COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71120 CITY OF CLEVELAND, DEPARTMENT : OF PUBLIC HEALTH, DIVISION OF : ENVIRONMENT, : : Plaintiff-Appellee : : vs. : : JOURNAL ENTRY CLEVELAND BOARD OF BUILDING : and STANDARDS & BUILDING APPEALS, : OPINION ET AL., : : Defendants-Appellees : : and : : G.R. OSTERLAND COMPANY, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : SEPTEMBER 11, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 262617 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee and William Gruber defendants-appellees: Barbara A. Langhenry Martha R. McCorkle John W. Monroe Assistant Directors of Law City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 For defendant-appellant: Mark F. Kruse Robert W. McIntyre McINTYRE, KAHN, KRUSE & GILLOMBARDO CO., L.P.A. The Galleria & Towers at Erieview 1301 East Ninth Street Suite 1200 Cleveland, Ohio 44114-1824 -3- NAHRA, P.J.: Appellant, the G.R. Osterland Company ("GRO"), appeals from the trial court's entry dissolving a temporary restraining order upon motion of appellees, the City of Cleveland, Department of Public Health, Division of Environment (the "DOE") and the Cleveland Board of Building Standards & Building Appeals (the "BBS")(appellees collectively, the City ). For the following reasons, we reverse the decision of the trial court. This case stems from appellant's attempt to build and operate a hot mix asphalt plant. In early 1993, GRO sought the required permits for the project. The DOE denied the permits, GRO appealed to the BBS, and the BBS overturned the DOE's denial. In December, 1993, the DOE filed this case as an administrative appeal and sought the trial court's review of the BBS' ruling. Shortly thereafter, GRO intervened. The parties resolved their dispute and entered a settlement agreement (the "Agreement"). The Agreement required the City to issue, renew or recommend the issuance or renewal of the required permits. By early 1994, the necessary permits to install and operate were issued and construction proceeded. The instant appeal involves permit number P54100, issued by the City on April 15, 1994. On November 4, 1994, several citizens filed an appeal with the Cleveland Board of Zoning Appeals (the "BZA"). They alleged that permit P54100 was issued in violation of Cleveland zoning ordinances. Simultaneously, a related group of citizens moved the -4- trial court to intervene in this case. Without comment, the trial court denied the group's application to intervene. On March 10, 1995, the BZA dismissed the appeal at the citizens' request. On March 20, 1995, a second group of citizens, the West Park Community Council, appealed to the BZA and requested that it invalidate the permit on the basis that it was issued in violation of City zoning ordinances (the "West Park appeal"). The BZA set a hearing date of August 7, 1995, and limited the hearing to consideration of its jurisdiction to entertain the West Park appeal. In order to terminate the West Park appeal at its inception, GRO applied to the trial court for temporary and permanent equitable relief enjoining the City, and any subdivision thereof, including the BZA, from considering the West Park appeal. The trial court held a hearing and both parties agreed that the requested equitable relief should issue. Accordingly, the trial court granted the temporary restraining order. Further, the court indicated that the permanent injunction would become effective if neither party moved to oppose it. Shortly thereafter, appellees moved to dissolve the restraining order on the ground that the trial court lacked subject matter jurisdiction to order the equitable relief. Nearly one year later, the case having been reassigned to a different trial judge, the court dissolved the temporary restraining order. Appellant timely appealed and assigned two errors for review. I. Appellant's first assignment of error states: -5- THE TRIAL COURT ERRED IN VACATING A TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION WHICH THE TRIAL COURT HAD ENTERED NEARLY ONE YEAR EARLIER BY RULING THAT IT DID NOT HAVE JURISDICTION OVER AN AGENCY OF THE CITY OF CLEVELAND (THE CLEVELAND BOARD OF ZONING APPEALS) IN SPITE OF THE FACT THAT (A)"THE CITY OF CLEVELAND" HAD INITIATED THE SUBJECT LAWSUIT, (B) "THE CITY OF CLEVELAND" HAD ENTERED A SUBSEQUENT STIPULATED ORDER (EXPRESSLY ON BEHALF OF ITSELF AND ANY AND ALL "DIVISIONS OR DEPARTMENTS") IN WHICH IT STIPULATED TO