Summary
In Kline, this court, pursuant to R.C. 519.24, sanctioned the appearance and participation of the township trustees in the court of appeals who openly opposed from the beginning the granting of a variance and, in doing so, sought to defend the decision of the board of zoning appeals.
Summary of this case from Kasper v. CouryOpinion
No. 40821
Decided January 3, 1968.
Township zoning — Action to prevent violation — Section 519.24, Revised Code — Appeal — Parties — Board of township trustees.
Under the provisions of Section 519.24, Revised Code, a board of township trustees which has from the beginning openly opposed the granting of a variance from the terms of a township zoning resolution adopted by it may properly prosecute an appeal from a judgment of the Court of Common Pleas adverse to it to the Court of Appeals.
APPEAL from the Court of Appeals for Geauga County.
This case involves the right of a board of township trustees to appeal to the Court of Appeals from a judgment of the Court of Common Pleas which it considers adverse to it.
In December of 1964, Paul A. Kline and Matilda F. Kline, the owners of real property in Chester Township, Geauga County, Ohio, appealed to the Chester Township Board of Zoning Appeals to secure a variance in the use of their land from the terms of the amended Chester Township Zoning Resolution. The reason advanced was that the application of the zoning resolution would result in an unnecessary hardship to them. Such written appeal to the board was on a form captioned, "Paul A. Kline, Matilda F. Kline, Appellant, vs. The Township Trustees of Chester Township."
Such appeal for a variance was denied by the board. Whereupon, Paul A. Kline appealed from such determination and decision to the Court of Common Pleas of Geauga County. That court, on a hearing wherein testimony was presented and exhibits introduced, reversed the decision of the board as unreasonable and ordered the board to grant the variance.
At the court hearing, witnesses were called by the Klines and by those opposing the appeal and were examined and cross-examined. The Prosecuting Attorney of Geauga County appeared and participated on behalf of those interested in sustaining the decision of the Board of Zoning Appeals.
The "Motion to Vacate Judgment and to Grant New Trial" begins as follows:
"Now comes the Prosecuting Attorney in behalf of the Chester Township Board of Trustees and moves the court for an order vacating the judgment hereinbefore rendered and for an order for a new trial for the following causes which materially affect the substantial rights of the Chester Township Board of Trustees * * *."
This paper was signed "Edwin T. Hofstetter, Prosecuting Attorney, In behalf of Chester Township Board of Trustees."
The notice of appeal in the Court of Common Pleas is captioned, "Chester Township Board of Trustees, Appellant, vs. Paul A. Kline and Matilda Kline, Appellees," and reads:
"The appellant hereby gives notice of appeal to the Court of Appeals from a judgment rendered by the Court of Common Pleas in the above entitled cause on the twenty-second day of November, 1965. Said appeal is on questions of law and fact."
Upon motion of the appellees, the Court of Appeals reduced the appeal to one on questions of law only and, upon appellees' further motion, dismissed the appeal, one judge dissenting.
Predicated upon such judgment of dismissal, a motion to require the Court of Appeals to certify the record and an appeal as of right were filed in this court. The motion to certify was allowed and the appeal as of right permitted to stand, and the cause is here for decision on such basis.
Messrs. Thrasher, Dinsmore Dolan, Mr. Lawrence J. Dolan and Mr. A.M. Psenicka, for appellees.
Mr. Allan Hull, for appellant.
Was the Board of Township Trustees a proper and recognizable appellant in the Court of Appeals?
As pertinent, Section 519.24, Revised Code, effective in September of 1957, reads:
" In case * * * any land is or is proposed to be used in violation of Sections 519.01 to 519.99, inclusive, of the Revised Code, or of any regulation or provision adopted by any board of township trustees under such sections, such board, the prosecuting attorney of the county, the township zoning inspector, or any adjacent or neighboring property owner who would be especially damaged by such violation, in addition to other remedies provided by law, may institute injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent, enjoin, abate, or remove such unlawful * * * change, maintenance, or use. * * *" (Emphasis supplied.)
Although the quoted section does not specifically mention appeal, such course of procedure is indicated as proper by the words, "in addition to other remedies provided by law" and "or any other appropriate action or proceeding." Where appeal is available and appropriate, that is the remedy which should be followed over such extraordinary remedies as injunction and mandamus. The Klines' application for a variance from the provisions of the Township Zoning Resolution was openly opposed from the beginning by the Board of Township Trustees which had passed the resolution. The board was present and participated in the various hearings before the Township Board of Zoning Appeals. A copy of the notice of appeal from the adverse decision of the Board of Zoning Appeals was sent by the Klines to the prosecuting attorney. By Section 309.09, Revised Code, the prosecuting attorney of a county is the legal adviser and counsel of a board of township trustees within the county and is required to prosecute and defend any action which may affect such board. The prosecuting attorney appeared in the Court of Common Pleas in opposition to the Kline appeal and represented all those contesting such appeal. In the motion to vacate the unfavorable judgment of the Court of Common Pleas and for a new trial, the prosecuting attorney denoted himself as representing the Board of Township Trustees and in that motion denoted the Board of Township Trustees as the complaining agency.
Upon such recitation, there could be no doubt that the Board of Township Trustees took an active part in all the proceedings and that everyone interested in those proceedings was aware of that fact. After all, the Board of Township Trustees was vitally interested in seeing that the zoning resolution it had adopted was upheld and enforced and was active all along the line in supporting that position.
Surely, when the proceedings reached the Court of Common Pleas they became adversary in nature, and the Board of Township Trustees took and maintained a position adverse to the Klines. Section 519.24, Revised Code, sanctions the appearance and participation by a board of township trustees in a matter wherein an attempt is made to interfere with a zoning resolution adopted by it.
A majority of this court agrees with the dissenting judge in the Court of Appeals that under Section 519.24, Revised Code, the Board of Township Trustees was a proper party in attempting to enforce its zoning resolution, that its appearance, participation and interest was manifest, and that it was entitled to prosecute an appeal from a Common Pleas Court judgment against it to the Court of Appeals.
Therefore, the judgment of the Court of Appeals is reversed, and the cause is remanded to that court with instructions to entertain and hear the appeal and to decide the controversy on its merits.
Judgment reversed.
TAFT, C.J., MATTHIAS, O'NEILL and HERBERT, JJ., concur.
SCHNEIDER and BROWN, JJ., dissent.