Opinion
No. 41032
Decided March 20, 1968.
Appeal — From administrative board to Common Pleas Court — Decision reversed because unsupported by evidence on record — No bill of exceptions or finding of facts by trial court — Reviewing court has no alternative but to affirm judgment — Municipal board of zoning appeals.
APPEAL from the Court of Appeals for Montgomery County.
In upholding the action of the Building and Zoning Inspector, the Board of Zoning Appeals of the city of Kettering, Ohio, denied one Arthur Beerman a permit to construct a retail shopping facility on twelve and a fraction acres of land he owned at the northwest corner of Far Hills Avenue and David Road in Kettering. The Kettering City Council affirmed the action of the board, and Beerman perfected his appeal to the Court of Common Pleas of Montgomery County under Section 2506.01, Revised Code. That court found, under the evidence and in the language of Section 2506.04, Revised Code, that the decision appealed from is unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. Thereupon, the decision appealed from was reversed, and it was adjudged and decreed that the permit requested by Beerman be issued to him.
An appeal by the city to the Court of Appeals resulted in an affirmance of the judgment of the lower court on the ground, as stated in the judgment entry, "that no bill of exceptions was filed in the court below and that the errors assigned in this case by appellant are such as can only be disclosed by a bill of exceptions and that none having been filed, this court has no alternative but to affirm the judgment below."
The cause is now in this court on the allowance of a motion to certify the record and on an appeal as of right.
Messrs. Goldman, Cole Putnick and Mr. Jerome Goldman, for appellee.
Mr. John L. Adams, law director, Messrs. Vorys, Sater, Seymour Pease and Mr. Arthur I. Vorys, for appellants.
This court finds itself in the same predicament as did the Court of Appeals. There is no bill of exceptions and no findings of fact and conclusions of law by the trial court.
In entertaining the appeal we were not fully aware of the situation as it has developed. For the reason stated, we cannot reach the merits of the controversy, and we are constrained to affirm the judgment of the Court of Appeals.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, HERBERT, SCHNEIDER and BROWN, JJ., concur.
TROOP, J., dissents.
TROOP, J., of the Tenth Appellate District, sitting for O'NEILL, J.