Petition of Martins Ferry Metropolitan Housing Authority

• Decision Date: 25 May 1965
• Citation: 2 Ohio App.2d 237,207 N.E.2d 672,31 O.O.2d 365
• Parties: , 31 O.O.2d 365 Petition of MARTINS FERRY METROPOLITAN HOUSING AUTHORITY to Enlarge Territorial Limits.
• Court: Ohio Court of Appeals

Page 237

2 Ohio App.2d 237

207 N.E.2d 672, 31 O.O.2d 365

Petition of MARTINS FERRY METROPOLITAN HOUSING AUTHORITY to Enlarge Territorial Limits.

Court of Appeals of Ohio, Seventh District, Belmont County.

May 25, 1965.

Jones & Hawkins and Victor J. Kehrer, Martins Ferry, for appellant, Paul R. Guzik.

Albert C. Joseph, Martins Ferry, and Charles F. Knapp, Bellaire, for the Martins Ferry Metropolitan Housing Authority.

William B. Saxbe, Atty. Gen., and Clark G. Redick, Columbus, for State Board of Housing.

LYNCH, Judge.

This is an appeal from a decision of the State Board of Housing granting an extension of the territorial limits of the Martins Ferry Metropolitan Housing Authority to include certain sections of Pease Township. Appellant is an owner of real estate located within the area of Pease Township affected by this order, and he is objecting to this order.

The Martins Ferry Metropolitan Housing Authority petitioned the State Board of Housing to enlarge its territorial limits under the provisions of Section 3735.27, Revised Code, and the State Board of Housing considered this petition at its meetings on May 7, 1963, August 1, 1963, November 14, 1963, and April 10, 1964. At the May 7, 1963, meeting both sides were present and presented their views on this petition. Appellant, along with others, appeared in opposition to the petition.

At its August 1, 1963, meeting the State Board of Housing voted to reject the petition due to lack of evidence of requirements set forth in Section 3735.27, Revised Code.

At the November 14, 1963, meeting both sides again were present, and appellant again appeared in opposition to the petition. The State Board of Housing decided to stand by its original decision to deny the petition.

At the April 10, 1964, meeting, the State Board of Housing voted to reconsider its original decision to deny the petition, and it then voted to grant the extension of the territorial limits of the Martins Ferry Metropolitan Housing Authority as requested in the petition. Neither side was apparently present at this meeting; however, Mr. Hall, one of the members of the State Board of Housing, had visited Martins Ferry and was quite concerned about the effect on the city of Martins Ferry of the prior actions of the State Board of Housing in denying this petition.

On December 8, 1964, appellant filed his notice of appeal to this court.

This cause came on to be heard upon four motions. The first motion is by the Martins Ferry Metropolitan Housing Authority to dismiss the appeal for the reason that the appeal was not filed in time as provided by Section 3735.22, Revised Code, the pertinent parts of which are as follows:

'Any person directly affected and aggrieved by any order or decision of the state board of housing may appeal, within twenty days after the rendering of such order or decision, to the court of appeals of the county in which the premises to which the order or decision relates are situated, for the purpose of having the reasonableness and lawfulness of the order or decision inquired into and determined. * * *

'* * *

'Any party directly affected by any order or decision of the board who fails to file an appeal as provided in this section to such order or decision, assents thereto.'

Appellant contends that no notice of the April 10, 1964, decision of the State Board of Housing was ever given to him; that this decision was not publicized; that he only learned of this decision by rumor on May 5, 1964; and that a denial of his appeal would amount to denying him his day in court and thus denying him due process of law.

Appellant further contends that the State Board of Housing is subject to the Administrative Procedure Act, and thus he was entitled to notice of the decision of the State Board of Housing, under Section 119.09, Revised Code.

Under Section 119.01(A), Revised Code, there are three ways in which a state board may be subjected to the Administrative Procedure Act, namely:

1. Certain boards are specifically named.

2. The legislation concerning a board specifically subjects such board to this act.

3. A board which has authority to issue, suspend, remove or cancel licenses.

We hold that the State Board of Housing does not come under any of these categories and, therefore, is not subject to the Administrative Procedure Act.

There is no statutory requirement for the State Board of Housing to notify appellant either about the April 10, 1964, meeting of the decision made at that meeting. However, appellant contends that the lack of notice to him of this meeting and of the decision made at this meeting deprived him of his constitutional rights guaranteed under Section 1 of the Fourteenth Amendment of the United States Constitution and Section 16, Article I of the Ohio Constitution, because he was denied due process of law.

In order to determine whether appellant has been denied due process of law under the circumstances of this case, we have to decide the type of power being exercised at the administrative hearing and the resultant decision of the State Board of Housing.

A distinction is made between a board's decision having general application to relatively large numbers of people and one affecting a limited number of individuals. When a board's decision has a general application to large numbers of people, it is treated as 'legislative.' BiMetallic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372; 1 Davis, Administrative Law Treatise 421, Section 7.04.

In Zimmerman v. Canfield, 42 Ohio St. 463, at 471, which was decided in 1885, a board decision affecting a large number of people was designated as 'political.'

We feel that the word, 'legislative,' is more descriptive of this type of decision than 'political,' and we will use the word, 'legislative,' to describe this type of board decision.

1 American Jurisprudence 2d 891, Administrative Law, Section 93, makes the following distinction as to what constitutes the exercise of legislative power by an administrative board:

'Legislative power is distinguished from judicial power, or legislation from adjudication, in that basically or usually it operates in the future, rather than on past transactions and circumstances, and generally, rather than particularly. Apart from these elements, action of a particular agency may be deemed legislative in the sense that it is acting for and in completion of the work of the legislature.'

In this case, the decision of the State Board of Housing extended the territorial limits of the Martins Ferry Housing Authority to include a considerable area. This decision affected real estate owned by many people, including appellant. It clearly is a general decision applying to a relatively large number of people, rather than an adjudication specifically directed at the real estate of appellant.

Appellant claims that the purpose of the petition of the Martins Ferry Metropolitan Housing Authority to the State Board of Housing was to enable it to appropriate his land, but the decision of the State Board of Housing makes no specific reference to appellant's real estate, and on the face of it the decision...