is moot as a reversal of the Board’s decision cannot affect the matter at issue. Further, the Court finds that neither exception to the mootness doctrine applies to the facts herein because there are no issues capable of repetition, yet evading review, and the issue before the Board, whether Kurowski was entitled to a variance, does not qualify as an issue of “public or general interest.” 7 IV. CONCLUSION For the reasons herein, the Court finds it is without jurisdiction over this matter, which has been rendered moot. Accordingly, the Court grants the City’s motion and denies Biesiada’s request to strike same. This appeal is hereby dismissed. IT IS SO ORDERED. Judge Shirley d Saffold Date 8