Agenda - Planning Commission - 03/03/2016

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January 10, 2016 1 Volume 10 1 Issue 1 Zoning Bulletin Mootness—Entity appeals issuance of zoning variance to developer but fails to seek a stay of construction pending the appeal Developer, having proceeded with construction, claims appeal is now moot Citation: Coates Run Property LL, L.L.C. v. Athens Bd. of Zoning Appeals, 2015 -Ohio -4732, 2015 WL 7201259 (Ohio Ct. App. 4th Dist. Athens County 2015) OHIO (11/12/15)—This case addressed the issue of whether an appellant's failure to obtain a stay or injunction preventing the commencement of a construction project rendered the zoning appeal moot. The Background/Facts: Athens River Gate, LLC ("ARG") sought to develop a planned student -housing project in the City of Athens (the "City"). In that regard, ARG applied to the City for a variance from the total lot - coverage requirement of the Athens City Code (the "Code"). The City's zoning administrator denied the variance. ARG appealed, and the City's Board of Zoning Appeals (the `Board") granted ARG the requested variance. Subsequently, Coates Run Property LL, LLC, ("Coates Run") which owned a student -housing complex in another party of the City, appealed the Board's decision to the county court. The court dismissed the appeal, finding Coates Run lacked standing (i.e., the legal right to bring the case). Coates Run again appealed. Importantly, Coates Run never sought a stay of ARG's construction of the planned student -housing development. While the appeal was pending, and in the absence of an order staying or enjoining the construction, ARG demolished the existing building on the property, substan- tially completed site development, and commenced construction. By the time of the hearing on the appeal, ARG claimed to have spent approximately $2,400,000 in connection with the construction of its student -housing development. ARG asked the appellate court to dismiss the appeal as moot because construction of its planned student -housing development that Coates Run sought to prohibit had commenced. DECISION: Motion to dismiss granted; appeal dismissed as moot. The Court of Appeals of Ohio, Fourth District, Athens County, agreed that ARG had established that Coates Run's appeal was moot because no stay or injunction was obtained pending appeal, and construction of the contested development had proceeded at substantial expense. In so holding, the court noted that "a `case is moot when the issues pre- sented are no longer `live' or the parties lack a legally cognizable interest in the outcome.' "Conversely, said the court, "if an actual controversy exists because it is possible for a court to grant the requested relief, the case is not moot, and a 6 © 2016 Thomson Reuters