The opinion
[Cite as Moore v. Sandusky Bldg. Code Bd. of Appeals, 2024-Ohio-1799.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Shameka L. Moore, Trustee Court of Appeals No. E-23-042
Appellant Trial Court No. 2022 CV 0116
v.
City of Sandusky Building DECISION AND JUDGMENT
Code Board of Appeals
` Decided: May 10, 2024
Appellee
*****
Shameka L. Moore, pro se, appellant.
Stewart Hastings, City of Sandusky
Law Director, and Sarah C. Chiappone
Assistant Law Director, for appellee.
*****
DUHART, J.
{¶ 1} Appellant, Shameka L. Moore, Trustee, appeals, pro se, from a judgment
entered by the Erie County Court of Common Pleas, affirming a decision by appellee,
Sandusky Building Code Board of Appeals, to demolish appellant’s building located at
937 W. Washington Street, Sandusky, Ohio. For the reasons that follow, the trial court’s
judgment is affirmed.
Statement of the Case and the Facts
Notice, Order and Pending Order of Demolition
{¶ 2} On November 17, 2020, a Sandusky resident contacted the Sandusky Police
Department, complaining that a large piece of metal had detached from the roof of
appellant’s property at 937 W. Washington Street and struck his vehicle, which had been
parked nearby. As a result of that incident, together with the property’s long history of
degradation, the City of Sandusky’s Chief Building Official, Scott Thom, issued a
“Notice, Order and Pending Order of Demolition” (the “Order”). Appellant appealed the
Order to the City of Sandusky Building Code Board of Appeals (“the Board”).
April 29, 2021 Hearing
{¶ 3} At a hearing held before the Board on April 29, 2021, appellant stated that
she did not want to see her building demolished, and that she would do whatever was
needed to fix any problems. When Board member John Feick asked appellant whether
she had assessed the damages herself, appellant stated that the only issues she had seen
involved leaking in the skylight areas. She said she did not see any safety concerns.
{¶ 4} Feick said that his walk-through of the building earlier that day
demonstrated to him that a third of the roof was rotten and beginning to fall in. Appellant
said she would have her structural engineer come in to assess the condition of the roof.
Feick told appellant that she would need to provide engineered structural drawings.
{¶ 5} Board member Roger Gundlach said that he saw the same items that Feick
did with respect to the roof. He further commented that the mechanical systems in the
building were 40-50 years old and, for safety, probably needed to be replaced.
2.
{¶ 6} Board member Greg Schmid stated that the building was in “really bad
shape,” recounting,
We, obviously, all saw the water issues in that back room, but
there’s also a water leak in the corner of the front room; and
that has nothing to do with the skylights because it’s on the
higher side of that roof. … The skylights are leaking. There’s
also some vents or piping in that roof area that had a big leak
in it. The stucco is falling off the exterior of the building. It’s
heavily cracked. The flashing at the roof, there’s areas where
there is not flashing at the roof, so that water is just running
into the walls.
… I would like to see a testing agency come in and do a mold
report and inspect the walls and see how much mold … is in
that building.
{¶ 7} Feick said that if appellant were to hire an engineer, the engineer’s job
would be to evaluate the building and provide a set of construction documents, so the
building could be fixed. Feick clarified that he did not want a report that said that the
building could be fixed; instead, he wanted a report stating how the building would be
fixed in order to make it safe. Specifically, he sought “a set of construction documents
[showing] how to repair [the] building top to bottom.” Feick stated that he wanted those
documents by June 30, 2021.
{¶ 8} Next, Feick said that appellant’s engineer would have to put together a
timeline as to how long the repairs should take to complete.
{¶ 9} Finally, Feick stated that appellant’s engineer should have cost estimates for
the work to be done and that appellant should have a letter from her bank confirming that
she had the funds sufficient to complete the work.
3.
{¶ 10} Appellant and all of the other Board members agreed with Feick’s plan.
Appellant indicated that she understood the plan, stating “[W]e have until June 30th to
get the documentation to [Chief Building Official Scott Thom] about the overall
structure, what needs to be done, how we supposed to do it, and a guideline.”
January 20, 2022 Hearing
{¶ 11} At a second hearing, held on January 20, 2022, the Board stated that it had
received only a report from appellant’s structural engineer, and not a full set of
rehabilitation plans. In addition, the Board stated that it had received no timeline, no cost
estimations, and no letter from appellant’s bank.
{¶ 12} Appellant and her counsel stated that they believed that the requested
paperwork had been sent to the Board, but also that the necessary work had been
completed by appellant’s husband, and that the building was no longer a dangerous
building.
{¶ 13} At one point during her comments, appellant suggested that the
administrative process was being used against her in this matter due to racial
discrimination:
The reason why you are going through what you are going
through is because you are trying to hold us up unjustly, and
it’s a racial discrimination when one of your head people tells
me that I should not be queen sugar because I want to buy
property in this city. No, you have – or I have a recorded
conversation where they said, ‘Shameka, they want you gone,
and that building, too.’ Scott has made that very well – very
well clear in the email that he sent us to let us know that this
board had already come to a decision, and his attorney, which
is very smart, cut it off right there where it was supposed to
go.
4.
{¶ 14} She subsequently suggested that she had been a victim of not only racial
discrimination, but also sex discrimination, sexual harassment, and bullying:
Now, my husband can fix everything. Yes, the repairs are
done. Scott has not even came back to check and see. Why?
Why? Why? Why? Because I’m black? Because I’m a
woman?
…
Just because we’ve got this building we’ve got to go through
this bullshit? It has been 16 years. 16 years. I’ve been getting
sexually harassed; I’ve been getting bullied. It’s enough. No,
Mr. Feick.
{¶ 15} Ultimately, Feick said that in order to verify that the work had been done,
the Board would like to have a chief building official do a walkthrough of the building,
and if the building was “in a safe condition,” with a deterioration percentage of no more
than 50%, “then it would come out of condemnation.”
February 7, 2022
{¶ 16} In an inspection report dated February 7, 2022, Chief Building Official
Scott Thom stated that he, Primary Master Plans Examiner George Poulos, and Electrical
Safety Inspector Greg Capucini had performed an exterior and interior inspection of
appellant’s property at 937 W. Washington Street on February 4, 2022, and that, pursuant
to that inspection, they found the property to be “at least 80% damaged, decayed and
deteriorated from its original construction,” with the property’s plumbing, HVAC,
electrical, lighting, and hydronic mechanical systems 95% deteriorated. According to the
report:
Roofs are not watertight, several areas are leaking, and light
is visible through the roof assembly in the rear one-story
5.
portion of the structure, water damage is visible in multiple
locations throughout the structure, snow was observed within
the structure on the 1st and 2nd floors, water-soaked
components will decay at an accelerated rate further
damaging the structural elements. Mold most likely exists
throughout due to roof leaks, presenting unsanitary and
inadequate facilities to protect the health, safety and general
welfare of human beings who may be frequenting it.
The interior is dilapidated with finishes missing, plumbing
and mechanical units damaged, perhaps beyond repair, floors,
walls and ceiling neglected. Utilities to the structure have
been turned off.
{¶ 17} The report further stated that the Engineering Report that was submitted by
appellant’s engineer, Paul A. Trimarchi, P.E. had been reviewed, and that the “Exterior
Repairs appear to not be in compliance with Mr. Trimarchi’s instructions provided.”
(Emphasis in original.) In addition, “[a]ll of the repairs detailed [by Trimarchi] for the
Indoor Building Addition (one-story rear), Basement and 2nd Story would have required
a permit for work to commence. Application was not made, permits were not issued and
none of the work specified in the Indoor Building Addition (one-story rear), Basement
and 2nd Story portions of the structure was performed.” Finally, the report noted that
“[t]he structural assessment of the roof assembly was not done by Mr. Trimarchi as
specified in the “notice, Order and Pending Order of Demolition” dated December 8,
2020…. As a requirement…to save the structure the structural assessment of the roof
assembly was required.”
