Ultra vires

For reasons arising from a previous life, I find interesting cases where agencies go wandering about making decisions beyond their authority. Dean Patty Salkin (Albany) has a nice little example on her Law of the Land blog, "Ohio Appeals Court Finds Zoning Board Lacked Authority to Revoke Conditional Use Permit".

Kearns constructed a bed and breakfast but received negative responses from neighbors.  As a result of the neighborhood response, the Zoning Inspector notified Kearns that his bed and breakfast was located in an area zoned Farm Residence. Kearns applied for and received a conditional use permit. Again, after complaints for neighbors and a hearing for which Kearns failed to show, the Zoning Board of Appeals revoked his conditional use permit.  Kearns appealed.

On appeal, Kearns argued that the trial court erred when it found that defendant Board of Zoning Appeals had the power to revoke his conditional use certificate. The Court looked at the two relevant statutory provisions and determined that the Board lacked jurisdiction to revoke the permit.  The Board in turn argued that they followed the Rules of the Township Zoning Board of Appeals, which gave them the power to revoke the permit.  The Court disagreed and held that even if the Board followed their own rules, they did not have the authority to create rules that add powers to the scope of their authority.  The matter was remanded to the trial court for judgment in Kearn’s favor.

It's not that unusual for a board or agency to have the power to grant something but not the power to revoke what it granted. Sometimes it takes a higher level of authority to revoke. You have to look at the enabling statutes to see what powers the agency actually has, as distinguish from what it thinks it has. EMM