Lakewood Homes, Inc. v. Board of Adjustment of City of Lima

• Decision Date: 03 March 1971
• Citation: 25 Ohio App.2d 125,54 O.O.2d 306,267 N.E.2d 595
• Parties: , 54 O.O.2d 306 LAKEWOOD HOMES, INC., Appellant, v. BOARD OF ADJUSTMENT OF CITY OF LIMA et al., Appellees.
• Court: Ohio Court of Appeals

Page 125

25 Ohio App.2d 125

267 N.E.2d 595, 54 O.O.2d 306

LAKEWOOD HOMES, INC., Appellant, v. BOARD OF ADJUSTMENT OF CITY OF LIMA et al., Appellees.

Court of Appeals of Ohio, Third District, Allen County.

March 3, 1971.

Syllabus by the Court

1. In an administrative appeal under the provision of R.C. 2506.01 et seq., the time for perfecting the appeal is determined by R.C. 2505.07 and is ten days from the entry of the decision of the board or officer from which appeal is taken.

2. The use of the word 'entry' in R.C. 2505.07, necessarily implies the existence of a written permanent record of the action of the administrative agency.

3. Where minutes of an administrative board are reduced to writing by the secretary of the board and his minutes so prepared are customarily approved by the board and signed by an officer, the entry of a decision of that board occurs when the written minutes have been so approved and signed and not at the time of the roll call vote or its announcement by the presiding officer.

4. It is the duty of a court in construing the acts of legislative bodies to avoid unreasonable, absurd or ridiculous consequences.

5. Section 1303.01 of the Codified Ordinances of Lima pertaining to the submission of a 'development plan' to the City Planning Commission and to City Council for approval is not a use restriction of the Zoning Code but a permissive procedural method for obtaining ultimate legislative amendments to the general Zoning Code to permit, within a designated area, complex modifications and changes in the use, height, area and yard restrictions pursuant to a specific plan.

6. The failure of the Planning Commission of Lima, Ohio, to approve a 'development plan' under the provisions of Section 1303.01 Codified Ordinances of that city is irrelevant to the issue as to whether or not a building permit should be granted, and hence the alleged illegality of the action of the Planning Commission is immaterial in an appeal from a refusal to grant such permit.

Walter M. Lawson, Jr., and Anthony J. Bowers, Lima, for appellant.

Oren E. Dickason, Lima, for appellees.

COLE, Judge.

Lakewood Homes, Inc., an Ohio corporation, is the owner of a contract right to acquire some 13 acres of land in the city of Lima, Ohio, and has proposed to so acquire it for the construction of an apartment complex upon it. The land is subject to the zoning ordinances of the city of Lima, a charter city, and was zoned Class II Business, which includes the use for residential apartments. No issue is here made as to the actual ownership of the land and under the appropriate sections of the Lima ordinances an owner of land or agent of the owner may apply for a building permit, which is the central objective of the proceedings here involved. At some point prior to the application for building permit Lakewood Homes, Inc., was informed by agents of the city that it would be necessary for it to file and have approved a 'Development Plan' under Section 1303.01, Codified Ordinances of Lima, Ohio, which reads as follows:

'The owner of any tract of land shall submit to the City Planning Commission a plan for the use and development of such tract of land primarily for residential purposes and if such development plan is approved after public notice and hearing by the City Planning Commission and by the City Council, the application of use, height, area and yard regulations established herein shall be modified as required by such development plan, provided that for the tract as a whole excluding street area, but including area to be devoted to parks, parkways or other permanent open spaces, there will not be less than the required area per family for the area district in which such tract of land is located for each family which under such development plan may be housed on such street. And provided further that under such development plan the appropriate use of property adjacent to the area included in such development plan is fully safeguarded.'

The Planning Commission, after hearing, disapproved the plan submitted on June 26, 1968, and the matter was never brought before City Council.

Subsequently, on July 11, 1968, Lakewood Homes, Inc., applied for a building permit pursuant to Section 104.21 of the Building Code of the City, which provides as follows.

If the building inspector is satisfied that the work described on the application for permit and the plan filed therewith conform to the requirements of this Code and other pertinent laws and ordinances, he shall issue a permit therefor to the applicant.'

The Inspector of Buildings is now called the Building and Zoning Supervisor and is also the chief administrative agent of the Lima Zoning Ordinances (Section 1313.01). In effect he therefore considers compliance with both zoning and building codes when making the determination whether to issue a permit pursuant to the foregoing authority since zoning laws and ordinances must be 'other pertinent laws and ordinances.'

