Tuber v. Perkins

Decision Date18 May 1966
Docket NumberNo. 39279,39279
Citation35 O.O.2d 255,6 Ohio St.2d 155,216 N.E.2d 877
Parties, 35 O.O.2d 255 TUBER et al., Appellants, v. PERKINS et al., Board of Trustees of Boardman Township; Jones, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

The action of a Board of Township Trustees in adopting or amending a zoning regulation is a legislative action and does not fall under the provisions of Section 2506.01, Revised Code, providing for appeals to the Court of Common Pleas from final orders of administrative bodies.

This cause arose when appellee, DeEtta Jones, filed an application for an amendment to the zoning plan of Boardman Township. The Township Zoning Commission found in favor of such amendment and recommended that it be approved. The Board of Township Trustees after a hearing thereon approved such change and adopted a resolution amending the zoning ordinance. The present appellants appealed from this order under the Administrative Appeals Act, Section 2506.01 et seq., Revised Code, to the Court of Common Pleas, naming the township trustees as parties. Appellee, DeEtta Jones, was not named a party to the appeal nor was she notified of such appeal. The Court of Common Pleas set aside the order of the Board of Township Trustees as unreasonable, arbitrary and void. Subsequently, within term, appellee filed a motion to vacate the judgment upon the ground that she was a necessary party to the appeal and had not been served or notified thereof. This motion was overruled, and appellee prosecuted an appeal to the Court of Appeals.

The Court of Appeals found that the Court of Common Pleas did not have jurisdiction of the subject matter, and that the action of the Board of Township Trustees was legislative and, therefore, not an order which could be appealed from under the terms of the Administrative Appeals Act. The court found also that appellee was a necessary party to any appeal from the action of the board, and that the judgment of the Court of Common Pleas was invalid on this ground also. The Court of Appeals reversed the judgment of the Court of Common Pleas and remanded the cause to that court with instructions to vacate the judgment and dismiss the appeal.

The cause is before this court pursuant to the allowance of a motion to certify the record.

H. Herschel Hunt and C. G. Economus, Youngstown, for appellants.

Harrington, Huxley & Smith and Kenneth C. Schafer, Youngstown, for appellee.

MATTHIAS, Judge.

The primary question raised by this action is whether an appeal may be prosecuted to the Court of Common Pleas under the provisions of Section 2506.01 et seq., Revised Code, from the action of a Board of Township Trustees amending a zoning resolution.

Section 2506.01, Revised Code, reads in part of follows:

'Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located, as provided in sections 2505.01 to 2505.45, inclusive, of the Revised Code, and as such procedure is modified by sections 2506.01 to 2506.04, inclusive, of the Revised Code.'

This section, relates to appeals from administrative orders of such bodies; it does not provide for appeals from legislative bodies or from resolutions of administrative bodies promulgated in a delegated legislative capacity. Berg v. City of Struthers (1964), 176 Ohio St. 146, 198 N.E.2d 48. See Zangerle, Aud., v. Evatt, Tax Commr., 139 Ohio St. 563, 41 N.E.2d 369.

Thus, the basic question is whether a Board of Township Trustees is acting in an administrative or legislative capacity when it adopts or amends a zoning resolution.

Although basically the legislative power is confined to the General Assembly, the General Assembly may delegate legislative power in relation to local matters to political subdivisions. 10 Ohio Jurisprudence 2d 397, Constitutional Law, Section 318.

A township is an agency of the state, is a part of the organization of the state government, and is a political subdivision of the state. State ex rel. Godfrey, a Taxpayer, v. O'Brien, Treas. (1917), 95 Ohio St. 166, 115 N.E. 25; Village of Beachwood v. Board of Elections of Cuyahoga County (1958), 167 Ohio St. 369, 148 N.E.2d 921. Therefore, the General Assembly may delegate to it legislative powers which relate purely to matters of local concern.

The enactment and amendment of zoning regulations constitute legislative action. Berg v. City of Struthers, supra; 101 C.J.S. Zoning § 1, p. 662.

Inasmuch as zoning is peculiarly a local problem impracticable of solution on a state-wide basis, the General Assembly has delegated the regulation thereof to the local subdivisions. The General Assembly by Chapter 519, Revised Code, has empowered townships to regulate zoning. This constituted a delegation of police power (Yorkavitz v. Board of Township Trustees of Columbia Twp. (1957), 166 Ohio St. 349, 142 N.E.2d 655) which could be exercised only by legislative action. In other words, the General Assembly dedlegated to townships the legislative power to enact zoning regulations.

Thus, a Board of Township Trustees in adopting zoning resolutions is acting in a legislative capacity. Randall v. Meridian Township Board (1955), 342 Mich. 605, 70 N.W.2d 728; Township of Dearborn v. Dearborn Township Clerk (1952), 334 Mich. 673, 55 N.W.2d 201. The legislative nature of such action is evidenced by the fact that Section 519.12, Revised Code, provides for a petition for referendum on resolutions of township trustees which amend zoning ordinances.

Therefore, the action of a Board of Township Trustees in adopting or amending a zoning regulation is a legislative...

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  • Wedgewood v. Township of Liberty, Ohio, C2-04-1069.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 12 Octubre 2006
    ...trustees to enact zoning regulations is a legislative function delegated to townships by the General Assembly. Tuber v. Perkins, 6 Ohio St.2d 155, 216 N.E.2d 877 (1966). Defendants assert that because they were enacted by the Commission, the January 19 Instructions constitute a legislative ......
  • Central Motors Corp. v. City of Pepper Pike
    • United States
    • United States Court of Appeals (Ohio)
    • 16 Febrero 1979
    ...because R.C. Chapter 2506 is unavailable for review of a legislative matter, such as rezoning of a parcel of land. Tuber v. Perkins (1966), 6 Ohio St.2d 155, 216 N.E.2d 877. Rather than proceeding with a declaratory judgment action attacking the constitutionality of the single family zoning......
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    • United States
    • United States State Supreme Court of Ohio
    • 19 Marzo 1975
    ...... Berg v. Struthers (1964), 176 Ohio St. 146, 198 N.E.2d 48; Tuber v. Perkins (1966), 6 Ohio St.2d 155, 216 N.E.2d 877; Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 233 N.E.2d 500. See also, Justice Corrigan's ......
  • Joseph Skillken & Co. v. City of Toledo, s. 74--2116
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 10 Diciembre 1975
    ...324 N.E.2d at 743) In that case also, the Court cited Berg v. Struthers, 176 Ohio St. 146, 198 N.E.2d 48 (1964); Tuber v. Perkins, 6 Ohio St.2d 155, 216 N.E.2d 877 (1966); Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 Skillken obviously recognized this fact when he applied to t......
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