Motion-Secondary: SMITH FAMILY TRUST VS CITY OF HUDSON BOARD OF BUILDING AND

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2007 AUG -2 ys !0: 50
SUMMIT COUNTY
CLERK OF COURTS

IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO

SMITH FAMILY TRUST, ) CASE NO. 2007 05 3641

)
Appellant, )

) JUDGE JUDITH L. HUNTER
vs. )
)
CITY OF HUDSON BOARD OF ZONING )
AND BUILDING APPEALS )
)
Appellee. )

 

APPELLEE’S BRIEF IN OPPOSITION TO APPELLANT’S MOTION TO
INTRODUCE ADDITIONAL EVIDENCE

 

1. INTRODUCTION

Appellee, City of Hudson Board of Zoning and Building Appeals, (hereinafter the

“BZBA”), through counsel, respectfully submits that this Court deny Appellant’s motion for the

introduction of additional evidence. Appellant has failed to demonstrate or even argue that any

of the exceptions set forth in R.C. §2506.03(A) warrant the submission of additional evidence

and Appellant has further failed to timely file its motion with a supporting affidavit as required

by Local Rule 19.04. As a result, Appellant’s motion to introduce additional evidence should be

denied and the Court’s review of this R.C. Chapter 2506 appeal should be limited to the

transcript of proceedings filed with the Court in accordance with R.C. §2506.04.

510195-1In addition, although certain constitutional claims may be asserted in a R.C. Chapter 2506
appeal for which an appellant may be entitled to introduce additional evidence, there is an issue
as to whether the Appellant may raise these issues at this time in light of Local Rule 19. Further,
Appellant may not raise one of its constitutional claims (i.e., a “takings claim”) in a 2506 appeal,
but rather must raise this in a mandamus action after exhaustion of its administrative remedies.
Consequently, Appellant’s motion to introduce additional evidence on its constitutional claims
must also be denied.

i. STATEMENT OF RELEVANT FACTS

Smith Family Trust (‘Appellant’) is the owner and developer of the Woodland Estates
subdivision (“Subdivision”) located in the City of Hudson. The Subdivision received
preliminary plan approval from the City of Hudson Planning Commission (“Planning
Commission”) on or about September 3, 2004. [Transcript of Proceedings (“Tr.”) at p. 198.]

On October 12, 2004, Appellant entered into an oil and gas lease with Ohio Valley
Energy Systems, Corp. (“Ohio Valley”) for the drilling and operation of an oil and gas well and
related equipment on a portion of Appellant’s property designated as Block A on the
subsequently recorded final subdivision plat. [Tr. at pp. 392-393; 484-485.]

The City became aware of Appellant’s intent to drill an oil and gas well in Block A on
October 28, 2004 and advised Appellant that the drilling and operation of an oil and gas well on
Block A could jeopardize the Planning Commission’s preliminary approval of Appellant’s
preliminary plan for the subdivision. [Tr. at pp. 251-253; 406.]

Appellant submitted a revised preliminary plan and final plan to the Planning
Commission due to the proposed oil and gas well. The Planning Commission approved the final

plat on February 14, 2005 conditioned, in part, upon Sublots 10-13 complying with the

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applicable setback requirements from oil and gas extraction equipment. [Tr. at p. 456.] The
subdivision plat was recorded with Summit County on May 20, 2005. [Tr. at pp. 484-485.]

The oil and gas well was drilled and the related equipment was constructed in Block A in
2005. [Tr. at pp. 057, 416-417.]

On December 8, 2006, Appellant submitted applications with respect to Sublots 9, 10, 11,
12 and 13 seeking variances from the setback requirements set forth in the Land Development
Code (“LDC”) regarding to the distance at which a new home may be constructed from a
proposed tank battery and an existing unplugged oil and gas well head. [Tr. at pp. 1-16.]

The BZBA considered Appellant’s application, heard testimony and took in evidence at
its meetings on February 15, 2007 and March 15, 2007. Taking all testimony and evidence
presented into consideration, the BZBA denied Appellant’s variance requests on March 15, 2007
(Tr. at pp. 310-317; 326-329) and adopted Conclusions of Fact in support of its decision at a
regular meeting on April 19, 2007. [Tr. at pp. 330-337].

Appellant timely filed a Notice of Appeal with this Court. The BZBA filed the transcript
of proceedings with the Court on July 2, 2007. Appellant subsequently filed an untimely Motion
to Introduce Additional Evidence on July 19, 2007. For the reasons set forth herein, Appellant’s
motion should be denied and the Court’s review of this matter should be limited to the full and
complete transcript of proceedings filed with the Court by the BZBA.

Il. LAW AND ARGUMENT

This Court should deny Appellant’s motion to introduce additional evidence because the
Transcript of Proceedings filed by the BZBA contains a full and complete record of the
proceedings before the BZBA in regard to Appellant’s application for variances with respect to

Sublots 9, 10, 11, 12, and 13 in the Woodland Estates subdivision.

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A. Appellant is not entitled to introduce additional evidence in this R.C. Chapter
2506 appeal because the transcript of the proceedings filed by the BZBA contains
the full and complete record of the proceedings below and, as such, the Court’s
review of the BZBA’s decision is limited to the record.

 

Appellant argues in its motion that it is entitled to a trial de novo and to introduce
additional evidence in this case because its R.C. Chapter 2506 appeal is an appeal on questions
of law and fact. Appellant’s vague and general argument is without merit and Appellant’s
motion should be denied.

R.C. Chapter 2505 provides the general procedure for appeals.

R.C.§2505.01(A)(3) defines an, ‘appeal on questions of law and fact’ as a,

‘* * * rehearing and retrial of a cause upon the law and the facts.’ R.C.

