COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59037 SUNSET MEMORIAL PARK : : Appellant : : JOURNAL ENTRY -vs- : AND : OPINION CITY OF NORTH OLMSTED : : Appellee : : DATE OF ANNOUNCEMENT : SEPTEMBER 26, 1991 OF DECISION : CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CV-155032 JUDGMENT : AFFIRMED IN PART AND REVERSED IN PART DATE OF JOURNALIZATION : APPEARANCES: For Appellant: For Appellee: William R. Giesser, Esq. Michael R. Gareau, Esq. 24963 Lorain Road 23823 Lorain Road, Suite 200 North Olmsted, OH 44070 North Olmsted, OH 44070 - 2 - PATTON, J., This appeal and cross-appeal arise out of an action brought by Sunset Memorial Park against the City of North Olmsted. Sunset Memorial Park Association is a non-profit corporation which operates a cemetery located within the City of North Olmsted and Olmsted Township. Sunset Memorial Park requested approval from the North Olmsted Building Commissioner to erect a building on the cemetery property. The building was to be used for the purpose of viewing the deceased and performing services prior to burial. This request was denied by the Building Commissioner on the grounds that the proposed use was not permitted in a residential dis- trict. On May 3, 1988, Sunset Memorial Park appealed the Building Commissioner's decision to the North Olmsted Board of Zoning Appeals. At the Board of Zoning Appeals meeting held on July 6, 1988, sworn testimony was received from a representative of Sunset Memorial Park and from concerned residents who opposed construction of a new building on the site. On August 3, 1988, at the Board's next meeting, it announced its decision to over- turn the decision of the Building Commissioner. The Board ruled that a cemetery is a permitted use in a residential district under Section 1135.01 of the City of North Olmsted Zoning Code and that the proposed use was an incidental use to the cemetery's - 3 - operations provided no embalming was performed within the facility. On August 11, 1988, North Olmsted Council conducted a special meeting. At the meeting Council voted to overturn the Board of Zoning Appeals' approval of Sunset Memorial Park's request ruling such a use is not permitted in a residential district. On August 18, 1988, Sunset Memorial Park filed a timely R.C. 2506 appeal in the Cuyahoga County Court of Common Pleas. On March 20, 1989, the court supplemented the record by conducting an oral hearing in which additional evidence was presented. On December 1, 1989, the court issued its journal entry and opinion vacating the decision of the North Olmsted City Council and remanding the case back to the North Olmsted Board of Zoning Appeals for further proceedings. Sunset brings the present appeal from the final judgment entered by the Court of Common Pleas reversing and remanding the case to the Board of Zoning Appeals for further proceedings. The City of North Olmsted also brings a cross-appeal. Sunset's first assignment of error provides: SINCE THE COMMON PLEAS COURT FOUND THAT NORTH OLMSTED CITY COUNCIL'S OVERTURNING OF THE DECISION OF THE BOARD OF ZONING APPEALS WAS NOT VALID BECAUSE COUNCIL ACTED AT A SPECIAL MEETING OF COUNCIL AS OPPOSED TO "THE NEXT REGULAR MEETING OF COUNCIL" AS REQUIRED BY SECTION 1123.14(a) OF THE NORTH OLMSTED PLANNING AND ZONING CODE, THE COURT ERRED IN NOT RULING THAT THE BOARD OF ZONING APPEALS' DECISION PREVAILS AS MANDATED BY SECTIONS 1123.13 AND 1123.14(b) OF THE ZONING CODE. - 4 - At the proceedings below, the court found that Council's action overturning the decision of the Board of Zoning Appeals at the special meeting held on August 11, 1989 was not valid. In light of the court's finding, Sunset argues Sections 1123.13 and 1123.14(b) of the North Olmsted Zoning Code requires that the court affirm the Board of Zoning Appeals' approval of the use request rather than remanding to the Board of Zoning Appeals. Section 1123.13 provides that a decision of the Board of Zoning Appeals becomes final after thirty days absent action by Council. Sunset's argument has merit. Initially, we must review the propriety of the lower court's ruling that Council's action overturning the decision of the Board of Zoning Appeals at a special meeting was not valid. Section 1123.14(a) of the North Olmsted Planning and Zoning Code provides: (a) Notice to Council. Upon the issuance by the Board of Zoning