[Cite as Ebersole v. Powell, 2019-Ohio-945.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

BRIAN EBERSOLE, et al. 

 Appellants 

-vsCITY OF POWELL, et al. 

 Appellees 

JUDGES: 

Hon. John W. Wise, J. 

Hon. Earle E. Wise, Jr., P. J. 

Hon. Patricia A. Delaney, J 

Case No. 18 CAH 02 0013 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 17 CVF 07 0412 

JUDGMENT: Dismissed 

DATE OF JUDGMENT ENTRY: March 19, 2019 

APPEARANCES: 

For Appellants For Appellee City 

STEFANIA DENBOW-HUBBARD EUGENE HOLLINS 

4388 Scenic Drive YAZAN S. ASHRAWI 

Columbus, Ohio 43214 THADDEUS M. BOGGS 

 FROST BROWN TODD LLC 

 10 West Broad Street, Suite 2300 

 Columbus, Ohio 43215 

 For Appellees Developers 

 JOSEPH R. MILLER 

 JOHN M. KUHL 

 CHRISTOPHER L. INGRAM 

 KARA M. MUNCY 

 VORYS, SATER, SEYMOUR & PEASE 

 52 E. Gay Street, P. O. Box 1008 

 Columbus, Ohio 43216-1008 
Delaware County, Case No. 18 CAH 02 0013 2

Wise, John, J. 

{¶1} Appellants Brian Ebersole and Thomas Happensack appeal the decision of 

the Court of Common Pleas, Delaware County, which denied their administrative appeal 

of the decision of Appellee City Council of Powell, Ohio, concerning development of a 

certain 8.75-acre parcel of real property. The relevant facts leading to this appeal are as 

follows. 

Subject Property 

{¶2} The 8.75-acre parcel in question is located at 2470 West Powell Road, the 

former site of a firearms range. In April 2015, Intervenor-Appellee Arlington Homes1

submitted a development plan regarding “Harper's Pointe,” a proposed residential 

development consisting of 47 single-family condominium homes, along with a requested 

change of zoning classification for the property from “R–Residential and Planned 

Commercial” to “Planned Residential–PR.” 

Ordinance 2015-18 

{¶3} On or about May 19, 2015, the city council of Powell adopted Ordinance 

2015-18, which was entitled "An Ordinance Approving A Zoning Map Amendment And 

Final Development Plan For The Development Of 47 Single Family Condominium Homes 

On 8.75 Acres Off Of Beech Ridge Drive And To Change The Zoning Map From PC, 

Planned Commercial District And R, Residence District To Reflect This Property To Be 

PR, Planned Residence District." 

 

1 Arlington Homes is the d/b/a name for Len Pivar Builders, Inc. Appellate counsel for 

Arlington Homes also represents the entity LS Powell 2470, LLC. 
Delaware County, Case No.18 CAH 02 0013 3

{¶4} Appellants, Powell residents, thereafter circulated a referendum petition 

and had Ordinance 2015-18 put to a popular vote on November 3, 2015. The voters 

disapproved Ordinance 2015-18 at that time. 

Ordinance 2016–44 

{¶5} In July 2016, Intervenor-Appellee Arlington Homes again submitted a 

development plan for Harper's Pointe on the 2470 West Powell Road property. This plan 

called for the construction of 48 single-family homes on the same 8.75 acres. Arlington 

Homes' new application again sought to rezone the property as Planned Residential–PR, 

but the zoning commission decided instead that the land should be rezoned to DR, 

Downtown Residence District. 

{¶6} On November 1, 2016, Ordinance 2016–44, intended to rezone the property 

in question from Planned Commercial and Residence Districts to Downtown Residence 

District, came before the Powell City Council. After clarification that the matter for 

consideration was the proposed rezoning and that the council was not voting on the 

proposed development plan at that time, the council approved Ordinance 2016–44. 

Ordinance 2017-14 

{¶7} On June 6, 2017, the city council passed “Ordinance 2017-14,” which 

approved a final development plan proposal prepared by Intervenor-Appellee LS Powell 

2470 LLC concerning the property, based on the criteria set forth for the site's “Downtown 

Residence District” zoning. 