2506.01 goes on to state that all orders or decisions of any officer, board

or commission of any political subdivision is reviewed by the court of

common pleas pursuant to Chapter $2505 except as modified by Chapter

§2506. (Emphasis added)
Stephen v. Barnesville (Aug. 20, 1999), Belmont App. No. 97BA12, 1999 Ohio App. LEXIS
3922, *20-21 (attached hereto as Appendix A); see also, Vlad v. Cleveland Bd. of Zoning
Appeals (1960), 111 Ohio App. 70, paragraphs two and four of the syllabus, (“The provisions of
Chapter 2505 of the Revised Code having to do with appeals on questions of law and fact, as
limited by Section 2501.02, Revised Code, are not applicable to appeals from administrative
agencies * * *. The provisions of Chapter 2506, Revised Code, are to be considered as
supplementing the provisions for appeal to the Common Pleas Court from final orders of
administrative agencies under Chapter 2505, Revised Code.”)

Based on the foregoing, the provisions of R.C. Chapter 2505 must be read in conjunction
with the provisions of R.C. Chapter 2506.

In a R.C. Chapter 2506 appeal, the trial court’s scope of review is limited by R.C.

§2506.04. The Court may only determine whether Council’s decision “is unconstitutional,

illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial,

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reliable, and probative evidence on the whole record.” (Emphasis added). “[T]he 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.” Id.

Despite the language in R.C. Chapter 2505, the plain language of R.C. 2506.04 provides
that the Court’s review of Appellant’s R.C. Chapter 2506 appeal is not a trial de novo. Rotellini
v. West Carrollton Bd. of Zoning Appeals (1989), 64 Ohio App.3d 17, 20, citing Vlad v.
Cleveland Bd. of Zoning Appeals (1960), 111 Ohio App. 70. To the contrary, the Court may
only review “* * * the basis for the decision from the evidence that was before the
{administrative body].” North v. Raver (Dec. 4, 1973), Franklin App. No. 73AP-250, 1973 Ohio
App. LEXIS 1861, *12 (attached hereto as Appendix B).

In line with this limited scope of review, in a R.C. Chapter 2506 appeal, the Court may
only authorize the introduction of additional evidence in limited circumstances. R.C.
§2506.03(A) states:

The hearing of an appeal taken in relation to a final order, adjudication, or
decision covered by division (A) of section 2506.01 of the Revised Code
shall proceed as in the trial of a civil action, but the court shall be confined
to the transcript filed under section 2506.02 of the Revised Code unless it
appears, on the face of that transcript or by affidavit filed by the

appellant, that one of the following applies:

(1) The transcript does not contain a report of all evidence admitted or
proffered by the appellant.

(2) The appellant was not permitted to appear and be heard in person, or
by the appellant's attorney, in opposition to the final order, adjudication, or
decision, and to do any of the following:

(a) Present the appellant's position, arguments, and contentions;

(b) Offer and examine witnesses and present evidence in support;

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(c) Cross-examine witnesses purporting to refute the appellant's
position, arguments, and contentions;

(d) Offer evidence to refute evidence and testimony offered in
opposition to the appellant's position, arguments, and contentions;

(e) Proffer any such evidence into the record, if the admission of it is
denied by the officer or body appealed from.

(3) The testimony adduced was not given under oath.

(4) The appellant was unable to present evidence by reason of a lack of
the power of subpoena by the officer or body appealed from, or the
refusal, after request, of that officer or body to afford the appellant
opportunity to use the power of subpoena when possessed by the officer
or body.

(5) The officer or body failed to file with the transcript conclusions of
fact supporting the final order, adjudication, or decision. (Emphasis
added)

“The exceptions enumerated in R.C. 2506.03(A)(1) through (5), ‘generally represent
instances where the transcript of the administrative proceedings is incomplete, either because it
does not contain all the evidence which actually was presented or because the appealing party’s
right to be heard and to present evidence was infringed in some manner.’” Hypabyssal, Ltd. v.
Akron Housing Appeals Board, (“Hypabyssal”), (Nov. 22, 2000), Summit App. C.A. No. 20000,
2000 Ohio App. LEXIS 5422, *5-6 (attached as Appendix C), citing Comparda v. Housing
Appeals Bd., (July 23, 1997), Summit App. No. 18220, 1997 Ohio App. LEXIS 3156, *8-9
(attached as Appendix D), quoting Schoell v. Sheboy (1973), 34 Ohio App.2d 168, 172.

Pursuant to R.C. 2506.03(A), Appellant must file an affidavit in support of its motion
specifying the basis for its request to submit additional evidence. Local Rule 19.04 also provides

that “* * * a motion to supplement the record shall be filed within fourteen (14) days after the

filing of the record of proceedings, supported by affidavit requesting the submission of additional

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evidence and specifying the nature and type of additional evidence to be submitted and the
reasons therefor.” (Emphasis added.)

In Hypabyssal, supra, *7, the Ninth District Court of Appeals denied the appellant’s
request for additional evidence because the appellant failed to proffer the evidence, or to suggest
what the evidence would have been, and failed to file a supporting affidavit specifying the nature
and type of additional evidence pursuant to Local Rule 19.04. See also, Sylvester v. Howland
Twp. Bd. of Zoning Appeals (1986), 34 Ohio App.3d 270, 272 (“Appellant does not demonstrate
that the document in question should have been added to the record pursuant to any of the
reasons set forth in R.C. 2506.03, nor did she file an affidavit illustrating this point. As the
document in question cannot be categorized as an exception to R.C. 2506.03, the trial court
correctly refused to admit the document into evidence.”)

In the matter at hand, Appellant has failed to argue that any of the exceptions provided in
R.C. §2506.03(A) warrant the introduction of additional evidence in this R.C. Chapter 2506
appeal. Appellant has not suggested what evidence should be included in the transcript of
proceedings and failed to file a timely motion supported by an affidavit specifying the nature and
type of additional evidence sought for inclusion.' For these reasons, Appellant’s motion to
introduce additional evidence should be denied.

