Dempsey v. Shawnee Hills ( 2015 )

[Cite as Dempsey v. Shawnee Hills, 2015-Ohio-257.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FREDRICK DEMPSEY JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. W. Scott Gwin, J.
Hon. Sheila G. Farmer, J.
-vs-
Case No. 14 CAH 03 0015
VILLAGE OF SHAWNEE HILLS
Defendant-Appellee OPINION
CHARACTER OF PROCEEDING: Appeal from the Delware County Court of
Common Pleas, Case No. 12 CVF 12 1416
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: January 15, 2015
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
FREDERICK R. DEMPSEY PAUL-MICHAEL LA FAYETTE
68 Buckeye Drive Poling Law
Powell, Ohio 43065 300 East Broad S. Suite 350
Columbus, Ohio 43215
Delaware County, Case No. 14 CAH 03 0015 2
Hoffman, P.J.
{¶1} Plaintiff-appellant Fredrick Dempsey appeals the February 12, 2014
Judgment Entry entered by the Delaware County Court of Common Pleas, which
granted defendant-appellee Village of Shawnee Hills’ (“the Village”) motion to dismiss
for lack of standing.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 12, 2012, David Armeni filed an application for conditional use
with the Village relating to property adjacent to Dempsey’s property. Pursuant to
Shawnee Hills Ordinance 1133.02(b), the Village sent a letter to each
“Adjoining/Affected Property Owner”, including Dempsey, which provided notice of the
application as well as the hearing scheduled before the Village Board of Zoning Appeals
(“BZA”) on November 13, 2012.
{¶3} Dempsey, a practicing attorney licensed in the State of Ohio, attended the
BZA hearing and verbally opposed the application. At the conclusion of the hearing, the
BZA orally granted the application. The BZA did not render a written decision.
However, the November 13, 2012 hearing was recorded. Pursuant to R.C. 2506.01,
Dempsey filed a timely appeal of the BZA’s decision to the Delaware County Court of
Common Pleas.
{¶4} The Village filed a motion to dismiss for lack of standing. Therein, the
Village argued Dempsey had failed to establish standing during the BZA hearing. Via
Judgment Entry filed February 12, 2014, the trial court granted the Village’s motion to
dismiss.
Delaware County, Case No. 14 CAH 03 0015 3
{¶5} It is from this judgment entry Dempsey appeals, raising the following as
error:
{¶6} "I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-
APPELLEE'S MOTION TO DISMISS FOR LACK OF STANDING AND DENIED ALL
OTHER PENDING MOTIONS AS BEING MOOT."
I
{¶7} The issue of standing is a question of law; therefore, is reviewed de novo.
Dinks II Company, Inc. v. Chagrin Falls Village Council, 8th Dist. No. 84939, 2005-Ohio-
2317, at ¶ 16, citing Shelton v. LTC Management Services, 4th Dist. No. 03CA10, 2004-
Ohio-507, at ¶ 5.
{¶8} The common-law doctrine of standing provides only those individuals who
can demonstrate a present interest in the subject matter of the litigation and who have
been prejudiced by the decision at issue are entitled to appeal the same. Willoughby
Hills v. C.C. Bar's Sahara, Inc., 64 Ohio St. 3d 24, 26, 591 N.E.2d 1203, 1992-Ohio-111.
The burden of establishing such entitlement rests with the individual seeking to appeal.
Id., see, also, Fahl v. City of Athens, 4th Dist. No. 06CA23, 2007-Ohio-4925, at ¶ 14.
{¶9} R.C. 2506.01 specifically limits the right to appeal an administrative
decision to final decisions which determine “rights, duties, privileges, benefits or legal
relationships of a person * * *.” R.C. 2506.01(C). The statute, however, fails to
specifically identify who has standing to appeal administrative decisions.
