Summary
In Roper, this court decided whether a particular property owner had standing to appeal a board of zoning appeals' issuance of a variance to another property owner in the township.
Summary of this case from Midwest Fireworks Mfg. v. Deerfield Twp. Bd.Opinion
No. 37114
Decided February 28, 1962.
Zoning — Township Board of Zoning Appeals — Hearing — Change of zone area from residential to commercial — Property owner of township opposing change — Right of appeal to Common Pleas Court.
A resident, elector and property owner of a township, who appears before a township Board of Zoning Appeals, is represented by an attorney, opposes and protests the changing of a zoned area from residential to commercial, and advises the board, on the record, that if the decision of the board is adverse to him he intends to appeal from the decision to a court, has a right of appeal to the Common Pleas Court if the appeal is properly and timely made pursuant to Sections 519.15 and 2506.01 to 2506.04, inclusive, and Chapter 2505, Revised Code.
CERTIFIED by the Court of Appeals for Summit County.
In an election in May 1960, a proposal was presented to the electorate of the township of Richfield, Summit County, Ohio. If passed, this proposal would have changed the zoning of a 100-acre parcel of land in the township from a R-1, residential zone, to a C-1, commercial zone, to permit the construction of an oil distribution center on such 100-acre tract.
This zoning change was defeated by the electorate of the township.
Soon thereafter, Steven Nagy, Jr., owner of a 50-acre tract wholly within the 100-acre tract referred to above in the referendum question, applied to the Richfield zoning inspector for a permit to construct such an oil distribution center on the 50-acre tract.
The inspector refused to grant such a permit on the ground that the 50-acre parcel in question was located in an area which had been designated by a township zoning resolution as R-1, residential, that the electorate had refused to change this zoning use, and that an oil distribution center could only be built in a commercial zone.
Nagy then appealed to the Richfield Township Board of Zoning Appeals for a zoning change permitting the construction of the oil distribution center.
The Board of Zoning Appeals held a public hearing upon Nagy's appeal on June 30, 1960. Notice of this public hearing was published as required by law.
Peter Roper, a resident, elector and property owner in the township, appeared with his attorney, in response to a public notice required by statute, to protest this change in zoning from residential to commercial. Roper spoke in opposition to the proposed change, and his attorney, representing him, presented both argument and citations of law in opposition to the change.
A reading of the record indicates that to describe the hearing as informal is charitable. It, in fact, got completely out of hand on more than one occasion. From the record this would not appear to have been the fault of Roper or his attorney, but rather the result of the large crowd which was present, the inability of the chairman to maintain order and the inability of the secretary to record the proceedings.
Before the hearing was concluded and a vote taken by the board, Roper advised the board, according to the record, that, if this application for a zoning change was granted, he intended to appeal the matter and that the board should get itself an attorney.
At the close of the hearing, the application for a zoning change was granted by the board by a vote of three to two.
On July 9, 1960, Roper filed the following notice of appeal in the Common Pleas Court of Summit County, stating that he was a party adversely affected by the decision of the Board of Zoning Appeals:
"Appellant, Peter Roper, a party adversely affected by the following decision of the township Board of Zoning Appeals for the township of Richfield, Summit County, Ohio, hereby gives notice of his appeal from said decision to the Court of Common Pleas of Summit County, Ohio:
"`We (Board of Zoning Appeals, township of Richfield, Summit County, Ohio) permit the granting of a variance to Mr. Steve Nagy, Jr., permitting the use of lot No. 14 as described in the appeal, for a petroleum distribution center, by applicant, appellant or his successors in title to aforedescribed lands. Above permission to be granted pursuant to Article XIII, Sec. A-4b of the Richfield Township Zoning Resolutions, to alleviate an unnecessary hardship (land was because of location and condition not suitable for residential development), lot 14 has no access to any street or roads except as can be negotiated by Steven Nagy, Jr., with owners of adjacent property. Property as herein stated is presently zoned R-1 residential but due to changing character of the properties on the north, and on the west, and change in drainage caused by construction of this turnpike, all of which factors contribute to an unnecessary hardship on the property owners.'
"The above decision was rendered by the board of appeals on the 30th day of June 1960 in the appeal of Steven Nagy, Jr., a.k.a. Steve Nagy, Jr., to said Board of Zoning Appeals, wherein the said Board of Zoning Appeals granted Steven Nagy, Jr.'s, request for a variance. The within appeal is taken to the Summit County Common Pleas Court from the decision of the Richfield Township Board of Zoning Appeals, granting Steven Nagy, Jr.'s, request for a variance on June 30, 1960.
"Said appeal is on question of law and fact.
[signature] Jerome A. Klein,
Attorney for Appellant."
The only parties designated in this notice of appeal are Peter Roper and the Board of Zoning Appeals of Richfield Township, Summit County, Ohio. Steven Nagy, Jr., then filed an application for leave to intervene as a party in the proceeding, and the Common Pleas Court granted his application. Nagy then filed a motion to dismiss the proceedings on the ground that Roper had no right of appeal. The Common Pleas Court granted this motion and entered a judgment of dismissal.
