Mobil Oil Corp. v. City of Rocky River

Paul W. Blown, J.,

concurring in the judgment. If the majority is correct in concluding from this record that the Rocky River Board of Building and Zoning Appeals was without power to grant the variance requested, then an appeal under R. C. Chapter 2506 was inappropriate. See Kaufman v. Newburgh Heights (1971), 26 Ohio St. 2d. 217.

A nondiscretionary or ministerial order cannot be the basis of an appeal under R. C. Chapter 2506. Zangerle v. Evatt (1942), 139 Ohio St. 563 , states, in paragraph one of the syllabus, that the revisory jurisdiction of the proceedings of administrative officers, authorized by Section 2 of Article IV of the Ohio Constitution, contemplates quasi-judicial proceedings only. Similarly, only if the grant of authority to a zoning board of appeals, made pursuant to R. C. 713.11, contemplates quasi-judicial proceedings, may determinations of that board be appealed under R. C. Chapter 2506.

It should also be noted that the scope of inquiry of the Court of Common Pleas when engaged in a hearing arising out of an appeal from an administrative order under R. C. *34 Chapter 2506 is limited by the nature of the application. Here, that application was for a permit to build a gasoline station upon a parcel of real property situated in an area zoned exclusively for single-family residential use and was based upon allegations of hardship. Under those circumstances, the granting of a use variance for a parcel of real property does not disturb the general applicability of the ordinance to other properties in the same area. The request for a use variance is addressed to the agency to which the legislative authority has been delegated which can function only within that grant.

Since the overall constitutionality of the zoning ordinance could not have been administratively determined, a declaration of the ordinance’s unconstitutionally in the appeal to the trial court would have been particularly inappropriate. The fact is that the trial court made no such declaration.

The majority opinion also misinterprets the holding of State, ex rel. Sibarco Corp., v. Berea (1966), 7 Ohio St. 2d 85 . That case does not hold that applications to a city council or its subcommittee for the rezoning of a parcel of real property and then to the board of zoning appeals for a use variance are formalities which, when denied, give the Court of Common Pleas the authority to hear an appeal under B. C. Chapter 2506 and to grant relief which the administrative board was not empowered to consider.

Since the merits of the property owner’s request for permission to erect its gasoline service station were tried without objection and were, to my thinking, properly disposed of by the trial court, I concur in this judgment solely for reasons of judicial economy.