Opinion
Case No. 82862.
DATE OF ANNOUNCEMENT OF DECISION: April 1, 2004.
Civil appeal from Common Pleas Court, Case No. 480221.
Vacated.
Subodh Chandra, Esq., Director of Law, BY: Robert P. Lynch, Jr., Esq., Assistant Director of Law, City Hall, Room 106, 601 Lakeside Avenue, Cleveland, Ohio 44114-1077, for plaintiffs-appellees.
Adolph Karafiat, Pro Se, 3852 Ridge Road, Cleveland, Ohio 44114, for defendants-appellants.
JOURNAL ENTRY and OPINION
{¶ 1} This is an appeal from the trial court's determination that the City of Cleveland Board of Zoning Appeals' ("Board") decision to sustain the violations issued to Adolph and Betty Karafiat ("Karafiat") was not unconstitutional, illegal, arbitrary, capricious, or unreasonable. We do not address the merits of this appeal because we find that the Board was never properly served with Karafiat's notice of the administrative appeal and the trial court lacked jurisdiction to hear the administrative appeal.
{¶ 2} Failure to file a copy of the notice of administrative appeal to the Board results in a failure to perfect the appeal according to R.C. 2505.04 and is grounds for dismissal. See Patrick Media Group, Inc. v. Cleveland Bd. of Zoning Appeals (1988), 55 Ohio App.2d 124, 562 N.E.2d 921 (affirming the trial court's dismissal for lack of jurisdiction because the plaintiff, although serving the city's law director with his notice of administrative appeal, never served the Board with the notice). Because there is no evidence in the record that the Board was served with a copy of the notice, the trial court lacked subject matter jurisdiction to hear the appeal in the first instance. Accordingly, we vacate the trial court's judgment and reinstate the Board's decision.
Although in its appellate brief the Board also moved to dismiss the instant appeal, we deny the Board's motion to dismiss.
{¶ 3} The judgment is vacated.
Judgment vacated. Dyke, J., concurs.
KENNETH A. ROCCO, J., DISSENTS WITH SEPARATE OPINION.
{¶ 4} I must respectfully disagree with the majority's assertion that there is no evidence in the record that the Board was served with the notice of appeal. On September 3, 2002, appellants filed in the common pleas court a notice of appeal from a decision of the board of zoning appeals. This notice was captioned "In the City of Cleveland, Board of Building Standards, Board of Zoning Appeals." The certificate of service certifies that the notice was "filed in the ZONING APPEALS BOARD." There is no evidence in the record to contradict this certification. In my opinion, on this record, we must presume that the notice of appeal was timely filed with the board as certified by appellants, and that the common pleas court therefore had jurisdiction to decide the appeal. Dudukovich v. Lorain Metropolitan Housing Authority (1979), 55 Ohio St.2d 202, 204-05 (timely delivery of a notice of appeal to the board, presumptively accomplished by mailing five days before the expiration of the 30 day time limit, constitutes "filing"); Berea Music v. Berea, Cuyahoga App. No. 2002-Ohio-6639, ¶¶ 9 10; cf. Patrick Media Group, Inc. v. Cleveland Bd. of Zoning Appeals (1988), 55 Ohio App.3d 124.
{¶ 5} Having concluded that the common pleas court had jurisdiction to review the board's decision, I would hold that the common pleas court did not err by finding the board's decision was not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Appellants failed to ensure that the board provided the court with the record of proceedings which would have supplied the factual basis for such a determination, or to request a de novo hearing before the court. See Woerner v. Mentor Exempted Village School Dist. Bd. Of Edn. (1993), 84 Ohio App.3d 844, 846-847. Thus, the court had no factual basis on which to make such a determination. Accordingly, I would affirm the common pleas court's decision.
This cause is vacated.
It is, therefore, ordered that said appellants recover of said appellees their costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.