Arcaro Bros. Builders, Inc. v. Zoning Board of Appeals

218 N.E.2d 179, 7 Ohio St. 2d 32, 36 Ohio Op. 2d 18, 1966 Ohio LEXIS 310

• Court: Ohio Supreme Court
• Decided: June 22, 1966
• Docket: No. 39871
• Status: Published

Opinion

Per Curiam.

The chairman of the Zoning Board of Appeals refused permission to have any of the witnesses sworn, and allowed unidentified statements, apparently from the audience attending the hearing, to be recorded in the transcript.

Section 2319.01, Revised Code, provides:

‘ ‘ The testimony of witnesses may be taken:

“(A) By affidavit;

“(B) By deposition;

“(C) By oral examination.”

Section 2319.02, Revised Code, provides:

“An affidavit is a written declaration under oath, made without notice to the adverse party. A deposition is a written declaration under oath, made upon notice to the adverse party. Oral testimony is that delivered from the lips of the witness.” (Emphasis supplied.)

Section 2317.30, Revised Code, provides:

“Before testifying, a witness shall be sworn to testify the truth, the whole truth, and nothing but the truth.”

Thus, the record in this appeal contains no evidence.

Hence, the decision of the board was not supported “by the preponderance of substantial, reliable and probative evidence on the whole record.” Section 2506.04, Revised Code.

The judgment of the Court of Appeals is therefore reversed, and the cause is remanded to the Board of Zoning Appeals for a hearing in accordance with this opinion.

Judgment reversed.

Tapt, C. J., Zimmerman, Matthias, O’Neill, Herbert and Brown, JJ., concur. Schneider, J., not participating.