March 10, 2022 Hearing
{¶ 18} At the final hearing, held on March 10, 2022, Chief Building Official Thom
was sworn in and testified as to the contents of the February 7, 2022 report. He stated that
6.
the report showed that essentially nothing had changed since the Board went through the
property in May 2018. He stated that the building was “in the same condition, actually a
little worse.”
{¶ 19} Appellant countered that “all of the outside work” on the property had been
done, and that this was the work that specifically addressed the public safety hazard that
she considered to be the issue in this case. She complained that George Poulos never
inspected the roof in the back and that Greg [Capucini] never inspected “the other part.”
Speaking to the inspectors’ credentials, appellant said that although Poulos was an
architect, Thom was “just” a builder and, therefore, could not make determinations based
on structure.
{¶ 20} Appellant asked that she be allowed to move forward with the remainder of
the repair work that was prescribed in the report authored by her engineer, and Feick said,
“Well, you’re here because you didn’t do the work.”
{¶ 21} Feick concluded the hearing by saying, “I think our question is, the
building’s been determined by the chief building official to be unfit. It’s over the 50
percent of …deterioration. And they’ve already determined that it’s to be torn down and
we’re to affirm that or deny it.” The Board then voted unanimously to affirm the
demolition order.
{¶ 22} Appellant appealed the decision to the Erie County Common Pleas Court
pursuant to R.C. 2506.01(A).
7.
July 10, 2023 Trial Court Judgment Entry
{¶ 23} In a judgment entry dated July 10, 2023, the trial court found that the
Board’s decision was supported by a preponderance of substantial, reliable, and probative
evidence, and that appellant had failed to rebut the presumption of correctness as
provided in R.C. 2506.04. The trial court noted that appellant’s arguments contained new
evidence that could not be properly considered due to the requirements set forth in R.C.
2506.03, but also that even if the court were to consider that new evidence, such evidence
was “irrelevant” and would not “aid in rebutting the presumption of correctness.”
Accordingly, the trial court affirmed the Board’s decision to demolish appellant’s
building.
Assignments of Error
{¶ 24} Appellants asserts the following assignments of error on appeal:
I. The trial court abused its discretion by allowing written reports of an
expert witness when the witness did not have specialized knowledge,
skill, experience, or training regarding the subject matter of
testimony as required under the Ohio Rule of Evidence 702.
II. The trial court abused its discretion by advising appellant to
terminate her attorney.
8.
Analysis
First Assignment of Error
Administrative Appeal Standard of Review
Common Pleas Court Standard of Review
{¶ 25} R.C. 2506.04, which governs review of administrative appeals, provides:
If an appeal is taken in relation to a final order, adjudication,
or decision covered by division (A) of section 2506.01 of the
Revised Code, 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. The
judgment of the court may be appealed by any party on
questions of law as provided in the Rules of Appellate
Procedure and, to the extent not in conflict with these rules,
Chapter 2505 of the Revised Code.
{¶ 26} The trial court must “weigh[] the evidence to determine whether a
preponderance of reliable, probative, and substantial evidence supports the administrative
decision, and if it does, the court may not substitute its judgment for that of the board.”
Independence v. Office of the Cuyahoga Cty. Executive, 2014-Ohio-4650, ¶ 13, citing
Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 207 (1979). “If it does not,
the court may reverse, vacate, or modify the administrative decision.” Id.; R.C. 2506.04.
“In fulfilling its role under the statute, the common pleas court begins with the
presumption that the board’s decision is valid; the appealing party has the burden to
demonstrate otherwise.” OMNI Property Companies v. Sylvania Twp. Bd. of Zoning
9.
Appeals, 2022-Ohio-3083, ¶28 (6th Dist.), citing JSS Properties, II, LLC v. Liberty Twp.
Bd. of Zoning Appeals, 2018-Ohio-1492, ¶ 6 (5th Dist.).