The BZBA has filed a full and complete transcript of the proceedings below. Pursuant to
R.C. Chapter 2505, as modified by R.C. Chapter 2506, this Court’s review of the BZBA’s
decision with regard to Appellant’s application for variances is limited to this transcript.

For the foregoing reasons, Appellant’s motion to introduce additional evidence should be
denied.

' Appellant’s motion was filed on July 19, 2007, 17 days after the filing of the transcript of
proceedings.

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B. Appellant’s request_to introduce additional evidence to further_its
constitutional claims must be denied.

In its motion, Appellant raises two (2) constitutional issues related to the administrative
decision of the Board of Zoning and Building Appeals:

1) * * * [the denial of] the right of Appellant to devote its property to the
use for which it is zoned; the denial of property without due process of the
law by reason of the failure of the City’s Ordinances as applied to the
subject property to advance substantially the public health, safety and
welfare* * *; and

2) * * * the denial of all economically beneficial uses by the regulations
imposed upon the property by the actions of the Board of Zoning and
Building Appeals and by the administrative actions of the Department of
Community Development.

See, Appellant’s Motion to Introduce Additional Evidence at 2.

In addition to the reasons cited above at pages 4 through 7, the Court should not grant
Appellant the right to introduce additional evidence on these constitutional claims. Appellant
has failed to file a timely motion with supporting affidavit specifying the nature and type of
additional evidence sought as required by Local Rule 19.04. Also, under Ohio law, Appellant is

required to assert its constitutional takings claims in separate a lawsuit for mandamus.

1. The Court should not decide constitutional issues unless it is
absolutely necessary.

The Ohio Supreme Court has firmly established that courts should decide constitutional
questions only when it is deemed “absolutely necessary”. State ex rel. Debrosse, et al. v. Cool,
et al. (1999), 87 Ohio St.3d 1, 7, citing, State ex rel. BSW Development Group v. Dayton, et al.
(“BSW”), (1998), 83 Ohio St.3d 338, 345, Norandex, Inc. v. Limbach (1994), 69 Ohio St.3d 26,
28 and, McClung, et al. v. Bd. of Edn. of City of Washington, et al. (1976), 46 Ohio St.2d 149,
154. Based on this holding, an appellant cannot raise constitutional claims where relief on a non-

constitutional claim is available.

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In BSW, supra, at 345, the Ohio Supreme Court held:

Resolution of the constitutionality of Dayton’s historic preservation
ordinances was not absolutely necessary here because, as the court of
appeals concluded, any alleged taking resulted from the improper denial
by appellees of the demolition permit under the pertinent ordinances rather
than the unconstitutionality of those ordinances. Therefore, the
constitutional issue was not properly before the court of appeals in that the
true objective of BSW’s request was a declaratory judgment, which the
court of appeals lacked jurisdiction to grant. Wright v. Ghee (1996), 74
Ohio St.3d 465, 466, 659 N.E.2d 1261, 1262.

2. Constitutional issues raised in a R.C. Chapter 2506 appeal.
As a general matter, an appellant may raise constitutional issues before a trial court in a

R.C. Chapter 2506 appeal and, if constitutional issues are raised, the trial court reviews those
issues de novo and may allow additional evidence to be introduced for the reason that the
administrative body lacked jurisdiction to hear the constitutional issues and, as a result, there was
no evidence introduced in the proceedings below on the constitutional issues. SMC, Inc. v. Laudi
(“SMC, Inc.”), (1975), 44 Ohio App.2d 325, 329, citing State, ex rel. Sibarco Corp. v. City of
Berea (1966), 7 Ohio St.2d 85; Mobil Oil Corp. v. City of Rocky River (1974), 38 Ohio St.2d 23.

On appeal of a zoning board decision, an aggrieved party may argue that

the ordinance, as applied in its particular case, is unconstitutional. This

limited constitutional argument is to be considered by the trial court in

addition to any other arguments. The determination of constitutionality

turns on the specific proposed use of the property. ‘In making such a

limited determination, it is possible that the existing zoning could be

unconstitutional, but the zoning would not be declared unconstitutional

because the prohibition against the specific proposed use is valid.”
Community Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals (“Community
Concerned Citizens”), (1993), 66 Ohio St.3d 452, 453, citing Karches, et al. v. Cincinnati
(“Karches”), (1988), 38 Ohio St.3d 12, 16.

Although ordinarily judicial review pursuant to Chapter 2506 does not

provide for a trial de novo, Schoell v. Sheboy (Cuyahoga, 1973), 34 Ohio
App.2d 168; Manning v. Straka (Lorain, 1962), 117 Ohio App. 55, the

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issue of the constitutionality of zoning restrictions must be tried originally
in the Court of Common Pleas. The court is not reviewing the decision of
the Board, but rather is testing the ordinances of the governmental body
against the State and Federal constitutions. The issue is presented in the
same manner before the court whether raised by administrative appeal or
declaratory judgment.
SMC, Inc., supra, at 330.
a. The Court should not admit additional evidence in regard to

Appellant’s constitutional challenge to_the application of
the City’s ordinances to Appellant’s proposed use because

adequate relief on a non-constitutional claim exists.

Appellant’s first constitutional challenge alleges that the BZBA’s decision relative to
Appellant’s property deprived Appellant of its property rights without due process of law. In its
motion at paragraph 2, Appellant more specifically worded this claim as a deprivation of “* * *
the right of Appellant to devote its property to the use for which it is zoned; [and] the denial of
property without due process of the law by reason of the failure of the City’s Ordinances as
applied to the subject property to advance substantially the public health, safety and
welfare* * *”, The claim involves the constitutionality of the City’s Land Development Code
provisions as they were applied to Appellant’s proposed use of the property by the BZBA. See,
Karches, supra, 38 Ohio St.3d at 16; Community Concerned Citizens, supra, 66 Ohio St.3d at
453.

As previously stated, however, the courts should refrain from deciding constitutional
issues where an alternate non-constitutional remedy exists. BSW, supra, 83 Ohio St.3d at 345.
This preferred practice promotes judicial economy.

