As many developers know, administrative approval of a request from a local zoning board can be an important step to making sure your project is approved in the timely manner that you desire. Administrative decisions can take many forms, including Board of Zoning Appeals (BZA) variances related to use or design, as well as the approval of a final development plan. When an administrative board denies a variance, it can require redesign and lead to further delay and subsequent headache. What should a developer do when an administrative decision is not favorable? How can developers do their best to ensure positive results from administrative agencies?
Step 1: Determine whether your decision is administrative or legislative in nature.
While administrative decisions allow for an appeal, legislative action (or a rezoning) is not subject to Ohio Revised Code (R.C.) 2506. Generally, BZA decisions and approvals by planning commissions can be couched as administrative versus legislative in nature. The takeaway: you must first evaluate whether the decision by the agency is administrative or legislative in nature. Legal counsel can help you with the factors involved in this process.
Under Ohio R.C. § 2506, “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.” In layman’s terms, this section provides for judicial review of the several decisions made by a BZA or planning commission.
Step 2: Determine whether you have a viable § 2506 appeal.
Boards consider multiple factors in evaluating a variance. Generally, Ohio’s courts look at seven factors: (1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner's predicament feasibly can be obviated through some method other than a variance; (7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance (Mills v. Walnut Twp. Bd. of Zoning Appeals, 229 N.E.3d 207 (2023)).
No single factor is determinative, and courts are instructed to consider whether the zoning requirement, as applied to the specific developer involved, is reasonable. Notably, in a § 2506 appeal, a developer must demonstrate that the decision of the board was arbitrary. This standard is high and takes into account a legislative body’s deference in determining the public’s health, safety, and welfare. The takeaway: the standard under a § 2506 appeal requires evidence demonstrating that the actions of the agency were unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by a preponderance of substantial reliable and probative evidence on the whole. This is a significant standard, and it is the appellant’s (here, the developer’s) obligation to prove. Ensuring a good record at the time of the administrative decision is critical.
The developer seeking to challenge an agency’s decision may appeal the decision by filing a lawsuit against the agency in the court of common pleas in the county where that agency is located. The lawsuit should generally outline the background of the decision and provide a short statement regarding why the decision should be overturned. Importantly, the trial court will be limited in its review to only the transcript of the original proceedings before the local agency (absent some indication that the transcript is incomplete or if the applicant would somehow be prejudiced, such as by not being able to use the subpoena power). The takeaway: it is very important to create a good record as part of the underlying hearing before the administrative agency. Savvy developers should consider presenting extensive and detailed testimony, addressing all required factors, and attempting to address all concerns of the agency.
Step 3: Be sure about the timing of the appeal.
A crucial part of the judicial review process is ensuring timely filing of any challenge to the administrative decision. This timing aspect is nuanced, as under § 2505.7, developers only have 30 days to file their appeal after the entry of the agency’s final order. This timing is further muddled by somewhat conflicting case law surrounding when the order is considered “entered” and “final” for purposes of the statute. Until the final order is entered, the appeal is not ripe and must be dismissed; conversely, if a developer waits too long after the order is entered, the appeal will be dismissed for being untimely. There is accordingly a narrow, fact-sensitive window of time under which a developer can challenge the decision. The takeaway: monitor the approval of the meeting minutes adopting the decision and consult with legal counsel regarding the timing for filing.