Appellate Court Standard of Review
{¶ 27} This court has recently articulated the appellate court’s standard of review,
as follows:
The court of appeal’s standard of review under R.C. Chapter
2506 is more limited than the trial court’s review. Kisil v.
Sandusky. 12 Ohio St.3d 30, 34 (1984). The court of appeals
reviews the common pleas court’s judgment only on
questions of law and does not have the same extensive
authority to weigh the evidence. Id. at 34, fn. 4. Among those
questions of law, the appellate court is tasked with the
question of whether the common pleas court abused its
discretion. Id. The court of appeals must affirm unless it
finds, as a matter of law, that the trial court’s decision is not
supported by a preponderance of reliable, probative, and
substantial evidence. Id. Such a deferential standard of review
in administrative appeals acts to strongly favor affirmance.
Cleveland Clinic Found. V. Cleveland Bd. of Zoning Appeals,
2014-Ohio-4809. ¶ 30. See generally, Shelly Materials, Inc. v.
City of Streetsboro Planning and Zoning Comm., 2019-Ohio-
4499.
OMNI Property at ¶ 29.
Trial Court Did Not Abuse its Discretion
a. Trial Court is Confined to Transcript
{¶ 28} We initially address the trial court’s determination that it could not properly
consider new evidence that appellant had submitted in her initial appeal to the court.
{¶ 29} In hearing an appeal taken in relation to a final order, adjudication, or
decision covered by division (A) of section 2506.01 of the Revised Code, the court shall
be confined to the transcript filed under section 2506.02 of the Revised Code unless it
10.
appears, on the face of that transcript or by affidavit filed by the appellant, that one of an
enumerated list of circumstances applies. R.C. 2506.03(A)(1)-(5). A review of the record
does not reflect the presence of any of the listed circumstances. In addition, appellant did
not file an affidavit with the trial court attesting that one of these circumstances existed.
Thus, the trial court did not err by prohibiting appellant from filing additional evidence.
b. The Board’s Decision was Supported by a Preponderance of Substantial,
Reliable, and Probative Evidence.
{¶ 30} In the case at hand, the trial court found that the Board’s decision was
supported by a preponderance of substantial, reliable, and probative evidence.
{¶ 31} In dispute of this conclusion, appellant suggests that her engineer and his
evidence were more credible than that submitted by the Chief Building Official. For
example, appellant states that the trial court erred by favoring “the testimony of General
Contractors and Attorneys instead of the written and certified proof of an engineer with
over 30 Years of expertise experience in this field along with an architect who has been
in business for over 20 years.”
{¶ 32} Appellant further suggests that the Board itself did not have the knowledge
or experience to hear the case. Specifically, she states: “[T]he Board does not and do not
have any specialized knowledge, skill, experience, or training regarding the demolition
inspection that they spoke on.”
{¶ 33} Finally, appellant argues that the trial court “chose to overlook the facts and
the truth.”
11.
{¶ 34} We begin with appellant’s claim that the Board and the Building Official
lacked the qualifications to testify as expert witnesses under Evid.R. 702. It is well-
established that to testify as a witness under Evid.R. 702, the witness “must demonstrate
some degree of knowledge, skill, experience, training, or education in the field the
witness seeks to evaluate.” Taulbee v. Dunsky, 2003-Ohio-5988, ¶17 (12th Dist.), citing
McKinney v. Schlatter, 118 Ohio App.3d 328 (12th Dist.1997). However, it is also well-
established that “‘[s]trict and technical rules of criminal or civil judicial hearings do not
apply to [administrative hearings].’” Ohio Div. of Securities v. Treece, 2022-Ohio-3267, ¶
17 (6th Dist.), quoting Clayton v. Ohio Bd. of Nursing, 2016-Ohio-643, ¶ 34.
