2016 Ohio 5182
Ohio Ct. App.2016Background
- Douglas and James Marks filed an administrative appeal challenging the Aurora BZA’s grant of a 19-foot frontage variance to co-owner Charles Marks for property at 908 Old Mill Road.
- Charles intervened and obtained the variance at a July 10, 2013 BZA meeting; Douglas and his counsel were not present and received only two days' email notice.
- Douglas’ counsel withdrew in March 2014; Douglas proceeded pro se and did not file a brief in the Portage County Court of Common Pleas administrative appeal.
- James filed a brief to the common pleas court that made only a brief, general mention of inadequate notice to Douglas but did not present the specific arguments Douglas later raised on appeal.
- The common pleas court sustained the BZA decision; Douglas appealed to this court raising multiple due-process and notice-related assignments of error.
- The majority affirmed, holding Douglas waived issues not raised in the common pleas court; one judge dissented, finding insufficient notice under the city ordinance and a due-process violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Douglas may raise notice and due-process arguments on appeal after not filing a brief in the common pleas court | Douglas: he lacked adequate notice of the July 10 hearing and was deprived of due process; BZA notice violated the city’s rules | BZA/Aurora: arguments not preserved below; issues waived because Douglas did not file a brief in common pleas | Affirmed: issues waived for failure to raise them in the common pleas court; appeal rejected |
| Whether the BZA complied with Aurora Ordinance notice requirements for the July 10 hearing | Douglas: notice by two-day email to counsel did not satisfy ordinance and was not meaningful notice | City: procedural default/waiver; record does not support reversal on unpreserved arguments | Court did not reach merits due to waiver; dissent would find ordinance noncompliance and due-process violation |
| Whether the absence of oath and in-person opportunity to be heard invalidated the BZA decision | Douglas: testimony wasn’t under oath and he was prevented from appearing in person | Appellees: procedural forfeiture of this claim by failing to press it in common pleas | Waived; not considered on appeal |
| Whether majority-of-owners opposition is relevant to BZA’s variance grant | Douglas: BZA was told owner opposition was irrelevant and thus process was skewed | Appellees: not argued/raised below; procedural bar | Waived; court did not address substantive merit |
Key Cases Cited
- LeFort v. Century 21-Maitland Realty Co., 32 Ohio St.3d 121, 512 N.E.2d 640 (Ohio 1987) (appellate courts will not consider errors not raised at a time they could be corrected)
- State v. Wirick, 81 Ohio St. 343, 90 N.E. 937 (Ohio 1910) (issues not raised in lower tribunals generally will not be considered on further appeal)
- State v. Mateo, 57 Ohio St.3d 50 (Ohio 1991) (due process requires notice and meaningful opportunity to be heard)
- Fuentes v. Shevin, 407 U.S. 67 (U.S. 1972) (central meaning of procedural due process is notice and opportunity to be heard)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (due-process balancing test for administrative proceedings)
- State v. Luff, 117 Ohio St. 102 (Ohio 1927) (procedural due process requires notice and opportunity to be heard)