When administrative appeals have been exhausted and the decision is not favorable § ORC 2506.01 provides an extra and additional appeal to the Court of Common Pleas.
R.C. Chapter 2505 governs the procedure for perfecting an R.C. 2506.01 administrative appeal. Jacobs v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga No. 102448, 2015-Ohio-2278, ¶15. R.C. 2505.04 states, in part:
"An appeal is perfected when a written notice of appeal is filed, * * * in the case of an administrative-related appeal, with the administrative officer, agency, board, department, tribunal, commission, or other instrumentality involved."
(¶15} Furthermore, R.C. 2505.07 provides that a notice of appeal must be perfected within 30 days.
Pursuant to Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202, 203-204, 389 N.E.2d 1113 (1979), under the statute, in order to perfect an administrative appeal, the notice of appeal must be
(1) filed in the common pleas court within the statutory time and also
(2) filed with the administrative body that issued the challenged decision.
The term “filed” in R.C. 2505.04 is not defined in the statute, and the statute is silent as to the permissible method for filing and serving the notice of appeal.
§ 2506.01 Appeal from final order, adjudication, or decision of political subdivision officer or division.
(A) Except as otherwise provided in sections 2506.05 to 2506.08 of the Revised Code, and except as modified by this section and sections 2506.02 to 2506.04 of the Revised Code, 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 court of common pleas of the county in which the principal office of the political subdivision is located as provided in Chapter 2505 of the Revised Code.
(B) The appeal provided in this section is in addition to any other remedy of appeal provided by law.
(C) As used in this chapter, “final order, adjudication, or decision” means an order, adjudication, or decision that determines rights, duties, privileges, benefits, or legal relationships of a person, but does not include any order, adjudication, or decision from which an appeal is granted by rule, ordinance, or statute to a higher administrative authority if a right to a hearing on such appeal is provided, or any order, adjudication, or decision that is issued preliminary to or as a result of a criminal proceeding.
_________________________Read this case AT&T COMMUNICATIONS v. Lynch, 132 Ohio St. 3d 92 - Ohio: Supreme Court 2012
Reviewability, Jurisdiction & Venue
R.C. 2505.07 provides that a notice of appeal must be perfected within 30 days.
Under R.C. 2505.04, in order to perfect an administrative appeal, the notice of appeal must be: (1) filed in the common pleas court within the statutory time; and also (2) filed with the administrative body that issued the challenged decision. The term "filed" in § 2505.04 is not defined in the statute, and the statute is silent as to the permissible method for filing and serving the notice of appeal.
The purpose of R.C. 2505.04 is to give timely notice of the appeal to the administrative agency. An appellant may use any method reasonably certain to accomplish delivery to the agency within the appeal time. A timely delivery of the notice of appeal to the agency constitutes "filing" under § 2505.04 that satisfies the jurisdictional requirement for an administrative appeal. A "filing" under § 2505.04 for the purposes of perfecting an administrative appeal can be achieved by having the clerk of court serve the notice of appeal on the administrative agency, provided the service is timely.
Standards of Review, De Novo Standard of Review
While an appeal under R.C. 2506.01 resembles a de novo proceeding, it is not de novo. There are limits to a court of common pleas review of the administrative body's decision. For example, in weighing evidence, the court may not blatantly substitute its judgment for that of the agency, especially in areas of administrative expertise. Further, new evidence is admitted in an R.C. Chapter 2506 appeal only under certain circumstances. A § 2506.01 appeal makes liberal provision for the introduction of new or additional evidence. Typically, however, a court of common pleas, in reviewing an administrative decision, is limited to the "transcript as filed," according to R.C. 2506.03, with limited exceptions involving the integrity of the evidence in the underlying proceeding. Thus, while a court of common pleas in a § 2506.01 appeal may consider evidence outside the administrative record, that authority is limited.
Judicial Review, Standards of Review
In reviewing an administrative body's decision, a court of common pleas is authorized to determine whether the agency's decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence. R.C. 2506.04. The court will then affirm, reverse, vacate, or modify the order, or remand the underlying administrative decision under that standard of review specified in the statute. § 2506.04. These standards that a court of common pleas must employ and the dispositions that it must reach are more limited than relief that could be awarded pursuant to a trial, and therefore, the administrative appeal is more akin to an appeal than a trial. Therefore, although an R.C. Chapter 2506 appeal proceeds differently from an appeal of a trial court judgment, a court of common pleas nevertheless "performs an appellate function."
Reviewability, Jurisdiction & Venue
Jurisdiction over an administrative appeal does not vest in a common pleas court unless and until an appeal is perfected.
Judicial Review, Reviewability
See R.C. 2505.05.
Judicial Review, Reviewability
The filing of a notice of appeal in an R.C. 2506.01 administrative appeal serves the purpose of informing the opposing party of the taking of an appeal.
Reviewability, Jurisdiction & Venue
An appeal of an administrative decision to a court of common pleas alerts the opposing party that an appeal of the underlying decision is being taken. Requiring an appellee who seeks to change or reverse a portion of the decision to file a separate appeal also serves that purpose. Accordingly, in an administrative appeal to a court of common pleas pursuant to R.C. 2506.01, each party seeking to reverse or modify the underlying administrative decision must perfect a separate appeal in order to vest the common pleas court with jurisdiction to review each party's respective assignments of error.
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Where a union lacked standing to bring a taxpayer action against a county board of commissioners challenging the creation of an employee retirement incentive plan that excluded sanitary engineering division employees, that to the extent that the union had standing, the union failed to exhaust its administrative remedies prior to suit or establish that such exhaustion would have been futile. State ex rel. Teamsters Local Union No. 436 v. Bd. of County Comm'rs, 2012-Ohio-1861, 132 Ohio St. 3d 47, 969 N.E.2d 224, 2012 Ohio LEXIS 986 (Ohio 2012).
When considering R.C. 2506.01 administrative appeals, an appellate court must affirm the trial court’s judgment unless the appellate court finds, as a matter of law, that the trial court’s decision is not supported by a preponderance of reliable, probative and substantial evidence: Buck v. Board of County Comm'rs, 1998 Ohio App. LEXIS 5366 (Ohio Ct. App., Washington County Oct. 29, 1998).
To be appealable under R.C. 2506.01, an administrative decision must be rendered in a quasi-judicial proceeding. The earmarks of such proceedings include requirements of notice, a hearing and an opportunity to introduce evidence: Lakota Local Sch. Dist. Bd. of Educ. v. Brickner, 108 Ohio App. 3d 637, 671 N.E.2d 578, 1996 Ohio App. LEXIS 157 (Ohio Ct. App., Wood County 1996).
The city council’s adoption of the recommendation of the assessment equalization board was a legislative act, and thus was not appealable under R.C. 2506.01: Thomas v. City of Beavercreek, 105 Ohio App. 3d 350, 663 N.E.2d 1333, 1995 Ohio App. LEXIS 2988 (Ohio Ct. App., Greene County 1995).
Pursuant to R.C. 2506.01, plaintiffs could appeal any decision resulting from hearings of the Mansfield Water Division: Mansfield Apartment Owners Ass'n v. Mansfield, 988 F.2d 1469, 1993 U.S. App. LEXIS 4470 (6th Cir. Ohio 1993).
Proceedings of administrative officers and agencies are not quasi-judicial, and thus appealable under R.C. 2506.01, where there is no requirement for notice, hearing and an opportunity to introduce evidence: Prosen v. Dimora, 79 Ohio App. 3d 120, 606 N.E.2d 1050, 1992 Ohio App. LEXIS 1543 (Ohio Ct. App., Cuyahoga County), dismissed, 65 Ohio St. 3d 1408, 598 N.E.2d 1161, 1992 Ohio LEXIS 2071 (Ohio 1992).
A city council’s rejection of an ordinance was a legislative function, not an adjudication and thus was not appealable pursuant to R.C. 2506.01: German Village Soc., Inc. v. Columbus City Council, 1992 Ohio App. LEXIS 2152 (Ohio Ct. App., Franklin County Apr. 16, 1992).
An administrative agency’s giving notice, conducting a hearing and allowing evidence to be presented does not create a right of appeal under R.C. 2506.01 where the proceedings are not quasi-judicial in nature requiring notice, hearing and the opportunity for introduction of evidence: In re Appeal of Howard, 73 Ohio App. 3d 717, 598 N.E.2d 165, 1991 Ohio App. LEXIS 3318 (Ohio Ct. App., Franklin County 1991).
Because the appellants complied with the express terms of R.C. 2505.04 when they timely filed their notice of appeal with the agency from which the appeal was taken, the appeal was perfected without need to file an additional notice of appeal with the court of common pleas. The lack of a judgment rendered for money damages or of the appellees’ identification of an interest that would need to be secured by bond pending appeal renders R.C. 2505.06 inapplicable: Cleavinger v. Board of County Comm'rs, 72 Ohio App. 3d 187, 594 N.E.2d 135, 1991 Ohio App. LEXIS 134 (Ohio Ct. App., Hamilton County 1991).
An administrative proceeding must be quasi-judicial in nature before an order issuing from it can be appealed under R.C. 2506.01. To determine that an act is quasi-judicial, the proceeding must be shown to involve an exercise of discretion that requires notice, a hearing and an opportunity for the introduction of evidence: Gunn v. Euclid Teachers Asso., 65 Ohio App. 3d 312, 583 N.E.2d 1324, 1989 Ohio App. LEXIS 5127 (Ohio Ct. App., Cuyahoga County 1989), dismissed, 50 Ohio St. 3d 707, 553 N.E.2d 683, 1990 Ohio LEXIS 533 (Ohio 1990).
In a proceeding under R.C. Chapter 2506, the court of common pleas must weigh the evidence in the record, and whatever additional evidence may be admitted pursuant to R.C. 2506.03, to determine whether there exists a preponderance of reliable, probative and substantial evidence to support the agency decision. This does not mean, however, that the court may blatantly substitute its judgment for that of the agency, especially in areas of administrative expertise: Dudukovich v. Lorain Metropolitan Housing Authority, 58 Ohio St. 2d 202, 12 Ohio Op. 3d 198, 389 N.E.2d 1113, 1979 Ohio LEXIS 415 (Ohio 1979).
Revised Code Chapter 2506 governs appeals from orders of administrative officers, including appeals from orders of a board of education under R.C. 3319.081(C): In re Appeal of Sergent, 49 Ohio Misc. 36, 3 Ohio Op. 3d 308, 360 N.E.2d 761, 1976 Ohio Misc. LEXIS 51 (Ohio C.P. 1976).
When a city council acts or refuses to act in its legislative capacity, its action or refusal to act may not be appealed under R.C. Chapter 2506. An appeal may be taken under R.C. Chapter 2506 from the action or refusal to act of a city council when that body is acting in a quasi-judicial and not in a legislative capacity: Flair Corp. v. Brecksville, 49 Ohio App. 2d 77, 3 Ohio Op. 3d 146, 359 N.E.2d 459, 1976 Ohio App. LEXIS 5804 (Ohio Ct. App., Cuyahoga County 1976).
Revised Code Chapter 2506 is supplemental to the requirements of R.C. Chapter 2505 for appeal to the common pleas court from final orders of administrative agencies: Grimes v. Cleveland, 17 Ohio Misc. 193, 46 Ohio Op. 2d 279, 243 N.E.2d 777, 1969 Ohio Misc. LEXIS 311 (Ohio C.P. 1969).
Except to the extent that they may conflict with R.C. Chapter 2506, R.C. 2505.04 and 2505.05 apply to the perfection of an appeal and the form of a notice of appeal, pursuant to Chapter 2506, from the decision of an agency of a political subdivision: Thomas v. Webber, 15 Ohio St. 2d 177, 44 Ohio Op. 2d 150, 239 N.E.2d 26 (1968).
The right of appeal provided by R.C. Chapter 2506, is a plain and adequate remedy in the ordinary course of the law, while the injunctive relief provided in R.C. 2727.02 et seq and the mandamus relief provided in R.C. 2731.01 et seq are extraordinary remedies not in the ordinary course of the law: State ex rel. Pressley v. Indus. Comm'n, 11 Ohio St. 2d 141, 40 Ohio Op. 2d 141, 228 N.E.2d 631, 1967 Ohio LEXIS 344 (Ohio 1967).
Revised Code §§ 2506.01 to 2506.04, inclusive, afford an adequate remedy at law by way of appeal from a final order, adjudication or decision of an administrative board, so that the writ of prohibition will not issue at the instance of a party who alleges irregularities in the proceedings of such a board and anticipates that such a board will deprive him of procedural and substantive rights: State ex rel. De Weaver v. Faust, 1 Ohio St. 2d 100, 30 Ohio Op. 2d 383, 205 N.E.2d 14, 1965 Ohio LEXIS 570 (Ohio 1965).
The board of trustees of a township is an agency of a political subdivision of the state within the meaning of R.C. 2506.01, which permits an appeal to the court of common pleas from a “. . . final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state. . .”: Petitioners for Incorporation v. Board of Twinsburg, 4 Ohio App. 2d 171, 33 Ohio Op. 2d 230, 211 N.E.2d 880, 1965 Ohio App. LEXIS 501 (Ohio Ct. App., Summit County 1965).
Mandamus to compel issuance of use and building permits will not lie where applicants failed to allege facts in their petition which show that their right to appeal pursuant to R.C. Chapter 2506 is not a plain and adequate remedy at law: State ex rel. Sibarco Corp. v. Hicks, 177 Ohio St. 81, 29 Ohio Op. 2d 227, 202 N.E.2d 615, 1964 Ohio LEXIS 797 (Ohio 1964).
Property owners’ appeal from a decision of the equalization board to the common pleas court under R.C. 2506.01 was not their exclusive remedy, and the statute did not deprive the common pleas court of its original jurisdiction in equity: Dorman v. Kincade, 18 Ohio Op. 2d 472, 176 N.E.2d 872, 86 Ohio Law Abs. 343, 1961 Ohio Misc. LEXIS 328 (Ohio C.P. 1961).
Since R.C. Chapter 2506 provides a remedy by judicial review of final orders of administrative boards of municipalities, relator has an adequate remedy at law by way of appeal to test the claimed invalidity of a zoning ordinance: State ex rel. Gund Co. v. Solon, 171 Ohio St. 318, 13 Ohio Op. 2d 444, 170 N.E.2d 487, 1960 Ohio LEXIS 545 (Ohio 1960).
Additional remedies
Revised Code §§ 2506.01 to 2506.04 inclusive, providing for appeals from orders of administrative officers and agencies, do not impair in the slightest the remedy of mandamus where the only issue is a showing of a clear right to the order sought: State ex rel. Trusz v. Middleburg Heights, 112 Ohio App. 87, 16 Ohio Op. 2d 24, 163 N.E.2d 778, 82 Ohio Law Abs. 481, 1960 Ohio App. LEXIS 645 (Ohio Ct. App., Cuyahoga County 1960).
Administrative failure to act
A refusal to act does not determine any rights, duties, privileges, benefits, or legal relationships of the appellant; and, therefore, appeal under R.C. Chapter 2506 is not available where an administrative body refuses to perform an act required by law: State ex rel. Benton's Village Sanitation Service, Inc. v. Usher, 34 Ohio St. 2d 59, 63 Ohio Op. 2d 90, 295 N.E.2d 657, 1973 Ohio LEXIS 348 (Ohio 1973).
Affirmance
Trial court relied on sufficient evidence under R.C. 2506.01 to affirm a decision of a village council to remove the village police chief for malfeasance, based on the fact that he had followed a husband home, informed the wife that the husband was involved in an affair, used his authority to have a speeding ticket against the wife issued only as a warning, and also used his authority to have the husband arrested for driving while intoxicated. Fairbanks v. Wayne, 2006-Ohio-6057, 2006 Ohio App. LEXIS 6009 (Ohio Ct. App., Wood County 2006).
There was support under R.C. 2506.01 and 2506.04 for the affirmance of a decision by a village council to remove a village marshal from his office due to malfeasance, pursuant to R.C. 737.171, where he used the Law Enforcement Automated Data System without cause to run a check on his ex-wife’s boyfriend, which was a violation of OAC 4501:2-10-06(B). The employee was unable to meet the “but for” test to show that the removal from office was in retaliation for a lawsuit that reinstated him following a prior removal. Holbrook v. Vill. of Marblehead, 2006-Ohio-1397, 2006 Ohio App. LEXIS 1272 (Ohio Ct. App., Ottawa County 2006).
Annexation
When a village brought an appeal, under R.C. ch. 2506 and R.C. 709.07, of the decision of a board of county commissioners (board) to deny the village’s annexation petition, and the village argued that a city’s expedited type-1 annexation petition seeking to annex some of the same parcels as the village’s petition, which the board had granted, did not comply with R.C. 709.022 and 701.07, the village’s argument was not considered because, under R.C. 709.022(B), a decision to grant an expedited type-1 annexation petition could not be appealed, so the village’s R.C. ch. 2506 appeal was an improper collateral attack on the board’s decision to grant the city’s petition. Vill. of E. Canton v. Stark County Bd. of County Comm'rs, 2009-Ohio-2555, 2009 Ohio App. LEXIS 2169 (Ohio Ct. App., Stark County 2009).
In reviewing a decision by a city board of commissioners to authorize annexation of a portion of a township to the city, based on a limited standard of review which limited the appellate court’s review to a determination of whether, as a matter of law, the decision of the common pleas court was not supported by a preponderance of reliable, probative, and substantial evidence, the appellate court found that the trial court did not err in finding the petition met the requirements of R.C. 709.033 and in affirming the commissioners’ decision to grant the annexation. Wadsworth Twp. Bd. of Trs. v. City of Wadsworth (In re Petition to Annex 331.2143 Acres), 2004-Ohio-1425, 2004 Ohio App. LEXIS 1282 (Ohio Ct. App., Medina County 2004).
Revised Code § 709.07 provides the exclusive remedy for persons who challenge a board of county commissioners’ approval of a landowners’ annexation petition: Petition to Annex 320 Acres to South Lebanon v. Doughman, 1992-Ohio-134, 64 Ohio St. 3d 585, 597 N.E.2d 463, 1992 Ohio LEXIS 1920 (Ohio 1992).
Township trustees may appeal a board of county commissioners’ denial of a landowners’ petition for annexation through an R.C. Chapter 2506 appeal. However, township trustees may challenge a board of county commissioners’ allowance of a landowners’ petition for annexation only through an R.C. 709.07 injunction action: In re Annexation of 311.8434 Acres of Land v. Lewis, 64 Ohio St. 3d 581, 597 N.E.2d 460, 1992 Ohio LEXIS 1897 (Ohio 1992).
Neither R.C. 709.07 nor R.C. Chapter 2506 provides a remedy for township trustees desiring to challenge allowance of a petition under R.C. 709.16(B) for annexation of contiguous property which is owned by a municipal corporation: In re Annexation of 466.112 Acres from Washington Township to Centerville, 65 Ohio St. 3d 226, 602 N.E.2d 1136, 1992 Ohio LEXIS 3137 (Ohio 1992).
A vote of a county council in which a proposed resolution to approve a petition for annexation is not adopted is not a final appealable order within the meaning of R.C. 2506.01. A final order is present only when the council passes a resolution expressly granting or denying the petition as required by R.C. 709.033: In re Petition for Annexation of 5.11 Acres, 34 Ohio App. 3d 18, 516 N.E.2d 1255, 1986 Ohio App. LEXIS 10319 (Ohio Ct. App., Summit County 1986).
The remedy available to township trustees upon the entering of an order allowing an annexation is injunctive relief as provided under R.C. 709.07. The underlying trial court decision allowing annexation in the landowner’s R.C. Chapter 2506 appeal from the denial of a petition for annexation cannot be dispositive of the R.C. 709.07 action, as its adoption would effectively deny the trustees their only remedy: Carlyn v. Davis, 14 Ohio App. 3d 22, 469 N.E.2d 989, 1984 Ohio App. LEXIS 11230 (Ohio Ct. App., Summit County 1984).
Appealable event
Act of establishing the certified list ranking individuals for possible promotion by score was the appealable event on the issue of one candidate's eligibility to sit for a promotional test for the rank of captain. Morgan v. Mount Vernon Civ. Serv. Comm'n, 2016-Ohio-5029, 2016 Ohio App. LEXIS 2822 (Ohio Ct. App., Knox County 2016).
Appeals
City council’s motion to dismiss was properly granted because the trial court lacked subject matter jurisdiction under R.C. 2506.01 because adoption of resolution No. 36-2017 did not arise from a quasi-judicial proceeding. While council gathered information through an administrative process — one that incorporated notice, hearings, and the introduction of evidence — it was not required to do so and thus, use of an administrative setting was voluntary, not mandatory and did not arise from a quasi-judicial proceeding. Nyland v. Olmsted Falls City Council, 2019-Ohio-4257, 2019 Ohio App. LEXIS 4325 (Ohio Ct. App., Cuyahoga County 2019).
CBA permitted the former police officer to appeal his discharge to the Columbus Civil Service Commission (Commission) under Columbus, Ohio, City Charter §§ 109 and 149-1; the CBA permitted the officer to appeal the termination of his employment to the Commission, and nothing in the CBA restricted the scope of the Commission’s jurisdiction on appeal, and the Commission had jurisdiction to enforce Section 17.9 of the CBA and modify the officer’s discipline. Hassey v. City of Columbus, 2018-Ohio-3958, 111 N.E.3d 1253, 2018 Ohio App. LEXIS 4331 (Ohio Ct. App., Franklin County 2018).
Board of Tax Appeals (BTA) did not have to give any deference to a board of review decision, and deference to the board of review decision was illogical as the BTA properly heard evidence in the taxpayers’ case not presented to the board of review; the appeal provided pursuant to this section was expressly in addition to any other remedy or appeal provided by law. MacDonald v. City of Shaker Heights Income Tax Bd. of Review, 2014-Ohio-708, 2014 Ohio App. LEXIS 693 (Ohio Ct. App., Franklin County 2014), aff'd, 2015-Ohio-3290, 144 Ohio St. 3d 105, 41 N.E.3d 376, 2015 Ohio LEXIS 2085 (Ohio 2015).
Former city council member failed to establish that the court of appeals erred in denying his claim for a writ of quo warranto because the member had an adequate remedy by way of administrative appeal from his removal; the member waived his claim that his administrative appeal under R.C. 2506.01 did not constitute an adequate remedy by failing to raise it in the court of appeals, and he cited no case in support of his claim that R.C. 2506.04 did not authorize an award of back pay and benefits in the context of an administrative appeal pursuant to R.C. 2506.01. State ex rel. Capretta v. Zamiska, 2013-Ohio-69, 135 Ohio St. 3d 177, 985 N.E.2d 454, 2013 Ohio LEXIS 43 (Ohio 2013).
Appellants had standing to appeal under R.C. 2506.01 from a city council’s grant of a conditional use permit to a developer because (1) they were represented by an attorney during the administrative proceedings; (2) they actively participated in the public hearings before both the planning commission and the city council to voice their objections; (3) the council’s granting the permit directly affected them as neighboring residents; and (4) they gave adequate notice of their intentions to appeal the council’s decision. Hickory St. Coalition v. City of Akron Planning Comm'n, 2004-Ohio-2246, 2004 Ohio App. LEXIS 2001 (Ohio Ct. App., Summit County 2004).
