[Cite as Groffre Invests. v. Canton Bd. of Zoning Appeals,

.]

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,

.]

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,

, ¶ 14 citing Willoughby Hills v.

C.C. Bar’s Sahara, Inc.,

,

(1992).

{¶13} In Willoughby Hills v. C.C. Bar’s Sahara, Inc.,

,

(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.

citing Roper v. Bd. Of

Zoning Appeals, Township of Richfield,

,

(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,

,

(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.

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,

.

{¶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.

,

.

{¶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,

,

(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,

,

(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.

.

{¶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,

,

(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,

(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,

(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,

(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,

(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,

,

,

. 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 . . .”

,

.

{¶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,

,

(1981), Byers Dipaloa Catle, LLC, 11th Dist. No. 2010-P-

0063,

, and City of Brunswick v. Medina Bd. of Cty. Commrs., 9th Dist.

No. 1440,

(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,

,

(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,

.]

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