Groffre Invests. v. Canton Bd. of Zoning Appeals , 2013 Ohio 1227 ( 2013 )

[Cite as Groffre Invests. v. Canton Bd. of Zoning Appeals, 2013-Ohio-1227.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
GROFFRE INVESTMENTS : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellant : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2012-CA-00091
CITY OF CANTON BOARD OF :
ZONING APPEALS, ET AL :
: OPINION
Defendant-Appellee
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CV02235
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 25, 2013
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
TIMOTHY J. JEFFRIES KEVIN R. L'HOMMEDIEU
437 Market Avenue North THOMAS A. BURNS
Canton, OH 44702 Canton Law Department
218 Cleveland Avenue S.W.
Canton, OH 44702
[Cite as Groffre Invests. v. Canton Bd. of Zoning Appeals, 2013-Ohio-1227.]
Gwin, J.
{¶1} Appellant Groffre Investments appeals the April 18, 2012 judgment entry
of the Stark County Court of Common Pleas dismissing Groffre’s administrative appeal.
FACTS & PROCEDURAL HISTORY
{¶2} The underlying facts of this case regard the zoning status of a property
located at 2127 Bolivar Road, S.W., Canton, Ohio, currently owned by Amber Venosdle-
Felter. The area in which the property is located was originally zoned residential, but
the City of Canton rezoned the area as a light industrial district. Because the home
existed on the property during the zoning change, the City of Canton allowed the
property to maintain its residential status as a non-conforming use.
{¶3} Venosdle-Felter purchased 2127 Bolvar Road in 2009 after the property
had lost its residential status. Venosdle-Felter used the property as her residence. The
City of Canton Zoning Department and Law Department notified Venosdle-Felter by
mail that the premises could not be used as a residence. In June 2011, Venosdle-Felter
applied to the City of Canton Board of Zoning Appeals (“BZA”) to request that her
property be granted a non-conforming use to allow its continued use as residence.
{¶4} A hearing was held before the BZA on June 21, 2011. Attorney Tim
Jeffries appeared at the hearing on behalf of Groffre Investments stating he was the
attorney for Groffre and would like to “speak on their behalf.” (T. at 6). A board
member then questioned Attorney Jeffries as to whom he represented, asking “and
you’re representing the adjacent property owner who is . . .” (T. at 6). Attorney Jeffries
responded by stating he was representing Groffre Investments, a partnership that is a
Stark County, Case No. 2012-CA-00091 3
contiguous property owner to the Venosdle-Felter property. Groffre Investments owns
multiple properties in the area and markets the properties for light industrial use.
{¶5} Jeffries argued the BZA should not grant Venosdle-Felter a zoning
variance because she was aware of the zoning status of the property when she
purchased it. At the hearing, Jeffries presented affidavits from his uncles William and
Michael Jeffries, partners in Groffre Investments, concerning whether Venosdle-Felter
was aware of the zoning status of the property when she purchased it. Though he did
not specifically state that if the BZA granted the variance Groffre Investments would
appeal the decision, Jeffries argued a decision to grant the request would be in violation
of statutory law and unconstitutional. Jeffries stated that “for the record, it would be our
position that for, uh, this board to grant this, uh, to grant this allowance to continue this
legal nonconforming use status would be outside of the, uh, what’s provided for in
O.R.C. 713.15.” (T. at 8).
{¶6} Jeffries was unsure as to whether Groffre would seek to sell the
contiguous property as part of a larger piece of light industrial land or develop it
themselves. Jeffries argued that allowing residential use of the property would harm
Groffre Investments’ ability to develop its other properties in the same area for industrial
purposes and the key to Groffe’s investment is that light industrial zoned property be
treated as light industrial zoned property. In addition, Jeffries stated the value of the
contiguous property is decreased by the presence of Venosdle-Felter’s residential
property. Groffre Investments had an opportunity to purchase the Venosdle-Felter
property, but declined to do so.
