Maughan v. Davis Investment Co. , 115 Ohio App. 96 ( 1962 )

The plaintiffs, appellants herein, wanted to appeal from a decision of the Board of Zoning Adjustment of the city of Columbus, to the Court of Common Pleas of Franklin County, and a notice of intention to appeal was filed by the appellants with an employee of the city of Columbus, who works in the office of the City Planning Commission but who claims she performs all the functions of a clerk for the Board of Zoning Adjustment. There is nothing in the records to indicate that she is an employee of the Board of Zoning Adjustment or that she was ever appointed clerk of the board, but it is admitted that she does take notes or records the meetings of the board for it. The board has no regular hours and no regular place for doing business but meets in one of the city buildings, wherever it is convenient for it and a room is available to it in which to conduct its meeting.

The Common Pleas Court held that the notice of appeal was not filed with the Board of Zoning Adjustment, as the only stamp on the notice of appeal showed:

"Received May 27, 1960 City Planning Commission Columbus, Ohio"

There was an affidavit by the members of the Board of Zoning Adjustment to the effect that no appeal was filed with any of them and that no notice of appeal was brought to the attention of any of them until August 26, 1960.

The Common Pleas Court not only dismissed the appeal for failure to file the notice of appeal with the Board of Zoning Adjustment, but also for the reason that no bond was filed by the appellants as required by Section 2505.06, Revised Code, and that appellants failed to file their assignments of error and briefs in accordance with the rules of the court.

It is unfortunate that the council of the municipality and the Board of Zoning Adjustment would allow such a situation to arise whereby there is no definite place to file the required papers, but in view of the Supreme Court holdings in the cases ofVolz v. Volz, 167 Ohio St. 141, and Starr v. Young, Admr.,172 Ohio St. 317, we cannot say that the Court of Common Pleas was in error when it held that the appellants in these cases did not comply with the statute, as there is no showing that the notice of appeal was filed with the Board of Zoning Adjustment or its duly appointed clerk.

The judgment of the Court of Common Pleas will be, and hereby is, affirmed.

Judgment affirmed.

DUFFY and MCLAUGHLIN, JJ., concur.