American Aggregates Corp. v. Columbus, 89AP-686

• Decision Date: 08 March 1990
• Docket Number: No. 89AP-686,89AP-686
• Citation: 584 N.E.2d 26,66 Ohio App.3d 318
• Parties: AMERICAN AGGREGATES CORPORATION, Appellant, v. CITY OF COLUMBUS et al., Appellees.
• Court: Ohio Court of Appeals

Page 318

66 Ohio App.3d 318

584 N.E.2d 26

AMERICAN AGGREGATES CORPORATION, Appellant, v. CITY OF COLUMBUS et al., Appellees.

No. 89AP-686.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided March 8, 1990.

Lucas, Prendergast, Albright, Gibson & Newman, Robert E. Albright and Richard C. Brahm, Columbus, for appellant.

Ronald J. O'Brien, City Atty., and C. Eileen Pruett, Columbus, for appellee city of Columbus.

Harris, McClellan, Binau & Cox and James B. Harris, Columbus, for appellee Olen Corp.

Benesch, Friedlander, Coplan & Aronoff, N. Victor Goodman, James F. DeLeone and John J. Duffey, Columbus, for appellee Olen Corp. and counsel for appellee BancOhio Nat. Bank, Trustee of the Samuel B. Hartman Trust.

REILLY, Presiding Judge.

Appellant, American Aggregates Corporation, appeals from the judgment of the Franklin County Court of Common Pleas dismissing its appeal from a zoning decision of the Columbus City Council for lack of standing.

Appellant purchased three hundred twenty-six acres of land from appellee BancOhio, the trustee of the Samuel B. Hartman Trust, in 1962. Appellant excavates sand and gravel from this property. BancOhio holds title to the remaining eighteen hundred acres of the Hartman farm property, which is adjacent to appellant's property and separated only by I-270. Appellant has attempted to lease or purchase the remaining eighteen hundred acres for some time and for this purpose negotiated with BancOhio and the Ohio Department of Transportation to have a tunnel built under I-270 permitting access to the Hartman property.

In 1985, appellee, Olen Corporation ("Olen"), obtained a mineral lease from BancOhio granting it the exclusive right to excavate sand and gravel from the Hartman farm property. Appellant and Olen are direct competitors in this business.

To facilitate its intended use of the property, Olen applied to the Columbus City Council for a zoning variance. While most of the property was zoned EQ ("Excavation and Quarry"), a portion of it was zoned M ("Manufacturing"). The M property, which was the subject of the variance application, is within the Hartman farm property but is not contiguous with appellant's property or I-270. Olen planned to build its processing plant on this M property. Their plant, however, would have been located within six hundred feet of property in an R ("Residential") district owned by Columbus and Southern Ohio Electric. Since Columbus development standards for manufacturing districts prohibit the location of objectional uses, such as Olen's plant, within six hundred feet of a residential district, Olen sought a variance from the Columbus City Council.

Columbus City Council considered the variance during three separate council meetings. Columbus and Southern Ohio Electric did not oppose the variance since their strip of R land is exclusively used as a right-of-way for electric transmission lines. Appellant appeared at each of the three council meetings and spoke in opposition to the variance. The issue of the proximity of the proposed Olen processing plant to the R-zoned land was not the focus of the council meetings. Rather, appellant and members of the Columbus City Council focused on the potential danger of the Olen plant to the Columbus water well fields bordering the Hartman property. Assured that adequate safeguards were in place to protect the well fields, Columbus City Council granted the variance request.

Appellant filed an appeal in the Franklin County Court of Common Pleas pursuant to R.C. Chapter 2506. The appeal named as appellee only the city of Columbus. The trial court subsequently granted motions by both Olen and BancOhio to intervene pursuant to Civ.R. 24(A)(2). After briefs were filed, the trial court declined to rule on a motion by appellant to take additional evidence and granted a motion to dismiss, holding that appellant lacked standing to appeal.

Appellant appeals asserting the following assignments of error:

"I. The trial court erred in determining that American Aggregates Corporation, a neighboring and adjacent property owner, had no standing to appeal an administrative decision of Columbus City Council.

"II. The trial court erred in granting appellees' motions to dismiss on the grounds that appellant had no standing in the matter and was not an aggrieved party to the administrative decision rendered by Columbus City Council granting a zoning variance."

The assignments of error are interrelated and are considered together. "It is fundamental that appeal lies only on behalf of a party aggrieved. Unless an appellant can show that his rights have been invaded, no error is shown to have been committed by the court or body which entered the final order." (Emphasis deleted.) Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 161, 23 O.O. 369, 42 N.E.2d 758. In this case, the Supreme Court reiterated that appeals are not allowed for the purpose of settling abstract questions, but are available only to aggrieved parties.

R.C. Chapter 2506, which provides for appeal from administrative agencies, also has been construed to permit appeals only by persons "directly affected" by administrative decisions. Schomaeker v. First Natl. Bank (1981), 66 Ohio St.2d 304, 20 O.O.3d 285, 421 N.E.2d 530. See, also, Roper v. Bd. of Zoning Appeals (1962), 173 Ohio St. 168, 18 O.O.2d 437, 180 N.E.2d 591. R.C. 2506.01 provides that an appeal may be taken from an administrative decision which determines the "rights, duties, privileges, benefits or legal relationships of a person." Thus, the issue before this court is determining who is a directly affected person or an aggrieved party.

Appellant alleges that it has standing to appeal based on the following facts:

American Aggregates owns property immediately north of the site involved and is within the term "neighborhood" as set out in the ordinances of the city of Columbus.

American Aggregates is a competitor of the applicant and appeared and opposed the variance before the Columbus City Council.

American Aggregates obtains its water from the city of Columbus and has an interest in seeing that the water is not contaminated.

American Aggregates has contractual and property rights to land which is directly affected by the variance request and the ultimate use of the American Aggregates property may be affected by what is placed on the property immediately south of it.

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