Summary
In Arcaro Bros. Builders, Inc., v. Zoning Board of Appeals (1966), 7 Ohio St.2d 32, also a zoning case, the chairman of a zoning board of appeals refused, at a hearing, to permit witnesses to be sworn.
Summary of this case from Capello v. Mayfield HeightsOpinion
No. 39871
Decided June 22, 1966.
Appeal — From decision of municipal zoning board of appeals — Hearing — Decision of board not supported by evidence — Record contains no evidence — Reverse and remand.
APPEAL from the Court of Appeals for Hamilton County as of right and pursuant to the allowance of a motion to certify the record.
Prior to February 1961, Arcaro Bros. Builders, Inc., appellant herein, occupied real property in the city of North College Hill, Ohio, on which it conducted a building, construction and plumbing business. It presently owns the premises which it continues to use for the same purpose. Admittedly, that use is nonconforming under the city zoning ordinance which allows such continued use of the premises under a permit by the Building Commissioner. That official revoked Arcaro's nonconforming use permit for the reason that its use of the premises was interrupted.
Arcaro denied this fact and appealed to the Zoning Board of Appeals of the city, which board, after a hearing, affirmed the action of the Building Commissioner. Arcaro then appealed to the Court of Common Pleas of Hamilton County pursuant to Chapter 2506, Revised Code, which court, without taking additional evidence, affirmed the decision of the zoning board. On further appeal, the Court of Appeals for Hamilton County affirmed the judgment of the Court of Common Pleas.
Mr. John P. Scahill, for appellant.
Mr. Harry T. Klusmeier, for appellee.
The chairman of the Zoning Board of Appeals refused permission to have any of the witnesses sworn, and allowed unidentified statements, apparently from the audience attending the hearing, to be recorded in the transcript.
Section 2319.01, Revised Code, provides:
"The testimony of witnesses may be taken:
"(A) By affidavit;
"(B) By deposition;
"(C) By oral examination."
Section 2319.02, Revised Code, provides:
"An affidavit is a written declaration under oath, made without notice to the adverse party. A deposition is a written declaration under oath, made upon notice to the adverse party. Oral testimony is that delivered from the lips of the witness." (Emphasis supplied.)
Section 2317.30, Revised Code, provides:
"Before testifying, a witness shall be sworn to testify the truth, the whole truth, and nothing but the truth."
Thus, the record in this appeal contains no evidence.
Hence, the decision of the board was not supported "by the preponderance of substantial, reliable and probative evidence on the whole record." Section 2506.04, Revised Code.
The judgment of the Court of Appeals is therefore reversed, and the cause is remanded to the Board of Zoning Appeals for a hearing in accordance with this opinion.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.
SCHNEIDER, J., not participating.