—Aggrieved parties
Property owners who opposed a fire pit that was constructed in the backyard of adjoining property owners (APOs) failed to properly challenge the city’s interpretation of the zoning code and its administrative decision to issue the APOs a building permit, as they should have filed an administrative appeal or joined the city as a necessary party in their judicial action rather than attempting to seek judicial relief. Baruk v. Heritage Club Homeowners' Ass'n, 2014-Ohio-1585, 2014 Ohio App. LEXIS 1531 (Ohio Ct. App., Warren County 2014).
R.C. 2506.01(A) allows aggrieved parties to appeal administrative decisions of political subdivisions. Siebenthaler Co. v. Beavercreek Twp., 2009-Ohio-6595, 2009 Ohio App. LEXIS 5538 (Ohio Ct. App., Greene County 2009).
—Legislative orders
County board of commissioners' abolishment of registered land in the county pursuant to R.C. 5310.36 was a legislative act not subject to an appeal; the action was not quasi-judicial because in issuing the resolution the board did not execute or administer any existing law relating to the facts of any specific case or individual, rather, it enacted a new law abolishing registered land after considering the overall costs and benefits. Engelhart v. Hamilton County Bd. of Comm'rs, 2016-Ohio-4935, 69 N.E.3d 137, 2016 Ohio App. LEXIS 2731 (Ohio Ct. App., Hamilton County 2016).
R.C. 2506.01 provides for appeals only from quasi-judicial proceedings, which require notice, a hearing, and the opportunity to introduce evidence. That section does not authorize a court to review an exercise of legislative authority. Residents of Country Hills v. Oak Hills Local Sch. Dist. Bd. of Educ., 2004-Ohio-1697, 2004 Ohio App. LEXIS 1508 (Ohio Ct. App., Hamilton County 2004).
Appellate review
Trial court did not err by upholding the administrative decision of the police chief to deny appellant’s application for an outdoor permit to discharge firearms because the police did not believe that shooters would be adequately supervised, people were shooting from the wrong direction, and projectiles were leaving the property. The trial court did not err by excluding two letters that appellant’s counsel wrote about prior permit applications, because they pre-dated the outdoor permit application at issue in this case. MVSG, LLC v. Knight, 2019-Ohio-1551, 2019 Ohio App. LEXIS 1642 (Ohio Ct. App., Montgomery County 2019).
trial court's reversal of the magistrate's decision, which reversed the zoning board of appeals' (ZBA) denial of a conditional use permit, was erroneous as a matter of law; the magistrate correctly determined that the ZBA's decision was arbitrary, capricious and unreasonable, and there was a preponderance of reliable, probative and substantial evidence to support granting the conditional use. Savon Enters., LLC v. Bd. of Trs. of the Boardman Twp., 2016-Ohio-735, 60 N.E.3d 534, 2016 Ohio App. LEXIS 659 (Ohio Ct. App., Mahoning County 2016).
Trial court erred when it reversed a magistrate's decision and held that a zoning ordinance was unconstitutionally vague, as a property owner's facial constitutional challenge to the ordinance was not properly before the trial court on an administrative appeal from the zoning board because such a challenge could only be brought in a declaratory judgment action. Steiner v. Morrison, 2016-Ohio-4798, 68 N.E.3d 151, 2016 Ohio App. LEXIS 3243 (Ohio Ct. App., Mahoning County 2016).
Village administrator was not required to appeal his termination pursuant to the village manual because he was specifically exempt. He was not required to appeal the decision to terminate him from his non-statutory positions under the statute because his termination from his positions at a council meeting were not the result of a quasi-judicial proceeding, since he was not classified and was not a civil service protected employee. Jamison v. Galena, 2015-Ohio-2845, 38 N.E.3d 1176, 2015 Ohio App. LEXIS 2755 (Ohio Ct. App., Delaware County 2015).
Trial court erred in finding the city ordinance was ambiguous, but nevertheless was correct in concluding the owner did not need a variance for his fence, because the fence, measured from the ground to the top, did not exceed four feet, when the ordinance did not make reference to a landscaping mound or retaining wall; had the city wished to include landscaping features, retaining walls, or other surface irregularity or elevation, it could have done so, and in the absence of such language, the ordinary and natural way to measure a fence was to measure from the ground on which it was mounted to its highest point. Miller v. City of Canton, 2011-Ohio-6783, 2011 Ohio App. LEXIS 5602 (Ohio Ct. App., Stark County 2011).
Applicability
Adjacent property owners’ administrative appeal of a decision from a city board of zoning appeals which granted a property owner’s request for variances, wherein the adjacent owners asserted that the trial court failed to conduct a hearing on their administrative appeal, lacked merit because § 119.12 was only applicable to administrative appeals from state agencies; rather, R.C. 2506.01 was applicable. Dembie v. City of Cleveland, 2008-Ohio-3971, 2008 Ohio App. LEXIS 3341 (Ohio Ct. App., Cuyahoga County 2008).
Trial court was correct in finding that R.C. Chapter 2506 did not apply to the assessment of construction fees for curbs and gutters upon the homeowners. R.C. 729.01 conferred that power to the village. By ordinance, the village created the assessments and was not merely administrating an existing law i.e., a zoning variance to a zoning ordinance. Grossenbacher v. Village of Strasburg, 2007-Ohio-1633, 2007 Ohio App. LEXIS 1489 (Ohio Ct. App., Tuscarawas County 2007).
When a property owner sought review of a city council’s resolution finding that her property was a nuisance, she could not do so under R.C. 2506.01 because that statute only gave a trial court jurisdiction to review a final resolution of a quasi-judicial proceeding, and the city council’s resolution was not a quasi-judicial order because the owner had no notice that it might issue, nor did she have an opportunity to present evidence before the city council. City of Englewood v. Turner, 2006-Ohio-2667, 168 Ohio App. 3d 41, 858 N.E.2d 431, 2006 Ohio App. LEXIS 2491 (Ohio Ct. App., Montgomery County 2006).
To be appealable under R.C. 2506.01, an administrative decision must be rendered in a quasi-judicial proceeding, the earmarks of which included requirements of notice, a hearing, and an opportunity to introduce evidence, and whether there was an adjudication depended not upon what the administrative agency actually did, but rather upon what the administrative agency should have done, so where the administrative agency should have given notice, conducted a hearing and afforded the parties an opportunity to be heard and to introduce evidence, its order was the result of an adjudication even if the administrative agency failed to afford such notice and hearing. State ex rel. Hilltop Basic Res., Inc. v. City of Cincinnati, 2005-Ohio-6817, 166 Ohio App. 3d 171, 849 N.E.2d 1064, 2005 Ohio App. LEXIS 6132 (Ohio Ct. App., Hamilton County 2005).
A coroner’s findings do not satisfy the definition of an order appealable under R.C. Chapter 2506: Goldsby v. Gerber, 31 Ohio App. 3d 268, 511 N.E.2d 417, 1987 Ohio App. LEXIS 8283 (Ohio Ct. App., Cuyahoga County 1987).
An appeal to the Court of Common Pleas of Franklin County from an order of the Board of Building Standards denying an individual’s application for approval as the chief building official for a municipal building department is governed by R.C. Chapters 119 and 3781. R.C. Chapter 2506 has no application to such an appeal: Wahle v. Department of Industrial Relations, Bd. of Bldg. Standards, 14 Ohio App. 3d 101, 470 N.E.2d 200, 1983 Ohio App. LEXIS 11442 (Ohio Ct. App., Franklin County 1983).
Appropriation of property
Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings where an involuntary taking of private property is alleged. The matter was not within the jurisdiction of the city’s sidewalk board of appeals and there was no quasi-judicial proceeding for purposes of R.C. 2506.01: State ex rel. Hilltop Basic Res., Inc. v. City of Cincinnati, 2005-Ohio-6817, 166 Ohio App. 3d 171, 849 N.E.2d 1064, 2005 Ohio App. LEXIS 6132 (Ohio Ct. App., Hamilton County 2005).
Building permits
The proper procedure to test an official’s refusal to issue a building permit is by way of appeal to the court of common pleas after all administrative remedies of appeal, if any, are exhausted: The Chapel v. Solon, 40 Ohio St. 3d 3, 530 N.E.2d 1321, 1988 Ohio LEXIS 383 (Ohio 1988).
Child care provider certificate
Trial court erred in finding that a provider of child care services did not have written approval for instances of variance from the Ohio Admin. Code 5101:2-14-20(K) six-hour rule because the department’s “sign-off” on the provider’s scheduled hours by a social worker and its payments thereof constituted its written approval as a variance to the 6-hour rule. Lambert v. Lake County Dep't of Children & Family Servs., 2013-Ohio-433, 2013 Ohio App. LEXIS 396 (Ohio Ct. App., Lake County 2013).
Civil service
As a county employee failed to comply with the statutory filing requirements pursuant to R.C. 4112.06(H) with respect to her appeal of a decision from the Ohio Civil Rights Commission regarding her disability discrimination claim against her employer, the appeal had to be dismissed; R.C. 2506.01(A) was not applicable, and the employee could not rely on the independent remedy of R.C. 4112.99 where she did not file a separate civil action under that statutory remedy. Toliver v. Montgomery County Jobs & Family Servs. Div., 2009-Ohio-3521, 2009 Ohio App. LEXIS 3001 (Ohio Ct. App., Montgomery County 2009).
As Columbus, Ohio, Civ. Serv. Comm’n R. X(F)(1)(a) did not create a right to appeal a limited employment appointment, an employee’s appeal to a trial court pursuant to R.C. 2506.01 from his termination from employment was properly dismissed; without a hearing by the Commission on the employee’s appeal from his termination, there was no quasi-judicial decision to give the trial court subject matter jurisdiction over the matter. Gaines v. Columbus Civ. Serv. Comm'n, 2009-Ohio-2662, 182 Ohio App. 3d 576, 913 N.E.2d 1039, 2009 Ohio App. LEXIS 2301 (Ohio Ct. App., Franklin County 2009).
Where an employee signed a limited employment agreement stating that he would be terminated in nine months or when the injured worker he was replacing returned to work, whichever came sooner, he did not acquire a property interest in continued employment. The trial court properly found that it lacked subject matter jurisdiction over the employee’s appeal because the termination was not quasi-judicial in nature: Gaines v. Columbus Civ. Serv. Comm'n, 2009-Ohio-2662, 182 Ohio App. 3d 576, 913 N.E.2d 1039, 2009 Ohio App. LEXIS 2301 (Ohio Ct. App., Franklin County 2009).
As a promotional process for a city police chief position was not a quasi-judicial administrative procedure, a trial court lacked jurisdiction pursuant to R.C. 2506.01(A) to review the merits of a police corporal’s appeal from a city civil service commission’s decision to appoint someone else to the chief position, although the corporal received the highest score on the promotional exam. Perkins v. Mount Vernon Civ. Serv. Comm'n, 2008-Ohio-2747, 2008 Ohio App. LEXIS 2296 (Ohio Ct. App., Knox County 2008).
As a firefighter had no right to appeal pursuant to R.C. 2506.01 from a decision of a city civil service commission that determined that the procedures used for creation and grading of a fire lieutenant promotional exam were proper, a trial court lacked subject matter jurisdiction over the appeal. Inman v. Civil Serv. Comm'n, 2008-Ohio-2707, 2008 Ohio App. LEXIS 2272 (Ohio Ct. App., Hamilton County 2008).
Removal of the employee, a systems administrator for the city’s computer systems, was supported by sufficient evidence that she accessed the email accounts of other employees in violation of city policy: Gornes v. City of Dayton, 2007-Ohio-4548, 173 Ohio App. 3d 37, 877 N.E.2d 370, 2007 Ohio App. LEXIS 4083 (Ohio Ct. App., Montgomery County 2007).
Civil service commission’s decision was appealable under R.C. 2506.01 even though the commission never held a hearing or allowed evidence to be presented: State ex rel. Fern v. City of Cincinnati, 2005-Ohio-3168, 161 Ohio App. 3d 804, 832 N.E.2d 106, 2005 Ohio App. LEXIS 2950 (Ohio Ct. App., Hamilton County 2005).
A nonteaching employee did not have a right of appeal under R.C. 2506.01 where the board decided not to renew the employee’s limited contract. The fact that the employee was on an approved leave of absence did not preclude the nonrenewal. The termination procedures under R.C. 3319.081 do not apply to a nonrenewal: Milhoan v. E. Local Sch. Dist. Bd. of Educ., 2004-Ohio-3243, 157 Ohio App. 3d 716, 813 N.E.2d 692, 2004 Ohio App. LEXIS 2916 (Ohio Ct. App., Meigs County 2004).
Trial court’s order reinstating a city employee was improper where the trial court had no jurisdiction over the employee’s appeal of the city’s termination because that order did not result from a quasi-judicial proceeding. Miller v. City of Cleveland Heights, 2003-Ohio-3664, 2003 Ohio App. LEXIS 3305 (Ohio Ct. App., Cuyahoga County 2003).
Where a former employee who was discharged by a board of education voluntarily dismissed his administrative appeal under the statute and instead elected to prosecute his complaint in a court of common pleas, the employee waived the right to complain that he was not afforded due process. Moxley v. Bd. of Educ., 2003-Ohio-3402, 2003 Ohio App. LEXIS 3082 (Ohio Ct. App., Montgomery County 2003).
Termination during the probationary period of R.C. 737.15, 737.17 does not entitle a police chief to the quasi-judicial proceedings of R.C. 737.171 prior to removal; consequently, no appeal pursuant to R.C. 2506.01 and Ohio Const. art. IV, § 4(B) is available. Bruns v. Chippewa Lake, 2003-Ohio-3144, 2003 Ohio App. LEXIS 2808 (Ohio Ct. App., Medina County 2003).
Human resources commission’s order recommending that an employee be given the option of resigning from employment with a county department of social services in lieu of being terminated was not a final order, and trial court lacked jurisdiction to review it. County of Summit, Dep't of Human Servs. v. Janikis, 2003-Ohio-2842, 2003 Ohio App. LEXIS 2551 (Ohio Ct. App., Summit County 2003).
Revised Code §§ 737.12 and 124.34 must be read in pari materia. R.C. 2506.01 does not provide a right of appeal for an unclassified volunteer firefighter who has no right of appeal under civil service provisions: Peters v. City of Jackson, 100 Ohio App. 3d 302, 653 N.E.2d 1238, 1995 Ohio App. LEXIS 172 (Ohio Ct. App., Jackson County), dismissed, 72 Ohio St. 3d 1528, 649 N.E.2d 837 (Ohio 1995).
Police officers may appeal a civil service commission decision either under R.C. 124.34, with a hearing de novo, or under R.C. Chapter 2506, with the court giving deference to the judgment of the commission: Giannini v. City of Fairview Park, 107 Ohio App. 3d 620, 669 N.E.2d 283, 1995 Ohio App. LEXIS 5211 (Ohio Ct. App., Cuyahoga County 1995).
Removal of applicant’s name from eligibility list pursuant to background officer’s decision was appealable pursuant to R.C. 2506.01: Seesholtz v. Civil Serv. Comm'n, 1994 Ohio App. LEXIS 3521 (Ohio Ct. App., Franklin County Aug. 16, 1994).
Paramedic’s complaint appealing discharge was properly before the court where employer provided inaccurate information as to the right to appeal: Green v. South Cent. Ambulance Dist., 1994 Ohio App. LEXIS 3746 (Ohio Ct. App., Ashtabula County Aug. 26, 1994).
Absent consideration of an administrative appeal on its merits, a reviewing court may not reverse the judgment of a municipal civil service commission as a sanction for an appellee’s failure to file a brief: Harvey v. Civil Serv. Comm'n, 1993 Ohio App. LEXIS 1976 (Ohio Ct. App., Cuyahoga County Apr. 8, 1993).
An unclassified civil service employee cannot maintain an appeal under R.C. 2506.01. An appeal from a municipal civil service commission can be taken directly to a court of common pleas under R.C. 2506.01: Schack v. Geneva Civil Serv. Comm'n, 86 Ohio App. 3d 689, 621 N.E.2d 788, 1993 Ohio App. LEXIS 1406 (Ohio Ct. App., Ashtabula County 1993).
A township zoning inspector who is an at will employee is entitled to review of a suspension in an appeal pursuant to R.C. Chapter 2506: Pasquine v. Liberty Township Bd. of Trustees, 88 Ohio App. 3d 481, 624 N.E.2d 310, 1993 Ohio App. LEXIS 3316 (Ohio Ct. App., Trumbull County 1993).
A court of common pleas lacks subject matter jurisdiction over the demotion of a classified employee where the employee fails to exhaust his administrative remedies: McNea v. Cleveland, 78 Ohio App. 3d 123, 603 N.E.2d 1158, 1992 Ohio App. LEXIS 3462 (Ohio Ct. App., Cuyahoga County 1992).
Where neither the local civil service rules nor state law prohibits an appeal from the decision of a civil service commission declaring a person ineligible to take a civil service examination, such decision may be appealed to the court of common pleas pursuant to R.C. 2506.01: Nuspl v. Akron, 61 Ohio St. 3d 511, 575 N.E.2d 447, 1991 Ohio LEXIS 2079 (Ohio 1991).
Where the municipal commission lacks jurisdiction to determine whether a probationary employee has been terminated for exercising his constitutional rights, the common pleas court also lacks jurisdiction under R.C. 2506.01: Morgan v. Columbus Dev. Dep't, 1990 Ohio App. LEXIS 1373 (Ohio Ct. App., Franklin County Apr. 5, 1990).
Where the civil service commission of a municipality upholds the suspension of a classified employee for disciplinary reasons, that decision may be appealed to the court of common pleas pursuant to R.C. 2506.01: Sutherland-Wagner v. Brook Park Civil Service Comm., 32 Ohio St. 3d 323, 512 N.E.2d 1170, 1987 Ohio LEXIS 389 (Ohio 1987).
There are no provisions in the Revised Code, the Columbus City Charter, or the Rules of the Columbus Municipal Civil Service Commission which require the commission to hold hearings regarding alleged violations in the classification system: Bowers v. Columbus Municipal Civil Service Com., 34 Ohio App. 3d 280, 518 N.E.2d 584, 1986 Ohio App. LEXIS 10353 (Ohio Ct. App., Franklin County 1986).
Where the grievance provisions of an employment agreement between a board of township trustees and a firefighters’ union do not constitute mandatory or permissive arbitration provisions, or provisions for the settlement of disputes between adversaries by a non-partisan tribunal, but, at best, merely provide a means for the firefighter employees to bring their grievances to the attention of their employer, the grievance provisions do not provide for a “quasi-judicial proceeding” from which an appeal lies pursuant to R.C. Chapter 2506 or Ohio Const. Art IV § 4(B): Local No. 2134, International Asso. of Firefighters v. Board of Marion Township Trustees, 33 Ohio App. 3d 204, 514 N.E.2d 1386, 1986 Ohio App. LEXIS 10263 (Ohio Ct. App., Marion County 1986).
The procedure for appeal from a decision of the municipal civil service commission to the court of common pleas is governed by R.C. Chapter 2505, the statutes governing general procedure on appeal: Jacobs v. Marion Civil Serv. Comm., 27 Ohio App. 3d 194, 500 N.E.2d 321, 1985 Ohio App. LEXIS 10318 (Ohio Ct. App., Marion County 1985), abrogated, Welsh Dev. Co. v. Warren Cnty. Reg'l Planning Comm'n, 2011-Ohio-1604, 128 Ohio St. 3d 471, 946 N.E.2d 215, 2011 Ohio LEXIS 814 (Ohio 2011).
A civil service employee who has no right of appeal to court pursuant to R.C. 124.34 is precluded from appeal to court pursuant to R.C. 2506.01: Marinchek v. Brunswick Civil Service Com., 20 Ohio App. 3d 247, 485 N.E.2d 790, 1984 Ohio App. LEXIS 12583 (Ohio Ct. App., Medina County 1984), overruled, Nuspl v. Akron, 61 Ohio St. 3d 511, 575 N.E.2d 447, 1991 Ohio LEXIS 2079 (Ohio 1991).
Revised Code § 124.34 is the exclusive route of appeal of an order taking away a city policeman’s compensatory time; a direct appeal to the court of common pleas under R.C. 2506.01 is not available: Rivers v. Quirk, 30 Ohio App. 3d 35, 506 N.E.2d 221, 1984 Ohio App. LEXIS 12706 (Ohio Ct. App., Summit County 1984).
In an appeal to the court of common pleas, pursuant to R.C. Chapters 2505 and 2506, from a ruling by a municipal civil service commission, where the municipal civil service commission is shown as the appellee, rather than the municipality itself, the appellant’s motion to amend the notice of appeal in the court of common pleas should be granted where the record indicates that the municipality, through counsel, has participated in the proceedings: Woods v. Civil Service Com., 7 Ohio App. 3d 304, 455 N.E.2d 709, 1983 Ohio App. LEXIS 10937 (Ohio Ct. App., Cuyahoga County 1983).
A municipal civil service employee removed from his employment for disciplinary reasons has the right to appeal an adverse decision of the civil service commission to the court of common pleas under the authority of either R.C. 119.12 or 2506.01: Beare v. Eaton, 9 Ohio App. 3d 142, 458 N.E.2d 895, 1983 Ohio App. LEXIS 11023 (Ohio Ct. App., Preble County 1983).
There is no express statutory right of appeal conferred upon the appointing authority of a municipal department from a decision of a municipal civil service commission reinstating a classified employee terminated for “lack of funds”: Poole v. Maloney, 9 Ohio App. 3d 198, 459 N.E.2d 247, 1983 Ohio App. LEXIS 11041 (Ohio Ct. App., Franklin County 1983).
A police chief, a fire chief, or a member of a fire or police department may utilize either of two separate and distinct avenues of appeal to the court of common pleas from a decision of suspension, demotion or removal from office by a municipal civil service commission: a. If an appeal on questions of law and fact is brought under R.C. 124.34, the procedure on appeal is governed by R.C. Chapter 2505; in such a case, the court may in its discretion hear additional evidence, and may substitute its judgment for that of the commission. b. If an appeal to the court is brought pursuant to R.C. Chapter 2506, the court is required to allow additional evidence only in circumstances enumerated in the statute, and the court must give due deference to the administrative resolution of evidentiary conflicts: Resek v. Seven Hills, 9 Ohio App. 3d 224, 459 N.E.2d 566, 1983 Ohio App. LEXIS 11051 (Ohio Ct. App., Cuyahoga County 1983).
An appeal of a suspended municipal employee from the decision or order of the municipal civil service commission to the court of common pleas is governed by R.C. Chapters 2505 and 2506; hence, the time limit for giving a notice of appeal is found in R.C. 2505.07 which provides that the notice of appeal must be filed within ten days after the issuing of the decision or order: Lewis v. Parkinson, 1 Ohio App. 3d 22, 437 N.E.2d 1215, 1981 Ohio App. LEXIS 9851 (Ohio Ct. App., Franklin County 1981).
Since R.C. 124.34 does not grant an employee whose 5-day suspension has been upheld by the municipal civil service commission a right of appeal to the court of common pleas, R.C. 2506.01 does not provide the civil service employee with an independent right of appeal to the court of common pleas since the specific statutory provision (R.C. 124.34) prevails over the general statutory provision (R.C. 2506.01) and R.C. 124.34 is exclusively applicable: Ruprecht v. Cincinnati, 64 Ohio App. 2d 90, 18 Ohio Op. 3d 60, 411 N.E.2d 504, 1979 Ohio App. LEXIS 8420 (Ohio Ct. App., Hamilton County 1979).
