Local Administrative Law, Part 1: Breaking Down Zoning
In Ohio, political subdivisions such as cities, villages, and townships often contain their own internal departments. Some entities have a single officer that handles the entirety of the concern, appointed by Council or the Mayor, and answerable only to them. Others, usually our bigger cities, have entire departments dedicated to a specialized area, with heads, dozens of employees, and their own internal policies and procedures. Regardless of the setup, these subdivisions of subdivisions are known as “administrative officers and agencies”, and they have very specific rules governing their operation.
Generally speaking, most of these officers and agencies are governed by what is called enabling legislation. These rules will appear in your city charter, or township resolutions, and are what allow these officers and agencies to operate. Generally, they are:
* Limited to drafting and adopting rules that are enabled by this legislation.
* ”Tasked and assigned” a duty.
* Required to follow their own internal bylaws.
* Follow the open meetings and public records acts.
* Required to have regular, or upon application, meetings.
If your community has a zoning code or resolution, then they will also have a zoning commission, zoning inspector, and a board of zoning appeals (BZA), also known as a zoning board of appeals (ZBA).
A zoning commission is a quasi-legislative body that exists to establish, modify, or otherwise advise on changes to the zoning resolution or code. Their decisions and suggestions must be adopted by your trustees or council in order to take effect, though this is often a smooth process. As a quasi-legislative body, there is minimal scrutiny applied to their legislative actions.
A zoning inspector, on the other hand, is a quasi-executive of the subdivision and is responsible for code enforcement officers, decisions on permits, changing variance concepts, and making other official decisions relating to the zoning code. This person is who cites you for a zoning violation. While these officers are given leeway under the code, their actions are subject to extensive scrutiny. As a quasi-executive, and as a decision-maker for a political subdivision, their actions, and they themselves, are subject to appeal, including as a named party in court cases.
If your zoning inspector acts in a way that any person (state law defines this as an “aggrieved person”) is not content with, such as approving a variance or denying a conditional use permit, their action can be appealed to the BZA/ZBA. The BZA acts as a quasi-judicial system in the political subdivision, and issues judgments (called “decisions”) on the matter. There are numerous specific rules governing how an appeal can be perfected, the time limit and form required, and what the BZA must do to ensure a proper hearing is noticed.
More specifically, when these entities are acting in a quasi-judicial manner, they:
* Hear and rule upon appeals brought from a decision of the zoning inspector (or similarly titled officer).
* Have the right to subpoena (for themselves or on behalf of any party to the appeal) any person or information.
* Swear in all witnesses, take testimony, and accept proffered submissions of evidence.
* Listen to the matter and determine the probative, direct nexus concerns in a “sophisticated” manner, acting as a court.
* Should be represented by different counsel than any officer or entity giving testimony.
* Maintain a complete transcript of the entire proceeding.
Once they have completed their review, accepted the evidence, and asked any questions they may have, the BZA will enter deliberations. The purpose of these deliberations is to authorize, deny, revoke, or otherwise modify any action made by an officer upon appeal. The deliberations are permitted to be public, but more often they occur out of sight – if the BZA adjourns to deliberate privately, the decision that they issue must follow very specific rules. Once they issue their decision, the BZA’s decision is final, unless the code allows for a review by Council, as it relates to this political subdivision.
Yet, their decision is not final as it relates to state law. If there are still concerns with how the BZA deliberated and decided, then an aggrieved party has the right to appeal that decision to the County Court of Common Pleas. We will explore this appeals process, what rules and triggers exist therein, and some of the standard tests that BZAs use in future articles.
At Eques, we have developed the skill and expertise to handle your concerns with your political subdivision. With attorneys who practice in most counties across the state, and over 60 years of legal experience, we know how to look at your location, find your enabling legislation, and make it work to your advantage. Sometimes the answer is a letter, sometimes it is a full-blown appeal – regardless of what your need is, we will combine our shared knowledge and approach each matter with a unique, specialized view that presents your best opportunities. Give us a call today, we look forward to working with you.