Stark County, Case No. 2012-CA-00091 4
{¶7} The BZA granted the zoning variance for Venosdle-Felter. Groffre
Investments filed an administrative appeal of the decision of the BZA with the Stark
County Court of Common Pleas under Case No. 2011CV02235.
{¶8} The City of Canton raised the issue of standing and argued Groffre
Investments did not have standing to pursue the administrative appeal of the BZA
decision as to the Venosdle-Felter property. The magistrate assigned to the matter
reviewed the record and found Groffre failed to establish it had standing to appeal the
decision of the BZA as to the Venosdle-Felter property. On February 15, 2012, the
magistrate recommended the matter be dismissed for lack of standing. Groffre filed
objections to the decision and on April 18, 2012, the trial court overruled the objections
to the decision and adopted the Magistrate’s Decision to dismiss the administrative
appeal. Groffre appealed the decision to this Court under Case No. 2012CV00091.
{¶9} Appellant now raises the following assignments of error on appeal:
{¶10} “THE TRIAL COURT ERRED IN ITS DETERMINATION THAT GROFFRE
LACKED STANDING [TO] FILE AN ADMINISTRATIVE APPEAL OF THE BZA’S
DECISION.”
{¶11} Groffre filed its administrative appeal of the BZA decision pursuant to R.C.
2506.01. R.C. 2506.01(C) limits the right to appeal administrative decisions that
determine the “rights, duties, privileges, benefits, or legal relationships of a person * * *.”
However, the statute fails to identify who has standing to appeal administrative decision.
{¶12} “The common-law doctrine of standing holds that only those parties who
can demonstrate a present interest in the subject matter of the litigation and who have
been prejudiced by the decision of the lower court possess the right to appeal.” Fahl v.
Stark County, Case No. 2012-CA-00091 5
City of Athens, 4th Dist. No. 06CA23, 2007-Ohio-4925, ¶ 14 citing Willoughby Hills v.
C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992).
{¶13} In Willoughby Hills v. C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26, 591
N.E.2d 1203 (1992), the Supreme Court discussed the issue of standing and held that,
in addition to the party who was denied the variance, the adjacent or contiguous
property owners who opposed and participated in the administrative proceedings
concerning the issues had standing to seek appellate review. Id., citing Roper v. Bd. Of
Zoning Appeals, Township of Richfield, 173 Ohio St. 168, 180 N.E.2d 591 (1962).
{¶14} The syllabus in Roper states,
A resident, elector and property owner of a township, who appears before
a 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 a right to 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.
{¶15} In Schomaeker v. First Natl. Bank of Ottowa, 66 Ohio St.2d 304, 421
N.E.2d 530 (1981), the Supreme Court found that the property owner had standing to
appeal because the order affected and determined rights as a property owner, and she
had previously indicated her interest, both by a prior challenge to the grant of a
certificate of occupancy and by her presence with counsel at the hearing on the
variance. Id.Stark County, Case No. 2012-CA-00091 6
Direct Affect
{¶16} Groffre Investments argues it has standing to file an administrative appeal
because the decision of the BZA directly affects Groffre Investments.
{¶17} The first element the non-applicant must establish under the standing
doctrine is that it is directly affected by the administrative decision. The trial court found
Groffre failed to establish it was an aggrieved party and would suffer unique harm.
{¶18} There is no dispute Groffre Investments is a contiguous property owner.
Groffre argues it will suffer unique harm as a contiguous property owner if the property
is allowed to remain residential. Groffre has made real estate investments in the area to
market its properties for light industrial use. It argues that a property zoned residential
will diminish the value of its investments.
{¶19} In Roper, the Supreme Court determined the order of the BZA “affected
and determined Roper’s rights as a property owner, and thus he came within the class
of ‘specified’ persons referred to in Section 2506.01, Revised Code.” 173 Ohio St. at
170, 180 N.E.2d 591.