Appeals of any ruling, deter- mination or order, the Secretary of the Board shall send, within three days of the date of such ruling ... a copy thereof to the Clerk of Council who shall present such ruling, determination or order at the next regular meeting of Council for its consideration and review. Section 7 of the Charter of the City of North Olmsted delineates the distinction between regular meetings and special meetings as follows: (a) Regular Meetings. The Council shall meet in the Council Chamber at such times as may be prescribed by its rules, regulations, ordi- nances or by-laws, however, not less than twice - 5 - during each calendar month, excepting that Council may provide for its vacation period during the months of July or August, and during such period is subject to the call of the Mayor. All meetings of Council, whether regular or special, shall be open to the public. (b) Special Meetings. Special meetings of Council may be called in accordance with the rules and regulations or by-laws adopted by Coun- cil. In the absence of any provision therein, special meetings may be called by a vote of the Council taken at any regular or special meeting thereof, or may be called by the Clerk of Council upon the written request of the Mayor or President of Council, or any three (3) members of Council. A request for a special meeting shall state the time, place and date thereof and the subject or subjects to be considered, and no other subject or subjects shall be considered. Notice of a special meeting called at the request of the Mayor, President of Council or any three members thereof, shall be given in writing to each member of Council and the Mayor by serving on each of them personally or by leaving a copy thereof at his usual place of residence, not less than twenty- four (24) hours preceding the date and hour of such meeting. Service of this notice may be waived in writing. Section 1123.14(a) of the North Olmsted Planning and Zoning Code explicitly requires that any review of the Board of Zoning Appeals ruling be conducted at the next regular meeting of Council. The Planning and Zoning Code does not authorize Council to conduct such a review at a special meeting. In the instant case a complete review of the record reveals that Council's action overturning the decision of the Board of Zoning Appeals occurred at a special meeting held on August 11, 1989. In that the decision was reviewed by Council at a special meeting and not as authorized by the Zoning Code at a regular - 6 - meeting, we agree with the lower court that Council's action was invalid. Given our finding that Council's actions were invalid, it follows that the Board of Zoning Appeal's determination became final pursuant to Sections 1123.13 and 1123.14(b) of the North Olmsted Planning and Zoning Code. Section 1123.13 provides in part that "*** any ruling, determination or order issued pursuant to Sections 1123.10 or 1123.11 shall become final thirty days after the date thereof unless within such thirty days, Council, by actions as provided in this chapter, reverses, amends, modifies or suspends such ruling, determination or order." Section 1123.14(b) provides: (b) Powers of Council. Upon the presentation to Council by the Clerk of any ruling, determination or order of the Board, Council may, by motion, with the concurrence of a majority of its members eligible to vote, approve, disapprove, modify, alter, amend, add to, delete, affirm or reverse any such ruling, determination or order or remand the same to the Board for further action and review, subject to such instructions and conditions as it may impose. Upon such action, the motion of Council shall have the same force and effect as the original ruling, determination and order of the Board reviewed by Council. If Council fails to take any such action within thirty days of the date of the issuance of such ruling, determination or order of the Board, its power in respect thereto as provided in this section shall cease and terminate. Pursuant to Section 1123.14(b), Council loses its power to review the Board of Zoning Appeals determination if it fails to - 7 - take such action within thirty days of the issuance of the determination. Thus, we conclude, operation of the North Olmsted Planning and Zoning Code Sections 1123.13 and 1123.14(b) requires an affirmance of the Board of