Highland Holiday Subdivision, In re
| Decision Date | 07 June 1971 |
| Citation | 56 O.O.2d 404,27 Ohio App.2d 237,273 N.E.2d 903 |
| Parties | , 56 O.O.2d 404 In re HIGHLAND HOLIDAY SUBDIVISION. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
A board of county commissioners has no standing to appeal an order of a Court of Common Pleas ordering them to approve a plat submitted to them pursuant to R.C. Chapter 711.
James D. Hapner, Hillsboro, for appellee.
John O. Crouse, Pros. Atty., for appellant.
This case is in this court on appeal from a judgment of the Court of Common Pleas of Highland County ordering the county commissioners of that county to approve a plat submitted to them for approval under the provisions of R.C. Chapter 711. The board of county commissioners, feeling aggrieved by this order, filed its notice of appeal and thereby, attempted to perfect an appeal to this court.
The promoters of Highland Holiday Subdivision submitted the plat to the Highland county commissioners. Highland Holiday Subdivision filed a motion to dismiss the appeal filed by the board of county commissioners. This motion for dismissal of the appeal is not before this court for decision. We are of the opinion that the motion is well taken.
R.C. § 711.05 states, in part, as follows:
'The ground of refusal to approve any plat, submitted in accordance with section 711.04 of the Revised Code shall be stated upon the record of the board and, within sixty days thereafter, the person submitting any plat which the board refuses to approve may file a petition in the court of common pleas of the county in which the land described in said plat is situated to review the action of such board.'
It should be noted that only the 'person submitting any plat' is given the right to appeal. The board of county commissioners was not given that right. It cannot be said that the due process clause requires that a right of appeal must be reciprocal. Where the special statute gives the right to appeal, the appeal must be taken as the section prescribes and the right to appeal only extends to the persons named therein.
We do not believe that the board of county commissioners has the authority or right to appeal this decision. First, the right to appeal was not given to it under R.C. § 711.05. Second, it was not given to in under R.C. Chapter 119, as R.C. § 119.12 states in part:
'Any party adversely affected * * * may appeal * * *.'
Only in a very few cases has the General Assembly given the right to a board to be a 'referee' and a 'litigant' at the same time.
This result is required by the provisions of R.C. § 1.12, which are as follows:
'When a special provision is made in a remedial law as to service, pleadings, competency of witnesses, or in any other respect inconsistent with the general provisions of sections of the Revised Code relating to procedure in the court common pleas and procedure on appeal, the special provision shall govern, unless it appears that the provisions are cumulative.'
Let us review some of the procedural steps taken in this case. Highland Holiday prepared a plat of a subdivision and submitted it to the board of county commissioners. The board refused to approve the plat. Highland Holiday appealed this decision to the Common Pleas Court. The Common Pleas Court ordered the board to aprove the plat. Now the board enters the case for the first time as a litigant. This it cannot do. The only reason for the board being in the case is that R.C. § 711.05 gives it the duty and the authority to pass upon the validity of the plat submitted to it.
Up until the time the board of county commissioners filed its notice of appeal, it was only authorized to act as a tribunal. It its members were aggrieved by the action of the Common Pleas Court, there is no law that we have been able to find, nor has one been cited to us, which would give it the authority to become, for the first time, a litigant and an appellant in the Court of Appeals.
This point has been decided in DiCillo & Sons, Inc. v. Chester Zoning Board of Appeals (1952), 158 Ohio St. 302, 109 N.E.2d 8. DiCillo has been cited with approval in...
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