SMC, Inc. v. Laudi , 44 Ohio App. 2d 325 ( 1975 )

In this appeal the City of Brooklyn (appellants are the agents of the City of Brooklyn and so for convenience shall be referred to as the "City") challenges the jurisdiction of the Court of Common Pleas to test the constitutionality of the City's zoning ordinances in an action initiated by administrative appeal pursuant to Chapter 2506 of the Ohio Revised Code. The appellants also assign as error the Common Pleas Court's refusal to permit the City to introduce evidence in addition to that which was in the transcript of proceedings before the Board of Zoning Appeals.

Plaintiff requested a permit to build a Lawson's Restaurant upon property zoned for single family residential use, located on Ridge Road, adjacent to the Biddulph Plaza Shopping Center. The building inspector refused to issue the permit because the anticipated use was prohibited by the City's zoning ordinances. Plaintiff then appealed to the Board of Zoning Appeals asking it to declare the restrictive ordinances unconstitutional. The plaintiff claimed that its contemplated use of the property was compatible with the area and that the restriction was an unreasonable limitation upon his property rights. No issue other than the constitutionality of the ordinances was before the Board. The Board granted a hearing and permitted plaintiff to present evidence which consisted of four witnesses; namely, a real estate appraiser, a civil engineer, a traffic engineer, and an urban planner. No witnesses were presented on behalf of the building inspector. The Board then ruled that it was without jurisdiction to hear the matter, presumably because it was neither empowered to question the constitutionality of the City's zoning ordinances, nor to change them, the latter, of course, being a matter for the city council. The plaintiff filed an appeal to the Court of Common Pleas pursuant to the authority of Chapter 2506 of the Ohio Revised Code. The City requested the court to permit it to introduce additional evidence, which request was denied. Solely on the basis of the evidence contained in the transcript of proceedings before the Board, the trial court reversed, finding that the Board's decision, in the statutory language of Section 2506.04 of the Ohio Revised Code, was "unsupported by the preponderance of substantial, reliable and probative evidence," and ordered the permit to be issued. The City appealed to this court.

The jurisdictional argument raised by the City reflects the position of the concurring opinions in Mobil Oil Corp. v. Cityof Rocky River (1974), 38 Ohio St. 2d 23. The City argues that the building inspector was without authority to issue a permit for a use not sanctioned by the zoning ordinances, and that the Board of Zoning Appeals was without authority to consider the constitutionality of the zoning ordinances as applied to the property. The City urges us to conclude that the sole issue before the Common Pleas Court was the jurisdiction of the administrative officers of the City to hear the matter and that the Court of Common Pleas was without jurisdiction upon an administrative hearing to consider the constitutionality of the zoning ordinances.

The premise of the City concerning the authority of the building inspector and the Board is correct. As recognized by the majority in Mobil Oil Corp. v. City of Rocky River, supra at 26: ". . . the issue of constitutionality can never be administratively determined." Mobil Oil involved an appeal from the Board of Zoning Appeals of the City of Rocky River pursuant to R. C. Chapter 2506. Although the Rocky River Board had declined jurisdiction, the jurisdictional issue was not affirmatively raised before the Supreme Court. The court in strong language stated at 38 Ohio St. 2d 26:

"Our decision in State, ex rel. Sibarco Corp., v. City ofBerea (1966), 7 Ohio St. 2d 85, 218 N.E.2d 428, made it clear that zoning restrictions may be constitutionally questioned by a landowner who appeals an adverse administrative decision to the Court of Common Pleas."

Our research revealed no case in which the jurisdictional issue has been squarely raised before the Supreme Court with the question framed as it is in this case by an appeal from an administrative decision pursuant to R. C. Chapter 2506. The initial decisions of the Supreme Court declaring that the trial courts should consider the constitutional validity of zoning restrictions in an administrative appeal arose in mandamus actions in which the court upheld the dismissal of the action. In those initial decisions the Supreme Court held that Chapter 2506 constituted an adequate remedy at law for vindicating constitutional challenges to the application of zoning ordinances. The availability of the Chapter 2506 procedure compelled the dismissal of mandamus actions that sought to establish such constitutional claims. State, ex rel. SibarcoCorp., v. City of Berea (1966), 7 Ohio St. 2d 85, 91; State, exrel Fredrix, v. Village of Beachwood (1960), 171 Ohio St. 343; State, ex rel.Gund Company, v. Village of Solon (1960), 171 Ohio St. 318.