Zoning Appeals approval of Sunset's use request. Accordingly, Sunset's first assignment of error is sustained. Sunset's second assignment of error provides: THE COURT OF COMMON PLEAS ERRED IN REMANDING THIS CASE TO THE NORTH OLMSTED BOARD OF ZON- ING APPEALS FOR RE-HEARING. Sunset argues the trial court erred in remanding the cause to the Board of Zoning Appeals for rehearing. Specifically, Sunset maintains that R.C. 2506.04 does not authorize the Court of Common Pleas to remand a case to an administrative board for further consideration. Sunset's second assignment of error has merit. R.C. 2506.04 states in its entirety: The court may find that the order, adjudi- cation, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsup- ported by the preponderance of substantial, reliable, and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause to the officer or body appealed from with instruc- tions to enter an order, adjudication, or decision consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code. - 8 - Thus, a court of common pleas may remand the cause to the administrative board from which the appeal emanated with the instructions to enter an order consistent with the findings of the court. However, as this court has recently held, under R.C. 2506.04 a trial court lacks authority to remand a case to the administrative authority which issued the appealed from order for further proceedings. R.A.G. Custom Homes, Inc. v. Board of Zoning Appeals (Aug. 23, 1990), Cuyahoga App. No. 56962. See, also, Campane v. Bainbridge Township (Nov. 13, 1987), Geauga App. No. 1350, unreported; Domines v. Cleveland (May 24, 1979), Cuyahoga App. No. 39469, unreported; Ruggiero v. Brooklyn Board of Zoning Appeals (1964), 32 O.O. 2d 346. Consistent with the above authority, we conclude the trial court erred in remanding the cause to the Board of Zoning Appeals for rehearing. Accordingly, Sunset's second assigned error has merit. Sunset's third assignment of error provides: THE COURT OF COMMON PLEAS ERRED IN FINDING THAT THE BOARD OF ZONING APPEALS DID NOT SEND NOTICE OF ITS SUNSET DECISION TO NORTH OLMSTED COUNCIL WITHIN THREE DAYS AS REQUIRED BY SECTION 1123.14(a) OF THE ZONING CODE OF THE CITY OF NORTH OLMSTED. Sunset argues the lower court erred in finding that the Secretary of the Board did not send notice of its decision within three days as required by Section 1123.14(a) of the Zoning Code. Sunset's contention has merit. - 9 - Section 1123.14(a) of the North Olmsted Planning and Zoning Code provides: Upon the issuance by the Board of Zoning Appeals of any ruling, determination or order, the Secretary of the Board shall send, within three days of the date of such ruling, deter- mination or order, a copy thereof to the Clerk of Council who shall present such ruling, determina- tion or order at the next regular meeting of Council for its consideration and review. The purpose of Section 1123.14(a) is to ensure that Council be notified of any decision rendered by the Board of Zoning Appeals. It is imperative that Council receive timely notifi- cation of the Board's decisions due to the thirty day limited period of review provided by Sections 1123.13 and 1123.14(b) of the North Olmsted Planning and Zoning Code. In the event Council takes no action regarding a board's decisions, that decision becomes final thirty days after its issuance. In the present case, the record reveals that the Board of Zoning Appeals issued its ruling in favor of Sunset on August 3, 1989. The record further reveals that on August 11, 1989, the North Olmsted Council held a special meeting to reconsider an ordinance on the Crocker Road extension. Also at the August 11th meeting Council voted to overturn the Board of Zoning Appeals' approval of Sunset's proposed use. While the record submitted by Council does not contain verification that the Secretary of the Board of Zoning Appeals sent Council a copy of the Board's decision within three days of its August 3rd issuance, the fact that Council considered the - 10 - Board's decision at an August 11th special meeting, a mere eight days after its issuance, persuades us that the notification requirements of Section 1123.14(a) were sufficiently accomplished. Accordingly, Sunset's third assignment of error is sustained. Sunset's fourth assignment of error provides: THE COURT OF COMMON PLEAS ERRED IN