{¶20} In Willoughby Hills, the Supreme Court stated as follows:
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
Stark County, Case No. 2012-CA-00091 7
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.
64 Ohio St.3d at 27, 591 N.E. 2d 1203.
{¶21} Concerns shared equally by the public at large, such as increased traffic in
the area or the general effect on the status or character of the city as a whole are not
adequate to confer standing. Westgate Shopping Village v. Toledo, 93 Ohio App.3d
507, 513-514, 639 N.E.2d 126, 130 (6th Dist. 1994). It has been held in a R.C. 2506
administrative appeal, “evidence that the challenging party’s property value may be
reduced by a decision of the zoning board constitutes a direct effect sufficient to confer
standing.” Jenkins v. Gallipolis, 128 Ohio App.3d 376, 382, 715 N.E.2d 196 (4th Dist.
1998).
{¶22} We find the trial court erred in finding that Groffre was not directly affected
by the zoning board’s decision. Groffre is in the business of industrial real estate and
has significant property adjacent to the property in question and in the immediate area
held for industrial development. Though he was unsure as to whether the land would
be developed by Groffre or sold to another company to develop the land, Jeffries stated
residential use of Venosdle-Felter’s property would affect the marketability of Groffre’s
contiguous property. Further, it would impede Groffre’s ability to develop the property in
the immediate area for light industrial development and thus reduce the value of
Groffre’s contiguous property. This harm is unique to Groffre and different from the
Stark County, Case No. 2012-CA-00091 8
harm that could potentially come to the community at large, as it is directly related to its
investment in contiguous property.
Active Participation
{¶23} The second prong of the standing doctrine has been characterized as the
“active participation” requirement. See Fahl v. City of Athens, 4th Dist. No. 0623, 2007-
Ohio-4925. The trial court determined Groffre failed to establish it met the active
participation requirement because a personal representative of Groffre did not appear
with its counsel at the BZA hearing. We disagree.
{¶24} In Roper, Mr. Nagy, the owner seeking the zoning change argued he was
the only party with the right to appeal a decision of the BZA because he was the
applicant for the zoning change.
{¶25} In deciding that Mr. Roper was a party for the purpose of appeal of the
BZA’s decision to the common pleas court, the Ohio Supreme Court rejected Nagy’s
argument that Roper was simply a witness at the BZA hearing, stating:
Roper came to this hearing not as a witness, and he appeared not
as a witness. He came as a person whose interests were adversely
affected, and he appeared with his lawyer in person in opposition to a
zoning change which would damage Roper and his property. He was
present pursuant to the language in Section 519.15 Revised Code, that
‘upon the hearing, any party may appear in person or by attorney.’ (Italics
supplied.)
The order of the Board of Zoning Appeals affected and determined
Roper’s rights as a property owner, and thus he came within the class of
Stark County, Case No. 2012-CA-00091 9
‘specified’ persons referred to in Section 2506.01, Revised Code. The
board was advised prior to its decision that, if it decided adversely to
Roper, his attorney intended to appeal the matter.
These facts are sufficient to make Roper a party for the purpose of
appeal to the Common Pleas Court from an adverse decision of the Board
of Zoning Appeals, pursuant to Sections 519.15 and 2506.01 to 2506.04,
inclusive, and Chapter 2505, Revised Code.
Roper at 173-174.
{¶26} We find that Attorney Jeffries’ appearance at the hearing was sufficient to
meet the requirement of “active participation” set forth in Roper and its progeny. As
indicated by the Supreme Court’s discussion of R.C. 519.15 (“upon the hearing, any
party may appear in person or by attorney”), the fact that Roper and his attorney
appeared at the hearing and voiced their objection to the zoning variance was utilized to
explain why Roper “actively participated” in the administrative proceedings, not to
preclude standing to appeal in every instance where only an attorney appears at an
administrative hearing to represent the adjacent or contiguous property owner.
