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. i MEMO TO: Planning Commission lVlembers FROM: Bryan P. O'Malley, Asst. Director of Law DATE: April 3, 2003 SUBJECT: Ordinance 2003-36 Amending 1123.13 to Authorize Appeals from BZA Orders Article VII, Section 2(d) of the North Olmsted Charter provides for the Mandatory Referral of "any ordinance referring to zoning or the regulations controlling the use or development of land" to the Planning Commission for "report and recommendation" prior to passage by City Council. Thus, any ordinance in the Planning and Zoning Code has been routinely referred to Planning Commission. Should the Planning Commission not approve, then a 2/3 vote of Council shall be required to pass the legislation. Ordinance 2003-36 proposes to amend NOCO 1123.13, entitled Finality of Board Order. § 1123.13 presently provides that BZA orders issued pursuant to § 1123.10 or § 1123.11 are subject to review by Council within 30 days before they are considered final. The legislation proposes to continue such review authority by Council. Also, with respect to "additions to nonconforming buildings in a Single Family Residence District" rendered under §1123.11, this legislation would also recognize an appeal to Court by "any proper and interested party, including the Municipality." In addition, § 1123.13 currently describes BZA orders issued pursuant to § 1123.12 as "final and not subject to further review". The proposed legislation offers an amendment to specifically allow an appeal to Court by "any proper and interested party, including the Municipality. " The short analysis of Ordinance 2003-36 is simply to adopt a procedural technique required by the Ohio Supreme Court in 1992 in the case of Willou h?by Hills v. CC's Bar Sahara. Inc. (1992), 64 Ohio St. 3d 24. The City of Willoughby Hills had filed an appeal from a decision of the BZA to grant a variance and the applicant moved to dismiss the appeal, arguing that the city lacked standing or capacity to seek review in court. The Ohio Supreme Court reviewed the nature of the appellate process, the absence of any limitation on appeals under ORC §2506.01, and the city's interest in review even if not "directly effected" by the variance. The Ohio Supreme Court went on to note several cases where the municipal charter or ordinances sanctioned an appeal from a BZA order, including the charter of Willoughby Hills. The court finally held that municipal authority to appeal to court from a BZA order must be expressed by charter or by ordinance, otherwise the municipality can only defend against the appeal. It is my understanding that Councilman Gareau requested this legislation to provide the City of North Olmsted with an opportunity to seek appellate review, if necessary, at any time in the future, and to initiate the prerequisite legislative authorization required by law to enable