Lorenzo Properties II, Inc. v. Akron
2011 Ohio 5369
Ohio Ct. App.2011Background
- Lorenzo Properties II, Inc. applied to Akron City Council for a conditional-use permit for a three-unit project.
- City Council denied the permit on September 13, 2010, and notice was mailed to Lorenzo on September 14, 2010.
- Lorenzo filed a notice of appeal in the Summit County Common Pleas Court on October 7, 2010.
- Lorenzo instructed the clerk to serve a copy of the notice on the City Law Department; the copy was sent by Federal Express and received October 15, 2010, after the appeal period expired.
- Lorenzo also filed a praecipe requesting a transcript, served on the City Law Department, which allegedly fell within the appeal period.
- The common pleas court dismissed the appeal as untimely, and the Ninth District affirmed, holding the praecipe was not a notice of appeal and service on the Law Department did not constitute filing with City Council.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the praecipe constitutes a notice of appeal | Lorenzo contends the praecipe serves as notice of appeal. | City argues the praecipe is not a notice of appeal and does not satisfy §2505.04. | Praecipe was not a notice of appeal. |
| Whether service on the City Law Department constitutes filing with City Council | Lorenzo argues service on the Law Department amounts to filing with City Council. | Law Department is not the appropriate administrative body for this permit decision; service does not equate to filing. | Service on the Law Department did not file with City Council. |
Key Cases Cited
- Wells v. Chrysler Corp., 15 Ohio St. 3d 21 (1984) (purpose of a notice of appeal is to identify parties and forthcoming appeal)
- Cornacchione v. Akron Bd. of Zoning Appeals, 118 Ohio App. 3d 388 (1997) (timeliness requires filing with the proper administrative officer)
- Patrick Media Group Inc. v. Cleveland Bd. of Zoning Appeals, 55 Ohio App.3d 124 (1988) (service on an attorney does not equate to filing with the administrative body)
- Welsh Development Co. v. Warren County Reg’l Planning Comm’n, 128 Ohio St. 3d 471 (2011) (clerical service to a planning commission does not substitute for proper filing)