Guysinger v. Chillicothe Bd. of Zoning Appeals, No. 1535

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: STEPHENSON; HOMER E. ABELE, P.J., and GREY
• Citation: 66 Ohio App.3d 353,584 N.E.2d 48
• Decision Date: 13 March 1990
• Docket Number: No. 1535
• Parties: GUYSINGER et al., Appellants, v. BOARD OF ZONING APPEALS OF CITY OF CHILLICOTHE et al., Appellees.

Page 353

66 Ohio App.3d 353 584 N.E.2d 48 GUYSINGER et al., Appellants,
v.
BOARD OF ZONING APPEALS OF CITY OF CHILLICOTHE et al., Appellees. No. 1535. Court of Appeals of Ohio, Fourth District, Ross County. Decided March 13, 1990.

Page 354

Edward J. Brown, Chillicothe, for appellants.

[584 N.E.2d 49] William J. Corzine III, Chillicothe, for appellees.

STEPHENSON, Judge.

This is an appeal from a judgment entered by the Ross County Court of Common Pleas dismissing, on jurisdictional grounds, an appeal filed by Ronald E. Guysinger, Paul P. Meyer, Connie S. Meyer, D. Frederick Steele and Gretchen Steele, appellants herein. Appellants are the owners of land contiguous to a parcel of land owned by Joseph P. Hurst, an appellee herein, who had been granted a zoning variance as to use of his parcel by the Board of Zoning Appeals of Chillicothe (hereinafter referred to as "zoning board") which board is also an appellee herein. ¹ The following errors are assigned:

Page 355

"I. The trial court erred to the prejudice of the appellants by finding that no notice of appeal was filed with the board of zoning appeals.

"II. The board of zoning appeals failed to give proper notice of the 10 May, 1988 hearing to the appellants.

"III. The decision of the board of zoning appeals was illegal and in violation of the Ohio Sunshine Law.

"IV. The trial court erred to the prejudice of appellants in not finding that the board of zoning appeals failed to give proper notice of its decision to appellants.

"V. The trial court erred to the prejudice of the appellants by finding that the notice of appeal was filed with the board of appeals in an untimely manner."

The facts pertinent to this appeal are as follows. On April 26, 1988, appellee zoning board met to consider a request for a zoning variance submitted by appellee Hurst. The variance would allow Hurst to convert a garage located at the rear of the premises at 207 Caldwell Street, Chillicothe, in Ross County, Ohio, into an apartment. Such a use is apparently prohibited by the City Code of Chillicothe for the zoning district in which the property is located. Several of the appellants were also present at the meeting.

At that time, Hurst presented his request and appellants presented their opposition to such request. A transcript of the proceeding reveals that the request was tabled by a unanimous vote of the zoning board and the meeting was thereafter adjourned. There is no evidence in the record to indicate that Hurst or the appellants were ever informed as to when the meeting would be reconvened.

On May 10, 1988, the meeting was reconvened and the variance request was removed from the table and granted by an affirmative vote of the members present. There is no evidence in the transcript to indicate that either Hurst or the appellants were present at that time.

On June 9, 1989, appellants, pro se, commenced their appeal below by filing a pleading with the Ross County Court of Common Pleas entitled "Notice of Appeal" on the first page and "Complaint" on the second page. In this pleading, appellants, inter alia, requested that the court vacate the zoning variance granted to Hurst. Pursuant to Civ.R. 4 and 4.1(1), the court below issued a summons, and made service of process by certified mail, on appellees, zoning board and Hurst. On June 10, 1988, process was served on both appellees as evidenced by the signed return mail receipts in the record.

On June 24, 1989, the zoning board filed a motion to dismiss the appeal on the grounds that appellants had failed to properly perfect the appeal and thus

Page 356

the court lacked jurisdiction. Appellants retained counsel and filed a memorandum opposing the aforesaid motion, arguing that the appeal had been properly perfected as evidenced by a return mail receipt dated June 10, 1988. Appellants further argued that they never received written notice of the zoning board's decision, as attested to [584 N.E.2d 50] in attached affidavits, and, therefore, the time limitation in which to perfect their appeal did not begin to run until actual verbal notice was given to appellee, Gretchen Steele. On July 28, 1988, the trial court, finding that appellants had failed to file a notice of appeal with the zoning board, held that it was without jurisdiction to adjudicate the matter and, therefore, dismissed the appeal.

In their brief, appellants contend that, contrary to the finding of the trial court,...