ohio board of zoning appeals - administrative appeals - ohio township association winter...

Administrative AppealsAdministrative AppealsThe ProcessThe Process

What to do when yourZoning Inspector’sDecision is Appealed andOther Administrative Issues

©2014-Devanneylaw©2014-Devanneylaw

Devanney LawDevanney LawKatharina Devanney, Esq.Katharina Devanney, Esq.Medina, OhioMedina, Ohiowww.devanneylaw.comwww.devanneylaw.com330-697-4575330-697-4575trina@[email protected]

http://www.devanneylaw.com/

The Three Branches of The Three Branches of Township GovernmentTownship Government

Devanney LawDevanney LawP.O Box 1645P.O Box 1645Medina, Ohio 44258Medina, Ohio [email protected]@devanneylaw.comwww.devanneylaw.comwww.devanneylaw.com

Trustees – act as the executive Trustees – act as the executive branch of the townshipbranch of the township

Zoning Commission – acts as Zoning Commission – acts as the legislative branch of the the legislative branch of the township; andtownship; and

Board of Zoning Appeals – acts Board of Zoning Appeals – acts as the judicial branch of the as the judicial branch of the township.township.

ZoningZoning

The Zoning Commission (ratified by the The Zoning Commission (ratified by the Trustees) establishes changes to zoning Trustees) establishes changes to zoning texts. – texts. – – On a national level the Supreme Court has On a national level the Supreme Court has

debated about whether the establishment and debated about whether the establishment and alterations to zoning texts are administrative alterations to zoning texts are administrative or legislative. or legislative.

– The Ohio Supreme Court has determined that The Ohio Supreme Court has determined that this action is legislative in nature – rather than this action is legislative in nature – rather than administrative.administrative.

Why is this important ?Why is this important ?

Legislative Acts carry a strong Legislative Acts carry a strong presumption of validity.presumption of validity.

The are subject to less judicial scrutiny The are subject to less judicial scrutiny than administrative decisions.than administrative decisions.

– Village of Euclid v. Ambler Realty Co., 272 U.S. 365 Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).(1926).

The Board of Zoning AppealsThe Board of Zoning Appeals

The BZA (or ZBA) acts as the judicial The BZA (or ZBA) acts as the judicial branch of a township’s government.branch of a township’s government.

It is an administrative body. It is an administrative body.

Its function is to hear and decide appeals Its function is to hear and decide appeals regarding: regarding: – zoning code enforcement zoning code enforcement – authorizing variances and authorizing variances and – where authorized, granting conditional uses where authorized, granting conditional uses

The Zoning InspectorThe Zoning Inspector

Code Enforcement officer(s).Code Enforcement officer(s).–To make opinion decisions as to To make opinion decisions as to

whether or not there is a violation whether or not there is a violation of the township zoning texts.of the township zoning texts.


A Great Deal of ScrutinyA Great Deal of Scrutiny

The Zoning Inspector’s decision as to whether or not to – cite a person for a zoning violation;

– Grant an agricultural use exemption;

– Grant a fence permit; or– Make any other official decision

Is subject to scrutiny.

The decision can be appealed to the judicial branch of the township – the BZA.

The CitationThe Citation

Your Zoning Inspector finds a violation of Your Zoning Inspector finds a violation of your Zoning Text and issues a citation.your Zoning Text and issues a citation.– The citation should clearly state the violation.The citation should clearly state the violation.– It is good practice to list the section of the It is good practice to list the section of the

codecode– It is good practice to list a time period for the It is good practice to list a time period for the

resident to bring the property into complianceresident to bring the property into compliance– It is good practice to list how to appeal the It is good practice to list how to appeal the

citation if desired.citation if desired.


Your Zoning Inspector issues a Your Zoning Inspector issues a citation that is appealed. citation that is appealed.

NOW WHAT?NOW WHAT?

The AppealThe Appeal

Your Zoning Resolution should tell your residents how to appeal if they are not satisfied with a decision from the Zoning Inspector. – The citation should also list the time

frame and process for appeal as well

Open MeetingsOpen Meetings

Appeals to the board of zoning appeals may be taken by any person aggrieved or by any officer of the township affected by any decision of the administrative officer. – Within 20 days after the decision– Must be filed with the zoning officer and with the BZA– The Notice of Appeals must specify the grounds for

the appeal

R.C. § 519.15.

