Board of Trustees of Symmes Township v. James Schmalz
| Decision Date | 23 August 1989 |
| Docket Number | C-880434,89-LW-3423 |
| Parties | BOARD OF TRUSTEES OF SYMMES TOWNSHIP, Appellee, v. James SCHMALZ, Appellant, and Hamilton County Board of Zoning Appeals, Appellee. |
| Court | Ohio Court of Appeals |
Civil Appeal from: Court of Common Pleas.
Taylor & Associates Co., L.P.A., and Jeffrey Taylor, West Carrollton, for appellee Board of Trustees of Symmes Township.
Aronoff Rosen & Stockdale and David C. Stockdale, Cincinnati, for appellant.
Arthur M. Ney, Jr., Prosecuting Attorney, and John R. Meckstroth, Jr., Cincinnati, for appellee Hamilton County Board of Zoning Appeals.
DECISION.
This cause came on to be heard upon the appeal, the transcript of the docket, journal entries and original papers from the Court of Common Pleas of Hamilton County, Ohio, and the briefs of counsel, oral argument having been waived by agreement of counsel.
Appellant James Schmalz owns two adjacent parcels of real estate located in unincorporated areas of Symmes Township which are subject to the Zoning Resolution of Hamilton County. The northerly parcel that is the subject of this lawsuit is zoned "A" Residence. The southerly parcel is zoned "C" Retail and is the site upon which Schmalz proposes to open a restaurant and tavern. As part of this proposed development, Schmalz applied for and received a special zoning certificate from the Hamilton County Board of Zoning Appeals ("BZA") permitting him to use the northerly parcel, zoned "A," for a parking lot.
An administrative appeal was brought before the Court of Common Pleas of Hamilton County under R.C. Chapter 2506 by the appellee Board of Trustees of Symmes Township ("Trustees"). The BZA filed a motion to dismiss for lack of standing and timely notice, but the motion was overruled by the trial court. The trial court proceeded to vacate the decision of the BZA and to declare the zoning certificate to be null. In its decision, the trial court found that Schmalz's application to the BZA constituted a request for a variance and that the BZA in fact treated the application as a variance request, and not as a special zoning certificate application. The court further stated that issuance of special zoning certificates should be governed by the same standards for issuance of zoning variances, which require a showing of unnecessary hardship to the applicant. Schmalz now appeals the trial court's decision, asserting two assignments of error.
In his first assignment of error, Schmalz asserts that the trial court erred in failing to dismiss the Trustees' administrative appeal for lack of standing. Schmalz argues that the Trustees lacked standing under R.C. 2506.01 because they had no right, duty, privilege, benefit or legal relationship adjudicated by the BZA, and therefore were not parties to a "final order, adjudication, or decision" susceptible to review by a court of common pleas. We agree.
The trustees brought their appeal of BZA's decision to the Court of Common Pleas of Hamilton County based solely on the authority they claim to be granted by R.C. 2506.01.®1¯ In pertinent part, R.C. 2506.01 states:
Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located as provided in Chapter 2505. of the Revised Code, except as modified by this chapter.
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A "final order, adjudication, or decision" means an order, adjudication, or decision that determines rights, duties, privileges, benefits, or legal relationships of a person * * *.
In order to bring an appeal under R.C. Chapter 2506, the plaintiff must have standing as a person directly affected by the decision of the administrative board. In re Appeal of Bass Lake Community, Inc. (1983), 5 Ohio St.3d 141, 449 N.E.2d 771; Schomaeker v. First Natl. Bank (1981), 66 Ohio St.2d 304, 421 N.E.2d 530; Roper v. Bd. of Zoning Appeals (1962), 173 Ohio St. 168, 180 N.E.2d 591. For example, adjoining property owners who have appeared with counsel at a hearing on a proposed zoning variance, and whose interests have been adversely affected by the grant of such variance, have standing to bring a direct appeal pursuant to R.C. 2506.01. See Shomaeker, supra, and Roper, supra.
Township trustees, however, typically do not fall within the class of persons having standing to appeal, under R.C. 2506.01, administrative decisions made by county officials. For example, township trustees have lacked standing in cases where a petition for annexation has been decided by county commissioners. See Bass Lake, supra; Bd. of Trustees of Perry Twp. v. Cicchinelli (1986), 35 Ohio App.3d 173, 520 N.E.2d 235; Carlyn v. Davis (1984), 14 Ohio App.3d 22, 469 N.E.2d 989. The township trustees lacked standing in such cases because they possessed no legally recognized rights which had been determined or adjudicated. Bass Lake, supra, at 144, 449 N.E.2d at 775.
Similarly, the township Board of Trustees lacks standing in the instant case because it has had no legally recognized right determined by the BZA. Although the Board of Trustees and its counsel appeared before the BZA to protest the variance, the trustees have not appealed as individual, neighboring landowners, as was done in Shomaeker, supra, and Roper, supra. The present case must also be distinguished from In re Appeal of Bd. of Zoning Appeals for Delhi Twp. (Mar. 13, 1985), Hamilton App. No. C-840304, unreported. That case involved the appeal by a township board of trustees of the decision of its own township board of zoning appeals, in which the board of trustees sought to enforce its own zoning regulations, and had an interest in seeking to uphold its own zoning resolution. The Board of Trustees in the instant case, however, has not chosen to implement its own township zoning pursuant to R.C. 519.02, and therefore lacks any interest in enforcing its own resolutions.
The Board of Trustees asserts that it has standing to interpose its appeal in its representative capacity for the citizens of the township. We do not agree. Even if we assume that the neighboring members of the community had standing to appeal the BZA's decision, there is no provision by statute whereby another may file an appeal under R.C. 2506.01 in a representative capacity on behalf of the person who is affected. Northern Woods Civil Ass'n. v. Columbus Graphics Comm. (1986), 31 Ohio App.3d 46, 508 N.E.2d 676. Although the Northern Woods case involved a non-profit corporation and an unincorporated association, we believe its reasoning also applies to a township board of trustees, where township resolutions are not at issue.
The Board of Trustees' argument that a determination that it lacks standing to appeal under R.C. 2506.01 will leave it without a remedy overlooks the fact that it lacks standing because it has not been harmed in any legally cognizable manner, and it must necessarily, therefore, be denied any remedy. If it seeks a remedy, it must first establish its rights in the form of zoning regulations enacted pursuant to R.C. 519.02, which would take precedence over the county zoning resolution, R.C. 303.22.
Because it had no right, duty, privilege, benefit or legal relationship adjudicated by the BZA, the Board of Trustees lacked standing to appeal the BZA's grant of a special zoning...
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