I would find that the trial court erred in denying appellant's motion to dismiss since appellee Mount Union College lacked standing to pursue its appeal of the Planning Commission's March 17, 1999, decision. As is stated above, Alliance Planning and Zoning Code Section 1145.04(c) requires that notice of the time and place of hearings be published by news release in the local paper. The trial court in this matter specifically found in its November 22, 1999, Judgment Entry that notice of the Planning Commission's March 17, 1999, meeting was published in the Alliance Review. A review by an appellate court of an administrative appeal is expressly limited by R.C. 2506.04 to questions of law. Health Management, Inc. v. Union Twp. Bd. of Zoning Appeals (1997),118 Ohio App.3d 281. Thus, while appellee maintains that notice of the March 17, 1999, Planning Commission meeting was never published, this court must defer to the trial court's factual finding that notice of the March 17, 1999, meeting was published in the Alliance Review prior to such meeting. The trial court in the case sub judice expressly found that notice of the meeting was published in the Alliance Review in accordance with Alliance Planning and Zoning Code Section 1145.04(c). The court also found that such notice was insufficient since "the Planning Commission, in essence, granted a variance as to setback requirements." The trial court concluded that under these circumstances, a contiguous property owner such as Mount Union was not given proper notice and opportunity to be heard when the notice was published in the newspaper and was, therefore, denied due process. The court, in its November 22, 1999, Judgment Entry, after noting that only the BZA has the authority to grant a variance, specifically stated as follows: Although a hearing was held by the Board of Zoning Appeals and a variance was granted in the instant case, it is clear from the record that the notice which was issued and the hearing which was held addressed only the "use" variance, and did not address the setback variance. As the setback variance was not approved by the Board, the decision of the Planning Commission to approve the plans as submitted was contrary to the provision of the Zoning Ordinance. Further, even if the Planning Commission has authority to modify setback requirements, Mount Union, as a landowner directly affected by the modifications, had a right to be put on notice of any such modification. Mount Union was never given such notice relative to the Planning Commission action and, therefore was denied due process.

Yet, despite the trial court's findings, I would find that appellee Mount Union College lacked standing to pursue its administrative appeal. As is required by Alliance Planning and Zoning Code Section 1145.04(c), notice of the Planning Commission's March 17, 1999, meeting was published in the Alliance Review. No further notice of the same was required to be provided to appellee Mount Union College or any other adjoining landowner under the code. However, even though proper notice of the March 17, 1999, meeting was given, appellee Mount Union College, which has not challenged the constitutionality of Alliance Planning and Zoning Code Section 1145.04(C), failed to attend the Planning Commission proceedings and to actively participate in the same. Had appellee Mount Union College done so, it could have challenged the Planning Commission's jurisdiction to grant a setback variance. However, since it failed to actively participate in the administrative process, appellee Mount Union College lacked standing to file an administrative appeal of the Planning Commission's March 17, 1999, decision pursuant to R.C. 2506.01. The trial court, therefore, erred in denying appellant's motion to dismiss for lack of jurisdiction. I would sustain appellant's sole assignment of error.

OPINION

As memorialized in a Judgment Entry filed on November 22, 1999, the trial court dismissed appellee Mount Union College's appeal with regard to the BZA's decision, finding that appellee Mount Union College lacked standing to appeal the use variance granted by the BZA "because Mount Union did not participate in the administrative proceedings it now seeks to reverse." However, the trial court overruled appellant's motion to dismiss appellee Mount Union College's appeal of the Planning Commission's decision for lack of standing, finding that Mount Union was not given proper notice and an opportunity to be heard "regarding the requested variance pertaining to setback requirements" and therefore was denied due process. The trial court also found that there was insufficient evidence to support the Planning Commission's decision "as the site plan does not comply with zoning setback requirements." For such reasons, the trial court reversed the decision of the Planning Commission. Furthermore, the trial court held that appellee Mount Union College was not required to post a supersedeas bond in accordance with R.C. 2505.06 since "the instant appeal is an appeal on question of law and, therefore, no bond was required". It is from the trial court's November 22, 1999, Judgment Entry that appellant prosecutes his appeal, raising the following assignment of error:

THE TRIAL COURT ERRED IN DENYING APPELLANT MOHAMMED ALIHASSAN'S MOTION TO DISMISS MOUNT UNION'S ADMINISTRATIVE APPEAL OF THE ALLIANCE, OHIO PLANNING COMMISSION'S APPROVAL OF MR. ALIHASSAN'S SITE PLAN.

