Willoughby Hills v. C.C. Bar's Sahara, Inc.

8 Ohio App. Unrep. 678
CourtOhio Court of Appeals
DecidedDecember 15, 1990
DocketCase No. 90-L-14-048
StatusPublished

This text of 8 Ohio App. Unrep. 678 (Willoughby Hills v. C.C. Bar's Sahara, Inc.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willoughby Hills v. C.C. Bar's Sahara, Inc., 8 Ohio App. Unrep. 678 (Ohio Ct. App. 1990).

Opinion

FORD, J.

On November 22, 1989, appellant, City of Willoughby Hills, filed an administrative [679]*679appeal pursuant to R.C. 2506.01 with the Lake County Court of Common Pleas. This appeal was from a ruling made by the Board of Building and Zoning Appeals of the City of Willoughby Hills which granted appellee, C.C. Bar's Sahara, Inc., a zoning variance.

On February 14, 1990, appellee filed a motion to dismiss which was approved by the trial court on March 6, 1990. The trial court judge held that the City of Willoughby Hills lacked standing to appeal the decision of its own Board of Building and Zoning Appeals. The trial court judge relied upon the Ohio Supreme Court's ruling in State, ex rel. Broadway Petroleum Corp. v. Elyria, (1969), 18 Ohio St. 2d 23, quoting the following passage:

"'To permit the City to attack the decision of the Board *** would allow the City to nullify a decision that it had empowered the Board to make on its behalf.

"'An important purpose of establishing the Board of Zoning Appeals was to provide a property owner *** with an administrative review of an adverse decision of a building inspect or. That purpose would be defeated if, after the property owner had prevailed in an administrative review, the City or its agents could attack or disregard such favorable decision.' See also In re Appeal of Columbus Regulations Administrator, (1987), 40 O. App. 3d 48, 51 and cases cited therein."

On April 14, 1990, appellant filed a notice of appeal with this court. On May 15, 1990, appellant also filed a motion to vacate judgment with the trial court pursuant to Civ. R. 60(B)(1). On the same day, appellant filed with this court a motion to remand the case to the trial court based upon the pending Civ. R. 60(B) motion. On July 25, 1990, this court granted appellant's motion and remanded the case to the trial court for a period not to exceed sixty days.

In an August 15, 1990 judgment entry, the trial court denied appellant's motion to vacate and ordered the case returned to this court for further adjudication citing Kaspar v. Coury (1990), 51 Ohio St. 3d 185.

In its appeal, appellant raises the following assignment of error:

"The Court of Common Pleas erred in dismissing Appellant's, the City of Willoughby Hills, administrative appeal."

In its sole assignment of error, appellant maintains that the court of common pleas erred in dismissing its administrative appeal. Appellant asserts that the City of Willoughby Hills has standing to appeal an adverse decision of its Board of Building and Zoning Appeals. Because the common pleas judge relied on State, ex rel. Broadway Petroleum Corp. v. Elyria (1969), 18 Ohio St. 2d 123, in dismissing appellant's appeal, it is both appropriate and instructive for our analysis to begin with that case.

In Broadway Petroleum, a mandamus action was filed against the City of Elyria in the court of common pleas alleging that the building inspector refused to issue a permit to the petitioner even though the Elyria Board of Zoning Appeals had ordered it be granted. The Ohio Supreme Court held the common pleas court was correct in issuing a writ of mandamus requiring the city, its building inspector and its mayor to give relator the requested permit. The court stated:

"*** [Wlhere legislation, including the city's charter and its ordinances, has specifically provided for the review by a city board of zoning appeals of the determination of its building inspector in refusing a building permit, neither the building inspector, the city nor its mayor may attack or avoid in judicial proceedings a decision of that board, except as authorized by legislation to do so. ***" Id. at 32 (Emphasis added).

The Supreme Court in Broadway Petroleum based its decision on the following observation:

"To permit the building inspector to attack the decision of the board of zoning appeals would allow him to nullify the authorized action of his superior authority, the board of zoning appeals. To permit the city to attack the decision of the board in this mandamus proceeding would allow the city to nullify a decision that it had empowered the board to make on its behalf. The same may be said with respect to such an attack by the mayor.

"An important purpose of establishing the board of zoning appeals was to provide a property owner, such as relator, with an administrative review of an adverse decision of the building inspector. That purpose would be defeated if, after the property owner had prevailed in an administrative review, the city or its agents could attack or disregard such favorable decision." Id. at 28-29.

[680]*680From the outset, it should be noted that while the logic of the Supreme Court in Broadway Petroleum is persuasive, that case did not specifically involve an administrative appeal to the court of common pleas pursuant to R.C. 2506.01. Rather, it was a mandamus action forcing the building inspector to give effect to the decision of the Elyria Board of Zoning Appeals. Given this fact, the Supreme Court in Broadway Petroleum expressly stated that it was not necessary to consider the question of whether R.C. Chapter 2506 authorized an administrative official, or the city itself, to bring an appeal from an adverse decision made by an administrative agency. Id. at 32.

Having determined that the Supreme Court in Broadway Petroleum did not address the issue before this court in the instant case, we must now turn our attention to the language of R.C. Chapter 2506. R.C. 2506.01 generally provides for administrative appeals from administrative determinations by political subdivisions. It states, in part:

"Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court *** It

R.C. 2506.01 further provides, that no order is appealable unless it constitutes "a determination of the rights; duties, privileges, benefits, or legal relationships of a specified person."

Unfortunately, while R.C. 2506 clearly provides an adequate basis for determining what is appealable, it fails to address the question of who has standing to bring such appeal.

The Ohio Supreme Court has held that in order to initiate a direct appeal of an administrative ruling pursuant to R.C. Chapter 2506, the plaintiff must be a person who has been "directly affected" by the decision. Schomaeker v. First Nat'l Bank (1981), 66 Ohio St. 2d 304, 311-312. Ordinarily, administrative officials of a municipality are not considered to be directly affected by administrative proceedings, and therefore may not initiate appeals under R.C. 2506.01. See, Poole v. Maloney (1983), 9 Ohio App. 3d 198, 199; In re Appeal of Columbus Regulations Administrator (1987), 40 Ohio App. 3d 48, 51-52. Likewise, the Ohio Supreme Court has held that township trustees and township zoning inspectors may not attack decisions of the board of zoning appeals under R.C. Chapter 2506. Kasper v. Coury (1990), 51 Ohio St. 3d 185.

Thus it would seem, based upon the above-mentioned authority, that municipal and township officials are not "directly affected" by the decisions of administrative agencies, thus precluded from initiating an appeal under R.C. Chapter 2506.

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Related

Appeal of City of Columbus Regulations Administrator v. Talbott
531 N.E.2d 724 (Ohio Court of Appeals, 1987)
Poole v. Maloney
459 N.E.2d 247 (Ohio Court of Appeals, 1983)
State ex rel. Broadway Petroleum Corp. v. City of Elyria
247 N.E.2d 471 (Ohio Supreme Court, 1969)
Gold Coast Realty, Inc. v. Board of Zoning Appeals
268 N.E.2d 280 (Ohio Supreme Court, 1971)
Schomaeker v. First National Bank of Ottawa
421 N.E.2d 530 (Ohio Supreme Court, 1981)
Kasper v. Coury
555 N.E.2d 310 (Ohio Supreme Court, 1990)

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8 Ohio App. Unrep. 678, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willoughby-hills-v-cc-bars-sahara-inc-ohioctapp-1990.