The jurisdictional issue was solidly raised before this court in the case of Shaker Coventry Corp. v. Shaker Heights Board ofZoning Appeals (Cuyahoga, 1962), 115 Ohio App. 472 [appeal dismissed for the reason that no constitutional question was involved (1962), 173 Ohio St. 572], in which the jurisdiction of the Common Pleas Court to declare a zoning ordinance unconstitutional as it applied to a specific property in a procedure pursuant to Chapter 2506 of the Ohio Revised Code, was upheld. At page 476, 477 this court commented as follows:

"The peculiar proposition advanced by the appellants is that, because the Zoning Board of Appeals refused to take jurisdiction of this matter, the trial court was also without jurisdiction. This, in our opinion, is a fallacious argument. If this contention were sound, no relief could be granted to any property owner who felt aggrieved. The council of the city having established the zoning, the Building Commissioner could not issue the permit contrary thereto. It follows, therefore, that the Zoning Board of Appeals, in its refusal to accept jurisdiction, leaves the complainant with only the remedy of appeal to the courts under Chapter 2506 of the Revised Code. In the instant case, the appellee invoked the only remedy available to it. See State, ex rel. Fredrix, v. Village of Beachwood and other above-cited cases to the same effect."

Of course, an action in declaratory judgment is available to raise the issue of the constitutionality of zoning ordinances.Kaufman v. Village of Newburgh Heights (1971), 26 Ohio St. 2d 217; Burt Realty Corp. v. City of Columbus (1970), 21 Ohio St. 265. In spite of the availability of the remedy of declaratory judgment, we must hold, because of the strong pronouncements of the Supreme Court in State, ex rel. Sibarco Corp., v. City ofBerea, supra and Mobil Oil Corp. v. City of Rocky River, supra, that the constitutionality of zoning ordinances may be tested by an appeal pursuant to R. C. Chapter 2506 in the Court of Common Pleas. We recognize that this interpretation of R. C. Chapter 2506 creates an anomalous procedure. TheMobil Oil decision permits a Common Pleas Court to achieve a result in a zoning case that is contrary to the result achieved by a Board of Zoning Appeals even though the Board accurately determined all of the issues before it. This anomalous result arises when the Board correctly resolves all of the issues within its jurisdiction against the plaintiff but is nevertheless reversed by a Common Pleas Court that finds the ordinances unconstitutional. However, this procedure expedites zoning litigation. In typical zoning cases issues over which boards of zoning appeals do have jurisdiction, such as hardship and variance, are intertwined in the same fact situation with the constitutional questions. Nothing can be gained by requiring a litigant to file an appeal in order to challenge a determination on hardship or variance and then file a separate action in declaratory judgment in order to raise the validity of the zoning ordinance. Under Rule 42 of the Rules of Civil Procedure, the actions would be consolidated anyway. We therefore hold that the Court of Common Pleas has jurisdiction to consider the constitutionality of the zoning ordinances of a municipality as applied to a specific property in an appeal from the Board of Zoning Appeals of the municipality pursuant to R. C. Chapter 2506, even though the Board correctly rules that it does not have jurisdiction to hear constitutional issues.

The other issue raised by this appeal concerns the ruling of the court below denying the City the opportunity to present evidence. The presentation of evidence in an administrative appeal is rigidly confined by Section 2506.03 of the Ohio Revised Code to the transcript of proceedings before the administrative agency, unless certain specifically enumerated exceptions apply.Libis v. Board of Zoning Appeals of Akron (Summit, 1972),33 Ohio App. 2d 94; 12701 Shaker Blvd. Co. v. City of Cleveland (Cuyahoga, 1972), 31 Ohio App. 2d 199. The record on appeal discloses in this case that no conclusions of fact were filed with the court by the Board. Therefore, the exception set forth in subsection (E) of Section 2506.03 applies. That subsection provides as follows:

"The officer or body failed to file with the transcript, conclusions of fact supporting the order, adjudication or decision appealed from; in which case, the court shall hear the appeal upon the transcript and such additional evidence as may be introduced by any party. At the hearing, any party may call as if on cross-examination, any witness who previously gave testimony in opposition to such party."

Even if the Board had filed conclusions of fact, we would hold that the court should have permitted the parties to offer additional evidence. As we have indicated, the Board was without authority, nor was it competent, to evaluate the constitutional question. Therefore, the court could not test the Board's conclusions against the evidence presented to it. Although ordinarily judicial review pursuant to Chapter 2506 does not provide for a trial de novo, Schoell v. Sheboy (Cuyahoga, 1973),34 Ohio App. 2d 168; Manning v. Straka (Lorain, 1962), 117 Ohio App. 55, the issue of the constitutionality of zoning restrictions must be tried originally in the Court of Common Pleas. The court is not reviewing the decision of the Board, but rather is testing the ordinances of the governmental body against the State and Federal constitutions. The issue is presented in the same manner before the court whether raised by administrative appeal or declaratory judgment.

The City in this case did not choose to present evidence before the Board of Zoning Appeals and was prohibited from presenting evidence to the Court of Common Pleas. Section2506.03 does not limit to the appellant the right to request that additional evidence be presented. Either party may request, or the court on its own motions may require, that additional evidence be presented.

This case is remanded to the Court of Common Pleas with instructions to permit the parties to introduce additional evidence and to try the case as an original action based upon the transcript of proceedings before the Board of Zoning Appeals and such additional evidence as the parties might offer.

Judgment accordingly.

KRENZLER, P. J., and JACKSON, J., concur.