Jenkins v. City of Gallipolis

• Decision Date: 16 June 1998
• Docket Number: No. 97CA14.,97CA14.
• Citation: 128 Ohio App.3d 376,715 NE 2d 196
• Parties: JENKINS, Appellant, v. CITY OF GALLIPOLIS et al., Appellees.
• Court: Ohio Court of Appeals

128 Ohio App.3d 376

715 NE 2d 196

JENKINS, Appellant, v. CITY OF GALLIPOLIS et al., Appellees.

No. 97CA14.

Court of Appeals of Ohio, Fourth District, Gallia County.

Decided June 16, 1998.

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David T. Evans, for appellant.

Douglas M. Cowles, for appellee city of Gallipolis.

Glen A. Dugger and Nancy Truit Blosser, for appellee JDN Development Co., Inc.

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KLINE, Judge.

R. William Jenkins appeals the decision of the Gallia County Court of Common Pleas affirming the Gallipolis Planning Commission's decision to grant JDN Development Co., Inc. ("JDN") permission to build a Wal-Mart store. The trial court found that Jenkins did not have standing to challenge the planning commission's decision. Jenkins asserts that the trial court erred by comparing his situation only to that of his neighbors. We agree, because the law defines the relevant comparison group as all or a large part of the community at large. Jenkins also asserts that the trial court erred by considering standing, because neither JDN nor the city of Gallipolis challenged his standing at the administrative level. We disagree, because Jenkins was not a party to the administrative proceeding. Finally, Jenkins asserts that the trial court abused its discretion by refusing to admit his expert's opinion projecting future traffic volume. We disagree, because Jenkins did not show that his expert, a real estate appraiser, possessed specialized knowledge, skill, experience, or expertise in the area of traffic projections. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

I

JDN applied to the planning commission for conditional use of land located on State Route 7 ("Eastern Avenue") in Gallia County, Ohio, for the construction and operation of a Wal-Mart store. The planning commission held a public hearing on the application, during which Jenkins voiced objections. Jenkins owns property less than one-half mile from the site of the proposed Wal-Mart, which, though not on Eastern Avenue, is accessible only from Eastern Avenue. Jenkins also served the planning commission and all interested parties with written notice of his intent to pursue the matter in court if the planning commission did not deny JDN's application.

The planning commission approved the issuance of a zoning certificate to JDN. Jenkins filed a complaint/appeal against the city and JDN in the Gallia County Court of Common Pleas, asserting that JDN's construction of a Wal-Mart would greatly diminish the value and usefulness of his property.

JDN and the city each moved the trial court to dismiss Jenkins's appeal on the grounds that Jenkins lacked standing. The court reserved ruling on the motion and proceeded to hear evidence. Jenkins presented the expert testimony of a real estate appraiser, who gave his opinion without objection that the commercial service and light industrial tenants to whom Jenkins's property is suited find excessive retail traffic undesirable. Jenkins also introduced studies from the Ohio Department of Transportation reflecting traffic counts before and after the construction of a Wal-Mart in various rural Ohio towns along similar roads. JDN objected, however, when Jenkins asked his expert to give his opinion as to what extent traffic would increase on Eastern Avenue after the construction of a Wal-Mart. The court reserved ruling on JDN's objection. JDN introduced, without objection, a real estate appraiser's expert opinion that Jenkins's property would increase in value after Wal-Mart opens.

The trial court found that Jenkins did not have standing to appeal the planning commission's decision, because Jenkins had not demonstrated that the decision caused him any harm greater than that suffered by others on or near Eastern Avenue. In so ruling, the trial court sustained JDN's objection to Jenkins's expert's opinion as to future traffic counts on Eastern Avenue, but concluded in its analysis that Jenkins had failed to establish standing even with the expert testimony.

Jenkins timely appealed and asserts the following assignments of error:

"I. The trial court erred in finding that appellant lacked standing to challenge the decision of the Gallipolis Planning Commission in an administrative appeal pursuant to R.C. 2506.01 et seq.

"II. The trial court erred in sustaining the motion to dismiss where appellees waived any objection to appellant's standing in the underlying administrative proceeding.