{¶10} In Roper v. Bd. of Zoning Appeals, Township of Richfield (1962), 173 Ohio
St. 168, 180 N.E.2d 591, the Ohio Supreme Court determined it would be inappropriate
to limit standing, as it pertains to an administrative appeal, to parties whose applications
Delaware County, Case No. 14 CAH 03 0015 4
for zoning modification had been denied. The Court reasoned, such a “‘heads I win, tails
you lose’“ approach would be contrary to the intent of the administrative appeals statute
and “repugnant” to the sensibilities of the Court's majority. Id. at 173, 180 N.E.2d 591.
Thus, the Roper Court held standing to appeal an administrative decision lies in an
applicant for a zoning change as well as:
A resident, elector and property owner of a township, who appears
before the township Board of Zoning Appeals, is represented by an
attorney, opposes and protests the changing of a zoned area from
residential to commercial, and advises the board, on the record, that if the
decision of the board is adverse to him he intends to appeal from the
decision to a court, has the right of appeal to the Common Pleas Court if
the appeal is properly and timely made pursuant to Sections 519.15 and
2506.01 to 2506.04, inclusive, and Chapter 2505, Revised Code.” Id. at
syllabus.
{¶11} In Schomaeker v. First Natl. Bank of Ottawa (1981), 66 Ohio St. 2d 304,
421 N.E.2d 530, the Court built upon its holding in Roper, supra, stating a party must be
“a person directly affected” by the administrative decision to have standing to appeal
pursuant to R.C. Chapter 2506. Id. at 312. The Schomaeker Court held:
A person owning property contiguous to the proposed use who has
previously indicated an interest in the matter by a prior court action
challenging the use, and who attends a hearing on the variance together
with counsel, is within that class of persons directly affected by the
administrative decision and is entitled to appeal under R.C. Chapter 2506.
Delaware County, Case No. 14 CAH 03 0015 5
{¶12} In Willoughby Hills, supra, the Court explained the “directly affected”
language in Schomaeker merely serves to clarify the basis upon which a private
property owner, as distinguished from the public at large, could challenge the board of
zoning appeals' approval of the variance. The private litigant has standing to complain
of harm which is unique to himself. In contrast, a private property owner across town,
who seeks reversal of the granting of a variance because of its effect on the character
of the city as a whole, would lack standing because his injury does not differ from that
suffered by the community at large. The latter litigant would, therefore, be unable to
demonstrate the necessary unique prejudice which resulted from the board's approval
of the requested variance. Willoughby Hills, supra, at 27, 591 N.E.2d 1203.
{¶13} In conjunction with this clarification, the Court in Willoughby Hills
rephrased, but essentially reiterated the requirements set forth in Roper and
Shomaeker, stating: “[a]djacent or contiguous property owners who oppose and
participate in administrative proceedings concerning the issuance of a variance are
equally entitled to seek appellate review under R.C. 2504.01.” Id. at 26, 180 N.E.2d 591.
{¶14} The trial court ruled Dempsey lacked standing to bring the appeal, finding,
although Dempsey was present and actively participated in the November 13, 2012
hearing, he failed to show how he, “as an adjacent property owner, would suffer unique
harm to himself if the conditional use was granted.” February 12, 2014 Judgment Entry
at 6. We find the trial court erred in finding Dempsey lacked standing and in dismissing
his appeal.
{¶15} To reiterate, in Schomaeker, the Ohio Supreme Court held, “A person
owning property contiguous to the proposed use who has previously indicated an
Delaware County, Case No. 14 CAH 03 0015 6
interest in the matter * * * and who attends a hearing on the variance together with
counsel, is within that class of persons directly affected by the administrative
decision and is entitled to appeal under R.C. Chapter 2506.” Schomaeker at Headnote
11.
{¶16} Applying Schomaeker, we find Dempsey was within the class of persons
directly affected by the decision. Because he appeared before the BZA, represented
himself, opposed and protested the zoning change, and advised the BZA, on the record,
he intended to appeal from the decision, we find he has standing to appeal under R.C.
Chapter 2506.
{¶17} The decision of the Delaware County Court of Common Pleas is reversed
and the matter remanded to the trial court for further proceedings.
By: Hoffman, P.J.
Gwin, J. and
Farmer, J. concur