Where the civil service commission of a municipality removes a classified employee from his position for disciplinary reasons, that decision may be appealed to the court of common pleas pursuant to R.C. 2506.01: Walker v. Eastlake, 61 Ohio St. 2d 273, 15 Ohio Op. 3d 273, 400 N.E.2d 908, 1980 Ohio LEXIS 650 (Ohio 1980).
A court of common pleas has no jurisdiction over the indefinite suspension of a city civil service employee when the employee fails to file an available administrative appeal, even though the legal basis for the suspension is subsequently nullified: Noernberg v. City of Brook Park, 63 Ohio St. 2d 26, 17 Ohio Op. 3d 16, 406 N.E.2d 1095, 1980 Ohio LEXIS 765 (Ohio 1980).
The proceedings of the municipal civil service system herein involved notice, a hearing, and the opportunity for the introduction of evidence and, accordingly, constituted a quasi-judicial proceeding appealable pursuant to R.C. 2506.01: In re Stanley, 56 Ohio App. 2d 1, 10 Ohio Op. 3d 15, 381 N.E.2d 212, 1978 Ohio App. LEXIS 7508 (Ohio Ct. App., Franklin County 1978).
The fire fighters and policemen who were laid off by the director of public safety for lack of funds had adequate remedies by appeal under R.C. 124.34 and 2506.01. Thus they could not bring an action for injunctive relief: Atwood v. Judge, 63 Ohio App. 2d 94, 17 Ohio Op. 3d 289, 409 N.E.2d 1022, 1977 Ohio App. LEXIS 7135 (Ohio Ct. App., Columbiana County 1977).
A declaratory judgment action brought under R.C. Chapter 2721, seeking a declaration regarding the legality of layoffs by the city of Cleveland of policemen and firemen, is a legal action and may be maintained even though the parties bringing the action have the alternative, but not exclusive, remedy of appeal to the Civil Service Commission and to courts under R.C. Chapter 2506, the Appellate Procedure Act. Further, the rule that an equitable action cannot be maintained if there is an adequate remedy at law is not violated when the party bringing the declaratory judgment action also seeks ancillary injunctive relief because the nature of the action has not been changed from one at law to one in equity: Gannon v. Perk, 47 Ohio App. 2d 125, 1 Ohio Op. 3d 233, 352 N.E.2d 606, 1975 Ohio App. LEXIS 5867 (Ohio Ct. App., Cuyahoga County 1975), aff'd in part and rev'd in part, 46 Ohio St. 2d 301, 75 Ohio Op. 2d 358, 348 N.E.2d 342, 1976 Ohio LEXIS 635 (Ohio 1976).
Where a decision by an administrative department to lay off an employee does not require notice, a hearing, and the opportunity to contest the action through the presentation of evidence, it may not be the subject of an appeal pursuant to R.C. 2506.01: State ex rel. Dean v. Huddle, 45 Ohio App. 2d 163, 74 Ohio Op. 2d 218, 341 N.E.2d 860, 1975 Ohio App. LEXIS 5803 (Ohio Ct. App., Franklin County 1975), rev'd, 45 Ohio St. 2d 234, 74 Ohio Op. 2d 378, 344 N.E.2d 138, 1976 Ohio LEXIS 565 (Ohio 1976)).
A decision of a municipal civil service commission can be appealed pursuant to R.C. 2506.01: State ex rel. Dahmen v. Youngstown, 40 Ohio App. 2d 166, 69 Ohio Op. 2d 171, 318 N.E.2d 433, 1973 Ohio App. LEXIS 762 (Ohio Ct. App., Mahoning County 1973).
The action of a municipal board of health abolishing a position under the classified municipal service is not quasi-judicial and, therefore, not appealable to the court of common pleas under the provisions of R.C. 2506.01: State ex rel. Dahmen v. Youngstown, 40 Ohio App. 2d 166, 69 Ohio Op. 2d 171, 318 N.E.2d 433, 1973 Ohio App. LEXIS 762 (Ohio Ct. App., Mahoning County 1973).
Members of a municipal civil service commission had no constitutional right to public employment; but even if the commissioners had property interests in their offices, charter provisions for notice and hearing on removal charges and the statutory right of review in state courts afforded the commissioners due process: Burks v. Perk, 470 F.2d 163, 66 Ohio Op. 2d 348, 1972 U.S. App. LEXIS 6657 (6th Cir. Ohio 1972), cert. denied, 412 U.S. 905, 93 S. Ct. 2288, 36 L. Ed. 2d 970, 1973 U.S. LEXIS 2350 (U.S. 1973).
An attempted change in municipal civil service rules is a legislative action, and is not a proper subject for administrative appeal under R.C. Chapter 2506: Haught v. Dayton, 32 Ohio App. 2d 133, 61 Ohio Op. 2d 131, 288 N.E.2d 846, 1972 Ohio App. LEXIS 363 (Ohio Ct. App., Montgomery County 1972), rev'd, 34 Ohio St. 2d 32, 63 Ohio Op. 2d 49, 295 N.E.2d 404, 1973 Ohio LEXIS 343 (Ohio 1973).
Where, under the provisions of a municipal charter, the mayor has authority to hear and determine charges against civil service commissioners, a judicial review of the mayor’s decision in the common pleas court is expressly provided by R.C. 2506.01: Burks v. Perk, 470 F.2d 163, 66 Ohio Op. 2d 348, 1972 U.S. App. LEXIS 6657 (6th Cir. Ohio 1972), cert. denied, 412 U.S. 905, 93 S. Ct. 2288, 36 L. Ed. 2d 970, 1973 U.S. LEXIS 2350 (U.S. 1973).
The law and fact appeal provided the chiefs and members of city fire and police departments by R.C. 124.34 is not exclusive and an appeal may also be taken pursuant to the provisions of Chapter 2506: In re Locke, 33 Ohio App. 2d 177, 62 Ohio Op. 2d 276, 294 N.E.2d 230, 1972 Ohio App. LEXIS 336 (Ohio Ct. App., Washington County 1972).
Where a municipal civil service commission formally rejects the application of a municipal civil service employee to take a promotional examination for the reason that he does not meet the minimum qualifications established by rule of the commission for taking the examination, the employee has a plain and adequate remedy in the ordinary course of the law by appeal under R.C. 2506.01, to the court of common pleas of the county in which the commission is located, and he may not properly resort to an action in mandamus against the commission under R.C. 2731.02 to enforce his claimed right to take the examination: State ex rel. Marshall v. Civil Service Comm., 14 Ohio St. 2d 226, 43 Ohio Op. 2d 333, 237 N.E.2d 392 (1968).
The decision of a municipal civil service commission is appealable under R.C. 2506.01: State ex rel. Fagain v. Stork, 174 Ohio St. 330, 22 Ohio Op. 2d 385, 189 N.E.2d 69, 1963 Ohio LEXIS 738 (Ohio 1963).
A final order of a municipal civil service commission, entered on July 28, 1961, and concerning other than police and fire personnel, is appealable pursuant to the provisions of Chapter 2506: State ex rel. Fagain v. Stork, 118 Ohio App. 125, 24 Ohio Op. 2d 441, 193 N.E.2d 437, 1962 Ohio App. LEXIS 547 (Ohio Ct. App., Franklin County 1962), aff'd, 174 Ohio St. 330, 22 Ohio Op. 2d 385, 189 N.E.2d 69, 1963 Ohio LEXIS 738 (Ohio 1963).
A municipal civil service commission is a “commission” within the meaning of that term as used in R.C. 2506.01 and the decision of the commission rejecting relator’s contention that he was entitled to be certified for appointment as chief of police was a “final order, adjudication, or decision” within the meaning of R.C. 2506.01: State ex rel. Steyer v. Szabo, 174 Ohio St. 109, 110, 21 Ohio Op. 2d 366, 186 N.E.2d 839 (1962).
Clerical mistake
Trial court properly clarified its decision to uphold a grant by a township board of zoning appeals of an area variance from the setback requirements to property owners for their home expansion, as the trial court's amended decision did not substantively change the earlier judgment but instead corrected a “blunder in execution” that was likely caused by a clerical mistake. Downing v. Catawba Island Twp. Bd. of Zoning Appeals, 2017-Ohio-2899, 2017 Ohio App. LEXIS 1931 (Ohio Ct. App., Ottawa County 2017).
Damages for injuries
Revised Code § 2506.01 does not empower state courts to award damages for injuries suffered as a result of erroneous administrative decisions. Therefore a party is not precluded from seeking damages in a § 1983 action in federal court after litigating the same claim in state court under Chapter 2506: Negin v. Mentor, 601 F. Supp. 1502, 1985 U.S. Dist. LEXIS 22813 (N.D. Ohio 1985).
Development plan
City council’s preliminary approval of a housing subdivision and a planned unit development was not a final order and thus could not be challenged by adjoining property owners via an administrative appeal because the preliminary approval did not determine the final rights and duties of the developer. As provided by local ordinances, obtaining final approval required that additional information be submitted. Grove v. Oxford City Council, 2011-Ohio-46, 2011 Ohio App. LEXIS 33 (Ohio Ct. App., Butler County 2011).
Developer properly sought review under R.C. ch. 2506 of a village’s denial of the developer’s application for a site development plan because the denial was administrative, as the application required no rezoning of the subject property but only the implementation of already approved planned unit development standards to ensure the development plan’s compliance with those standards, so a trial court had subject-matter jurisdiction to consider the developer’s appeal. Rockford Homes, Inc. v. Vill. of Canal Winchester, 2010-Ohio-873, 2010 Ohio App. LEXIS 721 (Ohio Ct. App., Franklin County 2010).
Development plan submitted by the business was not an attempt to rezone the property, but was filed to determine compliance with the guidelines already established by ordinance; therefore, the denial of the development plan was an administrative act and subject to R.C. Chapter 2506. Speedway Super Am., LLC v. Granville Vill. Council, 2003-Ohio-6951, 2003 Ohio App. LEXIS 6337 (Ohio Ct. App., Licking County 2003).
Discrimination
Trial court failed to properly consider the Elyria Civil Service Commission’s application and interpretation of Elyria, Ohio, Codified Ordinance § 165.29 when determining whether the employee’s comments violated the City’s anti-discrimination policy, and whether the Commission’s decision to suspend the employee was supported by the preponderance of substantial, reliable, and probative evidence. Although the city referenced racial insensitivity and racial harassment, it never argued that the employee should be disciplined solely because his comments created a hostile work environment, or a Title VII violation. Hoover v. City of Elyria, 2014-Ohio-1783, 2014 Ohio App. LEXIS 1745 (Ohio Ct. App., Lorain County 2014).
Dismissal of appeal
Employee who was terminated from her position as a library reference manager was an unclassified civil servant under R.C. 124.11(A)(7)(b) and had no right to appeal her termination under R.C. 2506.01 because the action she sought to appeal was not the result of a quasi-judicial proceeding, in that there was no notice and opportunity to introduce evidence at a hearing resembling a judicial trial. Campbell v. Wash. County Pub. Library Bd. of Trs., 2005-Ohio-2992, 2005 Ohio App. LEXIS 2793 (Ohio Ct. App., Washington County 2005).
A trial court abuses its discretion in dismissing an administrative appeal due to the appellant’s failure to timely file its assignments of error and brief, where the omission did not constitute a flagrant, substantial disregard for the rules of the court, where the appellant corrects the omission promptly after discovering it, and where the delay did not prejudice either the court or the opposing party: A. G. & G. Co. v. Cuyahoga County Bd. of Revision, 47 Ohio App. 3d 117, 547 N.E.2d 403, 1988 Ohio App. LEXIS 1627 (Ohio Ct. App., Cuyahoga County 1988).
Elections board
Dismissal of electors’ mandamus action was proper, pursuant to R.C. 2731.04, where they asserted that their provisional ballots in a presidential election were erroneously not counted, as an adequate remedy existed, pursuant to R.C. 2731.05, through assertion of an action under 42 U.S.C.S. § 1983 to assert their federal law claims; further, a claim under R.C. 3503.13 lacked merit where the electors sought prohibitory injunctive relief to prevent election officials from invalidating their provisional ballots, and R.C. 2506.01 did not permit appeals from determinations by election officials concerning whether to count certain ballots after an election. State ex rel. Mackey v. Blackwell, 2005-Ohio-4789, 106 Ohio St. 3d 261, 834 N.E.2d 346, 2005 Ohio LEXIS 2074 (Ohio 2005).
Boards of elections are not political subdivisions under R.C. Chapter 2506. Their decisions are not appealable under that chapter: State ex rel. Brown v. Summit County Bd. of Elections, 46 Ohio St. 3d 166, 545 N.E.2d 1256, 1989 Ohio LEXIS 271 (Ohio 1989).
Where there is no provision in any state statute or in any local rule for a protest procedure before the board of elections to challenge the validity of a write-in candidacy, the initial approval or disapproval by the board is final absent allegations of fraud, corruption, abuse of discretion, or clear disregard of statutes or applicable legal provisions. R.C. 3513.041: Foster v. Cuyahoga County Board of Elections, 53 Ohio App. 2d 213, 7 Ohio Op. 3d 282, 373 N.E.2d 1274, 1977 Ohio App. LEXIS 6987 (Ohio Ct. App., Cuyahoga County 1977).
An elector, who files a protest with a board of elections pursuant to R.C. 3513.262, which protest is overruled by such board of elections, can appeal to the common pleas court pursuant to R.C. Chapter 2506: State ex rel. Smith v. Johnson, 12 Ohio App. 2d 87, 41 Ohio Op. 2d 163, 231 N.E.2d 81, 1967 Ohio App. LEXIS 382 (Ohio Ct. App., Mahoning County 1967).
Failure to pursue appeal
Because the grievance process was made available to all employees under the supervision of a board of county commissioners, appellants were required to file a grievance with the county administrator and to file an administrative appeal from the administrator's decision in order to exhaust their administrative remedies, which appellants failed to do by not filing an administrative appeal after the grievance was denied. Schneider v. Cuyahoga Cnty. Bd. of County Comm'rs, 2017-Ohio-1278, 88 N.E.3d 567, 2017 Ohio App. LEXIS 1283 (Ohio Ct. App., Cuyahoga County 2017).
Trial court erred in certifying a class of plaintiffs who claimed defendant city issued unlawful traffic citations generated by unmarked traffic cameras because plaintiff did not have standing to seek judicial review, having failed to exhaust her administrative remedies by appealing the citation, and an administrative appeal of her traffic violation would not have been futile. Eighmey v. City of Cleveland, 2017-Ohio-2857, 2017 Ohio App. LEXIS 1887 (Ohio Ct. App., Cuyahoga County), vacated, 2017-Ohio-7092, 2017 Ohio App. LEXIS 3255 (Ohio Ct. App., Cuyahoga County 2017).
Pursuant to the requirements contained in the statute, the village administrator was removed without cause by the mayor with the consent of a majority of the members elected to council, the legislative authority of the village. No statute required council to conduct a hearing resembling a judicial trial before it terminated the 2005 contract and the trial court incorrectly held that the administrator could not maintain a breach of contract claim with regard to the 2005 contract based upon his failure to pursue an administrative appeal. Jamison v. Galena, 2015-Ohio-2845, 38 N.E.3d 1176, 2015 Ohio App. LEXIS 2755 (Ohio Ct. App., Delaware County 2015).
Final order or decision
Neither the May 5, 2016 letter nor the June 9, 2016 e-mail determined the landowners' rights, duties or privileges to develop the property as residential hotel; had the advisory opinion requested by the landowners been given, they still would have had to file a full and complete application for zoning certificate approval. Golf Vill. North, LLC v. City of Powell, 2018-Ohio-151, 2018 Ohio App. LEXIS 151 (Ohio Ct. App., Delaware County 2018).
Decision of a board of zoning appeals that was sent on letterhead of the Department of Planning and Development, was signed by the assistant planner, and unequivocally stated that the board had denied appellant's request for variances, was a final and appealable agency order. DAMSA, Ltd. v. City of Sandusky, 2016-Ohio-5069, 2016 Ohio App. LEXIS 2884 (Ohio Ct. App., Erie County 2016).
Trial court lacked jurisdiction to hear an employee’s appeal because a letter written by the superintendent of a school district, in his own name, informing the employee of the termination of his employment, did not constitute a final order, adjudication, or decision. Galloway v. Firelands Local Sch. Dist. Bd. of Educ., 2013-Ohio-4264, 2013 Ohio App. LEXIS 4491 (Ohio Ct. App., Lorain County 2013).
Court of common pleas had jurisdiction to review a decision by school board to uphold the expulsion of a student from school because a letter which the student’s attorney received from the board’s executive officer, declaring that the board unanimously voted to uphold the expulsion, constituted a final order under R.C. 2506.01(C). A.M.R. v. Zane Trace Local Bd. of Educ., 2012-Ohio-2419, 971 N.E.2d 457, 2012 Ohio App. LEXIS 2127 (Ohio Ct. App., Ross County 2012).
Trial court did not err when it granted summary judgment for a former city employee in a mandamus action to compel a personnel appeals board of a city to hear an appeal of the employee’s termination from the employee’s position with a fire department because the employee had no right of appeal pursuant to R.C. Chapter 2506 from the employee’s termination. In addition, a letter to the employee from a city attorney, which did not say it was being issued on behalf of the board, was not a final order, adjudication, or decision of the board for purposes of R.C. 2506.01. State ex rel. Holloway v. Personnel Appeals Bd., 2012-Ohio-628, 2012 Ohio App. LEXIS 545 (Ohio Ct. App., Montgomery County 2012).
As civil and criminal complaints filed against appellants by a building commissioner regarding alleged property maintenance violations were wholly independent of each other, the civil proceedings were not preliminary to or as a result of the criminal proceedings and an order upholding the issuance of the civil citations was final and appealable under R.C. 2506.01(C). Vitantonio v. City of Wickliffe, 2009-Ohio-1139, 181 Ohio App. 3d 355, 908 N.E.2d 1051, 2009 Ohio App. LEXIS 1015 (Ohio Ct. App., Lake County 2009).
Exception from finality for administrative decisions issued preliminary to or as a result of a criminal proceeding, pursuant to R.C. 2506.01(C), applies to decisions that are either predicates for a criminal proceeding or that arise as a consequence of the institution of criminal proceedings. The board of zoning appeals had authority to hear the appeal of the property maintenance violation charges: Vitantonio v. City of Wickliffe, 2009-Ohio-1139, 181 Ohio App. 3d 355, 908 N.E.2d 1051, 2009 Ohio App. LEXIS 1015 (Ohio Ct. App., Lake County 2009).
When landowners appealed a trial court’s decision affirming a board of zoning appeals’ denial of the landowners’ request for a variance, the landowners did not show the trial court lacked jurisdiction due to the board’s failure to issue a final order because the board provided the trial court with a written copy of the board’s minutes from the meeting at which the contested decision was made. Smith v. Coventry Twp. Zoning Dep't, 2008-Ohio-2532, 2008 Ohio App. LEXIS 2135 (Ohio Ct. App., Summit County 2008).
When a council of governments, acting under R.C. 167.03, adopted an amendment to a clean water plan, this was not a final appealable order because it was merely a recommendation which was not effective unless the Ohio Environmental Protection Agency approved it, so a trial court had no jurisdiction to consider a litigant’s request for judicial review of the amendment and properly dismissed it. Helms v. Northeast Ohio Four County Reg'l Planning & Dev. Org., 2007-Ohio-3059, 2007 Ohio App. LEXIS 2802 (Ohio Ct. App., Summit County 2007).
As an order from the Ohio Human Rights Commission, which reduced a county employee’s penalty for having violated various work policies from a termination to a one-year suspension, determined the employee’s rights, it was a final order under R.C. 2506.01(C), such that the trial court had jurisdiction to hear the matter on review. County of Summit v. Stoll, 2007-Ohio-2887, 2007 Ohio App. LEXIS 2682 (Ohio Ct. App., Summit County 2007).
R.C. 2506.01(C) made any order final which determined benefits and was not subject to further administrative appeal; it was, thus, immaterial if a city did not have a formal relocation process under the Relocation Assistance Act, R.C. 163.51 et seq., so long as the determination of relocation benefits was without further administrative recourse. Therefore, a corporation could not pursue a declaratory judgment action under R.C. 2721.03 regarding the amount of benefits. Kim's Auto & Truck Serv. v. City of Toledo, 2007-Ohio-2260, 172 Ohio App. 3d 1, 872 N.E.2d 1245, 2007 Ohio App. LEXIS 2104 (Ohio Ct. App., Lucas County 2007).
Trial cout properly considered the findings and order of a township board of zoning appeals when reviewing a property owner’s appeal from the board’s denial of his use variance request, as the appeal should have been taken from the date that the minutes of the board were approved, which was the same date that the findings and order were reviewed and adopted. C & C Realty v. N. Olmsted Bd. of Zoning Appeals, 2007-Ohio-2224, 2007 Ohio App. LEXIS 2073 (Ohio Ct. App., Cuyahoga County 2007).
Where a trial court, upon review of a decision by a township board of zoning appeals pursuant to R.C. 2506.01 that had denied a property owner’s applications for zoning permits, remanded the matter to the board for further consideration of additional evidence, the trial court order was not final and appealable pursuant to R.C. 2505.02(B)(1), (2), and (3), such that the appellate court lacked jurisdiction under Ohio Const. art. IV, § 3(B)(2) over the owner’s appeal therefrom; the trial court order did not preclude the possibility that the owner’s applications might be granted on remand, a new trial was not ordered, and the merits had not been reached. Wedgewood L.P. I v. Liberty Twp. Bd., 2007-Ohio-62, 169 Ohio App. 3d 840, 865 N.E.2d 123, 2007 Ohio App. LEXIS 64 (Ohio Ct. App., Delaware County 2007).
Council’s disapproval of a “pre-preliminary” conceptual master plan was not a final appealable order under R.C. 2506.01: Court St. Dev. v. Stow City Council, 129 Ohio App. 3d 359, 717 N.E.2d 1120, 1998 Ohio App. LEXIS 3672 (Ohio Ct. App., Summit County 1998).
Until an ambulance district board’s minutes are approved and journalized, they are subject to change and do not constitute a final order: Green v. South Cent. Ambulance Dist., 118 Ohio App. 3d 24, 691 N.E.2d 1078, 1997 Ohio App. LEXIS 239 (Ohio Ct. App., Ashtabula County 1997).
A municipal ordinance approving the recommendation of the Assessment Equalization Board as to the amount to be assessed against a landowner is a final appealable order although the municipal council has not yet adopted an ordinance determining that it shall proceed with the project and although the total cost of the improvement is subject to revision: Tolson v. Oregon, 53 Ohio App. 2d 183, 7 Ohio Op. 3d 251, 372 N.E.2d 1360, 1976 Ohio App. LEXIS 5923 (Ohio Ct. App., Lucas County 1976).
Where a planning commission of a municipality is only a recommending agency, its recommendation is not a final order from which an appeal may be taken under R.C. Chapter 2506, the Appellate Procedure Act: Flair Corp. v. Brecksville, 49 Ohio App. 2d 77, 3 Ohio Op. 3d 146, 359 N.E.2d 459, 1976 Ohio App. LEXIS 5804 (Ohio Ct. App., Cuyahoga County 1976).
The written denial of the planning commission of the validity of an application for a building permit and its refusal to act on the same constituted the final act of the city, the lawfulness of which was subject to review by appeal pursuant to R.C. 2506.01, et seq: State ex rel. Cunagin Constr. Corp. v. Creech, 20 Ohio St. 2d 128, 49 Ohio Op. 2d 447, 254 N.E.2d 18, 1969 Ohio LEXIS 316 (Ohio 1969).
