Kasper v. Coury
| Decision Date | 06 June 1990 |
| Docket Number | No. 89-849,89-849 |
| Citation | 51 Ohio St.3d 185,555 N.E.2d 310 |
| Parties | KASPER, Zoning Inspector, et al., Appellees, v. COURY, Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. R.C. 519.24 does not explicitly or implicitly authorize a board of township trustees or a township zoning inspector to appeal a decision of the board of zoning appeals.
2. A board of township trustees or a township zoning inspector may have standing to defend a decision of the board of zoning appeals; however, neither township trustees nor zoning inspectors may attack a decision of the board of zoning appeals.
The facts in this case are not in dispute. In October 1987, Debra L. Coury, appellant, an owner of real property located in Plain Township, Stark County, Ohio, appealed to the Plain Township Board of Zoning Appeals from a decision of the zoning inspector seeking four area variances from the terms of the Plain Township Zoning Resolution. Coury desired to build four new one-bedroom apartments on the property.
On November 4, 1987, the board of zoning appeals held a hearing. Adjoining and neighboring property owners attended the hearing and opposed appellant's requested variances. Appellee Plain Township Board of Trustees did not appear at the hearing nor did it submit any written document opposing the request. Appellee George E. Kasper, Plain Township Zoning Inspector, did attend the hearing but, at that time, he did not oppose the request. On November 6, 1987, the board of zoning appeals granted the variances.
On or about December 3, 1987, appellees appealed the board of zoning appeals' decision to the Court of Common Pleas of Stark County. No adjoining or neighboring property owners appealed. Subsequently, upon appellant's motion, the trial court dismissed the appeal, holding appellees lacked standing to bring the appeal.
Appellees appealed to the court of appeals. The court of appeals reversed holding that pursuant to R.C. 519.24, appellees had standing to appeal decisions of the board of zoning appeals.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Robert D. Horowitz, Pros. Atty. and Leslie Ann Iams, Canton, for appellees.
John S. Coury, Canton, for appellant.
Pursuant to R.C. 519.02, the board of township trustees may adopt zoning resolutions to promote the public health, safety, and morals for the unincorporated territory of a township. For purposes of enforcing zoning resolutions, the trustees may create and employ a township zoning inspector. 1 Likewise, the trustees are vested with the power to appoint members of the board of zoning appeals. 2 R.C. 519.14(A) authorizes the board of zoning appeals to hear and decide appeals from any decision or ruling made by an administrative official in the enforcement of zoning regulations or statutes. Any person aggrieved or any officer of the township affected by the decision of an administrative official can appeal to the board of zoning appeals. 3 As part of its appellate jurisdiction, the board of zoning appeals is often requested to grant a variance from the terms of a township zoning resolution. A variance is a permissible departure from the terms of a township zoning resolution granted by the board of zoning appeals and the board of zoning appeals' decision is the final administrative action. Thereafter, those who seek relief from a board of zoning appeals' decision must, pursuant to R.C. 2506.01, appeal to a court of common pleas. The question we are asked to decide is who can appeal a board of zoning appeals' decision. More specifically, we are asked to determine whether R.C. 519.24 provides a township zoning inspector or township board of trustees the right to appeal a decision of the board of zoning appeals to the court of common pleas. For the reasons that follow, we answer this inquiry in the negative.
R.C. 519.24 provides:
Appellant contends that the General Assembly enacted R.C. 519.24 to provide a type of injunctive relief to prevent violations of zoning regulations adopted by township trustees. Therefore, urges appellant, the statute should not be construed to create appeal rights for administrative officials where none exists. In support of her position, appellant relies primarily on this court's holding in State, ex rel. Broadway Petroleum Corp., v. Elyria (1969), 18 Ohio St.2d 23, 47 O.O.2d 149, 247 N.E.2d 471.
In Elyria, paragraph two of the syllabus, we held:
"Where legislation has specifically provided for 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 a decision of that board in judicial proceedings, except as authorized by legislation to do so." (Emphasis added.)
We reached this conclusion and refused to allow the building inspector, the city or the mayor to appeal, reasoning that:
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...But see, e.g., City of East Point v. Crosby & Stephens, Inc., 117 Ga.App. 392, 160 S.E.2d 839, 841 (1968); Kasper v. Coury, 51 Ohio St.3d 185, 555 N.E.2d 310, 313 (1990); Sabourin v. Town of Essex, 146 Vt. 419, 505 A.2d 669, 670 Legal commentators have recognized that courts in many states ......
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