In the case at bar, Appellant has failed to file a timely motion for the introduction of
additional evidence on its constitutional claims as required by Local Rule 19.04. Appellant has

further failed to file an affidavit specifying the nature and type of additional evidence sought to

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support its constitutional claims. (See Local Rule 19.04.) For these reasons, the Court should
deny Appellant’s motion to introduce additional evidence on this claim.

b. Appellant is not permitted to introduce additional evidence

in regard to its takings claim because this claim may only

be pursued afier exhausting its administrative remedies and
by filing a separate mandamus action; the claim is also not

ripe for adjudication at this time.

In its second constitutional claim, Appellant alleges it was denied “all economically
beneficial uses by the regulations imposed upon the property by the actions of the Board of
Zoning and Building Appeals and by the administrative actions of the Department of Community
Development.” This claim is not the type of constitutional challenge that may be pursued in a
R.C. Chapter 2506 appeal. Appellant’s articulation of its claim demonstrates it is intended to
state a “takings” claim. See, State ex rel. Shemo, et al. v. Mayfield Hts., et al. (2002), 95 Ohio
St.3d 59, 63, citing, Goldberg Cos., Inc. v. Richmond Hts. Council (1998), 81 Ohio St.2d 207,
211 quoting Akins v. Tibron (1980), 447 U.S. 255, 260: “The application of a general zoning law
to particular property effects a taking if the ordinance does not substantially advance legitimate
state interests * * * or denies an owner economically viable use of his land* * *”, see also,
Pengal v. Mentor-on-the-Lake, et al. (Sept. 25, 2005), Lake App. No. 2004-L-158, 2005-Ohio-
5118, at [25-27 (attached as Appendix E) and Trafalgar Corp, et al. v. Miami Cty. Bd. of Cty.
Commrs., et al. (S.D. Ohio, 2006), App. No. 3:05-cv-084, 2006 U.S. Dist. LEXIS 14574, *24-25
(attached as Appendix F), applying Lingle v. Chevron U.S.A., Inc. (2005), 544 U.S. 528, in
which the U.S. Supreme Court modified Akins holding that a takings claim may only be shown
(1) where there is a permanent physical invasion of property [this is not the situation here]; or (2)

the regulations completely deprive an owner of all economically viable use of the property. A

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takings claim may only be asserted after all administrative remedies have been exhausted and by

filing a separate mandamus action.

i. Appellant_must_exhaust_its_administrative
remedies before it pursues its takings claim.

Ohio law has clearly established “. . . a party must exhaust all available avenues of
administrative relief before seeking court action in an administrative matter.” Frye, et al. v.
Wood Cty. Bd. of Revision, et al., Wood App. No. WD-03-071, 2004-Ohio-3452, at P16
(attached as Appendix G). As a result, exhaustion of administrative remedies is a prerequisite to
pursuing a takings claim in court. Jd. at P18.

In the case at bar, Appellant has failed to exhaust its administrative remedies provided
under the LDC. Specifically, LDC §1210.04 provides an administrative remedy by which an
applicant may file a Hardship Relief Petition with City Council seeking relief from the City’s
zoning regulations on the premise that a final decision rendered by an administrative body has
deprived an applicant of all reasonable economic use of its property. (See LDC §1210.04(a).)
The notice of petition must be filed within 10 days from the final action of the BZBA and a
Hardship Relief Petition must be filed within 30 days of filing the notice. (See LDC
§1210.04(c).)

If City Council determines that a petitioner has made a prima facie case that it has been
denied all reasonable economic use of its property, Council appoints a hearing officer and a
hearing is held by the hearing officer. (See LDC §1210.05.) The hearing officer’s decision and
findings are subject to the review and approval or disapproval of Council. Jd.

As of this date, Appellant has not filed a notice of petition or hardship relief petition
under LDC Chapter 1210. For this reason, Appellant has failed to exhaust its administrative

remedies and, therefore, may not pursue a takings claim before this Court or any other court.

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ii. Appellant may only pursue it takings claim
if it prevails in this administrative appeal

and_then_by filing a separate_mandamus
action.

Should Appellant prevail in this administrative appeal, pursuant to Ohio law, Appellant
may only bring a takings claim by filing a separate mandamus action. Such an action requests
the court to compel the City to bring an appropriation proceeding in order to determine the value
of the property allegedly taken. See, Levin, et al. v. Sheffield Lake, et al. (1994), 70 Ohio St.3d
104, 107 & 109 (“[W]e hold that mandamus lies to determine if property has been appropriated
and to compel initiation of statutory proceedings* * *.”); BSW, supra, 83 Ohio St.3d at 339-40
(an alleged regulatory taking as in the case at bar); Hatfield v. Wray (2000), 140 Ohio App.3d
632.

In Palco Investments, Inc. v. Springfield, (“Palco”), Clark App. No. 2004CA80, 2005-
Ohio-6838 (attached as Appendix H), the city issued a notice to the appellant to abate a public
nuisance. The appellant filed a petition with the city’s board and a hearing was held at which the
board denied the petition. The city subsequently abated the nuisance by demolition. The
appellant filed a R.C. Chapter 2506 appeal with the common pleas court. As part of the appeal,
the appellant claimed the city’s demolition of his structures constituted a deprivation of property
without just compensation. Jd. at 423. The Second District Court of Appeals affirmed the trial
court’s finding that it did not have jurisdiction to consider a damages claim.

* * * R.C. 2506.04 only permits a common pleas court to ‘affirm, reverse,
vacate, or modify’ the agency’s decision. The statute does not provide
jurisdiction for the court to determine money damages. * * * In order to
obtain compensation for an unlawful taking, a mandamus action must be
filed to compel public authorities to conduct appropriation proceedings.