{¶27} The consistent focus for standing to appeal for adjacent or contiguous
property owners is “active participation.” See Willoughby Hills, 64 Ohio St.3d 24, 26,
591 N.E.2d 1203 (1992), (stating that the adjacent or contiguous property owners who
opposed and participated in the administrative proceedings concerning the issues had
standing to seek appellate review); City of Brunswick v. Medina Bd. of Cty. Commrs.,
9th Dist. No. 1440, 1986 WL 5114 (April 30, 1986), (holding that the City actively
advocated its position before the County Board by having the law director support the
Stark County, Case No. 2012-CA-00091 10
granting of an annexation at the administrative hearing); Fahl v. City of Athens, 4th Dist.
No. 0623, 2007-Ohio-4925 (holding that certain appellants did not meet the active
participation requirement because neither the individuals or counsel attended the
administrative hearing); Byers Dipaloa Castle, LLC v. Ravenna City Planning Comm.,
11th Dist. No. 2010-P-0063, 2011-Ohio-6095 (holding that the contiguous property
owners actively participated during the administrative proceedings because they
continually objected to the proposed plans and argued that the plans did not comply
with the Ravenna City Code); Robin’s Trace Homeowners’ Assn. v. City of Green
Planning and Zoning Comm., 9th Dist. No. 24872, 2010-Ohio-1168 (holding that a
homeowner’s association did not actively participate in the administrative proceedings
because no representative on behalf of the association or their counsel attended the
administrative hearing or voiced concerns about the proposed site plan).
{¶28} This court previously discussed Roper and its progeny in Guttentag v.
Etna Twp. Bd. of Zoning Appeals, 177 Ohio App.3d 53, 2008 -Ohio- 2642, 893 N.E.2d
890. In Guttentag, the township resident seeking to challenge the zoning board’s
decision failed to appear at the administrative level, but the resident alleged he had
standing to appeal because he appeared by his counsel, who attended the hearing and
opposed the request. We rejected the resident’s standing argument not because we
found both the attorney and the party had to appear, but because the record did “not
demonstrate that Guttentag’s attorney entered an appearance on his behalf or
otherwise indicated that he was representing Guttantag.” Id. at 896.
{¶29} In the Venosdle-Felter case Attorney Jeffries appeared, specifically stated
that he represented Groffre, and sought to speak on Groffre’s behalf. Attorney Jeffries
Stark County, Case No. 2012-CA-00091 11
is counsel for Groffre Investments and the nephew of the partners of Groffre
Investments.
{¶30} Attorney Jeffries argued the BZA should not grant Venosdle-Felter a
zoning variance because she was aware of the zoning status of the property when she
purchased it. At the hearing, Jeffries presented affidavits from his uncles William and
Michael Jeffries, partners in Groffre Investments, concerning whether Venosdle-Felter
was aware of the zoning status of the property when she purchased it. Further, Jeffries
argued a decision to grant the request would be in violation of statutory law and
unconstitutional. Jeffries stated that allowing residential use of the property would harm
Groffre Investments’ ability to develop its other properties in the same area for industrial
purposes. We find such facts sufficient to demonstrate that Groffre “actively
participated” in the administrative proceedings concerning the issuance of the variance.
Notice of Intent to Appeal
{¶31} Roper states that the non-applicant individual must advise 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.
{¶32} Groffre argues by questioning the constitutionality of the ordinance at the
BZA hearing and arguing against the proposed zoning variance, Groffre indicated its
intent to appeal any adverse ruling. We agree.
{¶33} In Schomaeker, the Court considered the elements in Roper and focused
on whether the contiguous property owner indicated her interest in the proceeding. The
Court in Willoughby Hills summarized the requirements of Roper as “. . . contiguous
property owners who oppose and participate in administrative proceedings concerning
Stark County, Case No. 2012-CA-00091 12
the issuance of a variance are equally entitled to seek appellate review . . .” 64 Ohio
St.3d at 26, 180 N.E.2d 591.