FINDING THAT PROPER NOTICE OF THE BOARD OF ZONING APPEALS HEARING HAD NOT BEEN GIVEN TO ADJACENT PROPERTY OWNERS AS REQUIRED BY SECTION 1123.09 OF THE NORTH OLMSTED PLANNING AND ZONING CODE. Sunset argues the lower court erred in finding that notice of the Board of Zoning Appeals hearing had not been given to adjacent property owners as required by Section 1123.09 of the North Olmsted Planning and Zoning Code. Sunset's contention has merit. Section 1123.09 of the North Olmsted Planning and Zoning Code provides: The Board of Zoning Appeals shall not grant any variance from the provisions of this Zoning Code, affirm, reverse or modify any ruling or determination of the Building Official, make any requested ruling or grant any special permit except after a public hearing pursuant to public notice. A notice of the date, time and subject matter of public hearing to be considered by the Board shall be given by first class mail, postage prepaid, at least five days prior to the date of such hearing to the applicant or appellant and to the independent record title owners of the fol- lowing premises: (a) Those on the same side of the street which abut the premises involved; and - 11 - (b) Those on the same side of the street next contiguous to the premises so abutting; and (c) Those across the street immediately opposite the premises involved and the premises opposite the abutting contiguous properties described in subsections (a) and (b) hereof; and (d) Any other premises abutting the premises involved; *** In the present case, the issue of notice to surrounding landowners was not raised by the parties in the R.C. 2506 appeal before the common pleas court. Furthermore, review of the transcripts of proceedings before the Board of Zoning Appeals reveals that several abutting property owners were present and offered comments during those proceedings. Those present included Arthur Wilms; Henry Wilms; Mr. and Mrs. Scheilly; and a representative of Viola Harrison. In an administrative appeal the Court of Common Pleas functions as an appellate court in reviewing the administrative proceedings. R.C. 2506.01. Although an appellate court may recognize error not assigned by the parties, there must be sufficient basis in the record before it upon which the court can decide that error. Hungler v. Cincinnati (1986), 25 Ohio St. 3d 338. Herein, there was an insufficient basis in the record before the common pleas court to decide that error existed and that abutting property owners were denied due process. Furthermore, the presence of abutting property owners at the hearing held - 12 - before the Board of Zoning Appeals rebuts any inference that notice was not given. Accordingly, we conclude the court of common pleas exceeded the permissible exercise of its review in finding that the Board of Review failed to give proper notice to adjacent property owners where the record contained an insufficient basis to decide that error. Hungler, supra. Accordingly, Sunset's fourth assignment of error has merit. The City of North Olmsted's cross-assignment of error provides: THE LOWER COURT ERRED IN NOT RULING AS A MATTER OF LAW THAT COUNCIL'S RULING, THAT OVERTURNED THE BZA'S DECISION TO APPROVE SUNSET'S PROPOSED USE, WAS A PROPER INTERPRETATION OF GOVERNING LAWS, AND NOT UNREASONABLE OR AN ABUSE OF DISCRETION. North Olmsted argues the decision of Council denying Sun- set's proposed use was supported by a preponderance of reliable, probative and substantial evidence. R.C. 2506.04. See, also, Dudukovich v. Housing Authority (1979), 58 Ohio St. 2d 202. We have previously determined, herein, that Council's attempt to review the Board of Zoning Appeals decision was invalid. Furthermore, by operation of the North Olmsted Planning and Zoning Code the decision of the Board has become final and is, thereby, not subject to further review. Accordingly, North Olmsted's cross-assignment of error is overruled. - 13 - Judgment affirmed in part, reversed in part and the judgment of the North Olmsted Board of Zoning Appeals approving Sunset Memorial Park's requested use is hereby reinstated. - 14 - This cause is affirmed in part and reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said court 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. NAHRA, P.J. JAMES D. SWEENEY, J., CONCUR JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .