Opinion
No. 70-493
Decided June 30, 1971.
Appeal — From administrative board to Common Pleas Court — Decision of board may not be affirmed, when — Evidence — Insufficient to support decision.
In an appeal from a ruling of an administrative board, a Court of Common Pleas may not base its affirmance solely upon the transcript of the proceedings before the board, where that transcript does not contain reliable and probative evidence to support the board's ruling.
APPEAL from the Court of Appeals for Cuyahoga County.
Plaintiff-appellants, desiring to erect an automatic car wash, along with gasoline pumps, on certain land in the city of Mayfield Heights, filed an application for a building permit for such construction with the building commissioner. The commissioner refused to issue a permit, and an appeal was taken by appellants to the Board of Zoning Appeals.
A hearing was conducted by the Board of Zoning Appeals, at which appellants' counsel presented letters from adjoining property owners who did not object to the proposed use. Counsel outlined the proposed use and presented, as a witness, one of the applicants, Vince Capello, Jr., who gave testimony on the approximate cost of the installation. He stated that car wash customers would be given a discount on gasoline.
The Board of Zoning Appeals upheld the decision of the building commissioner. Appellants requested city council to override the zoning board's decision. The matter was tabled by council, and appellants lodged an appeal in the Court of Common Pleas.
Pursuant to R.C. 2506.02, appellants requested that a transcript of the proceedings be prepared and submitted by the Board of Zoning Appeals to the Court of Common Pleas.
The deputy city clerk thereupon submitted a transcript which contained copies of appellants' application, exhibits relative to location and description of the property, letters and minutes of the hearing before the Board of Zoning Appeals.
As to appellants' statement at the hearing, the minutes read:
"Mr. Robiner stated that his clients proposed to install a `Big Barney' auto wash which is completely automatic. No interior cleaning, — the customer stays in the car. The only attendant is the person who takes the money; the charge will be $1.00. The gas pumps would be at the rear of the building, the nearest being 165 ft. back of the sidewalk. The operating hours are proposed to be from 8:00 a.m. until 8:00 or 9:00 in the evening. Mr. Robiner further stated that they will be able to store approximately 70 cars on the property because of its depth. There would be ingress and egress from Mayfield and S.O.M. Center roads. If this is not sufficient, they have provisions for two more lanes. The auto wash can handle about 120 cars per hour. Mr. Capello, Jr., stated that there would probably be a discount of some sort for the people who buy gasoline to have their cars washed. He stated that the approximate cost of the combined installation would be $125,000 not including the land. Mr. Robiner stated that to deny their request would be arbitrary, capricious, unreasonable, confiscatory and unconstitutional. He requested a decision from the board as soon as possible."
Before the hearing in the Court of Common Pleas, appellants filed an affidavit in accordance with R.C. 2506.03 stating that:
"(A) The transcript does not contain a report of all evidence admitted or proffered by the appellant.
"(B) The appellant was not permitted to appear and be heard in person or by his attorney in opposition to the order appealed from:
"(1) To present his position, arguments and contentions;
"(2) To offer and examine witnesses and present evidence in support thereof;
"(3) To cross-examine witnesses purporting to refute his position, arguments and contentions;
"(4) To offer evidence to refute evidence and testimony offered in opposition to his position, arguments and contentions;
"(5) To proffer any such evidence into the record, if the admission thereof is denied by the officer or body appealed from.
"(C) The testimony adduced was not given under oath.
"(D) 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 such officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body.
"(E) The officer or body failed to file with the transcript, conclusions of fact supporting the order, adjudication or decision appealed from; in which case, the court shall hear the appeal upon the transcript and such 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 such party."
At the hearing, the Court of Common Pleas permitted appellants to present additional evidence. Appellants then presented testimony by Vincent Capello, Jr., Robert W. Fairless, a real estate consultant, the mayor, the chairman of the planning and zoning commission and the building commissioner.
After the hearing the Court of Common Pleas made the following journal entry:
"Based upon the record of proceedings and transcript filed in this appeal, and excluding the additional evidence produced at the time of the hearing before this court, the court finds that the determination of the Board of Zoning Appeals, based upon what evidence it had before it, is reasonable and is supported by reliable and probative evidence, and is therefore affirmed."
The Court of Appeals affirmed the judgment of the Court of Common Pleas. The cause is now before this court following allowance of a motion to certify the record.
Messrs. Metzenbaum, Gaines, Finley Stern, Mr. Donald M. Robiner and Mr. Marshall J. Wolf, for appellants.
Mr. Albert M. Heavilin, director of law, for appellees.
The determinative question in this cause is whether the trial court erred in basing its decision solely on the transcript of the proceedings before the Board of Zoning Appeals.
In basing its holding on the transcript, the trial court concluded that the board's decision was "supported by reliable and probative evidence." It is, therefore, necessary to determine if the transcript contains such evidence.
Appellees state that the transcript "does contain a complete record of all the evidence and testimony submitted by appellants" to the board. Appellees admit, however, that the testimony of appellants' witness, Vince Capello, Jr., was not made under oath.
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. The decision of the zoning board there was appealed to the Court of Common Pleas which, without taking additional evidence, affirmed the decision of the board. In the appeal to this court, it was held that, since R.C. 2317.30 requires a witness to be sworn before testifying, the record contained no evidence and, therefore, the decision of the board "was not supported `by the preponderance of substantial, reliable and probative evidence * * *.'"
That holding is applicable here, inasmuch as there was no sworn testimony taken at the hearing before the board. In fact, no evidence was offered by appellees in opposition to appellants' application at the hearing.
Appellees argue, nonetheless, that by not requesting that the witness be sworn at the hearing, appellants waived that right and that the burden of presenting evidence at the hearing was upon appellants.
It is apparent that for a court to find that an administrative order is supported by reliable and probative evidence "* * * such evidence must not only exist but must be in the record in order to support an affirmance." Doelker v. Accountancy Bd. (1967), 12 Ohio St.2d 76.
Even though appellants could have requested that the witness be sworn and did have the burden of presenting evidence in support of the application, such facts do not alter the requirement expressed in Doelker, supra, that there must be evidence in the report to support an affirmance on the basis that an administrative order is supported by reliable and probative evidence. In the absence of such evidence of record in a transcript, irrespective of the reason for such absence, a court can not affirm an administrative ruling upon the basis that it is so supported.
The transcript here does not contain reliable and probative evidence to support the decision of the board. Therefore, the trial court erred in affirming that decision upon the basis of the transcript.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for further proceedings according to law.
Judgment reversed.
SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.
I would instruct the Court of Common Pleas to decide the appeal on the basis of the transcript and the additional evidence which it permitted to be introduced.
The additional evidence was proper because the administrative board failed to cause the witness before it to be sworn. R.C. 2506.01 et seq. recognizes that the position of parties to an administrative hearing is markedly dissimilar to their position before a court.
Most administrative agencies are staffed by laymen to the law, who do not possess sufficient appreciation, as does a judge, of the duty to honor objections and exceptions and to permit a full record to be made for the purpose of appeal. Even to request a procedural right before an agency often engenders hostility. Thus, the statute authorizes additional evidence upon appeal if any one of the nine specific criteria is not met by the agency.