Under the provisions of R.C. 2506.01 every final order, adjudication or decision of a board, such as the Cleveland board of building standards and building appeals, may be reviewed by the common pleas court: Box v. Cleveland Board of Bldg. Standards, etc., 15 Ohio Misc. 17, 43 Ohio Op. 2d 143, 238 N.E.2d 578, 1968 Ohio Misc. LEXIS 279 (Ohio C.P. 1968).
Freedom of speech
The procedures provided in R.C. Chapter 2506 do not provide a constitutionally adequate avenue of prompt judicial review with respect to a locality’s decision to restrain protected expressive activity: J.L. Spoons, Inc. v. City of Brunswick, 18 F. Supp. 2d 775, 1998 U.S. Dist. LEXIS 21553 (N.D. Ohio 1998).
Hearing
Resident insurance agent, whose license was revoked by the Ohio Department of Insurance, waived his right to challenge the Department's findings because the agent failed to request a hearing after receiving notice from the Department. Unik v. Ohio Dep't of Ins., 2016-Ohio-921, 61 N.E.3d 531, 2016 Ohio App. LEXIS 839 (Ohio Ct. App., Cuyahoga County 2016).
Case was remanded to a trial court because (1) the appellee attached a transcript of a civil service commission hearing on a motion, which was not sufficient to comply with the dictates of R.C. 2506.02; (2) the commission failed to file conclusions of fact to support its determination as required by R.C. 2506.03; and (3) it was incumbent upon the trial court to hold an evidentiary hearing on the appellant’s claims in the case. Card v. City of Cleveland Civ. Serv. Comm'n, 2010-Ohio-3200, 2010 Ohio App. LEXIS 2678 (Ohio Ct. App., Cuyahoga County 2010).
Incorporation of municipality
Revised Code § 707.11 takes precedence, as a matter of law, over R.C. Chapter 2506 in cases in which a party challenges the decision of a board of county commissioners approving a petition for incorporation of a municipality: In re Incorporation of Holiday City, 106 Ohio App. 3d 458, 666 N.E.2d 327, 1995 Ohio App. LEXIS 4052 (Ohio Ct. App., Williams County 1995).
Journalization of agency decision
Pursuant to R.C. 2505.07, the decision of an administrative agency must be journalized before an appeal may be taken under R.C. 2506.01. Mandamus relief is appropriate for the limited purpose of forcing the agency to journalize its decision: State ex rel. Cole v. Laumann, 69 Ohio App. 3d 464, 590 N.E.2d 1335, 1990 Ohio App. LEXIS 4067 (Ohio Ct. App., Hamilton County 1990).
Jurisdiction
Although municipalities were prohibited from enforcing residency requirements upon their employees by R.C. 9.481, a former municipal employee who was terminated from the employee’s position with a municipality for failing to reside within the municipality was required to exhaust all administrative remedies, through an appeal of an administrative decision to court of common pleas pursuant to R.C. ch. 2506, before a reviewing court could issue a writ of mandamus on the employee’s behalf for reinstatement of the employee. State ex rel. Kurt v. City of Cleveland, 2010-Ohio-5019, 2010 Ohio App. LEXIS 4225 (Ohio Ct. App., Cuyahoga County 2010).
Trial court properly dismissed a city employee’s appeal pursuant to R.C. 119.12, 124.34, and 2506.01 from a determination of the civil service commission upon finding that the administrative decision was not a result of a quasi-judicial proceeding pursuant to Ohio Const. art. IV, § 4(B), as there as no requirement that the commission provide notice or hold a hearing as part of an investigation into the employee’s satisfaction of residency requirements. Garrett v. City of Columbus, 2010-Ohio-3895, 2010 Ohio App. LEXIS 3298 (Ohio Ct. App., Franklin County 2010).
Trial court erred in reviewing a city council’s approval of a gasoline station owner’s request for a special use permit, as the council approved the permit by passage of an ordinance, which was a legislative act; accordingly, there was no jurisdiction for the court to review that action pursuant to R.C. 2506.01 et seq. Lagrange Dev. Corp. v. City of Toledo, 2009-Ohio-2286, 2009 Ohio App. LEXIS 1934 (Ohio Ct. App., Lucas County 2009).
As property owners failed under to appeal a decision pursuant to R.C. 2506.01 by a county regional planning commission which approved other owners’ application under R.C. 711.24 to replat two subdivision lots and a portion of a subdivision lane, the owners opposing the replat failed to exhaust their administrative remedies and judicial relief was not granted. Buchholtz v. Childers, 2007-Ohio-870, 2007 Ohio App. LEXIS 778 (Ohio Ct. App., Ottawa County 2007).
City’s property maintenance code could not confer jurisdiction on a court of common pleas to hear actions contesting nuisance determinations. Appeals from local administrative agencies to a court of common pleas are governed by R.C. Chapter 2506: City of Englewood v. Turner, 2006-Ohio-2667, 168 Ohio App. 3d 41, 858 N.E.2d 431, 2006 Ohio App. LEXIS 2491 (Ohio Ct. App., Montgomery County 2006).
Trial court lacked jurisdiction pursuant to R.C. 2506.01 to hear a fireman’s appeal, alleging that a civil service commission improperly failed to promote him to the position of captain, because the failure to appoint the fireman was not a final order, adjudication, or decision of the commission resulting from quasi-judicial proceedings; rather, the commission had simply failed to perform an action that the fireman believed that it was obligated to perform. Rappach v. Liberty Twp. Civ. Serv. Comm'n, 2005-Ohio-3088, 2005 Ohio App. LEXIS 2872 (Ohio Ct. App., Trumbull County 2005).
When a trial court considered an appeal of a board of health’s determination that an owner’s exotic animal farm was a nuisance, the trial court’s jurisdiction was limited to deciding if the board’s determination was supported by the record, and, after the court found the board’s decision was so supported, it did not have jurisdiction, within the same action, to issue an injunction allowing the board of health to enter the owner’s property to remove the animals and enjoining the owner from interfering, nor did it have jurisdiction to consider the owner’s motion under Civ.R. 60(B) for relief from that injunction. Summit County Bd. of Health v. Pearson, 2005-Ohio-2964, 2005 Ohio App. LEXIS 2763 (Ohio Ct. App., Summit County 2005).
Under R.C. 3311.24, and also R.C. 2506.01, trial court did not have jurisdiction to hear landowners’ appeal of receiving school district’s denial of transfer to it of land from another school district even though state school board and transferring school board had approved the transfer under R.C. 3311.24 procedures; the rejection was the result of an unappealable legislative act and not of a quasi-judicial proceeding. Residents of Country Hills v. Oak Hills Local Sch. Dist. Bd. of Educ., 2004-Ohio-1697, 2004 Ohio App. LEXIS 1508 (Ohio Ct. App., Hamilton County 2004).
Jurisdiction of agency
When a notice of appeal from a decision of an administrative agency has been filed, the agency is divested of its inherent jurisdiction to reconsider, vacate or modify the decision unless there is express statutory language to the contrary. (Hal Artz Lincoln Mercury, Inc. v. Ford Motor Co. [1986], 28 OS3d 20, 28 OBR 83, 502 NE2d 590, paragraph three of the syllabus, and State ex rel. Borsuk v. Cleveland, 28 Ohio St. 2d 224, 57 Ohio Op. 2d 464, 277 N.E.2d 419, 1972 Ohio LEXIS 520 (Ohio 1972).
Jurisdiction of trial court
Trial court lacked jurisdiction to consider the merits of a former county employee's administrative appeal of his termination because the employee did not serve the notice of appeal on the county personnel review commission until September 16, which was six days past the filing deadline, and, as such, the employee's appeal was not timely perfected. 2015 Ohio 4589, 2015 Ohio App. LEXIS 4469.
Trial court had no jurisdiction to hear a landowner’s administrative appeal because the landowner did not perfect the appeal within the statutory 30-day timeframe, as (1) the appeal had to be received by the administrative agency within 30 days of sending the agency’s final order, and (2) the appeal was not received within that period. Digonno v. City of Hamilton, 2019-Ohio-2273, 2019 Ohio App. LEXIS 2374 (Ohio Ct. App., Butler County 2019).
Trial court erred when it determined the Board of Zoning Appeals (BZA), and by implication of the court itself, did not have jurisdiction to hear the appeal before it because the BZA was the appropriate entity to review decisions of the Landmarks Commission. The issuance of a certificate of appropriateness was in essence a zoning determination because the property in question was a vacant lot and the determination of the Landmarks Commission necessarily involved only whether the proposed construction fit within the overall character of the historic district because there was no modification of existing historic structures. Philbin v. City of Cleveland, 2018-Ohio-100, 101 N.E.3d 674, 2018 Ohio App. LEXIS 98 (Ohio Ct. App., Cuyahoga County 2018).
Employee’s appeal of a civil service commission’s affirmance of the city’s failure to promote him was properly dismissed; as the matter did not involve a “reduction,” “suspension,” or “removal” disciplinary action, it was not a quasi-judicial proceeding that required a notice and hearing, and the court of common pleas thus lacked jurisdiction to hear the appeal. Pack v. City of Wilmington, 2014-Ohio-446, 2014 Ohio App. LEXIS 446 (Ohio Ct. App., Clinton County 2014).
In a taxpayer’s administrative appeal to a court of common pleas, pursuant to R.C. 2506.01, regarding a decision by the city’s income tax board of review, the court lacked jurisdiction to consider two assignments of error asserted by the city’s income tax administrator’s in his appeal brief because the administrator failed to perfect a separate appeal to the court; the taxpayer’s notice of appeal only concerned a refund request for 1999 while the administrator’s assignments of error addressed refund requests for 2000 through 2002. AT&T Communs. of Ohio, Inc. v. Lynch, 2012-Ohio-1975, 132 Ohio St. 3d 92, 969 N.E.2d 1166, 2012 Ohio LEXIS 1011 (Ohio 2012).
Trial court properly dismissed an appeal under R.C. 3319.11(G)(7) for lack of subject matter jurisdiction because a teacher did not file a notice of appeal with a board of education within 30 days of receiving its written decision that it did not intend to employ the teacher at the expiration of his teaching contract. Roberts v. Pleasant Local Sch. Dist. Bd. of Educ., 2011-Ohio-4560, 2011 Ohio App. LEXIS 3790 (Ohio Ct. App., Marion County 2011).
Cuyahoga County, Ohio, Ct. C.P. Gen. Div. R. 28(B) does not authorize a trial court to consider cross-assignments of error for purposes of modifying a board’s decision, despite the appellee not filing a notice of appeal; to construe Cuyahoga County, Ohio, Ct. C.P. Gen. Div. R. 28(B) as authorizing an appellee to challenge an administrative adjudication, despite not having filed a timely notice of appeal, would directly conflict with R.C. 2505.22 and therefore be unlawful. Therefore, a trial court lacked jurisdiction to modify a board’s decision in favor of a tax administrator because he failed to separately appeal from that decision. AT&T Communs. of Ohio v. Lynch, 2011-Ohio-302, 2011 Ohio App. LEXIS 320 (Ohio Ct. App., Cuyahoga County 2011), aff'd, 2012-Ohio-1975, 132 Ohio St. 3d 92, 969 N.E.2d 1166, 2012 Ohio LEXIS 1011 (Ohio 2012).
Ohio common pleas court did not have jurisdiction under R.C. 2506.01 to review a city council’s approval of a real estate development plan because, inasmuch as the city council changed the zoning of the subject property, it took legislative action. Shaheen v. Cuyahoga Falls City Council, 2010-Ohio-640, 2010 Ohio App. LEXIS 523 (Ohio Ct. App., Summit County 2010).
Trial court had jurisdiction to rule on a child care provider’s motion for relief from judgment under Civ.R. 60(B) because the provider complied with R.C. 2505.04 by mailing a written notice of her appeal from the revocation of her certification to the Child Care Division of the Cuyahoga County Department of Employment and Family Services; it was presumed that service was effective when the certificate of service was entered on the record, and the envelope was not returned for failure of delivery. The provider’s reliance on R.C. 119.12 was misplaced because it did not apply to proceedings related to the revocation of Type B child care certifications. In re Jones-Smith, 2009-Ohio-6470, 2009 Ohio App. LEXIS 5419 (Ohio Ct. App., Cuyahoga County 2009).
Pursuant to R.C. 2506.01, a party may appeal an administrative decision to a court of common pleas. Lamar Adver. v. Boardman Twp. Bd. of Zoning Appeals, 2009-Ohio-6755, 2009 Ohio App. LEXIS 5665 (Ohio Ct. App., Mahoning County 2009).
As a township board of trustees’ vacatur of a road pursuant to R.C. 5553.045 due to the failure of a county board of commissioners to vote on the issue was a legislative action rather than a quasi-judicial one, a trial court had no subject matter jurisdiction to review it on appeal pursuant to R.C. 2506.01. Ohio Multi-Use Trails Ass'n v. Vinton County Comm'rs, 2009-Ohio-2061, 182 Ohio App. 3d 32, 911 N.E.2d 350, 2009 Ohio App. LEXIS 1795 (Ohio Ct. App., Vinton County 2009).
Offender’s appeal, pursuant to R.C. 2506.01, of the finding of a children services agency that the offender’s sexual abuse of a child was “indicated” was properly dismissed for lack of subject matter jurisdiction because, inter alia, law enforcement became involved in the situation, so the finding was not subject to judicial review, under R.C. 2506.01(C), as the finding was issued preliminary to a criminal proceeding. Ferren v. Cuyahoga County Dep't of Children & Family Servs., 2009-Ohio-2359, 2009 Ohio App. LEXIS 1979 (Ohio Ct. App., Cuyahoga County 2009).
Offender’s appeal, pursuant to R.C. 2506.01, of the finding of a children services agency that the offender’s sexual abuse of a child was “indicated” was properly dismissed for lack of subject matter jurisdiction because, inter alia, the offender did not show that the finding determined the offender’s rights, privileges, benefits, or other legal relationships, so the finding was not a “final order” subject to judicial review, under § 2506.01. Ferren v. Cuyahoga County Dep't of Children & Family Servs., 2009-Ohio-2359, 2009 Ohio App. LEXIS 1979 (Ohio Ct. App., Cuyahoga County 2009).
Trial court properly had subject matter jurisdiction of a police officer’s appeal under R.C. 2506.01 from a city board of industrial relations’ denial of paid injury leave as the board had rendered a final decision as the result of quasi-judicial proceedings; the board’s claim that the collective bargaining agreement (CBA) made arbitration the exclusive remedy could not be considered under App.R. 12(A)(1)(b) as the CBA was not part of the trial court record. Braun v. City of Columbus, 2007-Ohio-7148, 2007 Ohio App. LEXIS 6254 (Ohio Ct. App., Franklin County 2007).
There was no error in the trial court’s granting of the Civ.R. 12(B)(1) motion to dismiss the appeal for lack of subject matter jurisdiction because the respite care provider failed to demonstrate an immediate impact to his pecuniary interests by the mere placement of his name on the registry following the children’s services agency’s determination that sexual abuse was indicated. The provider was still employed, and there was no indication that the provider, subsequent to the allegations, applied for or was denied respite service opportunities based upon information in the central registry. Moore v. Franklin County Children Servs., 2007-Ohio-4128, 2007 Ohio App. LEXIS 3748 (Ohio Ct. App., Franklin County 2007).
Trial court did not have subject matter jurisdiction over the employee’s “appeal” under R.C. 2506.01 because she was an at-will, non-bargaining unit employee. The mere existence of a dispute resolution process for at-will employees did not itself establish quasi-judicial proceedings. The trial court did not have jurisdiction to hear the appeal since she failed to file a timely notice of appeal with the employer; therefore, the claim was properly dismissed for failure to state a claim because no “appeal” was ever perfected, pursuant to R.C. 2505.04, and the “appeal” was fatally deficient. McMillen v. Trumbull Metro. Hous. Auth., 2007-Ohio-3713, 2007 Ohio App. LEXIS 3395 (Ohio Ct. App., Trumbull County 2007).
Absent any interpretation of R.C. 2506.01 by Ohio courts to the contrary, the court interpreted Union Township, Ohio, Res. No. 00-22 in a manner that saved its constitutionality—that is, by concluding that R.C. 2506.01 permits an appeal from an adverse licensing decision by the Board whether or not the decision is predicated upon a criminal act. Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411 F.3d 777, 2005 FED App. 0270P, 2005 U.S. App. LEXIS 11807 (6th Cir. Ohio 2005), cert. denied, 546 U.S. 1089, 126 S. Ct. 1023, 163 L. Ed. 2d 853, 2006 U.S. LEXIS 38 (U.S. 2006).
Trial court lacked jurisdiction pursuant to R.C. 2506.01 to hear a fireman’s appeal, alleging that a civil service commission improperly failed to promote him to the position of captain, because the failure to appoint the fireman was not a final order, adjudication, or decision of the commission resulting from quasi-judicial proceedings; rather, the commission had simply failed to perform an action that the fireman believed that it was obligated to perform. Rappach v. Liberty Twp. Civ. Serv. Comm'n, 2005-Ohio-3088, 2005 Ohio App. LEXIS 2872 (Ohio Ct. App., Trumbull County 2005).
Union Township, Ohio, Res. No. 00-22 satisfies the three requirements that define a “quasi-judicial proceeding” according to the Ohio Supreme Court for purposes of jurisdiction under R.C. 2506.01: (1) a hearing, (2) notice, and (3) the opportunity to introduce evidence; the resolution provided that the Board of Trustees for the township should hear any permit application at a public hearing, R.C. 503.52 required the Board to publish notice, and the resolution provided the applicant with an opportunity to present evidence. Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411 F.3d 777, 2005 FED App. 0270P, 2005 U.S. App. LEXIS 11807 (6th Cir. Ohio 2005), cert. denied, 546 U.S. 1089, 126 S. Ct. 1023, 163 L. Ed. 2d 853, 2006 U.S. LEXIS 38 (U.S. 2006).
Timely delivery of a copy of the city’s notice of appeal to the board of commissioners perfected the city’s appeal and conferred subject matter jurisdiction on the court of common pleas: Smith v. Sylvania Twp. Bd. of Trs. (In re 259.15 Acres), 2005-Ohio-1027, 159 Ohio App. 3d 736, 825 N.E.2d 238, 2005 Ohio App. LEXIS 1036 (Ohio Ct. App., Lucas County 2005).
In an appeal taken pursuant to R.C. Chapter 2506, once jurisdiction has been questioned for failure to properly perfect the appeal, the trial court is required to examine the record and such other evidence necessary to make a proper determination as to whether the action was properly commenced. The movant has the burden of demonstrating the deficiency which would divest the trial court of jurisdiction over the appeal: Roseman v. Reminderville, 14 Ohio App. 3d 124, 470 N.E.2d 224, 1984 Ohio App. LEXIS 11256 (Ohio Ct. App., Summit County 1984).
Under R.C. 2505.04 the only jurisdictional requirement is the filing of the notice of appeal. R.C. 2505.05 then sets out what information must be designated in this notice of appeal. These, however, are not jurisdictional prerequisites and failure to comply with them does not defeat an appeal, as the notice of appeal may be amended “for good cause shown”: Moore v. Cleveland Civil Service Com., 11 Ohio App. 3d 273, 465 N.E.2d 482, 1983 Ohio App. LEXIS 11294 (Ohio Ct. App., Cuyahoga County 1983).
Law of the case
Police officer was entitled, under R.C. 2506.01, to appeal the decision of a village appeals board to the trial court because, although the officer’s complaint challenging the village’s discharge of his employment had previously been dismissed, the officer’s second complaint challenged the decision of the village appeals board, and those issues had never been the subject of judicial review. Thus, judicial review was not barred by the doctrine of the law of the case. Williams v. Vill. of Yellow Springs, 2005-Ohio-5011, 2005 Ohio App. LEXIS 4524 (Ohio Ct. App., Greene County 2005).
Local ordinance
Driver perfected his appeal challenging a finding of liability for violating a city ordinance, in connection with an automated camera civil traffic enforcement system, because the driver filed the notice of appeal in the common pleas court, and the clerk of court served a summons and a copy of the notice on “City of Cleveland, Parking Violations Bureau,” at an address listed on correspondence received by the driver. Huffman v. City of Cleveland, 2016-Ohio-496, 2016 Ohio App. LEXIS 419 (Ohio Ct. App., Cuyahoga County 2016).
Driver properly named the city as the appellee in his appeal challenging a finding of liability for violating a city ordinance, in connection with an automated camera civil traffic enforcement system because the notice of appeal designated the appellee as “City of Cleveland, Parking Violations Bureau,” not “City of Cleveland Parking Violations Bureau,” and the comma was significant. Huffman v. City of Cleveland, 2016-Ohio-496, 2016 Ohio App. LEXIS 419 (Ohio Ct. App., Cuyahoga County 2016).
Where appellant was challenging the validity of a local ordinance as it applied to any piece of property within its purview, appellant was not required to exhaust his administrative remedies: Long v. Board of Twp. Trustees, 1996 Ohio App. LEXIS 3704 (Ohio Ct. App., Delaware County May 24, 1996).
Mandamus
Maintenance association was not entitled to mandamus relief directing a City to enforce Seven Hills, Ohio, Codified Ords. § 975.07 by requiring a limited liability company improve setback areas to visually screen the construction and structure of a nursing home and parking lot from the association's property since the association's standing to pursue an administrative appeal under this section was properly addressed through an administrative appeal and did not affect the subject matter jurisdiction of the court, and the association would or could have had an adequate remedy at law. State ex rel. Stone Ridge Maint. Ass'n. v. City of Seven Hills, 2015-Ohio-530, 2015 Ohio App. LEXIS 508 (Ohio Ct. App., Cuyahoga County 2015).
Employees had an adequate remedy under this section, precluding mandamus relief, as this section gave them an additional avenue for relief from the decision of any political subdivision that was not expressly prohibited by a subsequently enacted statute; R.C. 145.563 was not a subsequently enacted statute that vested total authority with the Public Employees Retirement System (PERS) since neither the relief requested of re-instatement and back pay and benefits, nor the action of removal suggested that the funds distributed under PERS were unlawful. State ex rel. Budgake v. City of Canton, 2014-Ohio-903, 2014 Ohio App. LEXIS 869 (Ohio Ct. App., Stark County 2014).
Pending administrative appeals arising from a tax exemption dispute did not constitute an adequate remedy at law under R.C. 2731.05 which precluded a mandamus action, as administrative appeals could only be taken from quasi-judicial proceedings under R.C. 2506.01, and such type of proceeding was not conducted by a county auditor’s refusal to place specific properties on a tax exempt property list. State ex rel. City of Lorain v. Stewart, 2008-Ohio-4062, 119 Ohio St. 3d 222, 893 N.E.2d 184, 2008 Ohio LEXIS 2241 (Ohio 2008).
Mootness
Objectants' administrative appeal, attempting to prevent the demolition of a building, was moot because no stay or injunction was obtained pending appeal, the demolition of the building was completed, and no viable exception to the mootness doctrine applied. South Cent. Ohio Pres. Soc'y v. Chillicothe Design Review Bd., 2016-Ohio-1495, 2016 Ohio App. LEXIS 1469 (Ohio Ct. App., Ross County 2016).
Company that was granted a zoning variance to build a student housing project established that the appeal was moot because it involved the construction of a planned student-housing development, no stay or injunction was obtained pending appeal, and construction of the contested development proceeded at substantial expense. Coates Run Prop. LL, LLC v. City of Athens Bd. of Zoning Appeals, 2015-Ohio-4732, 2015 Ohio App. LEXIS 4610 (Ohio Ct. App., Athens County 2015).