In Section 100.5, Building Code of Lima, it is provided specifically that 'no building permit shall be issued for any construction in violation of any provision of the Planning and Zoning Code of the City.'

The Supervisor pursuant to this authority refused to issue such a permit in a letter dated July 23, 1968, which reads in full as follows.

'This letter is to inform you that a building permit to construct an apartment complex at 409 Brower Road, Lima, Ohio, is denied.

'Basis for this decision are the following items:

'1. The development plan has not been approved by the City Planning Commission and City Council. (Sec. 1303.01, C.O.L.)

'2. Every dwelling shall face on a public street. (Sec. 1335.01, subsection (i), C.O.L.)

'3. A buffer screening area has not been provided. (Sec. 1321.03, C.O.L.)

'4. The floor area of units 4A in building Number 7 on the second floor exceeds the allowable maximum for buildings of V.-A construction. (Sec. BB-53-07, O.B.C.)

'5. A second exit is required from units 4A in building Number 7. (Sec. BB-53-12, O.B.C.)

'6. The lot shall be graded to prevent the drainage of surface water onto adjacent property, plus proper drainage shall be provided along Brower Road.'

Of the six assigned reasons No. 6 constitutes a consdition and not a ground for refusal of the permit. The appellant, Lakewood Homes, Inc., Indicated during the various hearings involved its willingness to comply with this condition. Basis No. 5 and Basis No . 4 are directed to compliance with the Building Code, and the Building Appeals Board is given jurisdiction to hear appeals on such matters under Section 104.43 of the Building Code of Lima, Ohio. Such an appeal was not here involved, and as to these two grounds for refusal of the permit no issue arises in the present case.

On the other hand items 1, 2 and 3 deal with the application of Zoning Ordinances. By Section 1315.01, et seq., a Board of Adjustment is created, and in Section 1315.02 of the Zoning Ordinances it is said:

'Such Board of Adjustment shall hear and decide appeals from and review any order, requirement, decision or determination made by the Inspector of Buildings in the administration of this Zoning Code. It shall also hear and decide all matters referred to it, or upon which it is required to pass under this Zoning Code.'

On 100.5 Building Code of the City of Lima it is further specifically provided:

'An appeal shall lie to the Board of Adjustment justment provided for in Chapter 15 of the Planning and Zoning code of the City from the decision of the Inspector of Buildings upom the denial of a building permit due to a violation of the provisions of such Planning and Zoning Code.'

Therefore the Board of Adjustment had exclusive jurisdiction of an appeal from a denial of permit by reason of items 1, 2 and 3 but no jurisdiction of an appeal from a denial of permit by reason of items 4 and 5. Likewise the Building Appeals Board had jurisdiction to herar an appeal from a refusal of a permit on grounds 4 and 5 but no such jurisdiction as to grounds 1, 2 and 3 since it has authority to reverse or modify only where the Building Code is concerned. (Section 104.42(g) Building Code of the City of Lima.)

Because of this peculiar dichotomy in appellate procedure, the action later taken by Lakewood Homes, Inc., served only to appeal the denial of a permit on grounds 1, 2 and 3. It appealed to the Board of Adjustment where several hearings transpired. During the course of these hearings the issue narrowed to the reason set forth in basis 1.

Item 2 was eliminated by a consideration of the definition of 'dwelling' under the Zoning Code, from which it became apparent that the requirement as to facing a public street applied only to buildings to be occupied by not more than four families (any number of individuals living together as a single housekeeping unit, hence one person if composing a single housekeeping unit). Since each of the 12 apartment buildings for which application was made had within a minimum of 16 apartment units, the buildings were not dwellings and the requirement did not apply.

Lakewood Homes, Inc., through its counsel, both at these hearings and at subsequent steps in the procedure of appeal, has promised full compliance with ground 2 pertaining to buffer zones and has rendered this issue for purposes of the present appeal moot. It no longer may be said to be a ground for refusal of the permit but may constitute a condition of a permit. In the notice of appeal to the Board of Adjustment appellant, Lakewood Homes, Inc., states:

'Applicant stands ready to comply with all buffer screening area provision of the City Code and requests that said building permit issue on condition that such buffer creening area is provided.'

This being the case we consider this issue eliminated.

The appeal filed with the Board of Adjustment also by amendment requested a variance from the provision of the Code pertaining to development...