Id. at §23, citing Grossman v. Cleveland Hts. (1997), 120 Ohio App.3d 435, Florian v. Bd. of

Cty. Commrs. of Hamilton Cty. (Aug. 5, 1981), Hamilton App. No. C-800843, 1981 WL 9934

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(attached as Appendix I); Huelsmann v. State (1977), 56 Ohio App.2d 100, 108; State ex rel.
Levin v. Sheffield Lake, 70 Ohio St.3d 104, 108.

Appellant has attempted to assert a takings claim in this R.C. Chapter 2506 appeal.
Based on the reasoning and holding in Palco, supra, this Court does not have jurisdiction to hear
Appellant’s takings claim. Appellant has not prevailed by demonstrating that the BZBA was
incorrect in its decision. In the event Appellant exhausts its administrative remedies, as
previously discussed, and prevails in this administrative appeal, the issue might then be ripe for
consideration. Appellant would then need to file a separate mandamus action with the Court.
Consequently, the Court must deny Appellant’s motion to introduce additional evidence on this
takings claim.

In sum, while certain constitutional issues may be raised in a R.C. Chapter 2506 appeal,
the Court should refrain from deciding constitutional issues where an adequate remedy on a non-
constitutional claim is available, particularly where such claims are not ripe for review.
Appellant has an adequate remedy in the pending R.C. 2506 appeal. In addition, Appellant’s
second constitutional challenge is not of the type permitted to be raised in a R.C, Chapter 2506
appeal. Appellant may only pursue these claims by exhausting its administrative remedies and
filing separate declaratory judgment and mandamus actions. Consequently, the Court should

deny Appellant’s motion and proceed to decide the appeal on the parties’ briefs on the record.

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IV. CONCLUSION

For the reasons stated herein, Appellant’s Motion to Introduce Additional Evidence

should be denied.

S1O195-1

Respectfully submitted,

 

2.
Charles T. Rieh] (Reg. No. 0010971)
Solicitor, City of Hudson
R. Todd Hunt (Reg. No. 0008951)
Assistant Solicitor, City of Hudson
Aimee W. Lane (Reg. No. 0071392)
WALTER & HAVERFIELD, L.L.P.
The Tower at Erieview
1301 E. Ninth Street, Suite 3500
Cleveland OH 44114-1821
(216) 781-1212
(216) 575-0911 (facsimile)

Attorneys for Appellee City of Hudson Board of
Zoning and Building Appeals

15COPY

CERTIFICATE OF SERVICE
A copy of the foregoing Appellee’s Brief in Opposition to Appellant's Motion to
Introduce Additional Evidence was sent by regular U.S. Mail, postage prepaid, to Karen

Edwards-Smith, attorney for Appellant, at 17888 Snyder Road, Chagrin Falls, Ohio 44023 on

this (day of August, 2007.

One of the Attorneys ‘fox. City Appellee

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APPENDIX ALEXSEE

iN

Caution
As of: Aug 01, 2007

GARY STEPHEN, PLAINTIFF-APPELLANT VS. VILLAGE OF BARNESVILLE,
OHIO, DEFENDANT-APPELLEE

CASE NO. 97 BA 12

COURT OF APPEALS OF OHIO, SEVENTH APPELLATE DISTRICT,
BELMONT COUNTY

1999 Ohio App. LEXIS 3922

August 20, 1999, Decided

PRIOR HISTORY: [*1] CHARACTER OF
PROCEEDINGS: Civil Appeal from Belmont County
Court of Common Pleas. Belmont County, Ohio. Case
No, 95-CV-319.

DISPOSITION: JUDGMENT: Affirmed.

COUNSEL: For Plaintiff-Appellant: Atty. John R. Tom-
lan, St. Clairsville, Ohio.

For Defendant-Appellee: Atty. Marlin J. Harper, Kinder,
Harper, Hazlett & Hinzey, St. Clairsville, Ohio.

JUDGES: Hon. Gene Donofrio, Hon. Joseph J.
Vukovich, Hon. Cheryl L. Waite. Donofrio, J. concurs.
Vukovich, J., concurs.

OPINION BY: CHERYL L. WAITE
OPINION

OPINION
WAITE, J.

This appeal emanates from a trial court judgment
finding that Appellee complied with the procedural and
substantive provisions of R.C. § 737.19 in dismissing
Appellant, Gary Stephen, from his employment as a po-
lice officer with the Village of Barnesville. For the fol-
lowing reasons, this Court affirms the judgment of the
Belmont County Court of Common Pleas.

According to Appellant, Barnesville police chief
Christopher Ditto suspended him from the police de-
partment effective September 5, 1995 after the chief in-
vestigated allegations that Appellant had engaged in sex-
ual intercourse at a park with Kristina Bailey, a twenty
seven year old developmentally handicapped woman.
(Appellant's Br., [*2] p. 5). On September 8, 1995,
Mayor Thomas Michelli notified Appellant that he was
discharged from employment as a Barnesville police
officer pursuant to R.C. § 737.19(B) because he had en-
gaged in, "sexual misconduct with an individual mentally
incompetent." While this notification is absent from the
record before this Court, Appellant does not challenge
improper or insufficient notification and both parties
agree to the language used in the notice. (Appellant's Br.,
p. 3; Appellee's Br., p. 7).

Appellant timely requested and was provided a hear-
ing on his dismissal before the village council pursuant
to R.C. § 737.19(B). At the hearing, the parties stipulated
that the evidence and witness testimony would be pre-
sented in executive session of council and that subse-
quent events, including deliberations and the vote, would
occur in open session. (Tr. p. 3).

At the hearing held before village council on Sep-
tember 18, 1995, Kristina Bailey testified, as well as her
mother Janice Hill; Police Chief Christopher Ditto; Tina
Greenwood, the pool manager at the park where the al-
leged sexual contact occurred; and school psychologist
and professional [*3] counselor Mary Barker who had
tested Ms. Bailey's mental and developmental abilities
several times while Ms. Bailey was in high school. Ap-

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1999 Ohio App. LEXIS 3922, *

pellant cross-examined these witnesses through his coun-
sel and also presented psychologist Gregory Scalzi as his
only witness.