Trial court did not err in dismissing a R.C. Chapter 2506 administrative zoning appeal on grounds of mootness where a third-party contract to but the property had lapsed: State v. Webb, 2010-Ohio-6122, 2010 Ohio App. LEXIS 5135 (Ohio Ct. App., Franklin County 2010).
When citizens appealed a planning commission’s approval of a subdivision plat but did not seek a stay of construction, and the developer who obtained the approval commenced construction and completed it before the appeal was heard, the appeal was rendered moot and was properly dismissed for that reason. Poulson v. Wooster City Planning Comm'n, 2005-Ohio-2976, 2005 Ohio App. LEXIS 2772 (Ohio Ct. App., Wayne County 2005).
Municipal decisions
Trial court was without jurisdiction to hear an appeal because a city council’s decision to amend a towing ordinance was a legislative action; although council had delegated the task of overseeing tow operators and had authority to sanction them, it did not delegate its authority to select a tow operation location for city districts. Osburn Towing v. City of Akron, 2013-Ohio-5409, 2013 Ohio App. LEXIS 5649 (Ohio Ct. App., Summit County 2013).
Trial court did not abuse its discretion by its decision to place a municipal employee, who was demoted by a city from the position of fire chief to the position of firefighter, into the position of captain of the fire department because a preponderance of reliable, probative, and substantial evidence supported the trial court’s decision. At best the employee’s conduct, in having two fire department mechanics perform repairs on the employee’s personal vehicles while on the firehouse property and while on the city’s time, was grossly poor judgment, which required a different penalty, as opposed to committing acts of misfeasance, malfeasance, nonfeasance, neglect of duty, and failure of good behavior. Pietrick v. City of Westlake, 2012-Ohio-6009, 2012 Ohio App. LEXIS 5182 (Ohio Ct. App., Cuyahoga County 2012), aff'd, 2015-Ohio-961, 142 Ohio St. 3d 495, 33 N.E.3d 18, 2015 Ohio LEXIS 606 (Ohio 2015).
Removal of an employee from an executive position with an ambulance district was not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence because, inter alia, the employee used profane language, did not work full-time hours, failed to wear a uniform out in public, made malicious statements, gave preferential treatment to her son, and engaged in suspicious activity while handling money. Stainfield v. Jefferson Emergency Rescue Dist., 2010-Ohio-2282, 2010 Ohio App. LEXIS 1873 (Ohio Ct. App., Ashtabula County 2010).
Procedural due process claim brought by plaintiffs, a towing company and its owner, against a city and police officers in connection with the removal of the company from the city’s towing list failed because plaintiffs failed to allege and prove the inadequacy of state remedies, including the option of appealing the decision under R.C. 2506.01. Magnum Towing & Recovery v. City of Toledo, 287 Fed. Appx. 442, 2008 FED App. 0420N, 2008 U.S. App. LEXIS 15217 (6th Cir. 2008).
When a city’s traffic engineer denied the application of a landowner for a curb cut, effectively barring the owner’s access to an adjacent public road, the matter was not reviewable pursuant to R.C. 2506.01, because the engineer’s decision was not rendered in a quasi-judicial proceeding providing notice, a hearing, and an opportunity to introduce evidence, nor did the city’s municipal code provide for such a proceeding, so the owner and the property’s lessee could seek a writ of mandamus, under R.C. 2731.01, to compel the city to initiate appropriation proceedings. State ex rel. Hilltop Basic Res., Inc. v. City of Cincinnati, 2005-Ohio-6817, 166 Ohio App. 3d 171, 849 N.E.2d 1064, 2005 Ohio App. LEXIS 6132 (Ohio Ct. App., Hamilton County 2005).
City council’s decision to grant a conditional use permit to a developer was properly affirmed by a circuit court, as (1) the council did not create new law, but merely executed existing law, thereby engaging in proper administrative action, not legislative rezoning; and (2) the council adhered to all eight factors for granting such a permit contained in Akron, Ohio, Codified Ordinances § 153.077. Hickory St. Coalition v. City of Akron Planning Comm'n, 2004-Ohio-2246, 2004 Ohio App. LEXIS 2001 (Ohio Ct. App., Summit County 2004).
Municipal ordinances generally
Appellate court erred by finding that Toledo Municipal Code 313.12 infringed upon the jurisdiction of the municipal court because the city had home-rule authority to impose civil liability on traffic violators through an administrative enforcement system and the legislature did not endow municipal courts with exclusive authority over civil administrative enforcement of traffic-law violations. Ohio municipalities had home-rule authority to establish administrative proceedings and those administrative proceedings had to be exhausted before offenders or the municipality could pursue judicial remedies. Walker v. City of Toledo, 2014-Ohio-5461, 143 Ohio St. 3d 420, 39 N.E.3d 474, 2014 Ohio LEXIS 3117 (Ohio 2014).
Plain words of the statute required the posting of signs for all automated traffic enforcement camera systems, including those placed in mobile units. Therefore, since the mobile speed unit that issued the driver a ticket did not comport with Cleveland, Ohio, Codified Ordinance § 413.031(g), the driver should not have been found liable and the finding of liability was vacated. City of Cleveland Parking Violations Bureau v. Barnes, 2010-Ohio-6164, 2010 Ohio App. LEXIS 5187 (Ohio Ct. App., Cuyahoga County 2010).
Action of a committee of the whole of a city council to report a proposed ordinance to council as disapproved is not reviewable under the provisions of R.C. Chapter 2506: Szymanski v. Toledo, 18 Ohio App. 2d 11, 47 Ohio Op. 2d 12, 246 N.E.2d 368, 1969 Ohio App. LEXIS 589 (Ohio Ct. App., Lucas County 1969).
The provisions of R.C. Chapter 2506 do not apply to the adoption of an ordinance by a municipal council and confer no right of appeal from such council action on a resident of such municipality: In re Passage of Ordinance No. 105-62, 118 Ohio App. 457, 25 Ohio Op. 2d 358, 195 N.E.2d 380, 1963 Ohio App. LEXIS 813 (Ohio Ct. App., Franklin County 1963).
Where a city has enacted legislation requiring a permit for the operation of the business of disposing of waste and refuse material within the city limits, and such application has been denied by the administrative body authorized to grant the permit, the constitutionality of such ordinance cannot be attacked by the applicant until he has exhausted the remedies given him under the appeal provisions of R.C. 2506.01 et seq, the procedure for appeals from orders of administrative officers and agencies: V & H Equipment Rental Corp. v. Garfield Heights, 161 N.E.2d 646, 81 Ohio Law Abs. 605, 1959 Ohio App. LEXIS 977 (Ohio Ct. App., Cuyahoga County 1959).
Partition fences
Trial court’s affirmance of a town board of trustees’ resolution, requiring property owners to replace a partition fence and to share the expense thereof, was an abuse of discretion pursuant to the standard of review under R.C. 2506.01, as there was no evidence to substantiate the trustees’ conclusion that the benefit of erecting the fence outweighed the cost thereof; there was no evidence of the property values before and after the fence was to be erected, as required by R.C. 971.02 and 971.04. Lane v. Trs. of Union Twp., 2005-Ohio-3497, 162 Ohio App. 3d 37, 832 N.E.2d 769, 2005 Ohio App. LEXIS 3243 (Ohio Ct. App., Ross County 2005).
A decision of a board of township trustees refusing to make an order of assignment for the construction of a partition fence, in accordance with R.C. 971.04, is a final order and is appealable to the court of common pleas pursuant to R.C. 2506.01; and, thus, mandamus is not an available remedy to set aside such refusal: State ex rel. 18 Ohio App. 3d 23, 479 N.E.2d 898.
Plats
City’s claim a landowner who sought declaratory judgment requiring issuance of a certificate in lieu of endorsement of approval had an adequate administrative remedy through her appeal under this section was rejected because R.C. 711.09(C) specifically set forth the landowner’s remedy as a petition to the court of common pleas and any remedy the landowner may have in an appeal under this section did not preclude her from obtaining a declaratory judgment on the basis of R.C. 711.09(C). Wesolowski v. Planning Comm'n, 2018-Ohio-1295, 110 N.E.3d 705, 2018 Ohio App. LEXIS 1422 (Ohio Ct. App., Cuyahoga County 2018), aff'd, 2019-Ohio-3713, 2019 Ohio LEXIS 1824 (Ohio 2019).
When citizens appealed a planning commission’s approval of a subdivision plat but did not seek a stay of construction, and the developer who obtained the approval commenced construction and completed it before the appeal was heard, the appeal was rendered moot and was properly dismissed for that reason. Poulson v. Wooster City Planning Comm'n, 2005-Ohio-2976, 2005 Ohio App. LEXIS 2772 (Ohio Ct. App., Wayne County 2005).
Where a final plat approval has been made on condition that specific deficiencies be corrected within a specified time, and the developer of that approved plat is prevented from satisfying the named conditions by the legal intervention of third-party adversaries, the developer’s time within which to comply with the conditions should be tolled when it is equitable to do so. The mechanism by which this may be accomplished is by the issuance of a preliminary injunction pursuant to CivR 65 ordering that the status quo be preserved until there can be a full trial on the merits: Cardinale v. Ottawa Regional Planning Comm'n, 89 Ohio App. 3d 747, 627 N.E.2d 611, 1993 Ohio App. LEXIS 3869 (Ohio Ct. App., Ottawa County 1993).
Political subdivisions
As used in R.C. 2506.01 the term “political subdivision” is broad and comprehensive and denotes any geographical or territorial division of a state made by the proper authorities thereof, acting within their constitutional powers, for the purpose of carrying out those functions of the state which by long usage and inherent necessities of government have always been regarded as public; a division of a parent entity for some governmental purpose: Fair v. School Employees Retirement System, 44 Ohio App. 2d 115, 73 Ohio Op. 2d 101, 335 N.E.2d 868, 1975 Ohio App. LEXIS 5747 (Ohio Ct. App., Franklin County 1975).
The general assembly has never included the school employees retirement board, or any other retirement board, within the statutory definition of “political subdivision”: Fair v. School Employees Retirement System, 44 Ohio App. 2d 115, 73 Ohio Op. 2d 101, 335 N.E.2d 868, 1975 Ohio App. LEXIS 5747 (Ohio Ct. App., Franklin County 1975).
Revised Code § 2506.01 does not confer a remedy of appeal from a decision of the school employees retirement board denying an application for disability retirement: Fair v. School Employees Retirement System, 44 Ohio App. 2d 115, 73 Ohio Op. 2d 101, 335 N.E.2d 868, 1975 Ohio App. LEXIS 5747 (Ohio Ct. App., Franklin County 1975).
—Appellate
Where a property owner asserted counterclaims for declaratory judgment pursuant to R.C. 2721.02 in response to a small claims action filed by a city and various city entities, seeking to collect a fine that was previously assessed against the owner, but the owner failed to appeal to the court of common pleas pursuant to R.C. 2506.01, the owner was deemed to have failed to exhaust administrative remedies, such that summary judgment for the city and its related entities was proper; the appeal under § 2506.01 could have provided the owner adequate relief on nonconstitutional claims and it would not have imposed an unreasonable burden on the owner. Avon Lake Mun. Utils. Dep't v. Pfizenmayer, 2008-Ohio-344, 2008 Ohio App. LEXIS 305 (Ohio Ct. App., Lorain County 2008).
Procedure
Trial court's use of the incorrect standard of review was harmless because the standards of review under the two statutes were substantially similar, and the error did not affect the substantial rights of the parties. Ellison v. City of Hillsboro, 2016-Ohio-1556, 63 N.E.3d 555, 2016 Ohio App. LEXIS 1447 (Ohio Ct. App., Highland County 2016).
Civ.R. 4 and 4.1, governing complaints, did not apply to an administrative appeal pursuant to R.C. 2506.01 and thus did not require plaintiff to serve defendant through the clerk of court. Jacobs v. Cuyahoga Metro. Hous. Auth., 2015-Ohio-2278, 2015 Ohio App. LEXIS 2290 (Ohio Ct. App., Cuyahoga County 2015).
—Appellate
In a matter arising from a series of property inspections wherein a village inspector allegedly intentionally failed to cite various building code violations prior to a property owner’s purchase of particular property, the property owner’s 42 U.S.C.S. § 1983 claim against the former owner and village officials was dismissed on the pleadings because, while he had a protectable property interest under the Due Process clause, no pre-deprivation hearing could have been held and specific state tort law remedies and state appellate procedures were available to review his alleged injury, such as pursuant to R.C. 2506.01. Pappas v. Nash, 2006 U.S. Dist. LEXIS 70456 (N.D. Ohio Sept. 28, 2006), amended, 2006 U.S. Dist. LEXIS 72419 (N.D. Ohio Oct. 3, 2006).
While appropriate for review of agency decisions of any political subdivision, under R.C. 2506.01 et seq., the standard that an agency decision is supported by a preponderance of reliable, probative and substantial evidence is higher than that required by R.C. 119.12, as that statute’s designation of a standard of proof of less than a preponderance ensures that a trial court does not substitute its judgment for that of an administrative agency and affords due deference to the findings of the agency by merely requiring some reliable, probative, and substantial evidence. Beck v. Dep't of Commerce, Div. of Fin. Insts., 2006-Ohio-60, 2006 Ohio App. LEXIS 38 (Ohio Ct. App., Clermont County 2006).
Where a parole authority’s appeal of a final order overruling its Civ.R. 12(B)(1) motion to dismiss a parole’s R.C. 2506.01 et seq., appeal was untimely, the trial court had no authority to grant leave to file a notice of appeal instanter. Leroux v. Ohio Adult Parole Auth., 2004-Ohio-246, 2004 Ohio App. LEXIS 227 (Ohio Ct. App., Richland County 2004).
Real property taxes
The action by the county auditor of refusing to submit the complaint of a taxpayer as to the assessment of real property to the county board of revision is a ministerial act that is not quasi-judicial and is not appealable under R.C. 2506.01: State ex rel. Wedgewood 129 Corp. v. Olenick, 36 Ohio App. 2d 111, 65 Ohio Op. 2d 133, 303 N.E.2d 101, 1973 Ohio App. LEXIS 822 (Ohio Ct. App., Mahoning County 1973).
Reasonbleness
County health district’s decision to deny a plumber reinstatement to the plumbing registry until he performed what amounted to an impossible act was unreasonable and irrational, such that the discipline imposed for his failure to obtain a permit and properly register could not stand. Adams Quality Heating & Cooling v. Erie County Health Dep't, 2014-Ohio-2318, 2014 Ohio App. LEXIS 2279 (Ohio Ct. App., Erie County 2014).
Record
Because they did not know the statutory avenue on which a city employee wished to proceed, there was no fault with the civil service commission in not filing the record within 30 days or with the trial court in granting its motion for leave to file the record untimely; the employee invoked R.C. 2506.01 and R.C. 119.12 when filing his notice of appeal from the commission’s final order, and thus, it was understandable why the commission believed it had 40 days to transmit the certified record. Shadd v. Cleveland Civ. Serv. Comm'n, 2019-Ohio-1996, 2019 Ohio App. LEXIS 2064 (Ohio Ct. App., Cuyahoga County 2019).
Because they did not know the statutory avenue on which a city employee wished to proceed, there was no fault with the civil service commission in not filing the record within 30 days or with the trial court in granting its motion for leave to file the record untimely; the fact that the employee filed a praecipe was support for the commission’s uncertainty regarding which statutory avenue he was proceeding and how long it had to transfer the record. Shadd v. Cleveland Civ. Serv. Comm'n, 2019-Ohio-1996, 2019 Ohio App. LEXIS 2064 (Ohio Ct. App., Cuyahoga County 2019).
Where the hearing officer determined claimant was terminated for just cause, she was not denied the opportunity to develop a full and fair record because she was represented by counsel and the hearing officer did not exclude testimony; because the trial court did not have the authority to accept additional evidence, it did not err in denying claimant’s request to complete the record. The trial court was required to determine claimant’s appeal on the certified record, because this chapter does not apply to unemployment compensation appeals. Puterbaugh v. Goodwill Indus. of Miami Valley, Inc., 2014-Ohio-2208, 2014 Ohio App. LEXIS 2135 (Ohio Ct. App., Miami County 2014).
Review of the evidence, specifically, the zoning applications, transcripts of the hearings before the zoning board of appeals, and the exhibits admitted into evidence at those hearings, was necessary for a determination of appellants’ assignment of error; thus, in the absence of such evidence from the record, regularity in the trial court’s proceedings had to be presumed. Appellants were responsible for proving a record of the facts. Boston Twp. Bd. of Trs. v. Marks Akron Medina Trucks & Parts, Inc., 2011-Ohio-4223, 2011 Ohio App. LEXIS 3518 (Ohio Ct. App., Summit County 2011).
There was no reason to “fill in the gaps” because the transcript was complete; although the home owner relied on two application hearings that were decided after the denial of his variance application, the applications were not part of the owner’s hearing and the city did not rely upon those cases when it issued its decision with respect to the variance request. Cimino v. Cleveland Heights Bd. of Zoning Appeals, 2011-Ohio-1803, 2011 Ohio App. LEXIS 1567 (Ohio Ct. App., Cuyahoga County 2011).
Referendum
The action of referendum is not an appeal because it is neither conducted by a higher administrative authority, nor is it subject to a right of hearing thereon. (R.C. 2506.01, construed.): Howland Realty Co. v. Wolcott, 8 Ohio App. 3d 424, 457 N.E.2d 883, 1982 Ohio App. LEXIS 11291 (Ohio Ct. App., Trumbull County 1982).
Referendum is not an administrative remedy and does not fall within the doctrine of “failure to exhaust available administrative remedies”: Howland Realty Co. v. Wolcott, 8 Ohio App. 3d 424, 457 N.E.2d 883, 1982 Ohio App. LEXIS 11291 (Ohio Ct. App., Trumbull County 1982).
Refiling of appeal
A dismissal without prejudice for failure to prosecute generally permits an original action to be refiled. However, an appeal from an administrative decision cannot be refiled because it cannot be timely under AppR 4(A): McCann v. City of Lakewood, 95 Ohio App. 3d 226, 642 N.E.2d 48, 1994 Ohio App. LEXIS 2052 (Ohio Ct. App., Cuyahoga County), dismissed, 70 Ohio St. 3d 1465, 640 N.E.2d 527, 1994 Ohio LEXIS 2354 (Ohio 1994).
Remand required
Fact that a provider was not being compensated for overtime with respect to a particular child or children did not mean that she was no longer providing “child care” or “child day care” under the governing rules and regulations; however, the question of whether the provider’s violations of the six-child rule, Ohio Admin. Code 5101:2-14-16(A), were sufficient to warrant revocation of her certificate was not a question the appellate court had the authority to answer. A remand was required to consider whether the violations of the six-child rule were a basis for revocation of the certificate. Lambert v. Lake County Dep't of Children & Family Servs., 2013-Ohio-433, 2013 Ohio App. LEXIS 396 (Ohio Ct. App., Lake County 2013).
Res judicata
Res judicata applies to administrative actions, where a party has failed to properly appeal the administrative ruling under R.C. 2506.01. Brunswick Hills Twp. Bd. of Trs. v. Ludrosky, 2012-Ohio-2556, 972 N.E.2d 132, 2012 Ohio App. LEXIS 2256 (Ohio Ct. App., Medina County 2012).
Trial court was not precluded from granting summary judgment to the village because, by denying the mobile home owner a variance, the Zoning Board was affirming the zoning inspector’s decision and rejecting the owner’s objections. Because the mobile home owner failed to appeal the Zoning Board’s decision affirming the zoning inspector’s determinations, it became final, and the owner was precluded under the doctrine of collateral estoppel from relitigating the issues. Village of New Richmond v. Byrne, 2010-Ohio-4948, 2010 Ohio App. LEXIS 4180 (Ohio Ct. App., Clermont County 2010).
Corporation’s claim that a zoning ordinance was unconstitutional as applied to it was not barred by the doctrine of res judicata based on the corporation’s failure to properly perfect its administrative appeal. The existence of the administrative appeal did not preclude a judgment for declaratory relief, if appropriate. All Erection & Crane Rental Corp. v. Twp. of Newbury, 2009-Ohio-6705, 2009 Ohio App. LEXIS 5628 (Ohio Ct. App., Geauga County 2009).
As an adjacent property owner failed to appeal a city’s approval of a planning commission’s grant of a variance to a property owner, the adjacent owner failed to exhaust its administrative remedies pursuant to R.C. 2506.01, and accordingly, res judicata barred its action under R.C. 713.13, seeking injunctive relief against the actions for which the variance had been granted. Murray Energy Corp. v. City of Pepper Pike, 2008-Ohio-2818, 2008 Ohio App. LEXIS 2364 (Ohio Ct. App., Cuyahoga County 2008).
Declaratory judgment action filed by a property owner was not barred by the doctrine of res judicata, even though the owner twice failed to appeal from the denial of a variance pursuant to R.C. ch. 2506, as the owner had never before challenged the constitutionality of Mentor-on-the-Lake, Ohio, Zoning Code § 1252.04. Pengal v. City of Mentor-On-The-Lake, 2005-Ohio-5118, 2005 Ohio App. LEXIS 4611 (Ohio Ct. App., Lake County 2005).
In a property owner’s appeal pursuant to R.C. 2506.04, the trial court’s decision affirming a zoning board’s finding that the owner had violated various zoning provisions was proper because res judicata prevented the owner from appealing his citation for violating Cleveland, Ohio, Codified Ordinance § 349.07(b), which required that all accessory off-street parking spaces be provided with wheel or bumper guards, in that the owner’s previous appeal under R.C. 2506.01 of an earlier citation with respect to the same provision was dismissed for lack of prosecution. 1476 Davenport Ltd. P'ship v. City of Cleveland, Bd. of Zoning Appeals, 2005-Ohio-3731, 2005 Ohio App. LEXIS 3432 (Ohio Ct. App., Cuyahoga County 2005).
In a property owner’s appeal pursuant to R.C. 2506.04, the trial court’s decision affirming a zoning board’s finding that the owner had violated various zoning provisions was proper because res judicata prevented the owner from appealing his citation for violating Cleveland, Ohio, Codified Ordinance § 349.07(b), which required that all accessory off-street parking spaces be provided with wheel or bumper guards, in that the owner’s previous appeal under R.C. 2506.01 of an earlier citation with respect to the same provision was dismissed for lack of prosecution. 1476 Davenport Ltd. P'ship v. City of Cleveland, Bd. of Zoning Appeals, 2005-Ohio-3731, 2005 Ohio App. LEXIS 3432 (Ohio Ct. App., Cuyahoga County 2005).
Declaratory action commenced by an advertising company challenging a zoning appeal board’s denial of a request for a variance to erect a billboard was properly dismissed where the issues of hardship and the validity of the zoning ordinance raised by the advertising company were barred by the doctrine of res judicata, because those issues should have been or could have been raised in the advertising company’s prior appeal of the variance denial pursued under R.C. Chapter 2506. Am. Outdoor Adver. Co., LLC v. Jerome Twp. Bd. of Trs., 2004-Ohio-2058, 2004 Ohio App. LEXIS 1793 (Ohio Ct. App., Union County 2004).
As appellant raised an Americans with Disabilities Act (ADA) issue and the fact that he was handicapped before the board of zoning appeals, he should have then raised his constitutional and ADA claims in an appeal of the decision of the board, but as he failed to appeal that decision, his constitutional and ADA arguments were barred by res judicata in a subsequent zoning violation case. Prairie Twp. Bd. of Trs. v. Ross, 2004-Ohio-838, 2004 Ohio App. LEXIS 759 (Ohio Ct. App., Franklin County 2004).