{¶ 35} In the instant case, the record contains no evidence addressing the specific
degree of knowledge, skill, experience, training, or education possessed by the Board
members and Building Official who were tasked with evaluating the condition of
appellant’s property. However, to be a member of the Board requires certain
qualifications, as set forth in Sandusky Codified Ordinance 1309.01. Sandusky Codified
Ordinance 1309.01(c) provides:
The Board shall consist of five individuals, one from each of
the following professions or disciplines:
(1) Registered design professional with architectural
experience or a builder or superintendent of building
construction with at least ten years’ experience, five of
which shall have been in responsible charge of work.
(2) Registered design professional with structural engineering
experience.
(3) Registered design professional with mechanical and
plumbing engineering experience or a mechanical
contractor with at least ten years’ experience, five of
which shall have been in responsible charge of work.
12.
(4) Registered design professional with electrical engineering
experience or an electrical contractor with at least ten
years’ experience, five of which shall have been in
responsible charge of work.
(5) Registered design professional with fire protection
engineering experience or a fire protection contractor with
at least ten years’ experience, five of which shall have
been in responsible charge of work.
{¶ 36} Sandusky Codified Ordinance 1309.02(a)(1) provides that the Building
Official serves as an ex officio, non-voting member of the Board, and appellant
acknowledges Chief Building Official Thom’s status in this case as that of a “general
contractor.”
{¶ 37} In the instant case, there is nothing in the record to indicate that either the
Building Official or the Board members who evaluated appellant’s appeal lacked the
credentials (as established by ordinance or otherwise) to evaluate building standards. We,
therefore, find that the trial court did not abuse its discretion either in accepting the
Building Official’s testimony or in accepting the Board members’ qualifications to hear
the appeal.
{¶ 38} Next, we look at the evidence that was presented to the Board and,
ultimately, formed the basis of the Board’s decision. In this case, the Building Official
stated that appellant’s property was 80% deteriorated. Observing that there was visible
light coming through the roof, he opined that mold likely existed throughout the
structure. In addition, he stated that the plumbing, HVAC, electrical, lighting, and
hydronic mechanical systems were 95% deteriorated.
13.
{¶ 39} By contrast, appellant’s engineer failed to submit drawings and repair
timelines to the Board. He also did not appear before the Board in order to explain his
findings or rebut the Building Official’s remarks. Appellant’s engineer only submitted a
repair summary to the Board.
{¶ 40} The Board, after weighing the credibility of both appellant’s and the
Building Official’s evidence, determined that the property was unsafe. We find that the
trial court, upon its review, did not abuse its discretion when it concluded that the
Board’s decision was supported by a preponderance of reliable, probative, and substantial
evidence, particularly in its judgment of the witnesses and their testimonies. We
additionally find that neither the Board nor the common pleas court erred in disregarding
appellant’s vaguely-stated and otherwise unsubstantiated claims of discrimination,
harassment, and bullying.
{¶ 41} Accordingly, appellant’s first assignment of error is found not well-taken.
Second Assignment of Error
{¶ 42} In her second assignment of error, appellant simply states that the trial
court advised her to terminate her attorney. Looking to the record, we see that appellant,
pro se, filed a motion for recusal in the trial court on May 10, 2023. Attached to her
motion was a brief that stated that the judge and his clerk had advised her that she “didn’t
need a counsel.” In support of this accusation, appellant attached a picture of a text
message from December 2022, which stated “Judge said you are ok right now with the
atty situation.” We begin by stating that this limited evidence does not support the
contention that the trial court judge advised appellant to discharge her attorney.
14.
{¶ 43} To the extent that appellant seeks our direct review of the trial court’s
denial of her motion for recusal, we find that we are without jurisdiction to conduct such
review, because “[o]nly the Chief Justice of the Ohio Supreme Court or her designee has
the authority to pass upon the disqualification of a common pleas court judge.” State v.
Quinn, 2014-Ohio-340, ¶ 31 (6th Dist.). Accordingly, appellant’s second assignment of
error is found not well-taken.
Conclusion
{¶ 44} For all of the foregoing reasons, the judgment of the Erie County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________
JUDGE
Myron C. Duhart, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
15.