Irvine v. State

Clifford F. Brown, J.,

concurring. The result we reach today is compelled by the narrow scope of review from fact-finding boards and tribunals concerning determination of purely factual questions by the fact-finder granted to this court and to our intermediate courts of appeal by a long line of legal precedents thoroughly and cogently examined and discussed in the majority opinion starting with Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511 [36 O.O. 167].

Unfortunately this court has disregarded this lawful, proper and narrow scope of review possessed by a court of appeals and by this court in appellate review of zoning commission and zoning board of appeals decisions applying local zoning laws. See, e.g., Reed v. Rootstown Twp Bd. of Zoning Appeals (1984), 9 Ohio St. 3d 54, dissent at 57-62; Petti v. Richmond Heights (1983), 5 Ohio St. 3d 129, dissent at 132-133; Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St. 3d 238, dissent at 243-244; Leslie v. Toledo (1981), 66 Ohio St. 2d 488 [20 O.O.3d 406], dissents of Justices *20William B. Brown and Paul W. Brown, at 493-496; Brown v. Cleveland (1981), 66 Ohio St. 2d 93 [20 O.O.3d 88], dissent at 100-105.

In Consolidated Mgmt., Inc., supra, the dissent at 243-244 recognized that a reversal of the court of appeals in an R.C. Chapter 2506 appeal caused this court to function as a “super zoning board of review.” In Reed v. Rootstown, supra, at 57-62, it was pointed out that the common pleas court had competent, substantial factual support within its proper scope of judicial review to reverse a decision of a board of zoning appeals which denied a variance, and that, by contrast, the court of appeals and this court have no fact-finding de novo trial powers.

In Kisil v. Sandusky (1984), 12 Ohio St. 3d 30, we applied the correct standards of appellate review in zoning cases. We stated at 34 that the broad scope of review of the common pleas court requires it “[w]hen a zoning ordinance is enforced in an unreasonable and arbitrary manner * * * pursuant to R.C. Chapter 2506, to reverse the findings of the board of zoning appeals. The scope of review by the trial court is set forth in R.C. 2506.04, which requires the court to examine the ‘substantial, reliable and probative evidence on the whole record.’ ” By contrast, again at 34, we emphasized the limited scope of review of the court of appeals stating:

“An appeal to the court of appeals, pursuant to R.C. 2506.04, is more limited in scope and requires that court to affirm the common pleas court, unless the court of appeals finds, as a matter of law, that the decision of the common pleas court is not supported by a preponderance of reliable, probative and substantial evidence.”

The dissent in Kisil, supra, fails to recognize this polestar principle of limited scope of review possessed by the court of appeals and this court and would elevate these courts to the status of super boards of zoning appeals.

In the area of an R.C. Chapter 2506 administrative appeal, involving termination of employment of a housing authority employee, in Dudukovich v. Housing Authority (1979), 58 Ohio St. 2d 202 [12 O.O.3d 198], we likewise explained at 205-208, that the scope of review of the common pleas court is not de novo but often in fact resembles a de novo proceeding, but, that the scope of review of the court of appeals is much narrower and is limited to “ ‘questions of law pursuant to sections 2505.01 to 2505.45, inclusive, of the Revised Code.’ ” Cf. Cincinnati Bell v. Glendale (1975), 42 Ohio St. 2d 368 [71 O.O.2d 331].

In Nunamaker v. Bd. of Zoning Appeals (1982), 2 Ohio St. 3d 115, 119, this court properly recognized the lack of judicial power of the court of appeals and of this court to interfere upon appeal with a zoning board of appeals decision to grant a proposed use exception. The common pleas court affirmance of the board’s action was supported by the preponderance of substantial, reliable and probative evidence and was not arbitrary, capricious or unreasonable. We did not permit the court of appeals to substitute its judgment for that of the common pleas court.

*21By the same parity of reasoning we correctly determine that the court of appeals here exceeded its judicial power of review under R.C. Chapter 2506 when it reversed the decisions of the common pleas court and the-board of review and through its reversal interfered with the fact-finding functions of those two bodies.

Just as a court of appeals and this court should not be a super zoning board of review, as we have often stated, this court and the court of appeals likewise should not be a super unemployment compensation board of review.