THE CONTINUING JURISDICTION OF THE TRIAL COURT, AND (C) "THE CITY OF CLEVELAND" CONSENTED TO THE SUBJECT TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION. While a court issuing equitable relief has inherent authority to modify or vacate its decree, see, In re Skrha (1994), 98 Ohio App.3d 487, 497, courts typically do so only where the facts or law upon which the relief was issued have materially changed. See, e.g., Johnson v. Preston, Dir. Of Hwys., (1967), 12 Ohio St.2d 100, 41 O.O.2d 407, 233 N.E.2d 132; Cleveland v. Ohio Dept. of Mental Health(1992), 84 Ohio App.3d 769, 773, 618 N.E.2d 244. Here, the trial court did not analyze a change in facts or law. Rather, the court examined whether it possessed jurisdiction initially to enter the temporary restraining order. Finding that it did not possess said jurisdiction, the trial court dissolved the restraining order and thereby prevented the injunction from becoming effective. Because we find that the trial court had jurisdiction, we hold that it erred when it dissolved the temporary restraining order. Simply, the Agreement divests the BZA of jurisdiction over the West Park appeal. Concomitantly, the Agreement invests the trial court with the authority to enjoin the BZA from hearing the appeal as a mechanism for enforcing the Agreement. -6- The Agreement is a contract. Continental W. Condominium Unit Owners Assn. v. Howard E. Ferguson, Inc. (1996), 74 Ohio St.3d 501, 502, 660 N.E.2d 431. A trial court possesses continuing jurisdiction to enforce and interpret the terms of a settlement agreement. See, e.g., Mack v. Polson Rubber Co. (1984), 14 Ohio St.3d 34, 14 OBR 335, 470 N.E.2d 902. Consonant with this well established law, the parties defined the scope of the trial court's jurisdiction in paragraph III(11) of the Agreement that states: Until the termination of the Agreement, the Court shall retain jurisdiction to modify and enforce the terms and conditions of this Agreement and to resolve disputes arising hereunder, as may be necessary and appropriate for the construction or execution of this Agreement. Thus, the trial court's jurisdiction extends over disputes arising under the Agreement. In addition, the trial court is authorized to interpret and enforce the Agreement's terms. Consequently,the trial court possessed jurisdiction to grant the restraining order against the BZA. The City, and all of its subdivisions,including the BZA, effectively decided the propriety of issuing P54100 when it issued the permit. Indeed, during the hearing, the City represented that it considered the permit to be lawfully issued and stated that the City had fully and finally resolved the question of its legal issuance. Accordingly, the City has conclusively evaluated the legality of the permit and the BZA, merely a branch of the City, has no authority to reconsider the issue and thereby interfere with GRO's vested contractual right to P54100. We view the restraining order and injunction as permissible methods of enforcing the terms of the Agreement and -7- fully within the jurisdiction of the trial court. Consequently, we hold that the decision to dissolve the restraining order was erroneous. For this reason, we sustain appellant's first assignment of error. II. Appellant's second assignment of error addresses the propriety of issuing the equitable relief and states: THE TRIAL COURT ERRED IN VACATING A TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION WHICH RESTRAINED THE CITY OF CLEVELAND (THROUGH ITS CLEVELAND BOARD OF ZONING APPEALS ("BZA")" FROM CONDUCTING A HEARING ON AN "APPLICATION FOR APPEAL" WHEN THE TRIAL COURT HAD ALREADY MADE THE SPECIFIC FINDING OF FACT THAT SAID "APPLICATION FOR APPEAL" HAD NOT BEEN TIMELY FILED IN THE BZA, AND THE BZA DOES NOT HAVE JURISDICTION TO HEAR THE SUBJECT UNDER APPEAL. We agree with the trial court's conclusion that the West Park appeal was not timely asserted. The City issued P54100 in April, 1994. The West Park appeal was filed on March 20, 1995. We believe that the passage of nearly one year exceeds the reasonable time to challenge the issuance of the permit. The City conceded no less. Moreover, appellant's second assignment of error is rendered moot by our resolution of its first assignment of error. Judgment reversed. -8- This cause is reversed for proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KARPINSKI, J., and PATTON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .