Published on February 15, 2014
Administrative Appeals The Process What to do when your Zoning Inspector’s Decision is Appealed and Other Administrative Issues ©2014-Devanneylaw Devanney Law Katharina Devanney, Esq. Medina, Ohio www.devanneylaw.com 330-697-4575 email@example.com
The Three Branches of Township Government Devanney Law P.O Box 1645 Medina, Ohio 44258 330-697-4575 firstname.lastname@example.org www.devanneylaw.com Trustees – act as the executive branch of the township Zoning Commission – acts as the legislative branch of the township; and Board of Zoning Appeals – acts as the judicial branch of the township.
Zoning The Zoning Commission (ratified by the Trustees) establishes changes to zoning texts. – – On a national level the Supreme Court has debated about whether the establishment and alterations to zoning texts are administrative or legislative. – The Ohio Supreme Court has determined that this action is legislative in nature – rather than administrative.
Why is this important ? Legislative Acts carry a strong presumption of validity. The are subject to less judicial scrutiny than administrative decisions. – Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
The Board of Zoning Appeals The BZA (or ZBA) acts as the judicial branch of a township’s government. It is an administrative body. Its function is to hear and decide appeals regarding: – zoning code enforcement – authorizing variances and – where authorized, granting conditional uses
The Zoning Inspector Code Enforcement officer(s). – To make opinion decisions as to whether or not there is a violation of the township zoning texts. Devanney Law P.O Box 1645 Medina, Ohio 44258 330-697-4575 email@example.com www.devanneylaw.com
A 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 Citation Your Zoning Inspector finds a violation of your Zoning Text and issues a citation. – The citation should clearly state the violation. – It is good practice to list the section of the code – It is good practice to list a time period for the resident to bring the property into compliance – It is good practice to list how to appeal the citation if desired.
Your Zoning Inspector issues a citation that is appealed. NOW WHAT? Devanney Law P.O Box 1645 Medina, Ohio 44258 330-697-4575 firstname.lastname@example.org www.devanneylaw.com
The 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 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 Hearing The board of zoning appeals shall fix a reasonable time for the public hearing of the appeal – The statute requires at least ten days notice in writing to the parties in interest – At least ten days notice in the paper – R.C. § 519.15
The Administrative Hearing. Any person can come before the BZA on an appeal either by themselves or with an attorney Devanney Law P.O Box 1645 Medina, Ohio 44258 330-697-4575 email@example.com www.devanneylaw.com
Subpoenas Any person presenting before the BZA on an appeal has the ability to ask for the issuance of subpoenas. – The BZA has the ability to issue subpoenas and/or to otherwise compel testimony from witnesses
Call to Order The BZA should Open the meeting Take a roll call vote Open the hearing Swear in all witnesses (best practice is to swear each witness in separately)
Who Goes First When the decision of the Zoning Inspector is appealed – the person appealing the decision goes first. – The resident presents his/her case. He/she can call witnesses Can present evidence/pictures/documents/field trip to the site, etc. Can question the Zoning Inspector or other township officials, etc
The Zoning Inspector Once the person bringing the appeal presents his/her case - the Zoning Inspector presents his/her case. – Recommendation – have an attorney represent the Zoning Inspector in this issue.
Attorneys Can one attorney represent both the Zoning Inspector and advise the BZA at the same time? NO Best practice is to have one attorney represent the Zoning Inspector and present the case on his/her behalf and have a second attorney advise the BZA on legal issues/problems regarding the appeal
In Person – (Remember that a corporation is considered “a person” and should be represented by an attorney)
Decision Making Once both sides present their positions on the appeal – the BZA may ask any questions they may have regarding the matter. The Board then is charged with making a decision. – The BZA must decide the appeal within a reasonable time after it is submitted. R.C. § 519.15
Best Practice The BZA should make its decision based on the evidence presented before it. Make a well reasoned decision within a timely manner Put their reasons for the decision on the record
Deliberations Remember – the Board is the judicial arm of the township. As such, it is not required to make its deliberations in an open session.
Open Session – If the deliberations are conducted in open session, the decision making is fairly clean, everything is on the record (including the reasons for the decisions) Devanney Law P.O Box 1645 Medina, Ohio 44258 330-697-4575 firstname.lastname@example.org www.devanneylaw.com
Not in Open Session If the Board makes its decision behind closed doors – it must – Make a written decision – similar to a court decision – The decision must include A statement of facts What evidence was relied on The decision Reasons for the decision
Your Decision Your decisions are considered to be quasi-judicial in nature and presumed by the Courts to be valid. – Therefore, unless the decisions made are deemed to be: Unconstitutional Illegal Arbitrary Capricious Unreasonable or Unsupported by a preponderance of the substantial, reliable and probative evidence on the whole record.
Your Decision will stand. Courts have extended a customary judicial deference to BZA decisions.
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 Appeal If the decision of the BZA is appealed it must be appealed in conformance with Ohio Revised Code Section 2506. A person appealing the decision of a BZA is required to file that appeal within 30 days of the final decision of the Board - ORC 2505.07
Perfecting 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 Transcript R.C. § 2506.06/ 2506.02 States that when an appeal is filed and a praecipe is filed by the appeallant – the Board shall prepare a transcript of the proceedings and file it with the court. This is typically completed 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 Transcript Should include – The minutes – A list of all exhibits and evidence presented by the appellant – Any recordings/transcripts – Record of Proceedings This includes a written statement of the evidence relied upon/discounted; position of the board members; decision – All of the records in the file
The Hearing R.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’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 .
What happens if 2506.03 (A) is not met? 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
The 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 You Thank you for your time at the 2014 Ohio Township Association Winter Conference. If you have any questions, please do not hesitate to contact me at email@example.com or 330-697-4575 -Trina Devanney ©2014-Devanneylaw
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