Immediately following the hearing on September 18,
1995, the village council issued the following written
conclusions of fact:

"1. That Kristina Bailey's ability to con-
sent to sexual contact is impaired by her
mental condition and that she is not com-
petent to consent to sexual contact.

"2. That Officer Gary Stephen had
sexual relations with Kristina Bailey on
several occasions.

"3, That Officer Stephen violated his
public trust as a police officer when he
had sexual relations with Kristina Bailey.

"4. That Mayor Michelli's dismissal
of Officer Stephen is warranted by the
evidence and is therefore affirmed."

On September 28, 1995, Appellant appealed this de-
cision to the Belmont County Court of Common Pleas.
On May 31, 1996, Appellant filed a motion to add Ms.
Bailey as a party to the case and filed a motion for an
examination of Ms. Bailey to determine her impairment.
The court held a status conference [*4] and on August
20, 1996 filed a judgment entry overruling Appellant's
motions. The court also ordered Appellee to file a brief
addressing the evidence that the court should consider on
appeal in addition to the transcript of the council hearing.
Appellant was ordered to file a responsive brief.

On September 4, 1996, Appellee filed a brief assert-
ing that R.C. § 2506.03 allows the trial court to consider
only the transcript of the village council hearing because
none of the statute's listed exceptions applied and Appel-
lant was afforded the right to present evidence and cross
examine witnesses at the council hearing. Appellant filed
a response contending that the court should hold a re-
hearing or a new trial on the matter pursuant to R.C. §
2505.01(A)(3) and Heatwall v. Boston Heights (1990
68 Ohio App. 3d 96, 587 N.E.2d 440.

On November 27, 1996, the trial court agreed with
Appellee that it was confined to review of the transcript.
The court directed the parties to file trial briefs and they
complied.

On February 3, 1997, the court issued findings of
fact and conclusions of law on the matter. The court set
forth [*5] the findings of council at hearing and the tes-
timony that it found credible and relevant including tes-

timony from Ms. Bailey, her mother, and psychologists
Mary Barker and Gregory Scalzi. The court affirmed
council's dismissal of Appellant from employment and
found that council acted in accord with the provisions of
RC. § 737.19. On February 12, 1997, the court journal-
ized this decision.

On March 3, 1997, Appellant filed a notice of appeal
of the trial court's judgment. On December 1, 1997, this
Court granted Appellee's motion to dismiss Appellant's
appeal for lack of prosecution. However, on January 28,
1998, this Court reinstated the appeal in response to Ap-
pellant's application for reconsideration of the dismissal
order.

In his first assignment of error, Appellant asserts:

"THE TRIAL COURT ERRED IN
AFFIRMING THE DISMISSAL OF
OFFICER STEPHEN AS THE
VILLAGE COUNCIL DID NOT MEET
ITS BURDEN OF PROOF OF
ESTABLISHING THAT APPELLANT'S
CONDUCT WARRANTED
DISCIPLINE UNDER R.C. 737.19(B)."

Appellant analogizes R.C. § 737.19(B) to the police and
fire department civil service appeal provisions as [*6]
found in R.C. § 124.34 and cites Shaffer v. West Farm-
ington (1992), 82 Ohio App. 3d 579, 612 N.E.2d 1247 to
assert that the civil service standards and burdens of
proof apply to R.C. § 737.19(B) appeals. Applying these
standards, Appellant argues that an essential element,
Ms. Bailey's mental incompetence, was not proven by a
preponderance of the evidence because the testimony of
all of the witnesses established that Ms. Bailey was com-
petent pursuant to R.C. § 2111.01, the guardian and con-
servatorship laws. Appellant also contends that he was
denied due process because he was prevented from ade-
quately preparing his defense. He claims that charge
against him confined itself to conduct with a "mentally
incompetent" person which, by definition, does not in-
clude a person impaired by a mental condition or unable
to consent to sexual contact. Appellant argues that at
most the evidence demonstrated that he engaged in con-
sensual sexual acts with a person of impaired social
judgment.

We agree that R.C. § 737.19 may properly be analo-
gized to R.C. § 124.34. [*7] Shaffer, 82 Ohio App. 3d
579 at 582, 612 N.E.2d 1247. We also agree that while
Appellant has the burden on an administrative appeal at
the common pleas level to establish that the village au-
thority committed procedural errors, the burden of proof
is on the appointing authority to show by a preponder-
ance of the evidence that the police officer's conduct

 

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1999 Ohio App. LEXIS 3922, *

warranted discipline. /d., citing Cupps v. Toledo (1961
172 Ohio St. 536, 179 N.E.2d 70, paragraphs one and

two of the syllabus.

 

We must initially address the standard of review to
be used by this Court of Appeals. While the trial court's
review is in essence de novo, this Court's review of Ap-
pellant's contention that there was insufficient evidence
is set forth in Beyersdoerfer v. Shocket:

when addressing a sufficiency argument
in a police dismissal, the court of appeals,
just as in any other civil case, will reverse
only when there is no competent, credible
evidence going to all the essential ele-
ments of the claim.”

(1994), 93 Ohio App. 3d 647, 650, 639 N.E.2d 818, cit-
ing C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio
St. 2d 279, 376 N.E.2d 578, syllabus (cited [*8] for the
sufficiency standard in Chem. Bank of New York v. Ne-
man_ [1990]. 52 Ohio St. 3d 204, 207-208, 556 N.E.2d

490, 494); Cincinnati v. Chase, 1992 Ohio App. LEXIS
6515 (Dec. 23, 1992), Hamilton App. No. C-910808,

unreported.

Beyersdoerfer involves application of R.C. § 124.34,
however, Appellant must concede its application to the
case at bar when he advocates a direct analogy between

R.C. § 737.19(B) and R.C. § 124.34.

