Valley Road Properties v. City of Cleveland

751 N.E.2d 532, 141 Ohio App. 3d 418, 2001 Ohio App. LEXIS 646

• Court: Ohio Court of Appeals
• Decided: March 5, 2001
• Docket: No. 78135.
• Status: Published

Opinions

Frank D. Celebrezze, Jr., Judge.

Appellant, Valley Road Properties, appeals from the judgment issued by the Cuyahoga County Court of Common Pleas, granting a motion to dismiss filed by appellee, the city of Cleveland.

On March 15, 2000, appellant filed in the Cuyahoga County Court of Common Pleas a complaint and a notice of appeal from the decision of the Cleveland Board of Zoning Appeals (“BZA”), which affirmed the Cleveland Division of Building and Housing’s decision to refuse to grant appellant a change of use permit for its property located at 3926 Valley Road, Cleveland, Ohio. On March 24, 2000, appellant filed an amended notice of appeal in the Cuyahoga County Court of Common Pleas. Appellant forwarded a copy of its complaint, notice of appeal, and amended notice of appeal to the Secretary of the BZA on April 6, 2000.

On April 17, 2000, appellee filed a motion to dismiss appellant’s amended notice of appeal on the grounds that appellant had failed to comply with the jurisdictional requirements set forth in R.C. 2505.04 for filing an administrative appeal. On May 16, 2000, the trial court granted appellee’s motion to dismiss. From that judgment, appellant assigns the following error:

“The trial court erred in dismissing the appellant’s amended notice of appeal.”

In appellant’s sole assignment of error, it contends that the trial court improperly dismissed its amended notice of appeal because it complied with R.C. 2505.04 by sending to the Secretary of the BZA a copy of the amended notice of appeal that had been filed in the court of common pleas.

R.C. 2506.01 gives courts of common pleas the authority to review “[e]very final order, adjudication or decision of any * * * board * * * or other division of any political subdivision of the state * * * as provided in Chapter 2505. of the Revised Code, except as modified by this chapter.” R.C. 2505.04 governs the procedure for perfecting such an appeal and provides that “[a]n appeal is perfected when a written notice of appeal is filed * * *in the case of an administrative-related appeal, with the administrative * * * board * * *.” R.C. 2505.07 provides that “the period of time within which the appeal shall be perfected * * * is thirty days.”

The facts in the instant case are identical to the facts of a case recently decided by the Eighth Appellate District. In Young Israel of Beachwood v. Beaehwood (2000), 138 Ohio App.3d 89, 740 N.E.2d 349, this court held that sending a copy of a notice of appeal improperly filed with the court of common pleas to a board of zoning appeals does not vest a court of common pleas with jurisdiction to hear an administrative appeal. This court stated:

“Pursuant to [R.C. 2505.04 and 2505.07], [appellants] had to file their notice of appeal with the BZA within thirty days after the challenged order. Instead, they filed their notice of appeal with the common pleas court within the allotted time. They never filed a notice of appeal with the BZA, although they served a copy on its secretary, counsel, and chairman.

“The common pleas court lacked jurisdiction and should have dismissed the Kellers’ appeal. Patrick Media Group, Inc. v. Cleveland Bd. of Zoning Appeals (1988), 55 Ohio App.3d 124, 562 N.E.2d 921; Hirt’s Greenhouse, Inc. v. Strongsville (Sept. 7, 1995), Cuyahoga App. No. 68374, unreported, 1995 WL 527408.”

Because appellants did not file a separate notice of appeal with the BZA, the court of common pleas did not err by dismissing appellant’s appeal. Appellant’s sole assignment of error is overruled.

For the foregoing reasons, the judgment of the Cuyahoga County Court of Common Pleas is affirmed.

Judgment affirmed.

James J. Sweeney, J., concurs. Karpinski, A.J., dissents.