Posted by: Patricia Salkin | July 14, 2021

OH Appeals Court Upholds Dismissal of Challenge to ZBA’s Granting of Variance Based on Failure to Properly File a Notice of Appeal

This post was authored by Matthew Loescher, Esq.

The Hinckley Township Board of Zoning Appeals (“BZA”) conducted a public hearing and issued a decision granting two variances in favor of applicant John Sumodi. Due to an error incorrectly stating the length of the second variance, a special meeting was conducted on August 12, 2020, and an amended decision correcting the error and granting the variance was issued. Lisa and Scott Rushworth, who live adjacent to Mr. Sumodi’s property, filed a notice of appeal from the BZA’s decision in the Medina County Court of Common Pleas. The Court of Common Pleas granted the BZA’s motion and dismissed the case for lack of jurisdiction.

On appeal, the Rushworths contended that the BZA’s decision did not become an appealable final order until they obtained a copy of the signed minutes from the July 22 meeting on September 10, 2020. The Rushworths claimed they requested the minutes to both the July 22 and August 12 meetings several times in the weeks following August 12, 2020, but were told they were waiting to be processed and were thus unavailable. The Rushworths further alleged that they did not receive a signed copy of the July 22 meeting minutes until September 10, 2020. Nevertheless, from the 30-day period from August 12, 2020, the Rushworths had through September 11, 2020, to perfect their appeal in accordance with R.C. 2505.07. Since they failed to do so, the appeal was not perfected and the Court of Common Pleas correctly determined that it was without jurisdiction to hear the appeal.

Next, while the Rushworths contended they were deprived of time to prepare for the meeting on August 12, 2020, they failed to show that the alleged late notice had prejudiced them in any way. The minutes of the August 12, 2020, special meeting indicated that the purpose of the meeting was to correct an error made in granting the variance during the July 22, 2020, meeting. Chairperson Calabro stated: “we are not here this evening to discuss the reasons to grant or not grant this variance. This was already done at the public hearing of July 22, 2020. We will not be repeating the same information.” Accordingly, the dismissal of the Rushworths’ claims was affirmed.

Rushworth v Board of Zoning Appeals, Hinckley Township, 2021 WL 2694868 (OH App. 6/30/2021)

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