Where appellant unsuccessfully argued that his property was agricultural and therefore exempt from a zoning resolution, and did not appeal the adverse ruling by the board of zoning appeal pursuant to R.C. 2506.01, res judicata barred appellant from raising the same arguments in a subsequent zoning violation case. Prairie Twp. Bd. of Trs. v. Ross, 2004-Ohio-838, 2004 Ohio App. LEXIS 759 (Ohio Ct. App., Franklin County 2004).
While application of the doctrine of res judicata is generally made with regard to actions which have proceeded to judicial review and determination, it is similarly applicable to actions which have been reviewed before an administrative body, in which there has been no appeal made pursuant to R.C. 2506.01: Wade v. Cleveland, 8 Ohio App. 3d 176, 456 N.E.2d 829, 1982 Ohio App. LEXIS 11240 (Ohio Ct. App., Cuyahoga County 1982).
Right to intervene
When a board of zoning appeals granted a permit for a waste transfer station, private citizens did not have a right to intervene in an appeal of that decision because the trial court’s jurisdiction was not properly invoked, when two cities and a township trustee attempted to appeal, so there was no viable action in which the citizens could intervene. City of Macedonia v. Twinsburg Twp. Bd. of Zoning Appeals, 2006-Ohio-2688, 2006 Ohio App. LEXIS 2522 (Ohio Ct. App., Summit County 2006).
Trial court erred by denying neighbor’s motion to intervene, under Civ.R. 24(A)(2) because, as an adjoining landowner to the landfill expansion, he had an absolute right to be joined as a party, under R.C. 2506.01 et seq. The trial court went beyond the record and accepted an agreed entry filed in a separate case as dispositive of the issues, in violation of R.C. 119.12. Republic Servs. of Ohio II, LLC v. Pike Twp. Bd. of Zoning Appeals, 2005-Ohio-6463, 2005 Ohio App. LEXIS 5827 (Ohio Ct. App., Stark County 2005).
Schools
Exclusion by school authorities of persons other than students from school activities and property without a due process hearing is not a quasi-judicial decision giving rise to an administrative appeal under R.C. 2506.01: Nichols v. W. Local Bd. of Educ., 2003-Ohio-7359, 127 Ohio Misc. 2d 30, 805 N.E.2d 206, 2003 Ohio Misc. LEXIS 58 (Ohio C.P. 2003).
Revised Code Chapter 2506 applies to an appeal under R.C. 3319.081: Ulferts v. Black River Local Sch. Dist. Bd. of Educ., 110 Ohio Misc. 2d 9, 742 N.E.2d 1224, 2000 Ohio Misc. LEXIS 47 (Ohio C.P. 2000).
A principal’s decision to suspend a student is not an R.C. 2506.01 final order because R.C. 3313.66(E) provides for an appeal to and a hearing before the board of education: Webb v. Ironton City Sch., 115 Ohio App. 3d 699, 686 N.E.2d 285, 1996 Ohio App. LEXIS 5372 (Ohio Ct. App., Lawrence County 1996).
Revised Code § 3319.11 does not provide the procedure that must be followed in an appeal pursuant to subdivision (G)(7). Thus, the procedural provisions of R.C. Chapter 2506 govern: Kiel v. Green Local Sch. Dist. Bd. of Educ., 1994-Ohio-21, 69 Ohio St. 3d 149, 630 N.E.2d 716, 1994 Ohio LEXIS 881 (Ohio 1994).
Assuming that R.C. 2506.01 could be used to appeal from a disciplinary decision by a school official, it is for two reasons insufficient to save inadequate procedures at the school level. First, although new proof may be offered in a R.C. 2506.01 proceeding, the proceeding is not de novo. Thus the decision by the school — even if made upon inadequate procedures — is entitled to weight in the court proceeding. Second, without a demonstration to the contrary, we must assume that delay will attend any R.C. 2506.01 proceeding, that the suspension will not be stayed pending hearing, and that the student meanwhile will irreparably lose his educational benefits: Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725, 1975 U.S. LEXIS 23 (U.S. 1975).
Special assessments
An injunction is the proper form of relief for a landowner who claims that a special assessment exceeds the benefit conferred on the property. An appeal is not available under R.C. 2506.01: Motz v. Council of Richfield, 80 Ohio App. 3d 483, 609 N.E.2d 621, 1992 Ohio App. LEXIS 4385 (Ohio Ct. App., Summit County 1992).
Standing
Because standing is a jurisdictional issue in administrative appeals and the zoning applicant filed a motion with the trial court requesting a hearing on the issue of standing, and then again raised the issue in its briefs, appellees’ forfeiture argument was meritless. Safest Neighborhood Assoc. v. City of Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d 694, 2013 Ohio App. LEXIS 5865 (Ohio Ct. App., Athens County 2013).
Trial court abused its discretion by not determining if each of the appellees (a neighborhood association and over 40 residents) had standing to appeal the BZA and Planning Commission’s decisions. To have standing, each appellee, including the association, had to have actively participated in the hearing and demonstrated that he or she had been directly affected by the administration’s decision and, thus, it was an improper application of the law, for the trial court to group appellees together in deciding whether the parties collectively met each requirement. Safest Neighborhood Assoc. v. City of Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d 694, 2013 Ohio App. LEXIS 5865 (Ohio Ct. App., Athens County 2013).
Although, as neutral bodies that decided whether to grant zoning applications, the city board of zoning appeals (BZA) and Planning Commission lacked standing, the zoning applicant unquestionably had standing to appeal as an aggrieved party who had been adversely affected by the trial court’s decision. Safest Neighborhood Assoc. v. City of Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d 694, 2013 Ohio App. LEXIS 5865 (Ohio Ct. App., Athens County 2013).
Trial court properly dismissed the business’s appeal for lack of standing because the issue of standing raised by the business related to its standing to seek an appeal to the court of common pleas, not its standing to appeal the decision of the director to the board of zoning appeals. The business was not directly affected by the board’s decision because it only asserted the potential loss of profit as a basis for challenging the board’s decision. Alexis Entm't, LLC v. City of Toledo, 2013-Ohio-3946, 2013 Ohio App. LEXIS 4127 (Ohio Ct. App., Lucas County 2013).
Contiguous property owner had standing under R.C. 2506.01(C) to appeal a decision of a city board of zoning appeals which granted a new owner’s request for a variance, as the contiguous owner’s attorney appeared at the board’s hearing, questioned the constitutionality of the ordinance, and argued against the proposed variance; such conducted indicated the contiguous owner’s intent to appeal any adverse ruling. Groffre Invs. v. City of Canton Bd. of Zoning Appeals, 2013-Ohio-1227, 989 N.E.2d 583, 2013 Ohio App. LEXIS 1184 (Ohio Ct. App., Stark County 2013).
For purposes of a contiguous property owner’s appeal of a decision of a city board of zoning appeals which granted a new owner’s request for a variance, the contiguous owner met the requirements for “active participation” for purposes of establishing standing to appeal under R.C. 2506.01(C), as the contiguous owner’s attorney appeared at the board’s hearing and voiced opposition to the variance request. Groffre Invs. v. City of Canton Bd. of Zoning Appeals, 2013-Ohio-1227, 989 N.E.2d 583, 2013 Ohio App. LEXIS 1184 (Ohio Ct. App., Stark County 2013).
For purposes of a contiguous property owner’s appeal of a decision of a city board of zoning appeals which granted a new owner’s request for a variance, the contiguous owner was directly affected by the decision for purposes of establishing standing to appeal under R.C. 2506.01(C), as the use of the new owner’s property directly affected the marketability of the contiguous owner’s property; further, the harm was unique to the contiguous owner. Groffre Invs. v. City of Canton Bd. of Zoning Appeals, 2013-Ohio-1227, 989 N.E.2d 583, 2013 Ohio App. LEXIS 1184 (Ohio Ct. App., Stark County 2013).
Pursuant to R.C. 2506.01(C), a contiguous property owner had standing to appeal a decision of a city board of zoning appeals which granted a neighboring owner’s request for a variance for a non-conforming use of its property, as the contiguous property owner established the intent to appeal any adverse ruling; the attorney for the contiguous owner specifically stated that he was speaking in opposition to the zoning variance and arguing that the ordinance was unconstitutional on its face and in its application. Groffre Invs. v. City of Canton Bd. of Zoning Appeals, 2013-Ohio-1131, 2013 Ohio App. LEXIS 1042 (Ohio Ct. App., Stark County 2013).
Pursuant to R.C. 2506.01(C), a contiguous property owner had standing to appeal a decision of a city board of zoning appeals which granted a neighboring owner’s request for a variance for a non-conforming use of its property, as the contiguous property owner established its active participation where its counsel appeared on its behalf and opposed the application before the board pursuant to R.C. 519.15; the presence of both the contiguous owner and its attorney was not required. Groffre Invs. v. City of Canton Bd. of Zoning Appeals, 2013-Ohio-1131, 2013 Ohio App. LEXIS 1042 (Ohio Ct. App., Stark County 2013).
Pursuant to R.C. 2506.01(C), a contiguous property owner had standing to appeal a decision of a city board of zoning appeals which granted a neighboring owner’s request for a variance for a non-conforming use of its property, as the decision of the board directly affected the contiguous owner; it asserted that a property zoned residential would diminish the value of its investments in the area. Groffre Invs. v. City of Canton Bd. of Zoning Appeals, 2013-Ohio-1131, 2013 Ohio App. LEXIS 1042 (Ohio Ct. App., Stark County 2013).
Court of common pleas did not have subject matter jurisdiction to review the investigatory findings of a county department of children and family services when a day care provider’s reapplication for a license was denied because the provider failed to establish a present and identifiable intrusion on the provider’s rights as a result of the department’s registry information. Gowdy v. Cuyahoga County Dep't of Children & Family Servs., 2011-Ohio-2156, 2011 Ohio App. LEXIS 1834 (Ohio Ct. App., Cuyahoga County 2011).
Homeowners’ association lacked standing under R.C. ch. 2506 to appeal a decision of a city planning and zoning commission, approving a development on neighboring land, as the association was a contiguous land owner but it had not indicated its interest at the administrative level; it also lacked standing in a representative capacity for its members. Robin's Trace Homeowners' Ass'n v. City of Green Planning & Zoning Comm'n, 2010-Ohio-1168, 2010 Ohio App. LEXIS 974 (Ohio Ct. App., Summit County 2010).
Because appellants failed to present evidence that they were directly affected by the approval of the superstore’s proposed expansion, the trial court correctly determined that they lacked standing to appeal the approval. At no point did appellants present evidence concerning their business or property—what it was, where it was located, or how the superstore expansion would have affected it; instead, appellants made only generalized arguments concerning the expansion and its impact on developers and retailers who may have been subject to different, more onerous procedures and standards. Lofino's, Inc. v. City of Beavercreek, 2009-Ohio-4404, 2009 Ohio App. LEXIS 3721 (Ohio Ct. App., Greene County 2009).
Driver’s appeal from a city’s imposition of civil liability on the owner of a vehicle, driven by defendant, for a speeding offense was dismissed as the driver lacked standing under R.C. 2506.01 to appeal. Under Cleveland, Ohio, Codified Ordinance 413.031(k), the owner was liable for the offense; thus, once the hearing officer found that a violation had been committed in the face of the driver’s contention that no violation had been committed, the owner was the only one directly affected by the administrative order. Rapacz v. City of Cleveland, 2009-Ohio-2038, 2009 Ohio App. LEXIS 1712 (Ohio Ct. App., Cuyahoga County 2009).
Active participation is recognized as a requirement to establish standing to bring an administrative appeal pursuant to R.C. 2506.01. Fahl v. City of Athens, 2007-Ohio-4925, 2007 Ohio App. LEXIS 4412 (Ohio Ct. App., Athens County 2007).
When property owners contesting a city council’s approval of planned unit development ordinances said the owners suffered a unique injury to the owners’ property, giving the owners standing, due to a loss of green space, the owners did not show a unique injury because (1) the alleged green space was owned by a university which had the right to develop the land as the university chose, and (2) if the green space were publicly owned, any injury caused by a loss of the green space was shared by the community and was not unique to these owners. Fahl v. City of Athens, 2007-Ohio-4925, 2007 Ohio App. LEXIS 4412 (Ohio Ct. App., Athens County 2007).
When property owners contesting a city council’s approval of planned unit development ordinances said the owners were exempt from the “active participation” element of the standing required to appeal the council’s decision because the city exceeded the city’s statutory authority by violating the Sunshine Law, R.C. 121.22, in approving the ordinances, the owners were not exempt from the “active participation” requirement for this reason because the owners did not properly raise this claim, as the owners could not assert a Sunshine Law violation in the context of an administrative appeal under R.C. 2506.01, as opposed to bringing an original action. Fahl v. City of Athens, 2007-Ohio-4925, 2007 Ohio App. LEXIS 4412 (Ohio Ct. App., Athens County 2007).
Property owners contesting a city council’s approval of planned unit development ordinances waived the owners’ right to appeal the city council’s decision because the owners did not “actively participate” by attending administrative hearings on the ordinances, and the owners were not exempt from this active participation requirement due to the city allegedly exceeding the city’s statutory authority because (1) the owners did not support the owners’ claim that the city exceeded the city’s authority, and (2) if the city exceeded the city’s authority, this did not create an exception to the active participation requirement because the owners did not claim that the owners’ failure to participate was due to a lack of notice. Fahl v. City of Athens, 2007-Ohio-4925, 2007 Ohio App. LEXIS 4412 (Ohio Ct. App., Athens County 2007).
When a board of zoning appeals granted a permit for a waste transfer station, a township trustee did not have standing to appeal that decision in his capacity as a private citizen because he did not establish that he suffered from a specific harm that was “unique to himself” and different from that suffered by the community at large. City of Macedonia v. Twinsburg Twp. Bd. of Zoning Appeals, 2006-Ohio-2688, 2006 Ohio App. LEXIS 2522 (Ohio Ct. App., Summit County 2006).
When a board of zoning appeals granted a permit for a waste transfer station, a township trustee did not have standing to appeal that decision in his capacity as a trustee because R.C. 519.24 did not explicitly or implicitly authorize him to appeal the decision of a board of zoning appeals. City of Macedonia v. Twinsburg Twp. Bd. of Zoning Appeals, 2006-Ohio-2688, 2006 Ohio App. LEXIS 2522 (Ohio Ct. App., Summit County 2006).
When a board of zoning appeals granted a permit for a waste transfer station, neighboring cities did not have standing to appeal that decision because their interests were distinctly public and they claimed no particularized duty conferring on them a legal interest in the matter or giving them standing to intervene. City of Macedonia v. Twinsburg Twp. Bd. of Zoning Appeals, 2006-Ohio-2688, 2006 Ohio App. LEXIS 2522 (Ohio Ct. App., Summit County 2006).
Neighbors had standing to appeal from the reversal of a board of zoning appeals’ (BZA) denial of a conditional use permit as the owners injected a defect into the proceedings by identifying only the BZA as the appellee in the notice of appeal to the reviewing court, the neighbors did not receive the notice of the BZA hearing required by the township ordinance, and the neighbors participated in the BZA hearing by way of a letter strongly opposing the permit. Parker v. Swancreek Twp. Bd. of Zoning Appeals, 2005-Ohio-538, 2005 Ohio App. LEXIS 569 (Ohio Ct. App., Fulton County 2005).
Township zoning inspector had standing to appeal from the reversal of a board of zoning appeals’ (BZA) denial of a conditional use permit as the owners injected a defect into the proceedings by identifying only the BZA as the appellee in the notice of appeal to the reviewing court and the zoning inspector participated in the BZA proceedings adversely as he testified as to why he denied the application. Parker v. Swancreek Twp. Bd. of Zoning Appeals, 2005-Ohio-538, 2005 Ohio App. LEXIS 569 (Ohio Ct. App., Fulton County 2005).
Swancreek Board of Zoning Appeals lacked standing to appeal from the reversal of its denial of a conditional use permit as it was not a party in a case it decided. Parker v. Swancreek Twp. Bd. of Zoning Appeals, 2005-Ohio-538, 2005 Ohio App. LEXIS 569 (Ohio Ct. App., Fulton County 2005).
Where an abutter did not participate in an owner’s variance hearing or object to the owner’s alleged lack of standing to obtain the variance, the owner’s lack of standing was waived and the abutter lacked standing to appeal the variance under R.C. 2506.01. Nat'l Amusements, Inc. v. Union Twp. Bd. of Zoning Appeals, 2003-Ohio-5434, 2003 Ohio App. LEXIS 4894 (Ohio Ct. App., Clermont County 2003).
The lack of a transcript of the minutes of a city council hearing prevented the challengers of a zoning decision from proving that they had standing to appeal. Antush v. City of N. Ridgeville, 2003-Ohio-3164, 2003 Ohio App. LEXIS 2838 (Ohio Ct. App., Lorain County 2003).
An unincorporated association lacked standing to bring an appeal under R.C. 2506.01 in a representative capacity: Noe Bixby Road Neighbors v. Columbus City Council, 2002-Ohio-6453, 150 Ohio App. 3d 305, 780 N.E.2d 1046, 2002 Ohio App. LEXIS 6272 (Ohio Ct. App., Franklin County 2002).
A landowner within one-half mile of a proposed discount store had standing to appeal issuance of the conditional use permit where he alleged that increased traffic volume would decrease his property value: Jenkins v. City of Gallipolis, 128 Ohio App. 3d 376, 715 N.E.2d 196, 1998 Ohio App. LEXIS 2754 (Ohio Ct. App., Gallia County 1998).
Party had standing to appeal a final administrative order where party held an option to purchase the property in question, had expended funds in the application and approval process of the proposed development of the property, participated in all of the proceedings, was represented by counsel, and the final administrative decision was adverse, directly affecting the party’s interest in the subject property: Dayton Hudson Corp. - Target Store Div. v. Washington Twp. Bd. of Trustees, 1998 Ohio App. LEXIS 362 (Ohio Ct. App., Montgomery County Feb. 6, 1998).
Standing to appeal from the granting of a variance was absent where the plaintiffs did not participate in the administrative proceedings and did not demonstrate an injury unique to themselves: Scarberry v. City of Pataskala Bd. of Zoning Appeals, 99 Ohio Misc. 2d 80, 716 N.E.2d 785, 1998 Ohio Misc. LEXIS 65 (Ohio C.P. 1998).
Mere participation in a zoning hearing without a showing of adverse effect is not sufficient to establish standing to appeal: Zelnick v. Troy City Council, 85 Ohio Misc. 2d 67, 684 N.E.2d 381, 1997 Ohio Misc. LEXIS 273 (Ohio C.P. 1997).
The township trustees had standing under R.C. Chapter 2506 to appeal the administrative decision granting the variance because it affected their affirmative duty to maintain safe roads: Symmes Twp. Bd. of Trustees v. Hamilton County Bd. of Zoning Appeals, 110 Ohio App. 3d 527, 674 N.E.2d 1196, 1996 Ohio App. LEXIS 1114 (Ohio Ct. App., Hamilton County 1996).
An administrative agency, acting in the role of an impartial decisionmaker, generally lacks standing as a party from an appeal of its own order: In re Kerry Ford, Inc., 110 Ohio App. 3d 611, 674 N.E.2d 1249, 1995 Ohio App. LEXIS 6115 (Ohio Ct. App., Franklin County 1995).
A nearby shopping center had standing under R.C. 2506.01 to appeal the granting of a zoning amendment allowing expansion of a shopping mall where the expansion would adversely affect the value of the center’s property: Westgate Shopping Village v. City of Toledo, 93 Ohio App. 3d 507, 639 N.E.2d 126, 1994 Ohio App. LEXIS 881 (Ohio Ct. App., Lucas County 1994).
The trustees of the water and sewer district did not have standing to contest the annexation proceedings: In re Appeal of Jefferson Township Bd. of Trustees, 78 Ohio App. 3d 493, 605 N.E.2d 435, 1992 Ohio App. LEXIS 1007 (Ohio Ct. App., Franklin County 1992).
Where a municipality’s charter or its ordinances expressly allow the municipality to seek appellate review of determinations made by its board of zoning appeals, the municipality has standing pursuant to R.C. 2506.01 to “attack or avoid” such decisions in the common pleas court: Willoughby Hills v. C. C. Bar's Sahara, Inc., 1992-Ohio-111, 64 Ohio St. 3d 24, 591 N.E.2d 1203, 1992 Ohio LEXIS 1346 (Ohio 1992).
Revised Code Chapter 2506 provides for an appeal only by a person directly affected by the decision sought to be appealed. Ordinarily, an administrative officer is not a person whose interests are directly affected by an administrative decision. Although an administrative officer may have standing to defend, on behalf of the entity of which he is an officer, in an appeal prosecuted by some other person, he does not ordinarily have standing to prosecute an appeal from a decision by his entity’s highest administrative body: Columbus Regulations Admin. v. Talbott, 40 Ohio App. 3d 48, 531 N.E.2d 724, 1987 Ohio App. LEXIS 10714 (Ohio Ct. App., Franklin County 1987).
Persons who have appeared with counsel at a hearing before a township board of zoning appeals pursuant to R.C. 519.15, and whose position has been sustained by the zoning board, may intervene as a matter of right pursuant to Civ. R. 24(A)(2) in a subsequent R.C. Chapter 2506 appeal filed in the court of common pleas by the unsuccessful party: American Sand & Gravel, Inc. v. Theken, 41 Ohio App. 3d 98, 534 N.E.2d 896, 1987 Ohio App. LEXIS 10765 (Ohio Ct. App., Stark County 1987).
A nonprofit corporation or unincorporated association has standing to maintain an action for declaratory judgment or injunction on behalf of its members where the members would otherwise have standing to sue, the interests sought to be protected are germaine [germane] to the purpose of the organization, and neither the claim asserted nor the relief requested necessarily requires participation of individual members in the case. However, representation by a nonprofit corporation or unincorporated association does not extend to the right of appeal afforded by R.C. Chapter 2506 since the right to appeal thereunder is conferred only upon the person directly affected by the administrative decision: Northern Woods Civic Asso. v. Columbus Graphics Com., 31 Ohio App. 3d 46, 508 N.E.2d 676, 1986 Ohio App. LEXIS 10109 (Ohio Ct. App., Franklin County 1986).
Although an appointing authority of a municipal corporation in his official capacity has no right of appeal under R.C. 2506.01, under R.C. 124.34 the appointing authority does have the right to appeal a final order of the municipal civil service commission which orders reinstatement of an employee who was removed for being absent without leave: Welch v. Cason, 13 Ohio App. 3d 64, 467 N.E.2d 1390, 1983 Ohio App. LEXIS 11377 (Ohio Ct. App., Franklin County 1983).
The order of a village planning commission granting a use variance is appealable pursuant to R.C. Chapter 2506. A person owning property contiguous to the proposed use who has previously indicated an interest in the matter by a prior court action challenging the use, and who attends a hearing on the variance together with counsel, is within the class of persons directly affected by the administrative decision and is entitled to appeal under R.C. Chapter 2506: Schomaeker v. First Nat'l Bank, 66 Ohio St. 2d 304, 20 Ohio Op. 3d 285, 421 N.E.2d 530, 1981 Ohio LEXIS 514 (Ohio 1981).
