[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 : O P I N I O N

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.