{¶ 2} In July 2001, the City cited Martin for violations of Cleveland Codified Ordinances ("C.C.O.") 345.02(b) and 3105.10, alleging that he was improperly using his property at 4201 Jennings Road for outdoor storage of bricks and building materials and that he failed to obtain a certificate of occupancy. Martin appealed to both the Board of Zoning Appeals and to the BSBA.
{¶ 3} The BSBA conducted a hearing, and Martin argued that Ordinance No. 1252-95, which rezoned the district from general industry to residence-industry, was invalid because the City failed to give proper notice when the ordinance was initially adopted in 1996. Martin further argued that the legal description in the ordinance was incorrect. The BSBA dismissed Martin's appeal because it did not have jurisdiction to consider Martin's constitutional challenges to the ordinance.
{¶ 4} Martin filed an administrative appeal with the court of common pleas. The court affirmed the BSBA's order and found all pending motions to be moot, including Martin's motion for judgment on the pleadings, motion to strike transcript, and motion to strike appendix 4.
{¶ 5} Martin appeals, raising three assignments of error, which will be addressed out of order.
{¶ 7} R.C.
{¶ 8} Martin argues that the trial court should have granted his motion for judgment on the pleadings when the City failed to timely file the transcript. Supporting this argument, Martin cites Ketterer v. Cityof Cleveland. Cuyahoga App. No. 81345,
{¶ 9} We find Ketterer distinguishable because it involved a different statute, R.C.
{¶ 10} In Ferguson v. City of Cleveland (July 30, 1981), Cuyahoga App. No. 42987, this court, in comparing R.C.
{¶ 11} In the instant case, the City filed the transcript approximately eleven days after it was statutorily required to be filed. Martin has failed to demonstrate that he suffered any prejudice because of the brief delay in filing the transcript. Therefore, the court did not abuse its discretion in denying judgment on the pleadings as a sanction for the City's failure to comply with R.C.
{¶ 12} Accordingly, Martin's first assignment of error is overruled.
{¶ 14} Appellate review of an R.C.
{¶ 15} Martin argues that the trial court erred in affirming the BSBA's order dismissing his appeal despite the lack of any admissible evidence. He claims that the administrative record was devoid of any evidence upon which the trial court could find that the City's actions and the ordinance were constitutional.
{¶ 16} Martin first claims that the record proffered to the trial court failed to establish that he received notice from the City regarding the proposed zoning change for the subject property. Because of such failure, he argues that Ordinance No. 1252-95 is "null, void, and unenforceable."
{¶ 17} C.C.O. 333.01 requires that the City hold a public hearing on proposed zoning changes and publish notice of the public hearing in the City Record. The Ohio Revised Code also requires the City to provide notice of public hearings on proposed zoning changes. R.C.
{¶ 18} However, R.C.
{¶ 19} In the instant case, Ordinance No. 1252-95 became effective on May 11, 1996. Therefore, an action challenging any procedural errors in its adoption had to be brought prior to May 11, 1998. Martin's challenge regarding notice is a procedural due process challenge and, thus, falls under the two-year limitation period. See, e.g., NG Construction, Inc.v. City of Pataskala, Licking App. No. 01CA00057,
{¶ 20} Even if Martin were to argue that the statute of limitations began to run when he received notice of the zoning change, Martin's previous administrative appeal to this court involving a citation for similar violations demonstrates that he had notice of the zoning change as early as December 1997. Martin v. City of Cleveland (Apr. 20, 2000), Cuyahoga App. No. 75405.
{¶ 21} Martin argues, in the alternative, that even assuming that requisite notice was provided, the ordinance is still invalid because the notice given was defective due to an inadequate legal description of the property to be rezoned. He claims that "if a reasonable person cannot determine from the plain language the conduct that an ordinance proscribes, the ordinance is void for vagueness and unenforceable." Here, Martin is challenging the constitutionality of the ordinance.
{¶ 22} A review of the record shows that the BSBA dismissed Martin's appeal because it lacked jurisdiction to consider his constitutional arguments. The trial court found that the BSBA's decision was not "unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by a preponderance of substantial, reliable, and probative evidence on the whole record." We agree.
{¶ 23} It is well settled that the issue of the constitutionality of a zoning ordinance cannot be administratively determined. Mobile Oil Corp.v. Rocky River (1974),
{¶ 24} Therefore, because the BSBA did not have jurisdiction to consider Martin's constitutional challenges to Ordinance No. 12529-5 and because the statute of limitations had expired prior to Martin's challenge of alleged procedural errors, the trial court did not err in finding that the BSBA's order was proper. Accordingly, the third assignment of error is overruled.
{¶ 25} Finally, Martin argues in his second assignment of error that the trial court erred in denying his motion to strike the notice of public hearing regarding Ordinance No. 1252-95, which the City included in an appendix. Because the trial court had no jurisdiction to consider Martin's constitutional challenge to the ordinance, the propriety of the attachment is a moot point. Accordingly, the second assignment of error is also overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Sweeney, P.J. and Corrigan, J. concur.