The opinion
[Cite as FAM 13375, Inc.
v. Brook Park Bd. of Zoning Appeals, 2025-Ohio-4668.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
FAM 13375, INC., :
Plaintiff-Appellant, :
No. 114498
v. :
CITY OF BROOK PARK BOARD OF :
ZONING APPEALS,
:
Defendant-Appellee.
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: October 9, 2025
Administrative Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-24-101261
Appearances:
Ogletree, Deakins, Nash, Smoak & Stewart, P.C., and
Komlavi Atsou, for appellant.
Michael L. Morgan, City of Brook Park, Board of Zoning
Appeals, for appellee.
MICHAEL JOHN RYAN, J.:
In this administrative appeal, plaintiff-appellant FAM 13375, Inc.
(“FAM 13375”) appeals from the trial court’s October 8, 2024 judgment granting the
motion to dismiss of defendant-appellee the City of Brook Park Board of Zoning
Appeals. For the reasons that follow, we reverse the trial court’s judgment.
Factual and Procedural History
In July 2024, FAM 13375 filed a notice of appeal from the final order of
the city’s board of zoning appeals in the court of common pleas; the order denied
FAM 13375’s application for an occupancy permit for property located in Brook
Park. FAM 13375’s notice of appeal stated that the appeal was being brought
pursuant to R.C. 2505.03 and 2505.04.1
The city filed a motion to dismiss. According to the city, R.C. 2505.03
and 2505.04 were not the proper statutory sections for an administrative appeal of
the political subdivision’s zoning decision. Rather, the city contended that
FAM 13375’s appeal could only have been brought under R.C. 2506.01 and should
have referenced the statutory language that the board of zoning appeals’ final order
was “unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported
by the preponderance of substantial, reliable, and probative evidence on the whole
record.” R.C. 2506.04.
FAM 13375 opposed the city’s motion to dismiss, contending that
“‘while R.C. 2506.01 authorizes an administrative appeal, R.C. Chapter 2505
1
In September 2024, FAM 13375 also filed a verified complaint in the common
pleas court seeking declaratory judgment and mandamus relief related to the same denial
of its application for an occupancy permit. See Case No. CV-24-103302. The trial court
in that case decided the case in favor of the city, and FAM 13375 has appealed that
decision, which is being considered in a companion case to this case, 8th Dist. Cuyahoga
No. 114490.
instructs as to the procedure for bringing the actual appeal.’” Brief in opposition,
p. 2, quoting Jacobs v. Cuyahoga Metro. Hous. Auth., 2015-Ohio-2278, ¶ 15
(8th Dist.), citing Horner v. Bd. of Washington Twp. Trustees, 2011-Ohio-5871, ¶ 12
(12th Dist.). FAM 13375 contended that it perfected its appeal under R.C. 2505.03
and 2505.04 and that neither required reference to R.C. 2506.01 nor the “magical
words” of R.C. 2506.04.
The trial court summarily granted the city’s motion to dismiss.
FAM 13375 appeals, raising the following sole assignment of error for our review:
“The trial court erred as a matter of law when it granted the motion to dismiss FAM’s
administrative appeal filed by Brook Park.”
Law and Analysis
The Supreme Court of Ohio has held that “[a]n appeal, the right to
which is conferred by statute, can be perfected only in the mode prescribed by
statute. The exercise of the right conferred is conditioned upon compliance with the
accompanying mandatory requirements.” Zier v. Bur. of Unemployment Comp.,
151 Ohio St. 123 (1949), paragraph one of the syllabus; see also Griffith v.
J.C. Penney Co., 24 Ohio St.3d 112, 113 (1986). To invoke the jurisdiction of the
common pleas court, the notice of appeal must be filed within the time specified in
the statute, at the place designated by the statute, and with such content as required
by the statute. Zier at 125.
The question in this appeal is whether FAM 13375 invoked the correct
statutes — R.C. 2505.03 and 2505.04 — in filing its appeal to the common pleas
court and whether its failure to mention R.C. 2505.01 was a jurisdictional defect
requiring dismissal of its case.
R.C. 2505.03 is titled “Appeal of a final order, judgment, or decree”
and provides in relevant part as follows:
(A) Every final order, judgment, or decree of a court and, when
provided by law, the final order of any administrative officer, agency,
board, department, tribunal, commission, or other instrumentality
may be reviewed on appeal by a court of common pleas, a court of
appeals, or the supreme court, whichever has jurisdiction.
(B) Unless, in the case of an administrative-related appeal, Chapter 119
or other sections of the Revised Code apply, such an appeal is governed
by this chapter and, to the extent this chapter does not contain a
relevant provision, the Rules of Appellate Procedure. When an
administrative-related appeal is so governed, if it is necessary in
applying the Rules of Appellate Procedure to such an appeal, the
administrative officer, agency, board, department, tribunal,
commission, or other instrumentality shall be treated as if it were a trial
court whose final order, judgment, or decree is the subject of an appeal
to a court of appeals or as if it were a clerk of such a trial court.
R.C. 2505.03(A) and (B).