"III. The trial court abused its discretion and committed reversible error in excluding and disregarding the opinion evidence of appellant's expert appraiser."

II

R.C. 2506.04 delineates the roles of common pleas and appellate courts in reviewing administrative decisions as follows:

"The court may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause * * *. The judgment of the court may be appealed by any party on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505 of the Revised Code."

Thus, the court of appeals' role in R.C. 2506.04 appeals is limited to reviewing questions of law, which the court reviews de novo, and to determining whether the trial court abused its discretion in applying the law. Kisil v. Sandusky (1984), 12 Ohio St.3d 30, 34, 12 OBR 26, 29-30, 465 N.E.2d 848, 852, fn. 4; Lawson v. Foster (1992), 76 Ohio App.3d 784, 603 N.E.2d 370. In Kisil, the court commented that R.C. 2506.04 "grants a more limited power to the court of appeals to review the judgment of the common pleas court only on `questions of law,' which does not include the same extensive power to weigh `the preponderance of substantial, reliable and probative evidence,' as is granted to the common pleas court." Id.; Prokos v. Athens City Bd. of Zoning Appeals (July 13, 1995), Athens App. No. 94CA1638, unreported, 1995 WL 416947. The court further stated that "within the ambit of `questions of law' for appellate court review would be abuse of discretion by the common pleas court." Id.; accord Irvine v. Ohio Unemp. Comp. Bd. of Rev. (1985), 19 Ohio St.3d 15, 20, 19 OBR 12, 16-17, 482 N.E.2d 587, 591-592; Wurzelbacher v. Colerain Twp. Bd. of Trustees (1995), 105 Ohio App.3d 97, 100, 663 N.E.2d 713, 714-715. "The term `abuse of discretion' connotes more than an error of law of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137, 566 N.E.2d 1181, 1184.

A

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. Willoughby Hills v. C.C. Bar's Sahara (1992), 64 Ohio St.3d 24, 26, 591 N.E.2d 1203, 1204-1205, citing Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 161, 23 O.O. 369, 369, 42 N.E.2d 758, 758-759. The burden of proof to establish standing lies with the party seeking to appeal. Id.; Zelnick v. Troy City Council (1997), 85 Ohio Misc.2d 67, 74, 684 N.E.2d 381, 385.

In Roper v. Richfield Twp. Bd. of Zoning Appeals (1962), 173 Ohio St. 168, 18 O.O.2d 437, 180 N.E.2d 591, syllabus, the Supreme Court of Ohio determined that standing to bring an administrative appeal under R.C. 2506.01 lies with "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." The court later narrowed the class of persons who possess standing to those whose property rights are "directly affected" by the contested administrative order. Schomaeker v. First Natl. Bank (1981), 66 Ohio St.2d 304, 311-312, 20 O.O.3d 285, 289-290, 421 N.E.2d 530, 536-537.

The Schomaeker court did not limit the class of persons possessing standing to contiguous or adjacent property owners. See Willoughby Hills, supra, 64 Ohio St.3d at 27, 591 N.E.2d at 1205-1206; Am. Aggregates Corp. v. Columbus (1990), 66 Ohio App.3d 318, 322, 584 N.E.2d 26, 28-29. Rather, "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, can challenge the board or zoning appeals' decision." Willoughby Hills at 27, 591 N.E.2d at 1205. Thus, "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." Id.

To determine if a person falls within the class of directly affected persons, we "must look beyond physical proximity to determine if the order constitutes a determination of the rights, duties, privileges, benefits or legal relationships of a specified person." Am. Aggregates Corp., 66 Ohio App.3d at 322, 584 N.E.2d at 29; Westgate Shopping Village v. Toledo (1994), 93 Ohio App.3d 507, 513, 639 N.E.2d 126, 129-130. Generally, "concerns regarding increased traffic * * * are concerns shared equally by the public at large and, therefore, are not adequate grounds upon which to confer standing to bring an appeal pursuant to R.C. 2506.01." Id. at 513-514, 639 N.E.2d at 130. However, evidence that the challenging party's property value may be reduced by a decision of the zoning board constitutes a...