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Administrative Appeal is 'Filed' When Clerk of Courts Serves Appeal Notice on Agency Within Time Limit

In-Person Delivery by Appellant to Agency Is Not Required

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2010-0611 and 2010-0858.  Welsh Dev. Co., Inc. v. Warren Cty. Regional Planning Comm., Slip Opinion No. 2011-Ohio-1604.
Warren App. No. CA2009-07-101, 186 Ohio App.3d 56, 2010-Ohio-592.  Judgment of the court of appeals reversed, and cause remanded to the trial court.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2011/2011-Ohio-1604.pdf

Video clip View oral argument video of this case.

(April 7, 2011) The Supreme Court of Ohio held today that an appeal of an administrative agency order is “filed” and perfected if a clerk of courts serves the agency with a copy of the appellant’s notice of appeal that has been filed in common pleas court, and the administrative agency receives the notice sent by the clerk within the statutory filing deadline prescribed under R.C. 2505.07.

Applying that analysis to a Warren County case, the Court held that a development company and landowners who sought to appeal unfavorable rulings by the Warren County Regional Planning Commission (WCRPC) perfected their appeals when they had the clerk of courts send a copy of the notices of appeal by certified mail to WCRPC and the notices were received by the commission within the 30-day time limit prescribed by law.

The Court’s 7-0 decision was authored by Chief Justice Maureen O’Connor.

The case involved two applications filed by Welsh Development Co. of Harrison, Ohio with the WCRPC. The applications sought commission approval of Welsh’s plan to build a subdivision of single family homes on three parcels of land that Welsh had obtained options to purchase from the owners.  The plan consisted of two phases.

On Feb. 1, 2005, Welsh submitted an application for approval of a preliminary plat for Phase I to the Warren County Regional Planning Commission (“WCRPC”).  On Feb. 24, 2005, the WCRPC executive committee denied approval of the preliminary plat for Phase I.  On March 1, 2005, the executive director of WCRPC informed Welsh of the planning commission’s decision. On March 25, 2005, Welsh and the property owners filed a complaint and notice of appeal in the Warren County Court of Common Pleas against WCRPC for its denial of Phase I. The notice and complaint contained a praecipe (formal request) for the clerk of courts to serve WCRPC with copies of those documents by certified mail.  WCRPC received the copies sent by the clerk on March 28, 2005. 

On March 1, 2005, Welsh submitted an application for approval of a preliminary plat to the WCRPC for Phase II. On March 24, 2005, the WCRPC approved the preliminary plat for Phase II subject to Welsh’s dedication of an interior collector thoroughfare. Welsh and the property owners objected to the conditional approval, arguing that Phase II should have been approved without the requirement of the interior collector street.  On April 25, 2005, Welsh and the property owners filed another notice of appeal and complaint in the Warren County Court of Common Pleas for WCRPC’s conditional approval of Phase II. The notice and complaint contained a praecipe for service upon WCRPC by certified mail. Service was completed by the clerk of courts on April 27, 2005. The two appeals were subsequently consolidated into a single case.

In its answers to the complaints, WCRPC urged the common pleas court to dismiss Welsh’s appeals as not having been properly filed. The commission argued that the clerk of courts’ service of the notices of appeal on the commission did not satisfy the requirement of R.C. 2505.04 that a notice of appeal must be “filed” by the appellant with the agency whose order is being appealed.  The common pleas court agreed and dismissed the appeals.  Welsh appealed the trial court’s ruling.  On review, the 12th District Court of Appeals affirmed the trial court’s dismissal of the appeals for failure to comply with statutory filing requirements for an administrative appeal.  The 12th District certified that its holding was in conflict with decisions of the 2nd and 6th Districts in which those courts held that timely service of a notice of appeal on an administrative agency by a clerk of courts met the “filing” requirement of R.C. 2505.04.  The Supreme Court agreed to review the case to resolve the conflict among appellate districts.

In today’s decision, which reversed the 12th District and remanded the case for further proceedings on Welsh’s appeals, Chief Justice O’Connor noted that courts considering the legal question at issue in the case have followed two divergent paths based on different judicial interpretations of this Court’s 1979 holding in Dudukovich v. Lorain Metro. Housing Authority. 