R.C. 2505.04 is titled “Perfecting an appeal,” and provides as follows:
An appeal is perfected when a written notice of appeal is filed, in the
case of an appeal of a final order, judgment, or decree of a court, in
accordance with the Rules of Appellate Procedure or the Rules of
Practice of the Supreme Court, or, in the case of an administrative-
related appeal, with the administrative officer, agency, board,
department, tribunal, commission, or other instrumentality involved.
If a leave to appeal from a court first must be obtained, a notice of
appeal also shall be filed in the appellate court. After being perfected,
an appeal shall not be dismissed without notice to the appellant, and
no step required to be taken subsequent to the perfection of the appeal
is jurisdictional.
It has been held that the “timely filing with the township clerk of a
proper notice of appeal from a township board of zoning appeals’ decision properly
perfects such appeal under R.C. 2505.04.” Barensfeld v. Coventry Twp. Bd. of
Zoning, 1993 Ohio App. LEXIS 4884, *5 (9th Dist. Oct. 6, 1993).
The city contends here, as it did in the trial court, that FAM 13375
should have invoked R.C. 2505.01 in its notice of appeal and that its failure to do so
was a jurisdictional failure. R.C. 2506.01 is titled “Appeals from decisions of agency
of political subdivision” and provides as follows:
(A) Except as otherwise provided in sections 2506.05 to 2506.08 of the
Revised Code, and except as modified by this section and sections
2506.02 to 2506.04 of the Revised Code, every final order,
adjudication, or decision of any officer, tribunal, authority, board,
bureau, commission, department, or other division of any political
subdivision of the state may be reviewed by the court of common pleas
of the county in which the principal office of the political subdivision is
located as provided in Chapter 2505. of the Revised Code.
(B) The appeal provided in this section is in addition to any other
remedy of appeal provided by law.
(C) As used in this chapter, “final order, adjudication, or decision”
means an order, adjudication, or decision that determines rights,
duties, privileges, benefits, or legal relationships of a person, but does
not include any order, adjudication, or decision from which an appeal
is granted by rule, ordinance, or statute to a higher administrative
authority if a right to a hearing on such appeal is provided, or any order,
adjudication, or decision that is issued preliminary to or as a result of a
criminal proceeding.
The city contends that
[t]he Supreme Court of Ohio has pointed out that Chapter 2506 was
enacted by the legislature largely to accommodate the “the growing
volume of zoning and building litigation confronting our courts and
arising from adversary proceedings in respect to the interpretation and
administration of urban and rural zoning and building ordinances.”
City’s brief, p. 7, quoting State ex rel. Sibarco Corp. v. Berea, 7 Ohio St.2d 85, 90
(1966).
State ex rel. Sibarco Corp. does not state that an administrative
appeal of a zoning decision must invoke R.C. Ch. 2506 and the failure to do so is a
jurisdictional defect. Besides the above-quoted text, State ex rel. Sibarco Corp. does
not make further mention of R.C. Ch. 2506. Rather, the issue in the case was
whether a writ of mandamus, as opposed to an appeal to the common pleas court,
was the appropriate avenue for review of a zoning decision.
In a case decided by this court after the enactment of R.C. Ch. 2506,
Vlad v. Cleveland Bd. of Zoning, 111 Ohio App. 70 (8th Dist. 1960), this court stated
that “[R.C.] 2505.03 and Chapter 2506, when taken together, provide for appeals to
the courts from administrative agencies of all political subdivision of the
government state or local.” Id. at 73. This court further stated that “[t]he provisions
of Chapter 2506, Revised Code, are to be considered as supplementing the
provisions for appeal to the Common Pleas Court from final orders of administrative
agencies under Chapter 2505, Revised Code.” Id. at paragraph four of the syllabus.
See also Noble v. Bd. of Zoning Appeals, 1975 Ohio App. LEXIS 6676, *4 (8th Dist.
Feb. 13, 1975) (“[A]ppeals of this nature may be taken to the Common Pleas Court
as provided in Sections 2505.01 to 2505.14 inclusive of the Revised Code . . . . The
provisions of [R.C.] Chapter 2505 . . . are controlling as to the procedure and time
schedules to be followed in perfecting such appeals.”).
The city has not cited any case law that FAM 13375 had to specifically
state that its appeal was being brought under R.C. 2506.01 or invoke the language
of R.C. 2506.04, and we have not found any stating that. In light of the case law
cited above, FAM 13375’s notice of appeal invoking R.C. 2505.03 and 2505.04 was
proper. FAM 13375’s sole assignment of error is well taken.
As mentioned, there is a companion appeal to this case and the trial
court’s decision in the companion case was favorable to the city. The city contends
that based on the common pleas court’s decision in the companion case, the issues
FAM 13375 raised in the trial court in this case are moot and barred by the doctrine
of res judicata. If the city is successful on appeal in the companion case, those claims
will be for the trial court to decide on remand, since it is well established law that
issues cannot be decided for the first time on appeal. Tucker v. Leadership
Academy for Math, 2014-Ohio-3307, ¶ 20 (10th Dist.).
Judgment reversed; case remanded.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
MICHAEL JOHN RYAN, JUDGE
EILEEN A. GALLAGHER, A.J., and
DEENA R. CALABRESE, J., CONCUR