A. Di Cillo & Sons v. Chester Zoning Bd. of Appeals
| Decision Date | 19 November 1952 |
| Docket Number | No. 33133,33133 |
| Citation | 49 O.O. 135,109 N.E.2d 8,158 Ohio St. 302 |
| Parties | , 49 O.O. 135 A. DI CILLO & SONS, Inc. v. CHESTER ZONING BOARD OF APPEALS et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
Neither a township board of zoning appeals nor any of its members as such have a right to appeal from the judgment of a court, rendered on appeal from a decision of such board and reversing and vacating that decision.
On Motion to dismiss motion to certify. Appellee applied for a building permit, which was granted to him by the zoning inspector of Chester township.
Thereafter, a Mr. Bond and a Mrs. Ehlert, pursuant to Section 3180-39, General Code, duly took an appeal to the board of zoning appeals of the township. Only Mr. Bond and Mrs. Ehlert appeared before the board in support of that appeal. That board rendered a decision revoking the building permit.
Thereafter, appellee, pursuant to the foregoing statute, appealed to the Common Pleas Court. In so appealing, appellee filed with that court what was denominated a 'petition in appeal' making the zoning board of appeals and its five members defendants. Summons on this petition in appeal was served by the sheriff on the board and each of its members six days after the decision of the board of zoning appeals which was appealed from. As pointed out in an opinion, 98 N.E.2d 352, 355, 357, the Common Pleas Court held that the Appellate Procedure Act, Section 12223-1 et seq., General Code, rather than the Administrative Procedure Act, Section 154-61 et seq., General Code applied to this appeal and that the petition in appeal was 'in effect * * * a written notice of appeal' and filed with the board of zoning appeals within the time required by the Appellate Procedure Act.
The Common Pleas Court affirmed the decision of the board.
Appellee then appealed to the Court of Appeals. The Court of Appeals rendered a judgment reversing the judgment of the Common Pleas Court and, in effect, vacating the decision of the board of zoning appeals.
The board of zoning appeals and its members are endeavoring to appeal to this court from the judgment of the Court of Appeals. There are no other appellants before this court.
Appellee has filed a motion to dismiss on the ground that neither the board of zoning appeals nor any of its members as such may maintain the appeal.
Charles P. Baker, Jr., Painesville, for appellants.
James A. Chiara, Cleveland, for appellee.
The ultimate question to be determined on this motion is whether a township board of zoning appeals or any of its members as such have any right to appeal from the judgment of a court, rendered on appeal from a decision of such board and reversing and vacating that decision. If they do not, the motion must be sustained.
There appears to be a conflict in the decisions outside this state on the question whether an administrative board, established to review on appeal the decisions of administrative officers, may appeal from a judgment affecting its decision where there is no legislative language expressly authorizing it to do so. See annotation, 117 A.L.R. 216. Apparently, the question has not previously been considered by this court although it has been considered by Courts of Appeals in this state. See State v. Tancer, Ohio App., 107 N.E.2d 532, 537, and Minnis v. Hamilton County Board of Zoning Appeals, 89 Ohio App. 289, 101 N.E.2d 388. Cf. Gray, Mayor, v. State ex rel. Putnam, Chief, 24 Ohio App. 445, 157 N.E. 905.
Paragraph two of the syllabus in Lindblom v. Board of Tax Appeals, 151 Ohio St. 250, 85 N.E.2d 376, reads:
'There is no right of appeal from a decision of a statutory board or a judgment of a legally constituted court except as provided by statute.'
The township board of zoning appeals is a statutory board. See Sections 3180-37 to 3180-39, inclusive, General Code. There is no statutory language which expressly confers upon that board any right to appeal upon that board any right to appeal as a party in an appeal to a court from one of its decisions.
Section 3180-39, General Code, provides in part as follows:
'Appeals to the board of zoning appeals may be taken by any person aggrieved or by any officer of the township affected by any decision of the administrative officer. * * *
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