Subsequent Proceedings 

{¶8} Appellants filed a notice of administrative appeal with the Delaware County 

Court of Common Pleas (hereinafter “trial court”) on July 5, 2017, challenging the 
Delaware County, Case No.18 CAH 02 0013 4

approval of the development plan. They relied in part on the Powell City Charter, Art. VI, 

§6(B), which states as follows: "Ordinances rejected or repealed by an electoral vote shall 

not be re-enacted, in whole or in part, except by an electoral vote." This provision thus 

prohibits the city council from overturning a referendum vote without first obtaining voter 

approval to do so through another popular vote.2 

{¶9} Appellants also filed a declaratory judgment action in the Delaware County 

Court of Common Pleas, which is the subject of appellate number 18 CAH 08 0056, heard 

by this Court at oral argument on the same day as the case sub judice. 

{¶10} On September 19, 2017, appellants moved to stay the proceedings of the 

administrative appeal, pending the outcome of the declaratory judgment action. Appellees 

opposed the motion to stay, and the trial court denied the same on October 12, 2017. 

{¶11} While the motion to stay was pending, appellants filed their merit brief in the 

trial court on September 28, 2017. The City and LS Powell each filed their merit briefs on 

October 12, 2017. Both the City and LS Powell argued that the administrative appeal 

should be dismissed for several reasons, including that appellants' argument advanced 

in their merit brief was a facial attack on the validity of the legislatively-adopted zoning, 

and that appellants did not have standing to prosecute the administrative appeal because 

they were not directly affected by the approval of the development plan. They further 

argued that the City's approval of the development plan was valid under the R.C. Chapter 

2506 standard of review. 

 

2 The Ohio Supreme Court, in a prior mandamus challenge involving Art. VI, §6(B), held 

that Appellant Ebersole's proper course of action was to “challenge the validity of 

Ordinance 2016–44 by way of a suit for declaratory judgment ***.” See State ex rel. 

Ebersole v. City Council of Powell, 149 Ohio St.3d 501, 2017-Ohio-509, 75 N.E.3d 1245, 

¶ 13. 
Delaware County, Case No.18 CAH 02 0013 5

{¶12} On January 11, 2018, the trial court denied appellants’ request to reconsider 

the aforesaid decision of October 12, 2017. 

{¶13} Also on January 11, 2018, the trial court issued a judgment entry dismissing 

appellants’ administrative appeal, stating that appellants had attempted to raise 

legislative, rather than administrative, issues, and that such issues were not subject to 

review under R.C. Chapter 2506. The trial court did not address the other arguments 

raised by the City and LS Powell. 

{¶14} On February 9, 2018, appellants filed a notice of appeal with this Court. 

{¶15} Appellate briefs were filed, and the appeal was ultimately set for oral 

argument on January 10, 2019. But on December 5, 2018, Intervenor-Appellees LS 

Powell 2470 LLC and Len Pivar Builders Inc., d/b/a Arlington Homes, filed a motion with 

this Court to dismiss the appeal as moot. Appellants filed a memorandum in opposition 

on December 17, 2018. The aforesaid appellees filed a reply on December 26, 2018. See

infra. 

{¶16} Appellants herein raise the following four Assignments of Error: 

{¶17} I. THE COMMON PLEAS COURT ERRED IN FINDING THAT 

ORDINANCE 2017-14 IS A LEGISLATIVE ENACTMENT THAT IS NOT SUBJECT TO 

THE ADMINISTRATIVE REVIEW PROCESS UNDER OHIO REVISED CODE 

CHAPTER 2506. 

{¶18} II. THE COMMON PLEAS COURT ERRED BY FAILING TO FIND THAT 

ORDINANCE 2017-14 IS VOID AB INITIO BECAUSE IT RE-ENACTS ORDINANCE 

2015-18 IN WHOLE OR IN PART AND THEREFORE VIOLATES POWELL CHARTER 

ART. VI, § 6(B). 
Delaware County, Case No.18 CAH 02 0013 6

{¶19} III. THE COMMON PLEAS COURT ERRED AND ABUSED ITS 

DISCRETION BY FAILING TO GRANT APPELLANTS' MOTION TO SUPPLEMENT 

THEIR BRIEF AND FURTHER ERRED BY FAILING TO ADDRESS WHETHER 

ORDINANCE 2017-14 COMPLIES WITH THE EXISTING ZONING CLASSIFICATION 

FOR THE SUBJECT PROPERTY. 