We recognize that village police officers are af-
forded a limited amount of job security pursuant to R.C.
§ 737.19(B). By law, however, the village marshal has
the exclusive authority to suspend police department
employees, including police officers, "for incompetence,
gross neglect of duty, gross immorality, habitual drunk-
enness, failure to obey orders given them by the proper
authority, or for any other reasonable or just cause." R.C..
§ 737.19(B) (emphasis added). Upon notice of this sus-
pension, the village mayor then reviews the reason for
suspension and decides on disciplinary action, which can
include removing the officer [*9] from the department.
Id. The officer may appeal this removal to the village
legislative authority. Jd. The legislative authority must
hear the officer's appeal at its next regularly scheduled
meeting and the officer may appear at the hearing with
counsel and may examine all witnesses and answer all
charges against him. Jd.

 

Upon conclusion of this hearing, the legislative au-
thority has the ability to dismiss the charges, uphold the
mayor's decision as to discipline, or modify the disci-
pline. Jd. A two-thirds vote is necessary to remove or
suspend the officer. Jd. When the legislative authority
upholds a decision to remove or orders removal from the

department, the officer may appeal that decision on ques-
tions of law and/or fact to the court of common pleas. Jd.
The court of common pleas undertakes a de novo review
to determine the appeal. Shaffer, 82 Ohio App. 3d 579 at
582, 612 N.E.2d_ 1247; Heatwall v. Boston Heights

1990), 68 Ohio App. 3d 96, 587 _N.E.2d 440. In con-
ducting such a review, the trial court, "* * * must weigh
the evidence in the record (and such additional evidence
as it, in its discretion, may admit) to determine [*10] if.
appellant's removal was proper pursuant to the reasons

enumerated in R.C. 737.19(B)." Shaffer, 82 Ohio App.
3d at 586.

The trial court in the instant case detailed the testi-
mony it found credible and relevant to determine that
council's dismissal of Appellant was proper pursuant to
R.C. § 737.19(B). The court looked to the testimony of
Ms. Bailey's mother who indicated that Ms. Bailey func-
tions at the level of an eleven year old and that she must
help Ms. Bailey with daily decision-making, such as
helping her decide what clothes to wear. (Tr. pp. 9, 16-
17). The court also referred to the testimony of Ms. Bai-
ley herself, who admitted that she had engaged in sexual
relations with Appellant: (Tr. p. 28). The court detailed
part of the testimony of school psychologist Mary Barker
who testified that she had administered testing to Ms.
Bailey in high school which revealed that Ms. Bailey had
a severe learning disability and functioned at the level of
a seven to eleven year old child. (Tr. p. 41). The court
also discussed the testimony of Appellant's witness
Gregory Scalzi, a school and clinical psychologist. Scalzi
testified [*11] that Ms. Bailey had an 1.Q. of 70, which
was in the mild range of mental retardation. (Tr. p. 69).

 

From the findings of fact and testimony in the re-
cord, the trial court had competent, credible evidence
before it to determine that council's dismissal was proper
and that the charge was proven by a preponderance of
the evidence pursuant to R.C, § 737.19(B). While the
trial court mentioned in its findings of fact and conclu-
sions of law that some of the evidence was "uncontra-
dicted,” this does not indicate that the trial court placed
the burden of proof on Appellant to establish that his
actions did not warrant discipline under R.C._§
737.19(B), but was merely a recitation of testimony pre-
sented at the council hearing.

Further, Appellant's argument that Kristina's mental
incompetence was not proven in conformance with the
definition set forth in R.C. § 2111.01 is misplaced. R.C.
§2111.01(D) defines "incompetent" as:

"any person who is so mentally im-
paired as a result of a mental or physical
illness or disability, or mental retardation
* * * that the person is incapable of [*12]
taking proper care of the person's self or

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1999 Ohio App. LEXIS 3922, *

property or fails to provide for the per-
son's family or other persons for whom
the person is charged by law to provide,
or any person confined to a correctional
institution within this state."

This definition has no relevance to the instant case as the
introductory line of R.C. § 2111.01 specifically states
that the definitions set forth are, "as used in Chapters
2101. to 2131. of the Revised Code." These chapters
address guardianships and other completely unrelated
matters. We cannot find from the record that the mayor,
council and the trial court referred to a definition of "in-
competent” in the sense that such a word applies to
guardianship and conservatorship. As further proof of
this, we have in the record the findings of fact by the
village council, where at numbered paragraph 1 they
clearly state that they are looking at Ms. Bailey's "com-
petency” merely as it relates to her ability to consent to
sexual intercourse.

Black's Law Dictionary states that "mental incompe-
tency": ". . .is established where there is found to exist an
essential privation of reasoning faculties, or when a per-
son is incapable [*13] of understanding and acting with
discretion in the ordinary affairs of life." (6th Ed. 1990):
986. Webster's Ninth New Collegiate Dictionary defines
“incompetent” as "1: not legally qualified 2: inadequate
to or unsuitable for a particular purpose 3a: lacking the
qualities needed for effective action b: unable to function
properly.” (1990), 610.

 

Based upon these definitions, the record establishes
Ms. Bailey's incompetence as intended and used in the
matter at bar by at least a preponderance of the evidence.
Ms. Bailey's mother testified that she attended classes for
the developmentally handicapped while in high school
and indicated that while her daughter can care for herself
with regard to hygiene, she requires help with decision-
making in the daily affairs of life, such as deciding what
to wear. (Tr. PP. 9, 16-17 ). Ms. Hill also testified that
she drives Ms. Bailey to work or her daughter walks be-
cause Ms. Bailey does not drive. (Tr. p. 18, 35). School
psychologist Mary Barker testified that her last testing of
Ms. Bailey in 1989 revealed that she was functioning at
the level of a seven to an eleven year old child. (Tr. p.
41). Both Ms. Barker and Mr. Scalzi, Appellant's own
psychologist, [*14] agreed that Ms. Bailey's IQ of 70 or
social judgment most likely did not change over the sub-
sequent years. (Tr. p. 42-43; 75). Ms. Barker further tes-
tified that Ms. Bailey has a very difficult time making
decisions and is easily led in pressured situations but
explained that Ms. Bailey is able to work at her part-time
job in a hospital washing dishes without extreme diffi-
culty because the people there know her capabilities and

the environment is very structured and repetitive. (Tr. pp.
40-43). Mr. Scalzi testified that he would find Ms. Bailey
competent from a legal standpoint within the framework
of the guardianship laws. (Tr. p. 75). However, he testi-
fied that he did not dispute any of Ms. Barker's testimony
and that upon his review of Ms. Bailey's records, she
does have an impairment in social judgment which
would include the decision to engage in sexual contact.
(Tr. p. 78).