As is stated above, pursuant to Schomaeker, supra., an adjacent or contiguous property owner, in addition to being "directly affected" by the decision of an administrative agency, also must have actively participated in the administrative proceedings. There is no dispute in the case sub judice that appellee Mount Union College did not appear at the March 17, 1999, Planning Commission meeting during which appellant's site plan was considered and, therefore, did not actively participate in the administrative proceedings. However, appellee Mount Union College maintains that it did not receive proper notice of the March 17, 1999, meeting and, therefore, could not have actively participated in the same. The issue, therefore, is whether appellee Mount Union College received proper notice of the March 17, 1999, meeting. Alliance Planning and Code Zoning Section 1145.04(c) provides that notice of the time and place of hearings "shall be. . . . by news release in the local newspapers." While the trial court in this matter found that notice of the March 17, 1999, Planning Commission meeting had been published in the Alliance Review prior to the meeting, the trial court held that such notice was insufficient. In so holding, the trial court stated in its November 22, 1999 Judgment Entry as follows: The Alliance Planning Commission met on March 17, 1999, and approved the site plan of Appellee. Although notice of the meeting was advertised in the newspaper, notice of the meeting was not issued directly to Mount Union. There are no provisions in the Alliance Zoning and Planning Code which would require that notice of Planning Commission meetings be given to adjoining property owners. It, however, was represented at the hearing that Mount Union had received notice of the hearing. Further, the Planning Commission in the instant case approved a site plan which was not in compliance with the Zoning Ordinance in that it did not meet applicable setback requirements. By approving plans which did not meet the applicable setback requirements the Planning Commission, in essence, granted a variance as to the setback requirements. Mount Union, as a contiguous property owner, was directly and uniquely affected by this decision. The Court finds that due process requires that Mount Union was not given the proper notice and an opportunity to be heard regarding the requested variance pertaining to setback requirements and, therefore, Mount Union was denied due process.

The trial court, therefore, denied appellant's motion to dismiss appellee Mount Union College's appeal of the Planning Commission's March 17, 1999, decision for lack of standing. The decision of the trial court denying appellant Alihassan's Motion to Dismiss is affirmed. There is an exception to the general rule set forth by the Ohio Supreme Court in Roper that for one to have standing to appeal from the decision of a commission, such as the one in the case sub judice, one must have participated in the proceedings before the commission. Adequate notice is a requisite to participation. Certainly if one received no notice of a hearing, participation would not be expected. Or, certainly if the notice given was inadequate pursuant to the procedure set forth by the political subdivision, then participation would not be expected. Tantamount to these situations are the following two situations: 1) the notice requests a remedy substantially different from the one granted by the tribunal (i.e. the written request and notice request a variance for the building of a storage barn, but a variance is granted to build an oil storage tank) and/or 2) the notice requests a remedy that the tribunal is not authorized to give (i.e. a zoning variance is granted by a tribunal which is not authorized to grant such). Participation before a commission cannot be required of a person in order to preserve the right to appeal the commission's decision when there is no reason for the person to expect the commission's decision from the notice received and/or from knowledge of the limits of the commission's authority. In other words, requiring participation to preserve the right to appeal presupposes sufficient notice to the participant. Therefore, in order to have standing to bring an administrative appeal under R.C. Chapter 2506, the adjacent or contiguous property owner must be directly affected by the decision of the administrative entity. In addition, he or she must have actively participated in the administrative proceedings unless he or she did not receive sufficient notice or the administrative entity exceeded its authority to act. While a writ of prohibition may be an option when an administrative entity exceeds its authority, a writ is an extraordinary remedy that may or may not be granted by the court. Allowing an appeal in the situations set forth above is more efficient and comports with due process. Appellant, in his brief before this court, also argues that the trial court erred in denying appellant's motion to dismiss since appellee Mount Union failed to file a supersedeas bond pursuant to R.C. 2505.06. Revised Code Section 2505.06 provides in part, as follows: "[n]o administrative-related appeal shall be effective as an appeal upon questions of law and fact until the final order appealed is superseded by a bond in the amount and with the conditions provided in sections 2505.09 and 2505.14 of the Revised Code, and unless such bond is filed at the time the notice of appeal is required to be filed.