{¶20} IV. THE COMMON PLEAS COURT ERRED AND ABUSED ITS 

DISCRETION BY FAILING TO STAY ITS PROCEEDINGS PENDING THE 

RESOLUTION OF A COMPANION CASE, NAMELY DELAWARE COUNTY COURT OF 

COMMON PLEAS CASE NO. 2017-CVH-06-03 81. 

I., II., III., IV. 

Mootness Doctrine 

{¶21} As an initial matter, we will address the claim, raised by IntervenorAppellees in their motion to dismiss the appeal, that this appeal has become moot. 

Although this issue was brought to our attention after the record had been transmitted 

and the briefs had been filed, we note that “[a]n event that causes a case to become moot 

may be proved by extrinsic evidence outside the record.” State ex rel. Cincinnati Enquirer, 

Div. of Gannett Satellite Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 2002-Ohio7041, 781 N.E.2d 163, ¶ 8. 

{¶22} The issue of mootness is a question of law. Poulson v. Wooster City 

Planning Comm., 9th Dist. Wayne No. 04CA0077, 2005-Ohio-2976, ¶ 5. In cases 

involving challenges to land development or construction projects, there is no bright-line 

rule as to when a case becomes moot; the issue of mootness must be determined on a 

case-by-case basis. See Eye-Will Dev., Inc. v. Lake Cty. Planning Commission, 11th Dist. 
Delaware County, Case No.18 CAH 02 0013 7

Lake No. 2004-L-196, 2006-Ohio-6103, ¶ 46. But Ohio courts have recognized that “*** 

where an appeal involves the construction of a building or buildings and the appellant fails 

to obtain a stay of execution of the trial court's ruling and construction commences, the 

appeal is rendered moot.” Schuster v. City of Avon Lake, 9th Dist. Lorain No. 

03CA008271, 2003-Ohio-6587, ¶ 8, citing Novak v. Avon Lake Bd. of Educ., 9th Dist. 

Lorain No. 01CA007835, 2001-Ohio-1880. Accord, Kent Investors, LLC v. Flynn, et al., 

11th Dist. Portage No. 2017-P-0075, 2019-Ohio-410, ¶9. As cogently explained by the 

Seventh District Court of Appeals: “The [appellant in Schuster] did not seek a stay of 

execution of the ruling of the trial court. At oral argument, it was revealed that construction 

had begun at the development. Thus, the Ninth District held that since construction was 

occurring and there was no request for a stay, the appeal was moot.” Am. Energy Corp. 

v. Datkuliak, 174 Ohio App.3d 398, 2007-Ohio-7199, 882 N.E.2d 463 (7th Dist.), ¶ 29 

(emphasis added). 

{¶23} Other appellate districts in Ohio have faced the issue before us. For 

example, in the case of Smola v. Legeza, 11th Dist. Ashtabula No. 2004-A-0038, 2005-

Ohio-7059, the court noted that the construction of a disputed residence “had commenced 

before the appeal to the trial court” and that “the foundation was underway.” In addition, 

appellants’ counsel stated in an affidavit that he had personally observed “substantial 

construction work” being performed on the property in question. The appellate court’s 

review of the record revealed that no stay had been requested by appellants pending the 

appeal; thus, the mootness doctrine was applied. Id. at ¶ 32. 

{¶24} The case of Smetzer v. Catawba Island Twp. Bd. of Zoning Appeals, 6th 

Dist. Ottawa No. OT-17-033, 2018-Ohio-4238, involved a dispute over the building of a 
Delaware County, Case No.18 CAH 02 0013 8

retail store. One of the parties “presented evidence that construction of the Dollar General 

store at issue has commenced.” Id. at ¶ 12. Specifically, an affidavit by the builder’s COO 

stated that a preexisting structure had been demolished at a cost of $22,800, and that 

“additional work [had] been commenced on the site at a cost of $251,063” as of a certain 

date. The appeal was ultimately dismissed as moot. Id. at ¶ 16. 