Appellant's contention that he was denied due proc-
ess is also without merit as he was given notice of the
charge against him by the police chief and the mayor.
While the charge asserted that Appellant engaged in sex-
ual misconduct with an individual who was mentally
incompetent, again, it is not reasonable [*15] to believe
nor is it born out in the record that the definition of men-
tal incompetence contained within R.C. § 2111.01(D)
would apply to this case or was intended by the notice
given Appellant. Appellant was afforded a hearing in
front of council. He was represented by counsel and had
an opportunity to cross examine all witnesses and to pre-
sent witnesses of his own. He was also afforded an op-
portunity to appeal that decision to the trial court who
engaged in a de novo review of the record. Had Appel-
lant questioned the language in the charge, he could have
requested a clarification. As it stands, Appellant is
merely using the guardianship standard, a definition
which by its own language is not relevant, to attempt to
confuse the issue here. This attempt is unsuccessful.

In his second assignment of error, Appellant asserts:

"THE TRIAL COURT ERRED IN
ADMITTING HEARSAY EVIDENCE
IN VIOLATION OF  EVID.R.802
THEREBY PREJUDICING THE RIGHT
OF APPELLANT TO RECEIVE A FAIR
HEARING."

Appellant contends that during the testimony of Ms. Hill
and police chief Christopher Ditto at the council hearing,
his objections to alleged hearsay were erroneously over-
ruled. [*16] He claims that the witnesses’ responses did
not fall into specific hearsay exceptions. Appellant con-
tends that this prejudiced his right to a fair hearing and
tainted the conclusions of the council. Appellant also
contends that council's conclusion that he and Ms. Bailey
engaged in sexual relations on "several occasions” was
unfounded.

Appellant's second assignment of error is without
merit. Proceedings held in accordance with R.C. §
737.19(B) have been labeled administrative in nature.

Shaffer, 82 Ohio App. 3d at 585; Heatwall, 68 Ohio App.
3d at 98. Appellant concedes that the rules of evidence in

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1999 Ohio App. LEXIS 3922, *

administrative proceedings can be relaxed, but states that
while the hearsay rule can be relaxed in such proceed-
ings, the court cannot exercise its discretion to consider
hearsay evidence in an arbitrary manner. Haley v. Ohio
State Dental Bd. (1982), 7 Ohio App. 3d_1, 6, 453
N.E.2d 1262. We agree with this statement. See Simon v.

Lake Geauga Printing Co. (1982), 69 Ohio St. 2d 41, 44.
430 N.E.2d 468; Haley, 7 Ohio App. 3d at 6.

Appellant complains of the testimony of Ms. Bai-
ley's [*17] mother, who explained that she received an
anonymous phone call informing her that her daughter
was having an affair with a married man. (Tr. p. 11). Ms.
Hill testified that upon questioning by Chief Ditto, Ms.
Bailey became upset and admitted that she had sexual
contact with Appellant. (Tr. p. 14). Appellant also ob-
jected to Chief Ditto's testimony regarding his recollec-
tion of the content of conversations he had with other
persons relevant to the investigation, including his dis-
cussion with Ms. Bailey regarding the sexual contact and
the conversations between Ms. Bailey and Appellant
before, during and after the incidents. (Tr. pp. 56-57).
Appellant also complains of the chief's recollection of his
conversation with the pool manager at the park who ob-
served Ms. Bailey and Appellant together. (Tr. p. 58).

In the instant case, where relaxed evidentiary rules
are permitted, we cannot say that the trial court acted
arbitrarily, unreasonably or unconscionably in admitting
the above testimony over Appellant's objections. First,
some of the admitted testimony fits into exceptions to the
hearsay rule. For instance, Ms. Hill's recollection of the
anonymous phone call was not presented for [*18] the
truth of the matter asserted, which made it admissible.
Further, Ms. Hill's recollection of Ms. Bailey's admission
to Chief Ditto that she had sexual contact with Appellant
could also have been admitted as an excited utterance
under Evid.R. 803 (2).

Second, and most importantly, the declarants of the
statements that Appellant alleges were erroneously ad-
mitted testified in person at the hearing. Ms. Bailey testi-
fied before council that she had sexual contact with Ap-
pellant at least four times and that she engaged in these
acts to make Appellant happy. (Tr. p. 29). The pool man-
ager also testified before council as to her observations
of Ms. Bailey and Appellant at the park. (Tr. pp. 50-54).
Thus, the limitations on the guarantees of trustworthiness
were diminished by the declarant's presence and testi-
mony and Appellant had the opportunity to cross exam-
ine these witnesses.

Appellant also engages in yet another irrelevant ar-
gument in semantics in asserting that council's conclu-
sion that he engaged in sexual relations with Ms. Bailey

n "several occasions" was unfounded as "several occa-
sions" means occasions in addition to the one meeting in

the park Appellant acknowledges. Based [*19] upon Ms.
Bailey's testimony that she had engaged in sexual contact
four times with Appellant (Tr. p. 28) and with or without
the alleged "hearsay" evidence, the trial court had before
it competent credible evidence to uphold council's con-
clusion that Appellant had engaged in sexual contact "on
several occasions" with Ms. Bailey. This was a credibil-
ity issue best left to the factfi