{¶34} Further, in Schomaeker, Byers Dipaloa Castle, LLC, and City of Brunswick
v. Medina Bd. of Cty. Commrs., the challengers were found to have standing. While in
each case the parties challenging the administrative decisions or their counsel had
appeared at the administrative proceeding and objected to the decision and/or argued
that the statute was unconstitutional, there are no specific findings that they directly
stated to the board that if the decision went against them, they intended to appeal the
ruling to the common pleas court. Schomaeker v. First Natl. Bank of Ottowa, 66 Ohio
St.2d 304, 421 N.E.2d 530 (1981), Byers Dipaloa Catle, LLC, 11th Dist. No. 2010-P-
0063, 2011-Ohio-6095, and City of Brunswick v. Medina Bd. of Cty. Commrs., 9th Dist.
No. 1440, 1986 WL 5114 (April 30, 1986).
{¶35} In the Venosdle-Felter case, Attorney Jeffries appeared at the BZA
regarding the request filed by Venosdle-Felter and opposed the requested variance.
Jeffries specifically stated that “for the record, it would be our position that for, uh, this
board to grant this, uh, to grant this allowance to continue this legal nonconforming use
status would be outside of the, uh, what’s provided for in O.R.C. 713.15.” (T. at 8).
Jeffries further argued a decision to grant the request would be in violation of statutory
law and unconstitutional. At that point, Attorney Jeffries had no indication as to whether
the BZA was going to rule in his favor or against him, but made a point of stating his
arguments on the record. Accordingly, we find that Attorney Jeffries indicated his intent
to appeal any adverse ruling by specifically stating that he was speaking in opposition to
Stark County, Case No. 2012-CA-00091 13
the zoning variance and arguing that the ordinance was unconstitutional on its face and
in its application.
{¶36} Upon our review of the record, we find the trial court erred in finding
Appellant Groffre Investments did not meet the burden to establish standing pursuant to
the elements of the Roper standing doctrine.
{¶37} The sole Assignment of Error of Appellant Groffre Investments is
sustained.
{¶38} The judgment of the Stark County Court of Common Pleas is reversed
and the matter remanded for further proceedings consistent with this opinion and
judgment.
By Gwin, J.,
Wise, J., concur;
Delaney, P.J., dissents
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
WSG:clw 0228 HON. JOHN W. WISE
Stark County, Case No. 2012-CA-00091 14
Delaney, P.J., dissenting
{¶39} I respectfully dissent from the majority opinion.
{¶40} I would affirm the decision of the trial court, dismissing the administrative
appeal for lack of standing. In this regard, the record reflects a personal representative
of Groffre Investments did not appear at the BZA hearing with Attorney Jeffries nor
advise the BZA on the record that if the decision of the BZA was adverse to Groffre
Investments, it intends to appeal the decision to the court. Under the Ohio Supreme
Court’s holding in Roper v. Bd of Zoning Appeals, Township of Richfield, 173 Ohio St.
168, 180 N.E.2d 59 (1962), the failure to comply with these requirements fails to confer
standing upon Groffre Investments to appeal the decision of the BZA to allow the
nonconforming use of the property.
{¶41} Upon review of the record, the trial court did not err in finding Appellant
Groffre Investments did not meet its burden to establish standing pursuant to the
elements of the Roper standing doctrine.
______________________________
JUDGE PATRICIA A. DELANEY
[Cite as Groffre Invests. v. Canton Bd. of Zoning Appeals, 2013-Ohio-1227.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
GROFFRE INVESTMENTS :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
CITY OF CANTON BOARD OF :
ZONING APPEALS, ET AL :
:
:
Defendant-Appellee : CASE NO. 2012-CA-00091
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas is reversed and the matter remanded for
further proceedings consistent with this opinion and judgment.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. JOHN W. WISE