Setting a HearingSetting a Hearing

The board of zoning appeals shall fix a The board of zoning appeals shall fix a reasonable time for the public hearing of the reasonable time for the public hearing of the appealappeal– The statute requires at least ten days notice in writing The statute requires at least ten days notice in writing

to the parties in interestto the parties in interest– At least ten days notice in the paper -At least ten days notice in the paper -– R.C. § 519.15R.C. § 519.15

The Administrative Hearing.

Any person can come before the BZA on an appeal either by themselves or with an attorney


SubpoenasSubpoenas

Any person presenting before the BZA on Any person presenting before the BZA on an appeal has the ability to ask for the an appeal has the ability to ask for the issuance of subpoenas. issuance of subpoenas. – The BZA has the ability to issue subpoenas The BZA has the ability to issue subpoenas

and/or to otherwise compel testimony from and/or to otherwise compel testimony from witnesseswitnesses

Call to OrderCall to Order

The BZA should Open the meetingThe BZA should Open the meeting

Take a roll call voteTake a roll call vote

Open the hearingOpen the hearing

Swear in all witnesses (best practice is to Swear in all witnesses (best practice is to swear each witness in separately)swear each witness in separately)

Who Goes FirstWho Goes First

When the decision of the Zoning Inspector When the decision of the Zoning Inspector is appealed – the person appealing the is appealed – the person appealing the decision goes first.decision goes first.– The resident presents his/her case. The resident presents his/her case.

He/she can call witnessesHe/she can call witnesses

Can present evidence/pictures/documents/field trip Can present evidence/pictures/documents/field trip to the site, etc.to the site, etc.

Can question the Zoning Inspector or other Can question the Zoning Inspector or other township officials, etctownship officials, etc

The Zoning InspectorThe Zoning Inspector

Once the person bringing the appeal Once the person bringing the appeal presents his/her case - the Zoning presents his/her case - the Zoning Inspector presents his/her case. Inspector presents his/her case. – Recommendation – have an attorney Recommendation – have an attorney

represent the Zoning Inspector in this issue.represent the Zoning Inspector in this issue.

AttorneysAttorneys

Can one attorney represent both the Zoning Can one attorney represent both the Zoning Inspector and advise the BZA at the same time?Inspector and advise the BZA at the same time?

NONO

Best practice is to have one attorney represent the Best practice is to have one attorney represent the Zoning Inspector and present the case on Zoning Inspector and present the case on his/her behalf and have a second attorney his/her behalf and have a second attorney advise the BZA on legal issues/problems advise the BZA on legal issues/problems regarding the appeal regarding the appeal

In PersonIn Person

– (Remember that a corporation is considered “a person” and should be represented by an attorney)

Decision MakingDecision Making

Once both sides present their positions on Once both sides present their positions on the appeal – the BZA may ask any the appeal – the BZA may ask any questions they may have regarding the questions they may have regarding the matter.matter.

The Board then is charged with making a The Board then is charged with making a decision. decision. – The BZA must decide the appeal within a reasonable time after it

is submitted. R.C. § 519.15

Best PracticeBest Practice

The BZA should make its decision based The BZA should make its decision based on the evidence presented before it.on the evidence presented before it.

Make a well reasoned decision within a Make a well reasoned decision within a timely mannertimely manner

Put their reasons for the decision on the Put their reasons for the decision on the recordrecord

DeliberationsDeliberations

Remember – the Board is the judicial

arm of the township. As such, it is

not required to make its deliberations in

an open session.

– If the deliberations are conducted in If the deliberations are conducted in open session, the decision making is open session, the decision making is fairly clean, everything is on the record fairly clean, everything is on the record (including the reasons for the decisions)(including the reasons for the decisions)


Open SessionOpen Session

Not in Open SessionNot in Open Session

If the Board makes its decision behind If the Board makes its decision behind closed doors – it mustclosed doors – it must– Make a written decision – similar to a court Make a written decision – similar to a court

decisiondecision– The decision must includeThe decision must include

A statement of factsA statement of facts

What evidence was relied onWhat evidence was relied on

The decisionThe decision

Reasons for the decisionReasons for the decision

Your DecisionYour Decision

Your decisions are Your decisions are considered to be considered to be quasi-judicial in quasi-judicial in nature and presumed nature and presumed by the Courts to be by the Courts to be valid. valid. – Therefore, unless the Therefore, unless the

decisions made are decisions made are deemed to be: deemed to be:

UnconstitutionalUnconstitutional

IllegalIllegal

ArbitraryArbitrary

CapriciousCapricious

UnreasonableUnreasonable

or Unsupported by a or Unsupported by a preponderance of the preponderance of the substantial, reliable and substantial, reliable and probative evidence on probative evidence on the whole record. the whole record.