{¶25} In Coates Run Property LL, L.L.C. v. Athens Bd. of Zoning Appeals, 4th 

Dist. Athens No. 15CA5, 2015-Ohio-4732, an appeal was brought to prevent construction 

of a planned student-housing development. The appellate court dismissed the appeal as 

moot, noting that “[i]n the absence of an order staying or enjoining the construction, 

Athens River Gate demolished the former church located on the property, substantially 

completed site development, and commenced construction.” Id. at ¶ 7. 

Analysis 

{¶26} In the case sub judice, the motion to dismiss the present appeal indicates 

that Appellee LS Powell 2470 has at this juncture, among other things, installed perimeter 

fencing and erosion controls on the property, demolished the existing buildings at the site, 

cleared trees, accomplished grading work, commenced environmental remediation, and 

entered into architectural contracts for the single-family homes planned. See Len Pivar 

Affidavit at ¶ 5 - ¶ 11. 

{¶27} Despite this undisputed information in the Pivar affidavit, appellants’ lengthy 

response to the motion to dismiss this appeal does not seem to directly tackle the 

mootness concerns brought about by Schuster and its progeny. Appellants first present 

the general claim that injunctive relief can be used to remove or demolish existing 
Delaware County, Case No.18 CAH 02 0013 9

structures, but they correspondingly initially avoid discussion of the problem of the lack of 

a stay under the circumstances of this appeal. 

{¶28} Appellants, in their response, also direct us to R.C. 2721.09, which states 

in pertinent part that “*** whenever necessary or proper, a court of record may grant 

further relief based on a declaratory judgment or decree previously granted under this 

chapter. ***.” Appellants urge that in light of R.C 2721.09, there is no need for them to 

obtain a stay, citing in part Olen Corp. v. Franklin Cty. Bd. of Elections, 43 Ohio App.3d 

189, 541 N.E.2d 80, 90 (10th Dist.1988), a case involving a property owner’s attempt to 

prevent the submission of a rezoning application to the voters. However, the question of 

a lack of a stay appears to play no significant role in the Olen decision. 

{¶29} Appellants also add the rather abrupt claim that since they were acting on 

behalf of a public body (citing R.C. 733.59), a stay would have been mandatory and would 

not have required the posting of a bond. However, this again fails to answer the question 

of why they did not therefore seek a stay under App.R. 7. Appellants then provide the 

unusual assurance, at this stage of the appellate proceedings, that they “are also happy 

to file a motion to stay in the trial court if this Court finds it necessary.” Appellants’ 

Memorandum in Opposition at 6, f.n. 2. 

{¶30} The remainder of appellants’ response to the motion to dismiss largely 

attempts to revisit and further develop their aforesaid arguments, and asks that should 

we deem the appeal moot, that we consider a public interest or equitable exception to the 

mootness doctrine. We note an appellate court is vested with jurisdiction to address moot 

issues that are capable of repetition yet evade review or issues that involve an important 

public right or interest. See Am. Energy Corp. v. Datkuliak, supra, at ¶ 34, citing Citizens 
Delaware County, Case No.18 CAH 02 0013 10

Word v. Canfield Twp., 152 Ohio App.3d 252, 2003-Ohio-1604, 787 N.E.2d 104, ¶ 8. 

However, while any new housing development will almost certainly alter the pattern of life 

for those who have established homes and businesses in the surrounding community, we 

find no basis to invoke the aforesaid exceptions under Ohio law in these circumstances. 

{¶31} Accordingly, we find that the issues raised in appellants’ Assignments of 

Error are moot, and the appeal will be dismissed. 

{¶32} For the reasons stated in the foregoing opinion, the appeal of the judgment 

of the Court of Common Pleas, Delaware County, Ohio, is hereby dismissed. 

By: Wise, John, J. 

Wise, Earle, P. J., and 

Delaney, J., concur. 

JWW/d 0221