Posted by: Patricia Salkin | June 26, 2011

Ohio Supreme Court Holds Appeal of Planning Commission Order by Service of Summons by Clerk of the Courts on Administrative Agency Along with Notice of Appeal within Statutory Timeframe is Sufficient

In a proceeding where a development company and property owners sought to develop a subdivision of single-family homes in two phases (I and II), the applicant appealed the denial of a preliminary plat for Phase I and a conditional acceptance of Phase II.   The Supreme Court addressed the question of whether a service of summons by a clerk of courts upon an administrative agency along with a copy of a notice of appeal is sufficient to perfect an administrative appeal under R.C. 2505.07, and held that it is indeed sufficient. 

The court reiterated that placing the notice in the mail is insufficient where the notice is not received until after the permissible time frame as required by the statute, but the important question where notice is given by mail is whether it was received within the time frame.  The court also noted that a presumption of timely delivery should control, as it has based on precedent, especially where a copy of the notice was sent by certified mail.  Here, it was sent by certified mail and it is undisputed that the clerk of courts served the Commission and the Commission received a copy and notices of appeal within the 30 day time period prescribed in R.C. 2505.07.  The court emphasized that in accordance with precedent they sought to effectuate the purpose of notices of appeals – to inform the opposing party of the taking of the appeal.  Because property owners notified the Commission, and the Commission received notice, both within the prescribed time period, they acted consistently with the purpose of requiring notice.  Therefore, Welsh and property owners perfected their appeal pursuant to R.C. 2505.04. In her opinion, the Chief Justice emphasized that under the ruling the filing of an administrative appeal does not occur until there is actual receipt by the agency whose order is being appealed within the time prescribed by R.C. 2505.07. She also cautioned practitioners not to incorrectly infer that hereafter “filing” under R.C. 2505.04 is accomplished only if a copy of the appellant’s notice of appeal is served on an administrative agency by a clerk of courts. On the contrary, she wrote, “(t)he administrative agency must still receive the appropriate complaint and notice within 30 days after entry of the final administrative order. The appellant may use any method reasonably certain to accomplish delivery to the agency within the required 30 days, which is filing that satisfies the jurisdictional requirement for an administrative appeal.” 

Welsh Development Company, Inc. v. Warren County Regional Planning Commission, 946 N.E.2d 215, 2011 WL 1345049 (Ohio, 3/29/11) 

The opinion can be accessed at: http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-1604.pdf


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