Your Decision will stand. Your Decision will stand.

Courts have extended a customary judicial Courts have extended a customary judicial deference to BZA decisions.deference to BZA decisions.

What happens next ?What happens next ?

If the resident is not satisfied with the decision of the BZA – he/she may appeal the decision of the BZA to the Court of Common Pleas

2506 Appeal2506 Appeal

If the decision of the BZA is appealed it If the decision of the BZA is appealed it must be appealed in conformance with must be appealed in conformance with Ohio Revised Code Section 2506.Ohio Revised Code Section 2506.

A person appealing the decision of a BZA is A person appealing the decision of a BZA is required to file that appeal within 30 days of the required to file that appeal within 30 days of the final decision of the Board - ORC 2505.07final decision of the Board - ORC 2505.07

Perfecting the AppealPerfecting the Appeal

An appeal is perfected when a written notice of appeal is filed, … in the case of an administrative-related appeal, with the administrative officer, agency, board, department, tribunal, commission, or other instrumentality involved. ……

R.C. § 2505.04

Filing a TranscriptFiling a Transcript

R.C. § 2506.06/ 2506.02R.C. § 2506.06/ 2506.02

States that when an appeal is filed and a States that when an appeal is filed and a praecipe is filed by the appeallant – the Board praecipe is filed by the appeallant – the Board shall prepare a transcript of the proceedings and shall prepare a transcript of the proceedings and file it with the court. This is typically completed file it with the court. This is typically completed within 40 days of the appeal file date. within 40 days of the appeal file date.

The costs of the transcript shall be taxed as a part of the costs of the appeal..

The TranscriptThe Transcript

Should includeShould include– The minutesThe minutes– A list of all exhibits and evidence presented by A list of all exhibits and evidence presented by

the appellantthe appellant– Any recordings/transcriptsAny recordings/transcripts– Record of ProceedingsRecord of Proceedings

This includes a written statement of the evidence This includes a written statement of the evidence relied upon/discounted; position of the board relied upon/discounted; position of the board members; decisionmembers; decision

– All of the records in the fileAll of the records in the file

The HearingThe Hearing R.C. § 2506.03R.C. § 2506.03

The hearing … shall proceed as in the trial of a civil action, but the court shall be confined to the transcript filed under section

2506.02 unless it appears, on the face of that transcript or by affidavit filed by the

appellant, that one of the following applies: (1) The transcript does not contain a report of all evidence admitted or

proffered by the appellant. (2) The appellant was not permitted to appear and be heard in person, or by

the appellant's attorney, in opposition to the final order, adjudication, or decision , and to do any of the following:

(a) Present the appellant's position, arguments, and contentions; (b) Offer and examine witnesses and present evidence in support; (c) Cross-examine witnesses purporting to refute the appellant's position,

arguments, and contentions; (d) Offer evidence to refute evidence and testimony offered in opposition to the

appellant's position, arguments, and contentions; (e) Proffer any such evidence into the record, if the admission of it is denied by

the officer or body appealed from.

The Hearing Con’tThe Hearing Con’t

(3) The testimony adduced was not given under oath.

(4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from, or the refusal, after request, of that officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body.

(5) The officer or body failed to file with the transcript conclusions of fact supporting the final order, adjudication, or decision .

The court shall hear the appeal upon the transcript and 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 that party. - R.C. § 2506.03

What happens if What happens if 2506.03 (A) is not met?2506.03 (A) is not met?

The Court’s DecisionThe Court’s Decision

Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause back to the BZA with instructions to enter an order, adjudication, or decision consistent with the findings or opinion of the court.

The judgment of the court may be appealed by any party on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code. R.C. § 2506.04

Thank YouThank You

Thank you for your time at the 2014 Ohio Thank you for your time at the 2014 Ohio Township Association Winter Conference.Township Association Winter Conference.

If you have any questions, please do not If you have any questions, please do not hesitate to contact me at hesitate to contact me at [email protected] or [email protected] or 330-697-4575

-Trina Devanney-Trina Devanney©2014-Devanneylaw©2014-Devanneylaw

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