"Appeal on questions of law" means the review of a cause upon questions of law, including the weight and sufficiency of the evidence whereas "appeal on questions of law and fact" or "appeal on questions of fact" means a rehearing and retrial of a cause upon the law and the facts." See R.C. 2505.01(2) and (3). The trial court was correct in holding that the instant appeal is an appeal on questions of law. For such reason, appellee Mount Union was not required to post a supersedeas bond pursuant to R.C. 2505.06. See Adrian, Inc. v. Parrott (Nov. 30, 1990), Delaware App. N. 90-CA31, unreported.

Appellant's assignment of error is overruled. The Judgment of the Stark County Court of Common Pleas is affirmed.

Edwards, J. and Wise, J. concur; concurs separately. Farmer, P.J. dissents.

I would affirm the decision of the trial court denying Appellant Alihassan's motion to dismiss. I would also affirm the decision of the trial court reversing the decision of the Planning Commission. However, I would do so by addressing the merits of appellee's appeal and conclude, as appellant argues in his appeal to the trial court, that the Planning Commission's "* * * approval of the variance * * * was illegal, arbitrary, capricious, unreasonable, unlawful and unsupported by a preponderance of substantial, reliable and probative evidence. I base my conclusion on the fact that the Planning Commission exceeded its authority when it approved appellant's site plan because the Planning Commission did not have the authority to grant a variance concerning setback requirements. In its judgment entry, the trial court specifically found that the Planning Commission did not have the authority to grant a setback variance. In so concluding, the trial court held: While the Planning Commission is granted authority to modify the Subdivision Regulations contained in Title One of the Codified Ordinances of Alliance, Planning and Zoning Code (Section 113.01), there is no provision granting it authority to vary the requirements of the Zoning Ordinance. The granting of variances is included in the `jurisdiction' of the Board of Zoning Appeals as set forth in Section 1145.03, as follows:

1145.03 JURISDICTION The Board [of Zoning Appeals] shall adopt such rules and regulations in accordance with this Zoning Ordinance as may be necessary to carry into effect the powers and jurisdiction confirmed upon it as follows:

* * *

(b) To hear and decide upon appeal whether a variance should be granted from the provisions of this Zoning Ordinance when, owing to exceptional circumstances, a literal enforcement of the provisions of this Zoning Ordinance will result in an unnecessary hardship, and when granting of such variance will not be materially detrimental to the purpose of this Zoning Ordinance. (Emphasis sic.) Judgment Entry, Nov. 22, 1999, at 9.

In the case sub judice, the City of Alliance's Planning Commission had no authority to grant a setback variance. Thus, when the Planning Commission granted a setback variance, it exceeded its scope of subject matter jurisdiction. Subject matter jurisdiction cannot be waived. See, e.g., Gates Mills Invest. Co. v. Parks (1971), 25 Ohio St.2d 16, 20. In support of my conclusion, I cite to the case of Time Warner AxS v. Pub. Util. Comm. (1996), 75 Ohio St.3d 229, in which the Ohio Supreme Court reversed a decision of the Public Utilities Commission on the basis that the commission exceeded the scope of its statutory authority when it used alternative rate-setting methods to establish basic local exchange service rates. Id. at 233. Accordingly, I would affirm the trial court's decision reversing the decision of the Planning Commission on the basis that the Planning Commission lacked subject matter jurisdiction to grant a setback variance.