Roper v. Board of Zoning Appeals, Richfield Tp., Summit County

• Decision Date: 28 February 1962
• Docket Number: No. 37114,37114
• Citation: 173 Ohio St. 168,180 N.E.2d 591,18 O.O.2d 437
• Parties: , 18 O.O.2d 437 ROPER, Appellee, v. BOARD OF ZONING APPEALS, TOWNSHIP OF RICHFIELD, SUMMIT COUNTY, et al., Appellants.
• Court: Ohio Supreme Court

Page 168

173 Ohio St. 168

180 N.E.2d 591, 18 O.O.2d 437

ROPER, Appellee, v. BOARD OF ZONING APPEALS, TOWNSHIP OF RICHFIELD, SUMMIT COUNTY, et al., Appellants.

No. 37114.

Supreme Court of Ohio.

Feb. 28, 1962.

Syllabus by the Court.

A resident, elector and property owner of a township, who appears before a township Board of Zoning Appeals, is represented by an attorney, opposes and protests the changing of a zoned area from residential to commercial, and advises the board, on the record, that if the decision of the board is adverse to him he intends to appeal from the decision to a court, has a right of appeal to the Common Pleas Court if the appeal is properly and timely made pursuant to Sections 519.15 and 2506.01 to 2506.04, inclusive, and Chapter 2505, Revised Code.

In an election in May 1960, a proposal was presented to the electorate of the township of Richfield, Summit County, Ohio. If passed, this proposal would have changed the zoning of a 100-acre parcel of land in the township from a R-1, residential zone, to a C-1, commercial zone, to permit the construction of an oil distribution center on such 100-acre tract.

This zoning change was defeated by the electorate of the township.

Soon thereafter, Steven Nagy, Jr., owner of a 50-acre tract wholly within the 100-acre tract referred to above in the referendum question, applied to the Richfield zoning inspector for a permit to construct such an oil distribution center on the 50-acre tract.

The inspector refused to grant such a permit on the ground that the 50-acre parcel in question was located in an area which had been designated by a township zoning resolution as R-1, residential, that the electorate had refused to change this zoning use, and that an oil distribution center could only be built in a commercial zone.

Nagy then appealed to the Richfield Township Board of Zoning Appeals for a zoning change permitting the construction of the oil distribution center.

The Board of Zoning Appeals held a public hearing upon Nagy's appeal on June 30, 1960. Notice of this public hearing was published as required by law.

Peter Roper, a resident, elector and property owner in the township, appeared with his attorney, in response to a public notice required by statute, to protest this change in zoning from residential to commercial. Roper spoke in opposition to the proposed change, and his attorney, representing him, presented both argument and citations of law in opposition to the change.

A reading of the record indicates that to describe the hearing as informal is charitable. It, in fact, got completely out of hand on more than one occasion. From the record this would not appear to have been the fault of Roper or his attorney, but rather the result of the large crowd which was present, the inability of the chairman to maintain order and the inability of the secretary to record the proceedings.

Before the hearing was concluded and a vote taken by the board, Roper advised the board, according to the record, that, if this application for a zoning change was granted, he intended to appeal the matter and that the board should get itself an attorney.

At the close of the hearing, the application for a zoning change was granted by the board by a vote of three to two.

On July 9, 1960, Roper filed the following notice of appeal in the Common Pleas Court of Summit County, stating that he was a party adversely affected by the decision of the Board of Zoning Appeals:

'Appellant, Peter Roper, a party adversely affected by the following decision of the township Board of Zoning Appeals for the township of Richfield, Summit County, Ohio, hereby gives notice of his appeal from said decision to the Court of Common Pleas of Summit County, Ohio:

"We (Board of Zoning Appeals, township of Richfield, Summit County, Ohio) permit the granting of a veriance to Mr. Steve Nagy, Jr., permitting the use of lot No. 14 as described in the appeal, for a petroleum distribution center, by applicant, appellant or his successors in title to aforedescribed lands. Above permission to be granted pursuant to Article XIII, Sec. A-4b of the Richfield Township Zoning Resolutions, to alleviate an unnecessary hardship (land was because of location and condition not suitable for residential development), lot 14 has no access to any street or roads except as can be negotiated by Steven Nagy, Jr., with owners of adjacent property. Property as herein stated is presently zoned R-1 residential but due to changing character of the properties on the north, and on the west, and change in drainage caused by construction of this turnpike, all of which factors contribute to an unnecessary hardship on the property owners.'

'The above decision was rendered by the board of appeals on the 30th day of June 1960 in the appeal of Steven Nagy, Jr., a. k. a. Steve Nagy, Jr., to said Board of Zoning Appeals, wherein the said Board of Zoning Appeals granted Steven Nagy, Jr.'s, request for a variance. The within appeal is taken to the Summit County Common Pleas Court from the decision of the Richfield Township Board of Zoning Appeals, granting Steven Nagy, Jr.'s, request for a variance on June 30, 1960.

'Said appeal is on question of law and fact.

'[signature] Jerome A. Klein,

'Attorney for Appellant.'

The only parties designated in this notice of appeal are Peter Roper and the Board of Zoning Appeals of Richfield Township, Summit County, Ohio. Steven Nagy, Jr., then filed an application for leave to intervene as a party in the proceeding, and the Common Pleas Court granted his application. Nagy then filed a motion to dismiss the proceedings on the ground that Roper had no right of appeal. The Common Pleas Court granted this motion and entered a judgment of dismissal.

That judgment of dismissal was appealed from to the Court of Appeals, which reversed the judgment.

This cause was certified to this court by the Court of Appeals as a conflict case, it being in conflict with the case of Abrams v. Gearhart, case No. 257 in the Court of Appeals of the Seventh Appellate District.

Jerome A. Klein and Peter P. Roper, Cleveland, for appellee.

John S. Ballard, Pros. Atty., William R. Baird, John D. Smith, Akron, Friedman & Heilman, John J. Brown, Cleveland, for appellants.

O'NEILL, Judge.

Prior to the amendment of Section 519.15, Revised Code, effective September 17, 1957, it read in part as follows:

'The board shall fix a reasonable time for the hearing of the appeal, give ten days' notice to the parties in interest, and decide the appeal within a reasonable time after it is submitted. Upon the hearing, any party may appear in person or by attorney. Any person adversely affected by a decision of a board may appeal to...