That judgment of dismissal was appealed from to the Court of Appeals, which reversed the judgment.
This cause was certified to this court by the Court of Appeals as a conflict case, it being in conflict with the case of Abrams v. Gearhart, case No. 257 in the Court of Appeals of the Seventh Appellate District.
Mr. Jerome A. Klein and Mr. Peter P. Roper, for appellee.
Mr. John S. Ballard, prosecuting attorney, Mr. William R. Baird, Mr. John D. Smith, Messrs. Friedman Heilman and Mr. John J. Brown, for appellants.
Prior to the amendment of Section 519.15, Revised Code, effective September 17, 1957, it read in part as follows:
"The board shall fix a reasonable time for the hearing of the appeal, give ten days' notice to the parties in interest, and decide the appeal within a reasonable time after it is submitted. Upon the hearing, any party may appear in person or by attorney. Any person adversely affected by a decision of a board may appeal to the Court of Common Pleas of the county in which such township is located, on the ground that the decision was unreasonable or unlawful. The court may affirm, reverse, vacate, or modify the decision complained of in the appeal." (Emphasis added.)
When Section 519.15 was amended, effective September 17, 1957, the portion in italics above was deleted. However, on September 16, 1957, one day prior to the effective date of the above deleting amendment, Chapter 2506, Revised Code, entitled, "Appeals from Orders of Administrative Officers and Agencies," became effective. Section 2506.01, Revised Code, reads as follows:
"Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the Common Pleas Court of the county in which the principal office of the political subdivision is located, as provided in Sections 2505.01 to 2505.45, inclusive, of the Revised Code, and as such procedure is modified by Sections 2506.01 to 2506.04, inclusive, of the Revised Code.
"The appeal provided in Sections 2506.01 to 2506.04, inclusive, of the Revised Code is in addition to any other remedy of appeal provided by law.
"A `final order, adjudication, or decision' does not include any order from which an appeal is granted by rule, ordinance, or statute to a higher administrative authority and a right to a hearing on such appeal is provided; any order which does not constitute a determination of the rights, duties, privileges, benefits, or legal relationships of a specified person; nor any order issued preliminary to or as a result of a criminal proceeding."
The position of the appellants is that, since the language in Section 519.15, Revised Code, which designated who might appeal prior to September 17, 1957, has been deleted, and the language in Chapter 2506, Revised Code, which broadens the category of decisions which are reviewable under Chapter 2505 does not specify at whose instance such appeals may be brought, in the instant cause no one has a right of appeal to the Common Pleas Court except Nagy, who was the applicant for a zoning change before the Board of Zoning Appeals. In other words, appellants' position is that, if Nagy lost before the Board of Zoning Appeals, he could appeal to the Common Pleas Court, but, if he won before the Board of Zoning Appeals, no one could appeal.
This "heads I win, tails you lose" position is contrary to the intention of the Legislature in making these amendments and is repugnant to the majority of this court.
True, the right to appellate review is not an inherent or inalienable right but must be conferred by authority of statute. It is equally well settled that only parties to the litigation can appeal from the judgment of a court.
In the instant case, however, we are not dealing with an appeal from a court of record, where the procedure is orderly and an accurate record of the proceedings is kept.
The Legislature recognized that a township Board of Zoning Appeals is government at the grass roots. The procedure in this instance was slipshod and uncertain. The proceedings were strictly informal and the opportunity to be effectively heard depended, to a certain extent, upon an aggressive demeanor and a loud voice. The Legislature, in our opinion, recognized the need for an opportunity for review of the decisions of administrative agencies and broadened the right of review to include "every final order, adjudication, or decision of any * * * board * * * of any political subdivision of the state." Section 2506.01, Revised Code.
Judge Doyle, writing the opinion for the Court of Appeals which reversed the judgment of the Common Pleas Court, stated that the action of Roper in the instant cause was "tantamount to making him a party" and said that he was entitled to appeal.
Nagy would relegate Roper to the role of a witness. A reading of the record, however, does not bear out this contention. Roper came to this hearing not as a witness, and he appeared not as a witness. He came as a person whose interests were adversely affected, and he appeared with his lawyer in person in opposition to a zoning change which would damage Roper and his property. He was present pursuant to the language in Section 519.15, Revised Code, that "upon the hearing, any person may appear in person or by attorney." (Italics supplied.)
The order of the Board of Zoning Appeals affected and determined Roper's rights as a property owner, and thus he came within the class of "specified" persons referred to in Section 2506.01, Revised Code. The board was advised prior to its decision that, if it decided adversely to Roper, his attorney intended to appeal the matter.
These facts are sufficient to make Roper a party for the purpose of appeal to the Common Pleas Court from an adverse decision of the Board of Zoning Appeals, pursuant to Sections 519.15 and 2506.01 to 2506.04, inclusive, and Chapter 2505, Revised Code.
The judgment of the Court of Appeals is hereby affirmed.
Judgment affirmed.
WEYGANDT, C.J., TAFT and RADCLIFF, JJ., concur.
ZIMMERMAN, MATTHIAS and BELL, JJ., dissent.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.