Opinion
No. 26284
Decided February 21, 1963.
Municipal zoning ordinance — Permit as a variance — Granting or refusing by planning and zoning commission — Subject to confirmation by council — Decision of commission not final appealable order — Appeal from decision of council.
1. Where a municipal ordinance provides that the action of such municipality's planning and zoning commission in granting or refusing permits as a variance from the zoning ordinances is always "subject to confirmation or approval of" such municipality's council, such municipal council acts, in such instances, as a quasi-judicial body performing an administrative function, and an appeal to the courts in a zoning matter in such case may be taken only from a decision of such council.
2. In such case, a decision of the planning and zoning commission is not a final order from which an appeal may be taken to the courts.
APPEAL: Court of Appeals for Cuyahoga County.
Mr. Marvin J. Feldman, for appellee.
Mr. John F. Ray, Jr., director of law, and Mr. Robert L. Steele, for appellant.
This is an appeal on questions of law from a judgment of the Court of Common Pleas. The parties herein will be referred to as the plaintiff and the defendant as they appeared in the trial court. The plaintiff filed its petition with the Planning and Zoning Commission of the City of Euclid, Ohio, for a permit for a parking lot on certain property adjacent to its place of business. The Planning and Zoning Commission of the City of Euclid denied the petition, and the refusal thereof was confirmed by the Council of the City of Euclid, on February 19, 1962, without granting the plaintiff notice or a hearing. The plaintiff appealed to the Court of Common Pleas from the decision of the Planning and Zoning Commission of the City of Euclid. The defendant challenged the jurisdiction of the Common Pleas Court by a preliminary motion to dismiss and by a motion to dismiss at the conclusion of the plaintiff's opening statement. Both motions were overruled and final judgment was rendered for the plaintiff. It is from this judgment that the defendant appeals. The Court of Common Pleas determined that the decision of the Planning and Zoning Commission was a final order, reversed the order of the commission denying the petition for a permit and ordered a permit to issue.
The Planning and Zoning Commission of the City of Euclid, defendant, appeals to this court from the decision and order issued by the Court of Common Pleas. The question presented to this court is, whether the order of the Planning and Zoning Commission of the City of Euclid denying the plaintiff's application for a permit is a final order.
The council of Euclid, Ohio, by ordinance, Section 1589.01, entitled "Private and Public Parking Lots: Permits," authorized the Planning and Zoning Commission to permit the granting or allowance of permits for parking lots as a variance from the zoning ordinance, according to standards set up in the ordinance, but always "subject to confirmation or approval of council."
In so doing, the city council sets itself up as a final arbiter of the question of whether a variance shall be granted. In this respect, the city council becomes a body to which the final appeal must be made. In so doing, the council sits not as a legislative body but as a quasi-judicial body performing an administrative function. Under the statutes of Ohio, an appeal to the courts is not only anticipated but prescribed from an administrative body under Section 2506.01 of the Revised Code.
From the record it is apparent that the city council did not give plaintiff any notice as to when it would hear the matter and no opportunity was afforded to the plaintiff to be heard in its own behalf. The city council passed its resolution confirming the decision of the Planning and Zoning Commission without regard to the rights of appeal by the plaintiff.
We therefore conclude that the decision of the Court of Common Pleas, in determining that the order of the Planning and Zoning Commission of the City of Euclid constituted a final order, was in error and that the court lacked jurisdiction of the appeal. We conclude further that that court was without jurisdiction to reverse the order of the Planning and Zoning Commission denying the plaintiff the permit.
In view of our finding that the city council of Euclid has set itself up as a quasi-judicial body of final appeal to determine whether the finding or decision of the Planning and Zoning Commission shall be approved and confirmed, its decision would be the final order from which an appeal would lie.
Because of the denial to the plaintiff of notice of the time of its action or an opportunity to be heard, this matter is remanded to the Court of Common Pleas with instructions that it permit the plaintiff to amend its notice of appeal making the council of the city of Euclid and the members thereof parties thereto; that the Court of Common Pleas be, and it is hereby, instructed to permit further evidence to be received pursuant to Section 2506.03 of the Revised Code and its various subdivisions and upon so doing to proceed to hear the matter and render its decision pursuant to Section 2506.04 of the Revised Code, and to determine the issue in accordance therewith.
Judgment accordingly.
HURD, P. J., ARTL and CORRIGAN, JJ., concur.