Floyd Stamps Rambler, Inc. v. Planning & Zoning Commission , 119 Ohio App. 249 ( 1963 )

Per Curiam.

This is an appeal on questions of law from a judgment of the Court of Common Pleas. The parties herein will be referred to as the plaintiff and the defendant as they appeared in the trial court. The plaintiff filed its petition with The Planning and Zoning Commission of the City of Euclid, Ohio, for a permit for a parking lot on certain property adjacent to its place of business. The Planning and Zoning Commission of the City of Euclid denied the petition; the refusal thereof was confirmed by the Council of the City of Euclid on February 19,1962, without granting the plaintiff notice or a hearing. The plaintiff appealed to the Court of Common Pleas from the decision of The Planning and Zoning Commission of the City of Euclid. The defendant challenged the jurisdiction of the Common Pleas Court by a preliminary motion to dismiss and by a motion to dismiss at the conclusion of the plaintiff’s opening statement. Both motions were overruled and final judgment Avas rendered for the plaintiff. It is from this judgment that the defendant appeals. The Court of Common Pleas determined that the decision of The Planning and Zoning Commission was a final order, reversed the order of the Commission denying said petition for a permit and ordered a permit to issue.

The Planning and Zoning Commission of the City of Euclid, defendant, appeals to this court from the decision and order issued by the Court of Common Pleas. The question presented to this court is, whether or not the order of The Planning and Zoning Commission of the City of Euclid denying the plaintiff’s application for a permit is a final order.

The Council of Euclid, Ohio, by Ordinance Section 1589.01 entitled “Private and Public Parking Lots: Permits,” authorized the Planning and Zoning Commission to permit the granting or allowance of permits for parking lots as a variance from the zoning ordinance, according to standards set up in the ordinance, but always “subject to confirmation or approval of Council. ’ ’

In so doing, the City Council sets itself up as a final arbiter of the question of whether a variance shall be granted. In this respect, the City Council becomes a body to which the final appeal must be made. In so doing, the Council sits not as a legislative body but as a quasi-judicial body performing an administrative function. Under the statutes of Ohio, an appeal to the courts is not only anticipated but prescribed from an administrative body under Section 2506.01, Revised Code.

From tbe record it is apparent that the City Council did not give plantiff any notice as to when it would hear the matter and no opportunity was afforded to the plaintiff to be heard in its own behalf. The City Council passed its resolution confirming the decision of the Planning and Zoning Commission without regard to the rights of appeal by the plaintiff.

We therefore conclude that the decision of the Court of Common Pleas, in determining that the order of The Planning and Zoning Commission of the City of Euclid constituted a final order, was in error and that the court lacked jurisdiction of the appeal. We conclude further that said court was without jurisdiction to reverse the order of The Planning and Zoning Commission denying the plaintiff the permit.

In view of our finding that the City Council of Euclid has set itself up as a quasi-judicial body of final appeal to determine whether the finding or decision of The Planning and Zoning Commission shall be approved and confirmed, its decision would be the final order from which an appeal would lie.

Having denied to the plaintiff notice of the time of its action or an opportunity to be heard, this matter is remanded to the Court of Common Pleas with instructions that it permit the plaintiff to amend its notice of appeal making the Council of the City of Euclid and the members thereof parties thereto; that the Court of Common Pleas be and is hereby instructed to permit further evidence to be received pursuant to Section 2506.03, Revised Code, and its various subdivisions and upon so doing to proceed to hear the matter and render its decision pursuant to Section 2506.04, Revised Code, and to determine the issue in accordance therewith.

Exceptions. Order see journal.

Hurd, P. J., Aril and Corrigan, JJ., concur.