She wrote: “In Dudukovich, we addressed whether a party had sufficiently complied with R.C. 2505.04 by mailing a copy of the notice of appeal to an agency. ... We held: ‘[T]he act of depositing the notice in the mail, in itself, does not constitute a “filing,” at least where the notice is not received until after the expiration of the prescribed time limit. Rather, ‘the term “filed” ... requires actual delivery ... ’  However, no particular method of delivery is prescribed by the statute. ... We then held that ‘there [was] evidence in the record that [the housing authority] did eventually receive the mailed copy of the notice,’ and thus the salient question was ‘whether it received the notice within the ...  time limit prescribed’ by R.C. 2505.07. ... In so doing, we held that the ‘presumption of timely delivery ...  should control.’  ...  Because  the ‘copy of the notice of appeal was sent by certified mail, to a destination within the same city, five days prior to the expiration of the statutory time limit’ and the housing authority ‘presented no evidence of late delivery,’ we concluded that ‘a presumption of timely delivery controls.’ ... Thus, we held in Dudukovich that the trial court ‘correctly assumed jurisdiction.’

“Some appellate courts have narrowly construed our holding in Dudukovich by distinguishing between the terms ‘service’ and ‘filing.’  These appellate courts hold that a clerk of courts’ service of a notice of appeal upon an administrative agency is not a filing of an appeal with the agency for purposes of perfecting an administrative appeal pursuant to R.C. 2505.04. ... Here, the Twelfth District followed the same analyses ... and interpreted Dudukovich narrowly, distinguishing between service and filing for purposes of R.C. 2505.04.”

“But other appellate courts have interpreted our decision in Dudukovich broadly. In Price v. Margaretta Twp. Bd. of Zoning Appeals ... a property owner filed his notice of appeal with the common pleas court and requested the clerk of courts to advise the board of zoning appeals of his appeal. The Sixth District held that ‘R.C. 2505.04, as interpreted by Dudukovich, imposes no prohibition of a timely copy of a notice of appeal from a clerk of courts to perfect an administrative appeal.’ ... Thus, the court of appeals in Price held that the owner had properly perfected his appeal pursuant to R.C. 2505.04.

After carefully reviewing the two lines of judicial interpretation, Chief Justice O’Connor wrote, the Court concluded that “the broad interpretation of Dudukovich endorsed by the Second and Sixth Districts is better reasoned in light of our precedent regarding notices of appeal.”

“We have long held that the purpose of a notice of appeal is to inform the opposing party of the taking of an appeal. ... When service of a notice of an appeal by the clerk of courts informs and apprises the administrative agency of the taking of an appeal, sets forth the names of the parties, and advises those parties that an appeal of a particular claim is forthcoming, the notice of appeal has satisfied its purpose and the legislative intent in R.C. 2505.04.”

“Turning to the facts in the instant case, we hold that Welsh and the property owners ‘sufficiently complied’ with R.C. 2505.04 by filing their complaints against WCRPC and notices of appeal in the Warren County Court of Common Pleas. The complaints and notices contained a praecipe for the clerk of courts to serve WCRPC by certified mail ... It is undisputed that the clerk of courts served WCRPC and that WCRPC received a copy of the notices of appeal and the complaint within the 30-day period prescribed by R.C. 2505.07. Because WCRPC received notice of the appeal within the prescribed time to file an administrative appeal, we hold that Welsh and the property owners perfected their appeal pursuant to R.C. 2505.04.”

The Chief Justice emphasized that under today’s ruling the filing of an administrative appeal does not occur until there is actual receipt by the agency whose order is being appealed within the time prescribed by R.C. 2505.07. She also cautioned practitioners not to incorrectly infer that hereafter “filing” under R.C. 2505.04 is accomplished only if a copy of the appellant’s notice of appeal is served on an administrative agency by a clerk of courts.

On the contrary, she wrote, “(t)he administrative agency must still receive the appropriate complaint and notice within 30 days after entry of the final administrative order. The appellant may use any method reasonably certain to accomplish delivery to the agency within the required 30 days, which is filing that satisfies the jurisdictional requirement for an administrative appeal.”

Matthew C. Blickensderfer, 513.651.6162, for Welsh Development Co.

Robert J. Surdyk, 937.222.2333, for Warren County Regional Planning Commission.