A resident property owner and elector of a township who appears before a township board of zoning appeals and is represented by an attorney and who opposed the granting of a variance permitting a commercial use in a residential area has a right to appeal to the common pleas court pursuant to R.C. 2506.01: Fox v. Shriver-Allison Co., 28 Ohio App. 2d 175, 57 Ohio Op. 2d 234, 275 N.E.2d 637, 1971 Ohio App. LEXIS 517 (Ohio Ct. App., Mahoning County 1971).
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 R.C. 519.15 and 2506.01 to 2506.04, inclusive, and Chapter 2505: Roper v. Board of Zoning Appeals, 173 Ohio St. 168, 18 Ohio Op. 2d 437, 180 N.E.2d 591, 1962 Ohio LEXIS 587 (Ohio 1962).
Where a township resident property owner appears, with counsel, before the township board of zoning appeals in opposition to a proposed zoning variance and advises the board that, should such variance be allowed, the order would be appealed, and the order of the board allowing such variance affects and determines his various rights as a property owner, such property owner comes within the class of “specified” persons in R.C. 2506.01 and may appeal such board of zoning appeals decision to the common pleas court: Roper v. Board of Zoning Appeals, 115 Ohio App. 62, 20 Ohio Op. 2d 192, 184 N.E.2d 439, 1961 Ohio App. LEXIS 576 (Ohio Ct. App., Summit County 1961), aff'd, 173 Ohio St. 168, 18 Ohio Op. 2d 437, 180 N.E.2d 591, 1962 Ohio LEXIS 587 (Ohio 1962).
State agencies
R.C. Chapter 2506 does not apply to decisions of unemployment compensation review commission, a state agency: Abrams-Rodkey v. Summit County Children Servs., 2005-Ohio-4359, 163 Ohio App. 3d 1, 836 N.E.2d 1, 2005 Ohio App. LEXIS 3962 (Ohio Ct. App., Summit County 2005).
The term “political subdivision” does not include the State of Ohio or its agencies; therefore, R.C. 2506.01 does not provide for appeals of determinations by SERB, since it is a state agency: South Community, Inc. v. State Employment Relations Bd., 38 Ohio St. 3d 224, 527 N.E.2d 864, 1988 Ohio LEXIS 283 (Ohio 1988).
Sufficient evidence
Trial court did not abuse its discretion by finding that the discharged police sergeant’s due process challenge was not well taken because the trustees provided the sergeant with notice and an opportunity to be heard, he was served a copy of the charges against him, the notice indicated that the charges would be heard at the next regular meeting of the board of trustees, and the notice indicated that termination would be considered. The sergeant appeared, represented by counsel who cross-examined all witnesses and presented closing arguments. Furnas v. Clay Twp. Trs., 2012-Ohio-5408, 2012 Ohio App. LEXIS 4695 (Ohio Ct. App., Montgomery County 2012).
Based on OAC 5101:2-14-06, there was sufficient evidence for the trial court to find that the county must revoke the provider’s Type B child care certification due to the determination by children services of child abuse, when the provider did not point to any language within the Ohio Administrative Code that stated that the county had discretion to determine whether the finding of child abuse by was valid or not. Joseph v. Muskingum County Dep't of Job & Family Servs., 2011-Ohio-3024, 2011 Ohio App. LEXIS 2548 (Ohio Ct. App., Muskingum County 2011).
Supersedeas bond
An appeal will be dismissed where appellant fails to comply with R.C. 2505.06 by filing a supersedeas bond: Ballado v. Cleveland Heights, 76 Ohio App. 3d 497, 602 N.E.2d 394, 1991 Ohio App. LEXIS 5685 (Ohio Ct. App., Cuyahoga County 1991).
Test for judicial decision
The test to be applied by a court in appeals under R.C. 2506.01 is whether the order appealed from is “unreasonable” or “arbitrary and capricious”: Broad-Miami Co. v. Board of Zoning Adjustment, 185 N.E.2d 76, 89 Ohio Law Abs. 140, 1959 Ohio Misc. LEXIS 245 (Ohio C.P. 1959).
Time for appeal
Trial court erred in concluding that a terminated fire department employee failed to perfect the employee's appeal in a timely manner, and in dismissing the employee's administrative appeal, because the facts of record regarding administrative board's decision and written findings of fact were insufficient to determine whether the employee's notice of appeal was filed in a timely manner. Leist v. Mad River Twp. Bd. of Trs., 2015-Ohio-1046, 2015 Ohio App. LEXIS 1023 (Ohio Ct. App., Clark County 2015).
In an administrative appeal under the provision of R.C. 2506.01 et seq., the time for perfecting the appeal is determined by R.C. 2505.07 and is ten [now thirty] days from the entry of the decision of the board or officer from which appeal is taken: Lakewood Homes, Inc. v. Board of Adjustment, 25 Ohio App. 2d 125, 54 Ohio Op. 2d 306, 267 N.E.2d 595, 1971 Ohio App. LEXIS 541 (Ohio Ct. App., Allen County 1971).
Vacation of road
Trial court properly dismissed an appeal of the vacation of an unopened portion of a road because the record did not reflect that the board of county commissioners' received the challengers’ notice of appeal the same day as the final hearing as required by R.C. 5563.02 and they failed to cure the jurisdictional defect of their first notice of appeal filed with the trial court to vest it with jurisdiction. Bramel v. Columbiana Cnty. Comm'rs, 2015-Ohio-5289, 2015 Ohio App. LEXIS 5102 (Ohio Ct. App., Columbiana County 2015).
R.C. 5563.02 is the exclusive means for appealing a decision of a board of county commissioners (board) to vacate a road and requires any person desiring to appeal from the final order or judgment of the board upon any such questions, shall, at the final hearing give notice in writing of an intention to appeal, specifying therein the matters to be appealed from. Bramel v. Columbiana Cnty. Comm'rs, 2015-Ohio-5289, 2015 Ohio App. LEXIS 5102 (Ohio Ct. App., Columbiana County 2015).
Because the act of vacating a road is a legislative function not subject to appeal under R.C. Chapter 2506, the trial court lacked subject matter jurisdiction over the appeal and properly dismissed it: Ohio Multi-Use Trails Ass'n v. Vinton County Comm'rs, 2009-Ohio-2061, 182 Ohio App. 3d 32, 911 N.E.2d 350, 2009 Ohio App. LEXIS 1795 (Ohio Ct. App., Vinton County 2009).
Revised Code § 5563.01 et seq. provide the exclusive method for review of vacation of a road by county commissioners: Wolf v. Lordi (In re Chestnut Alley Pub.Rd.), 115 Ohio App. 3d 492, 685 N.E.2d 818, 1996 Ohio App. LEXIS 4830 (Ohio Ct. App., Mahoning County 1996).
The court of common pleas is without power or authority to hear the abutting landowners’ appeal filed under R.C. Chapter 2506 from the board of county commissioners’ decision to vacate a county road. Under such circumstances, R.C. Chapter 5563 prevails and is exclusively applicable: Goetz v. Board of County Comm'rs, 34 Ohio App. 3d 76, 517 N.E.2d 244, 1986 Ohio App. LEXIS 10309 (Ohio Ct. App., Butler County 1986).
Vacation of street
A city council’s vacation of a street pursuant to R.C. 723.04 is a legislative act and is not appealable under R.C. 2506.01: Armate Assocs. v. City of Reyoldsburg, 122 Ohio App. 3d 469, 702 N.E.2d 130, 1997 Ohio App. LEXIS 3864 (Ohio Ct. App., Franklin County 1997).
Zoning
Property owner’s administrative appeal of a city’s rezoning decision was properly dismissed, as the trial court lacked subject matter jurisdiction over the matter because the rezoning decision was a legislative, rather than administrative, act. Thies v. City of Dayton, 2019-Ohio-402, 2019 Ohio App. LEXIS 408 (Ohio Ct. App., Montgomery County 2019).
Board of zoning appeals (BZA) did not improperly apply a “uniqueness” evidentiary standard because, inter alia, the BZA acted within its statutory authority to question the property owners about unique harm they would suffer due to the applicant’s conditional use of the property, and the owners’ generalized fears of pollution, property value decrease, noise, and traffic were speculative potential harms to the area at large. Eckert v. Warren Cty. Rural Bd. of Zoning Appeals, 2018-Ohio-4384, 2018 Ohio App. LEXIS 4714 (Ohio Ct. App., Warren County 2018).
Trial court did not abuse its discretion in finding an owner's property constituted a nuisance and affirming a city's demolition order because, inter alia, the property, comprised of four buildings of which one was unoccupied, posed a fire hazard, the amount of crime at the property posed a danger, and the repairs by the owner were not directed to material violations and did not correct significant safety issues. Nuwin Realty, LLC v. City of Englewood, 2017-Ohio-480, 84 N.E.3d 346, 2017 Ohio App. LEXIS 467 (Ohio Ct. App., Montgomery County 2017).
City appropriately communicated with an owner about the demolition of the owner's property because the owner received the notice and had an opportunity to be heard but did not apply for a permit to repair the conditions, did not submit a construction schedule and plans, did not get approval in writing from the city for the schedule and plans, and did not attempt to provide sufficient surety to the city. Nuwin Realty, LLC v. City of Englewood, 2017-Ohio-480, 84 N.E.3d 346, 2017 Ohio App. LEXIS 467 (Ohio Ct. App., Montgomery County 2017).
Lower court had to consider the neighbor’s standing and determine whether she showed her concerns for excessive noise were substantiated and established a unique harm. Kurtock v. Cleveland Bd. of Zoning Appeals, 2014-Ohio-1836, 2014 Ohio App. LEXIS 1796 (Ohio Ct. App., Cuyahoga County 2014).
Trial court’s decision affirming the village’s denial of the land owners’ request for a zoning variance was unreasonable and arbitrary and an abuse of discretion based on the disparate treatment of the owners, combined with the de minimis difference between the size of the lot and the minimum required size, and the provision in a village ordinance that required the village to “grandfather in” the lot as a buildable lot lead. Under a “grandfathering-in” analysis, when the village decided to increase the minimum buildable lot size in 1978, that lot should have been grandfathered in so as to remain a buildable lot. Boice v. Vill. of Ottawa Hills, 2013-Ohio-4769, 137 Ohio St. 3d 412, 999 N.E.2d 649, 2013 Ohio LEXIS 2646 (Ohio 2013).
Trial court properly denied an owner’s declaratory judgment claims because the location of the owner’s land in a subdivision owned by a private corporation did not exempt them from the provisions of a township’s zoning resolution, and as the owner failed to pursue his administrative remedies. Soplata v. Endres, 2013-Ohio-4424, 999 N.E.2d 261, 2013 Ohio App. LEXIS 4661 (Ohio Ct. App., Geauga County 2013).
Trial court properly vacated the approval of a conditional use permit made by a township board of zoning appeals because the board had filed an appeal pursuant to App.R. 3(A) and R.C. 2505.04 and, therefore, had no authority to take further action on the application for the permit while the appeal was pending. Howard v. Greenville Twp. Bd. of Zoning Appeals, 2013-Ohio-4076, 2013 Ohio App. LEXIS 4260 (Ohio Ct. App., Darke County 2013).
Tax company chose to proceed on the constitutional challenge and signage issue as a request for declaratory judgment, and therefore could not argue that the trial court erred by bifurcating the proceedings. Once the common pleas court made a determination as to the company’s administrative appeal, the declaratory judgment action became ripe for review. Kaelorr, LLC v. W. Chester Twp. Bd. of Zoning Appeals, 2012-Ohio-4875, 2012 Ohio App. LEXIS 4283 (Ohio Ct. App., Butler County 2012).
Board of Zoning Appeals (BZA) impermissibly promulgated new law rather than interpreted existing law when it imposed conditions on an area variance because the BZA failed to indicate provisions in the zoning resolution that authorized any of the 14 conditions imposed. Smith v. Richfield Twp. Bd. of Zoning Appeals, 2012-Ohio-1175, 2012 Ohio App. LEXIS 1032 (Ohio Ct. App., Summit County 2012).
Trial court applied the correct standard and its decision finding that the city board of zoning appeals applied the wrong legal standard, because the proper scope of the board’s was limited to determining whether the proposed use of the property qualified as a principal permitted use, as specified in Athens City Code 23.04.07, or qualified as the same general character as those specified uses. Three Wide Entm't v. City of Athens Bd. of Zoning Appeals, 2011-Ohio-2304, 194 Ohio App. 3d 1, 954 N.E.2d 191, 2011 Ohio App. LEXIS 1973 (Ohio Ct. App., Athens County 2011).
Trial court did not err in dismissing the corporation’s R.C. ch. 2506 appeal because the board of zoning appeals was never properly served with the corporation’s notice of the administrative appeal. The corporation failed to employ the proper procedural channels to perfect its appeal, as outlined in R.C. 2505.04; the corporation had a statutory duty to file the notice of appeal with both the administrative body and the trial court. All Erection & Crane Rental Corp. v. Twp. of Newbury, 2009-Ohio-6705, 2009 Ohio App. LEXIS 5628 (Ohio Ct. App., Geauga County 2009).
Decision of a city’s board of zoning and building appeals denying a trust’s requests for variances from required setbacks between oil and gas wells and tank batteries and inhabited dwellings was properly affirmed because the trust did not demonstrate required practical difficulties, as the trust knew these setbacks would be enforced when the trust installed the well and tank battery in question, so the trust’s difficulties were self-imposed. Smith Family Trust v. City of Hudson Bd. of Zoning & Bldg. Appeals, 2009-Ohio-2557, 2009 Ohio App. LEXIS 2251 (Ohio Ct. App., Summit County 2009).
Appeal from the granting of a variance was moot where the variance had expired: Schellhardt v. Mercer County Comm'rs, 2009-Ohio-1919, 182 Ohio App. 3d 639, 914 N.E.2d 437, 2009 Ohio App. LEXIS 1628 (Ohio Ct. App., Mercer County 2009).
Township zoning manager exceeded statutory authority under R.C. 519.17 in declining to issue a stop work order to a property owner whose construction of a wall sign violated a township zoning resolution, as a permit to allow the sign could only be issued where the sign complied with all resolutions; the zoning manager lacked discretion in the circumstances, such that there was no reliable, probative, and substantial evidence to affirm that decision under R.C. 2506.01. Jeffrey Mann Fine Jewelers, Inc. v. Sylvania Twp. Bd. of Zoning Appeals, 2008-Ohio-3503, 2008 Ohio App. LEXIS 2935 (Ohio Ct. App., Lucas County 2008).
Etna zoning regulations clearly provide that a letter giving notice of a decision of the board of zoning appeals is not the final appealable order, but rather, the approval and signing of the minutes triggers the running of the time for appeal. Appellant did not establish any basis that would provide standing to bring an appeal from the decision of the board: Guttentag v. Etna Twp. Bd. of Zoning Appeals, 2008-Ohio-2642, 177 Ohio App. 3d 53, 893 N.E.2d 890, 2008 Ohio App. LEXIS 2232 (Ohio Ct. App., Licking County 2008).
Trial court erred as a matter of law in affirming the board’s decision because the township’s zoning resolution was an invalid exercise of the township’s authority under R.C. 519.02; because the zoning resolution did not regulate the use of unincorporated township land in accordance with a comprehensive plan, the resolution was invalid. The trial court erred as a matter of law by upholding the validity of the zoning resolution merely because the resolution was substantially related to governmental interests. B. J. Alan Co. v. Cong. Twp. Bd. of Zoning Appeals, 2007-Ohio-7023, 2007 Ohio App. LEXIS 6171 (Ohio Ct. App., Wayne County 2007), rev'd, 2009-Ohio-5863, 124 Ohio St. 3d 1, 918 N.E.2d 501, 2009 Ohio LEXIS 3175 (Ohio 2009).
Constitutional issues regarding the enforceability of zoning ordinances as applied to owners’ property were properly before a trial court where the owners filed an appeal under R.C. 2506.01 to challenge the village zoning commission’s denial of their request for a variance and they also challenged the constitutionality of the ordinance thereunder; they did not need to file a declaratory judgment under R.C. 2721.03, as they did not contest the constitutionality of the ordinance on its face, and they did not need to file a mandamus action under R.C. 2731.04 where they did not seek money damages for the alleged taking of their property. Boice v. Vill. of Ottawa Hills, 2007-Ohio-4471, 2007 Ohio App. LEXIS 4034 (Ohio Ct. App., Lucas County 2007).
Where the zoning inspector and the board of appeals acted beyond their authority under the township zoning plan concerning a public utility, their acts were subject to collateral attack based on a lack of subject matter jurisdiction: Superior Hauling, Inc. v. Allen Twp. Zoning Bd. of Appeals, 2007-Ohio-3109, 172 Ohio App. 3d 313, 874 N.E.2d 1216, 2007 Ohio App. LEXIS 2869 (Ohio Ct. App., Ottawa County 2007).
Proposed addition of an outside tavern area to a pub violated the city’s zoning code: Pupco Prop. Mgmt. v. City of Cincinnati, 2007-Ohio-1315, 170 Ohio App. 3d 641, 868 N.E.2d 738, 2007 Ohio App. LEXIS 1211 (Ohio Ct. App., Hamilton County 2007).
Constitutional issues regarding the enforceability of zoning ordinances as applied to owners’ property were properly before a trial court where the owners filed an appeal under R.C. 2506.01 to challenge the village zoning commission’s denial of their request for a variance and they also challenged the constitutionality of the ordinance thereunder; they did not need to file a declaratory judgment under R.C. 2721.03, as they did not contest the constitutionality of the ordinance on its face, and they did not need to file a mandamus action under R.C. 2731.04 where they did not seek money damages for the alleged taking of their property. Boice v. Vill. of Ottawa Hills, 2007-Ohio-4471, 2007 Ohio App. LEXIS 4034 (Ohio Ct. App., Lucas County 2007).
As a recycling facility’s request to expand its landfill acreage as a non-conforming use was not a quasi-judicial proceeding, the township board of zoning appeals did not have to prepare and submit a transcript, and there was no right to notice and a hearing on a property owner’s appeal therefrom pursuant to R.C. 2506.01. Charton v. Pike Twp. Bd. of Zoning Appeals, 2007 Ohio App. LEXIS 1583 (Ohio Ct. App., Stark County Apr. 9, 2007).
No action passed a planned unit development motion by operation of law; where a board’s record indicated that the issue of owners’ planned unit development was removed from the table by unanimous vote, a corporation was required to file an appeal within 30 days, and by failing to do so, it failed to exhaust its administrative remedies, and its appeal was untimely. Roshon v. Ohioans for Responsible Rural Dev., Inc., 2006-Ohio-375, 2006 Ohio App. LEXIS 318 (Ohio Ct. App., Fairfield County 2006).
Trial court erred when it prematurely dismissed the administrative appeal for lack of subject matter jurisdiction before the record and transcript of the proceedings were filed with the trial court. If the BZA properly addressed the request for a landfill expansion as a nonconforming use, there was no right to appeal. If the request should have been addressed as for a conditional use permit, there would be a right of appeal: Charton v. Pike Twp. Bd. of Zoning Appeals, 2005-Ohio-6340, 164 Ohio App. 3d 487, 842 N.E.2d 1088, 2005 Ohio App. LEXIS 5695 (Ohio Ct. App., Stark County 2005).
Trial court should have vacated the consent judgment (which found that the zoning resolutions were invalid as applied to the subject property) so to allow the neighbor’s intervention, under Civ.R. 24, because the neighbor should have been allowed to defend the duly enacted zoning regulations. The availability of an action to review the denial of a variance sought by the owner of a specific tract of land did not preclude a declaratory judgment action challenging the constitutionality of the zoning restrictions on that land, pursuant to R.C. 2506.01 et seq. State ex rel. Republic Servs. of Ohio II, LLC v. Pike Twp. Bd. of Trs., 2005-Ohio-6460, 2005 Ohio App. LEXIS 5824 (Ohio Ct. App., Stark County 2005).
When landowners sought a conditional use permit to allow them to establish a “pay lake” on their property, the denial of their application was not improper, under the standards in R.C. 2506.04, because they lived in an R-1 district in which the only allowable conditional uses were public parks and nature preserves, and, under common definitions of these terms, a “pay lake,” which would be privately owned and operated for profit, did not fit such definitions, so it was not an abuse of discretion for a trial court to affirm the decision of a board of zoning appeals denying the application. Puckett v. Scioto Twp. Bd. of Zoning Appeals, 2005-Ohio-5430, 163 Ohio App. 3d 535, 839 N.E.2d 426, 2005 Ohio App. LEXIS 4914 (Ohio Ct. App., Pickaway County 2005).
Declaratory judgment action filed by a property owner was not barred by the doctrine of the exhaustion of remedies, even though the owner twice failed to appeal from the denial of a variance pursuant to R.C. ch. 2506, as the owner had a right to proceed with a declaratory judgment action to challenge the constitutionality of Mentor-on-the-Lake, Ohio, Zoning Code § 1252.04, regardless of whether the owner could have filed an administrative appeal. Pengal v. City of Mentor-On-The-Lake, 2005-Ohio-5118, 2005 Ohio App. LEXIS 4611 (Ohio Ct. App., Lake County 2005).
Substantial justice was done when a builder was granted a side setback area variance for two houses it wanted to build in a development classified as a planned unit development because, if the variance was denied, the builder could build the same houses with the setback it sought under an R-1 or R-1A classification, after going through the process of re-applying to the planning commission and re-notifying necessary parties, creating substantial difficulties, without the condition attached to the variance that a substantial landscape barrier be built between the houses and adjacent lots, so objecting neighbors would have more privacy under the variance than if the houses were built under an R-1 or R-1A classification. Langan v. Bd. of Zoning Appeals, 2005-Ohio-4542, 2005 Ohio App. LEXIS 4109 (Ohio Ct. App., Lorain County 2005).
When a city council denied a developer’s application for a planned unit development, the denial was an administrative act that was reviewable under R.C. 2506.01 because no amendment of the city’s zoning ordinance would have been required to approve the application, as planned unit developments were already allowed by the zoning code in any residential area, so the council was merely considering whether the developer’s application complied with the zoning code. Gross Builders v. City of Tallmadge, 2005-Ohio-4268, 2005 Ohio App. LEXIS 3865 (Ohio Ct. App., Summit County 2005).
When a city council denied a developer’s application for a planned unit development, the denial was the result of a quasi-judicial proceeding that was reviewable under R.C. 2506.01 because notice and a hearing were provided, and the city council exercised its discretion in denying the application, after considering the recommendation of its planning and zoning commission. Gross Builders v. City of Tallmadge, 2005-Ohio-4268, 2005 Ohio App. LEXIS 3865 (Ohio Ct. App., Summit County 2005).
Person with an ownership interest in adjacent property had standing to appeal from the grant of a conditional use permit: Anderson v. City of Vandalia, 2005-Ohio-118, 159 Ohio App. 3d 508, 824 N.E.2d 568, 2005 Ohio App. LEXIS 115 (Ohio Ct. App., Montgomery County 2005).
Although a previous order issued by the county planning commission could have been construed such that the date of the final order was earlier than a later city council decision, appellant residents reasonably interpreted the rezoning ordinance issued as a result from the same as the order from which a timely appeal to the court would follow. Siwik v. City of Shaker Heights, 2003-Ohio-5502, 2003 Ohio App. LEXIS 4938 (Ohio Ct. App., Cuyahoga County 2003).
A request to a city council to rezone property is a request for legislative action, and council’s decision is not appealable under R.C. 2506.01: BP Am., Inc. v. Council of Avon, 142 Ohio App. 3d 38, 753 N.E.2d 947, 2001 Ohio App. LEXIS 1428 (Ohio Ct. App., Lorain County 2001).
Rezoning of property by city council is a legislative action that is not reviewable under R.C. Chapter 2506. Proceedings on an application for a conditional use permit are quasi-judicial, and council’s action is appealable: Ivkovich v. City of Steubenville, 2001-Ohio-3282, 144 Ohio App. 3d 25, 759 N.E.2d 434, 2001 Ohio App. LEXIS 2566 (Ohio Ct. App., Jefferson County 2001).
A challenge to a zoning ordinance solely on the grounds that it is unconstitutional on its face cannot be brought under R.C. Chapter 2506: Grossman v. City of Cleveland Heights, 120 Ohio App. 3d 435, 698 N.E.2d 76, 1997 Ohio App. LEXIS 2777 (Ohio Ct. App., Cuyahoga County 1997).
Township trustees may not challenge a board of county commissioners’ decision involving a petition for incorporation through either an R.C. Chapter 2506 appeal or an R.C. 707.11 proceeding: Board of Trustees v. Petitioners for Incorporation of the Village of Holiday City (In re Petition for Incorporation of the Village of Holiday City), 1994-Ohio-405, 70 Ohio St. 3d 365, 639 N.E.2d 42, 1994 Ohio LEXIS 2085 (Ohio 1994).
Action of a city council in rezoning property pursuant to a request is legislative in nature and cannot be appealed under R.C. Chapter 2506: Schropshire v. City of Englewood, 92 Ohio App. 3d 168, 634 N.E.2d 657, 1993 Ohio App. LEXIS 5374 (Ohio Ct. App., Montgomery County 1993).
A planning commission’s preliminary approval of a real estate project, or decision to rescind preliminary approval is not an appealable order under R.C. 2506.01: State ex rel. Harpley Builders, Inc. v. Akron, 62 Ohio St. 3d 533, 584 N.E.2d 724, 1992 Ohio LEXIS 213 (Ohio 1992).
The city council performed a quasi-judicial function when it reviewed the application of a conditional use permit: Talbut v. Perrysburg, 72 Ohio App. 3d 475, 594 N.E.2d 1046, 1991 Ohio App. LEXIS 518 (Ohio Ct. App., Wood County 1991).
Revised Code Chapter 2506 provides for appeals only by persons directly affected by administrative decisions. Whether a neighboring landowner is directly affected by a zoning decision depends on the circumstances of the case: American Aggregates Corp. v. Columbus, 66 Ohio App. 3d 318, 584 N.E.2d 26, 1990 Ohio App. LEXIS 951 (Ohio Ct. App., Franklin County 1990).
In order to perfect an appeal from a board of zoning appeals to the court of common pleas for the county in which such board of zoning appeals is located, a notice of appeal must be filed with the zoning board itself: Guysinger v. Board of Zoning Appeals, 66 Ohio App. 3d 353, 584 N.E.2d 48, 1990 Ohio App. LEXIS 1103 (Ohio Ct. App., Ross County 1990), abrogated, Welsh Dev. Co. v. Warren Cnty. Reg'l Planning Comm'n, 2011-Ohio-1604, 128 Ohio St. 3d 471, 946 N.E.2d 215, 2011 Ohio LEXIS 814 (Ohio 2011), Abrogated by Welsh Dev. Co. v. Warren Cnty. Reg'l Planning Comm'n, 2011-Ohio-1604, 128 Ohio St. 3d 471, 946 N.E.2d 215, 2011 Ohio LEXIS 814 (Ohio 2011).
Where an action seeks both an administrative review under R.C. Chapter 2506 and a declaratory judgment as to the constitutionality of a zoning ordinance, the court must first determine the basic issue of constitutionality before it considers the reasonableness of the administrative determination: Sudan, Inc. v. Chagrin Falls, 63 Ohio App. 3d 83, 577 N.E.2d 1160, 1989 Ohio App. LEXIS 1750 (Ohio Ct. App., Cuyahoga County 1989).
The constitutionality of a zoning ordinance may be attacked in two ways. An appeal from an administrative zoning decision can be taken pursuant to R.C. Chapter 2506. In addition, or in the alternative, a declaratory judgment action pursuant to R.C. Chapter 2721 can be pursued (Driscoll v. Austintown Associates, 42 Ohio St. 2d 263, 71 Ohio Op. 2d 247, 328 N.E.2d 395 (Ohio 1975).
An appeal from a city board of zoning appeals to a court of common pleas may be perfected only by filing a notice of appeal with the board itself. Service of the notice of appeal on the city’s law director, the board’s representative, is not sufficient to satisfy the jurisdictional requirements of R.C. 2505.04: Patrick Media Group, Inc. v. Cleveland Bd. of Zoning, 55 Ohio App. 3d 124, 562 N.E.2d 921, 1988 Ohio App. LEXIS 4086 (Ohio Ct. App., Cuyahoga County 1988), abrogated, Welsh Dev. Co. v. Warren Cnty. Reg'l Planning Comm'n, 2011-Ohio-1604, 128 Ohio St. 3d 471, 946 N.E.2d 215, 2011 Ohio LEXIS 814 (Ohio 2011).
A county board of zoning appeals is without jurisdiction to rescind a resolution granting a conditional use permit when the period for an appeal of the zoning board’s resolution to the court of common pleas, as set forth in R.C. 2505.07 and 2506.01, has expired: Homes, Inc. v. Butler County Bd. of Zoning Appeals, 35 Ohio App. 3d 161, 520 N.E.2d 605, 1987 Ohio App. LEXIS 10493 (Ohio Ct. App., Butler County 1987).
The factors to be considered and weighed in determining whether a property owner seeking an area variance has encountered practical difficulties in the use of his property include, but are not limited to: (1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner’s predicament feasibly can be obviated through some method other than a variance; (7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance: Duncan v. Middlefield, 23 Ohio St. 3d 83, 491 N.E.2d 692, 1986 Ohio LEXIS 610 (Ohio), cert. denied, 479 U.S. 986, 107 S. Ct. 576, 93 L. Ed. 2d 579, 1986 U.S. LEXIS 4926 (U.S. 1986).
Trial courts have jurisdiction to rule on constitutional challenges to municipal ordinances raised in appeals pursuant to R.C. 2506.01: FRC of Kamms Corner, Inc. v. Cleveland Bd. of Zoning Appeals, 14 Ohio App. 3d 372, 471 N.E.2d 845, 1984 Ohio App. LEXIS 11915 (Ohio Ct. App., Cuyahoga County 1984).
A municipality must authorize uses consistent with its existing zoning code. The denial of a special permit for a generally authorized use because the city prefers that the land not be used as it is zoned constitutes unlawful zoning without legislative action: Hydraulic Press Brick Co. v. Council of Independence, 16 Ohio App. 3d 204, 475 N.E.2d 144, 1984 Ohio App. LEXIS 12341 (Ohio Ct. App., Cuyahoga County 1984).
A cause of action which has been litigated in federal court determining that a zoning ordinance did not violate the United States Constitution may not thereafter be litigated in a state court, in a case involving the same parties and the same facts as those in the federal case, on the grounds that the zoning ordinance violated the Ohio Constitution, based on the doctrine of res judicata: Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. Lakewood, 20 Ohio App. 3d 338, 486 N.E.2d 194, 1984 Ohio App. LEXIS 12612 (Ohio Ct. App., Cuyahoga County 1984).
A person entitled under R.C. Chapter 2506 to appeal the order of a planning commission granting a variance pursuant to a village ordinance is not entitled to a declaratory judgment where failure to exhaust administrative remedies is asserted and maintained: Schomaeker v. First Nat'l Bank, 66 Ohio St. 2d 304, 20 Ohio Op. 3d 285, 421 N.E.2d 530, 1981 Ohio LEXIS 514 (Ohio 1981).
A declaration of unconstitutionality of a zoning ordinance and a determination of a reasonable use or uses in a declaratory judgment action have the same legal effect as a successful R.C. Chapter 2506 appeal. Where a property owner is successful in an attack on constitutionality under R.C. Chapter 2506, the court has determined that the prohibition against a proposed use is unconstitutional. When, in a declaratory judgment action, a court determines unconstitutionality of a zoning ordinance as applied to a particular parcel of property and a reasonable use or uses for the property, any action taken to prevent or deny development of the property for that reasonable use will also be considered an unconstitutional act. Thus, any prohibition against the reasonable use found by the court is unconstitutional: Central Motors Corp. v. City of Pepper Pike, 63 Ohio App. 2d 34, 13 Ohio Op. 3d 347, 409 N.E.2d 258, 1979 Ohio App. LEXIS 8405 (Ohio Ct. App., Cuyahoga County 1979).
A property owner may attack the constitutionality of a zoning ordinance either in a declaratory judgment action under R.C. Chapter 2721, or in an appeal to the common pleas court from an administrative agency under R.C. Chapter 2506, the Appellate Procedure Act. It is not necessary to seek legislative rezoning as a condition precedent to maintaining a declaratory judgment action attacking the constitutionality of a zoning ordinance, nor is it necessary to attempt to exhaust administrative remedies and take an appeal under R.C. Chapter 2506, prior to initiating such declaratory judgment action if the administrative remedies are not equally as serviceable as a declaratory judgment action, are unusually expensive or onerous, seeking such remedies would constitute vain acts, or if the administrative agency does not have authority to grant the relief sought: 48 Ohio App. 2d 1, 2 Ohio Op. 3d 4, 355 N.E.2d 495.
The test which courts of common pleas apply when hearing zoning appeals pursuant to R.C. Chapter 2506 is not whether any legal justification exists for a holding of the board of zoning appeals, but rather whether the ordinance, in proscribing a landowner’s proposed use of his land, bears a reasonable relationship to the public health, safety, welfare or morals: Cincinnati Bell, Inc. v. Glendale, 42 Ohio St. 2d 368, 71 Ohio Op. 2d 331, 328 N.E.2d 808, 1975 Ohio LEXIS 503 (Ohio 1975).
The court of common pleas does sustain jurisdiction to determine the constitutionality of municipal zoning ordinances in an appeal from a board of zoning appeals pursuant to R.C. Chapter 2506: SMC, Inc. v. Laudi, 44 Ohio App. 2d 325, 73 Ohio Op. 2d 378, 338 N.E.2d 547, 1975 Ohio App. LEXIS 5772 (Ohio Ct. App., Cuyahoga County 1975).
The constitutionality of a zoning ordinance, as it applies to a specific parcel of property to proscribe the owner’s proposed use of the property, can be determined in a declaratory judgment action: Driscoll v. Austintown Associates, 42 Ohio St. 2d 263, 71 Ohio Op. 2d 247, 328 N.E.2d 395 (Ohio 1975).
In an appeal, pursuant to R.C. Chapter 2506, which challenges the constitutionality of a zoning ordinance as applied, the issue for determination is whether the ordinance, in proscribing a landowner’s proposed use of his land, has any reasonable relationship to the legitimate exercise of police power by the municipality: Mobil Oil Corp. v. Rocky River, 38 Ohio St. 2d 23, 67 Ohio Op. 2d 38, 309 N.E.2d 900, 1974 Ohio LEXIS 417 (Ohio 1974).
In an appeal, under R.C. Chapter 2506, from the denial of an application for a variance by a zoning board of appeals, there is a presumption that the board’s determination is valid, and the burden of showing invalidity of the board’s determination rests on the party contesting that determination: C. Miller Chevrolet, Inc. v. Willoughby Hills, 38 Ohio St. 2d 298, 67 Ohio Op. 2d 358, 313 N.E.2d 400, 1974 Ohio LEXIS 464 (Ohio 1974), overruled in part, Hungler v. Cincinnati, 25 Ohio St. 3d 338, 496 N.E.2d 912, 1986 Ohio LEXIS 735 (Ohio 1986).
In a zoning case, where a constitutional process of appeal has been legislatively provided, the sole fact that pursuing such process would encompass more delay and inconvenience than seeking a writ of mandamus is insufficient to prevent the process from constituting a plain and adequate remedy in the ordinary course of the law: State ex rel. Kronenberger-Fodor Bldg. Co. v. Parma, 34 Ohio St. 2d 222, 63 Ohio Op. 2d 362, 297 N.E.2d 525, 1973 Ohio LEXIS 371 (Ohio 1973).
Where an adverse and necessary party appears and participates in an appeal from a decision by a municipal commissioner of building to the municipal board of zoning appeals, such party remains adverse and necessary in a further appeal to the court of common pleas under R.C. Chapter 2506, even though not named as such in the appellant’s notice of appeal filed therein: Gold Coast Realty, Inc. v. Board of Zoning Appeals, 26 Ohio St. 2d 37, 55 Ohio Op. 2d 20, 268 N.E.2d 280, 1971 Ohio LEXIS 529 (Ohio 1971).
The decision of a municipal council refusing to amend or change a zoning ordinance is a legislative act and is not appealable under R.C. Chapter 2506: Edge v. Moraine, 58 Ohio Op. 2d 499, 283 N.E.2d 219, 1970 Ohio Misc. LEXIS 460 (Ohio C.P. 1970).
In refusing to amend comprehensive zoning legislation, a board of county commissioners acts in a legislative capacity and is not amenable to the provisions of the administrative appeals act: Stocker v. Wood, 18 Ohio App. 2d 34, 47 Ohio Op. 2d 25, 246 N.E.2d 592, 1969 Ohio App. LEXIS 593 (Ohio Ct. App., Hamilton County 1969).
Where a zoning ordinance is unconstitutional to the extent that it is applied to prohibit a proposed use of certain property and where a building commissioner denies an application for a building permit because that proposed use of that property is prohibited by that zoning ordinance and the owner of the property duly exhausts his administrative remedies by an unsuccessful appeal to the board of zoning appeals, an appeal to the common pleas court pursuant to Chapter 2506, from the final order of the board of zoning appeals will provide the owner of the property with a plain and adequate remedy to prevent the unconstitutional application of the zoning ordinance as a basis for refusing the building permit: State ex rel. Sibarco Corp. v. Berea, 7 Ohio St. 2d 85, 36 Ohio Op. 2d 75, 218 N.E.2d 428, 1966 Ohio LEXIS 320 (Ohio 1966), cert. denied, 386 U.S. 957, 87 S. Ct. 1022, 18 L. Ed. 2d 104, 1967 U.S. LEXIS 2081 (U.S. 1967).
An appeal will not lie under the provisions of R.C. Chapter 2506, from the passage by a city council of a zoning ordinance changing a parcel of real property from a U2 use district to a U4 use district, because such a zoning ordinance is a purely legislative act: In re Appeal of Clements, 2 Ohio App. 2d 201, 31 Ohio Op. 2d 328, 207 N.E.2d 573, 1965 Ohio App. LEXIS 597 (Ohio Ct. App., Cuyahoga County 1965).
Where, by the zoning ordinance of a village, a board of zoning appeals is created to hear appeals from the action of the inspector of buildings, acting under the authority of the zoning ordinance, and by the provision of such ordinance the village council is made an appellate body to review the orders of the board of zoning appeals, the council, in reviewing an order appealed to it from an order of the board of zoning appeals, acts in an administrative and quasi-judicial capacity and its order in such case is appealable to the court of common pleas under the provisions of R.C. Chapter 2506: Bieger v. Moreland Hills, 3 Ohio App. 2d 32, 32 Ohio Op. 2d 106, 209 N.E.2d 218, 1965 Ohio App. LEXIS 531 (Ohio Ct. App., Cuyahoga County 1965).
Under a city ordinance which provides that the city planning and zoning commission, subject to the confirmation and approval of the city council, may, after public notice and hearing and subject to such conditions and safeguards as the city planning and zoning commission may establish, grant a variance in certain use districts, where the city council, after public hearing, accepts a recommendation of the planning and zoning commission and determines that a variance be granted to a certain individual property owner on a particular parcel of real property, the city council is fulfilling a purely administrative function and thereby acting in an administrative or quasi-judicial capacity, and an appeal may be taken from such action of the council to the court of common pleas under the provisions of R.C. Chapter 2506: In re Appeal of Clements, 2 Ohio App. 2d 201, 31 Ohio Op. 2d 328, 207 N.E.2d 573, 1965 Ohio App. LEXIS 597 (Ohio Ct. App., Cuyahoga County 1965).
An appeal provided by city charter of an order of a board of zoning appeals to be reviewed by council results in a proceeding which is quasi-judicial rather than legislative, and therefore one which is subject to further appeal, under R.C. Chapter 2506 by the common pleas court: Beerman v. Kettering, 14 Ohio Misc. 144, 43 Ohio Op. 2d 351, 237 N.E.2d 641, 1965 Ohio Misc. LEXIS 232 (Ohio C.P. 1965).
Revised Code Chapter 2506 does not confer jurisdiction upon a court of common pleas to hear an appeal from the action of a board of county commissioners denying an application for rezoning: Application of Latham, 5 Ohio App. 2d 187, 34 Ohio Op. 2d 316, 214 N.E.2d 681, 1965 Ohio App. LEXIS 477 (Ohio Ct. App., Franklin County 1965).
A decision of a board of zoning appeals as to whether to grant a zoning variance is made in a judicial capacity and may be appealed pursuant to R.C. 2506.01 and 2506.04, on the grounds of reasonableness alone: Appeal of McDonald, 119 Ohio App. 15, 26 Ohio Op. 2d 100, 196 N.E.2d 333, 1963 Ohio App. LEXIS 691 (Ohio Ct. App., Geauga County 1963).
The proper method to test the validity of a zoning ordinance and for a judicial review of the final orders of administrative boards of municipalities is by way of appeal under the procedure set forth in R.C. Chapter 2506, and the refusal of a zoning board of appeals to accept jurisdiction, where a building commissioner could not issue a building permit because of conflict with an ordinance, does not result in a deprivation of such right to appeal: Shaker Coventry Corp. v. Shaker Heights Bd. of Zoning Appeals, 115 Ohio App. 472, 21 Ohio Op. 2d 114, 180 N.E.2d 27, 1962 Ohio App. LEXIS 705 (Ohio Ct. App., Cuyahoga County 1962).
In zoning matters the right of appeal provided in R.C. Chapter 2506 is the manner in which to test the validity of ordinances: Shaker Coventry Corp. v. Shaker Heights Planning Com., 18 Ohio Op. 2d 272, 176 N.E.2d 332, 86 Ohio Law Abs. 47, 1961 Ohio Misc. LEXIS 319 (Ohio C.P. 1961), aff'd, 115 Ohio App. 472, 21 Ohio Op. 2d 114, 180 N.E.2d 27, 1962 Ohio App. LEXIS 705 (Ohio Ct. App., Cuyahoga County 1962).
A relator aggrieved by the final decision of a zoning board of appeals refusing a variance can seek relief in mandamus even though an appeal from such decision is provided under R.C. 2506.01 to 2506.04, inclusive, if such appeal under the circumstances of his case does not provide an adequate remedy in the ordinary course of the law: State ex rel. Trusz v. Middleburg Heights, 112 Ohio App. 87, 16 Ohio Op. 2d 24, 163 N.E.2d 778, 82 Ohio Law Abs. 481, 1960 Ohio App. LEXIS 645 (Ohio Ct. App., Cuyahoga County 1960).
Where relator has an adequate remedy by way of appeal under authority of R.C. Chapter 2506, providing for a judicial review of final orders of administrative boards of municipalities, to test the validity of the zoning ordinance, a writ of mandamus will be denied: State ex rel. Fredrix v. Beachwood, 171 Ohio St. 343, 14 Ohio Op. 2d 12, 170 N.E.2d 847, 1960 Ohio LEXIS 553 (Ohio 1960), overruled in part, State ex rel. Sibarco Corp. v. Berea, 7 Ohio St. 2d 85, 36 Ohio Op. 2d 75, 218 N.E.2d 428, 1966 Ohio LEXIS 320 (Ohio 1966).
Where the county zoning commission denied the property owners’ request for a change of zone of their property and on appeal to the regional planning commission the recommendation of the zoning commission was sustained and upon appeal to the board of county commissioners, the county commissioners adopted the recommendations of both the zoning commission and the regional planning commission, the property owners had a right to appeal to the court of common pleas and were entitled to a hearing on the merits in that court: Kloker v. Morr, 111 Ohio App. 300, 14 Ohio Op. 2d 178, 165 N.E.2d 469, 1959 Ohio App. LEXIS 697 (Ohio Ct. App., Hamilton County 1959).
Opinion Notes
ATTORNEY GENERAL OPINIONS
A decision by a board of county commissioners to levy an assessment pursuant to R.C. 1515.24 for the costs of maintenance or repair of an improvement may be appealed in accordance with the provisions of R.C. Chapters 2505 and 2506: 1984 Ohio Op. Att'y Gen. No. 101.
During the pendency of appeals prosecuted under R.C. 2506.01 to 2506.04, inclusive, and R.C. 2505.44, county officials are bound by the doctrine of “lis pendens” to maintain the status quo: 1963 OAG No. 102 (1963).
A decision of a board of township trustees making an assignment of partition fences in accordance with R.C. 971.04, is appealable to the court of common pleas under R.C. 2506.01. An appeal, pursuant to R.C. 2506.01, from an order of a board of township trustees assigning partition fences subsequent to an R.C. 971.04 proceeding, must, in accordance with R.C. 2505.07, be perfected within ten days of service of the board’s written order: 1983 Ohio Op. Att'y Gen. No. 072 (1983).
If a person fails to build a portion of a fence assigned to him under R.C. 971.04 and has not appealed the decision making the assignment, a board of township trustees may proceed to have such fence built in accordance with R.C. 971.07(A). A party who has failed to avail himself of the appeal provided under R.C. 2506.01 may not collaterally attack a decision of a board of township trustees made after an R.C. 971.04 proceeding through an action for an injunction or declaratory judgment: 1983 Ohio Op. Att'y Gen. No. 072 (1983).
Research References & Practice Aids
Cross-References to Related Sections
Abandoned service stations, RC § 3791.12.
Administration of municipal income taxes in noncharter municipalities, RC § 733.85.
Administrative agencies, RC § 119.12.
Annexation proceedings of township, RC § 505.62.
Appeal from denial of permit or license of massage establishment; employees, RC § 503.48.
Civil service commission, RC §§ 124.34, 124.40.
County commissioners, RC § 307.56.
County ditch improvements, RC § 6131.25.
Expulsion or suspension of student, RC § 3313.66.
Planned-unit developments included in county or township zoning resolution, RC §§ 303.022, 519.021.
Watercraft facilities; special assessments, RC § 505.88.
Water supply facilities; appropriation of property; assessments, RC § 504.19.
Workers’ compensation, RC § 4123.512.
Comparative Legislation
Appeals, administrative decisions, 5 USCS § 7501
USCS Fed Rules App Proc R 15
Appeal from orders of agency:
CA—Cal Code Civ Proc § 1067 et seq
FL—Fla. Const. Art. V, § 4
IL—Ill. Sup. Ct., R 335
IN—Burns Ind. Code Ann. § 4-21.5-5-1 et seq
KY—KRS § 23A.010
MI—MCLS § 24.301 et seq; MCLS Const. Art. VI, § 28
PA—42 Pa.C.S. § 708
Practice Manuals and Treatises
Anderson’s Ohio Civil Practice with Forms § 144F.02 Procedure
Anderson’s Ohio Civil Practice with Forms § 315.01 Order Appealable
Anderson’s Appellate Practice and Procedure in Ohio § 12.03 Appeals from Administrative Agencies in Political Subdivisions
Anderson’s Appellate Practice and Procedure in Ohio § 15.01 Orders Appealable