Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of Zoning Appeals, No. 00-196.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: LUNDBERG STRATTON, J
• Citation: 91 Ohio St.3d 174,743 NE 2d 894
• Docket Number: No. 00-196.
• Decision Date: 28 March 2001
• Parties: MIDWEST FIREWORKS MANUFACTURING COMPANY, INC., APPELLEE, v. DEERFIELD TOWNSHIP BOARD OF ZONING APPEALS ET AL.; CARVER, APPELLANT.

91 Ohio St.3d 174
743 NE 2d 894

MIDWEST FIREWORKS MANUFACTURING COMPANY, INC., APPELLEE,
v.
DEERFIELD TOWNSHIP BOARD OF ZONING APPEALS ET AL.; CARVER, APPELLANT.

No. 00-196.

Supreme Court of Ohio.

Submitted November 15, 2000.

Decided March 28, 2001.

91 Ohio St.3d 175

Cole Co., L.P.A., and Mark H. Ludwig, for appellee.

91 Ohio St.3d 182

Craig T. Conley, for appellant.

LUNDBERG STRATTON, J.

R.C. 519.15 allows "any person aggrieved" by an administrative officer's zoning decision to appeal to the township board of zoning appeals. This case asks whether the property owner herein has standing as a "person aggrieved" by a zoning decision allowing the construction of a building on neighboring property. For the reasons set forth below, we hold that appellant, Jesse J. Carver, Jr., is a "person aggrieved" and, therefore, has standing to appeal the decision to the township board of zoning appeals.

I

Appellee, Midwest Fireworks Manufacturing Company, Inc. ("Midwest"), operates a fireworks factory on approximately eighty-six acres of land in Deerfield Township, Portage County. Midwest and its predecessors have occupied this property since the early 1970s, before any township zoning regulations were in place. Prior to 1980, the Deerfield Township Board of Trustees enacted the Deerfield Zoning Regulations ("DZR"), which zoned Midwest's land as a residential district. Midwest continued its fireworks operation as a valid, nonconforming use. See R.C. 519.19.

In 1982, an explosion and fire destroyed two buildings and several trailers on Midwest's property. The fire injured four persons and caused an estimated $1 million in damages. Although Midwest continued its fireworks business and constructed buildings on other parts of its land, it did not reconstruct the buildings destroyed in 1982.

Fifteen years later, in 1997, Midwest and Pacific Financial Services, Inc., the record owner of the property on which Midwest is situated, applied for a zoning certificate that would allow Midwest to construct a single building to replace the two buildings that had burned down in the 1982 fire. The application stated that the proposed building would be seven thousand two hundred square feet. Attached to the application was an affidavit from Larry Lomaz, who controlled Midwest and Pacific Financial Services. According to Lomaz, the proposed building was approximately the same size as the two buildings destroyed in 1982. Lomaz also claimed that Midwest had not rebuilt the destroyed buildings before 1997 due to several years of litigation involving it and Deerfield Township. A Deerfield Township zoning inspector granted the zoning certificate nine days after Lomaz submitted the application.

91 Ohio St.3d 176

Appellant, Jesse J. Carver, Jr., owns and lives on property directly across a two-lane highway from Midwest's property. He was living there when the fire occurred at Midwest in 1982. Carver appealed the issuance of the zoning certificate to the Deerfield Township Board of Zoning Appeals ("BZA"). He argued to the BZA that Midwest had abandoned its nonconforming use privileges by failing to rebuild the destroyed buildings within two years. He testified that he had regularly viewed Midwest's property and had not observed, since the 1982 fire, any activity related to Midwest's fireworks business on the site of the proposed building. Carver also presented evidence to the BZA that the two buildings destroyed in 1982 were of a combined 1,536 square feet—considerably smaller than the seven-thousand-two-hundred square-foot structure that Midwest proposed to build.

The BZA conducted hearings on February 11 and 21, 1998. Carver appeared with counsel at both hearings and testified at the second one. Lomaz attended on behalf of Midwest the February 11 hearing only. The BZA confined its inquiry to two issues: whether this was a nonconforming use, and the size of the proposed building. Following the two hearings, the BZA ruled in Carver's favor and revoked Midwest's zoning certificate.

Midwest filed an R.C. 2506.01 administrative appeal with the Portage County Court of Common Pleas. The company argued, among other things, that Carver lacked standing to appeal to the BZA because he was not a "person aggrieved" by the zoning inspector's issuance of a zoning certificate. The trial court disagreed:

"Carver's property and residence is located directly across the road from Midwest's property. Only a two lane roadway separates the two properties. From his property Carver can see the site where the proposed new building was to be built. The former buildings had exploded and burned in 1982, creating a legitimate concern for the safety of his own property. It was Carver's position that issuance of the zoning permit was unlawful. From all the circumstances presented in the transcript to proceedings, it can be concluded that Carver was a `person aggrieved' of Midwest's receipt of a zoning permit and had standing to appeal to the Board from the zoning inspector's decision to issue that zoning permit."

The trial court also rejected Midwest's remaining arguments and affirmed the BZA's decision to revoke the zoning certificate. The Eleventh District Court of Appeals reversed and entered judgment in favor of Midwest. The court of appeals concluded that Carver made "no showing that allowing Midwest to build one more building on property that already contained multiple buildings would affect Mr. Carver's personal, pecuniary or property, rights." Absent such a showing, Carver was not a "person aggrieved" by the zoning inspector's issuance of the zoning certificate. The court concluded that Carver lacked standing to

91 Ohio St.3d 177

appeal to the BZA and, consequently, the BZA lacked authority to revoke the zoning certificate issued to Midwest

This cause is now before this court upon the allowance of a discretionary appeal.

II

The sole issue before us is whether Carver had standing to challenge the issuance of Midwest's zoning certificate by bringing an appeal to the BZA. The right to appeal an administrative decision is neither inherent nor inalienable; to the contrary, it must be conferred by statute. See Roper v. Richfield Twp. Bd. of Zoning Appeals (1962), 173 Ohio St. 168, 173, 18 O.O.2d 437, 440, 180 N.E.2d 591, 594. Carver claims a statutory right to appeal under R.C. 519.15 and DZR 701.52, both of which allow "any person aggrieved * * * by any decision of the administrative officer" to appeal that decision to the BZA. Therefore, whether Carver had standing to bring an appeal before the BZA depends upon whether he was a "person aggrieved" by the zoning inspector's issuance of a zoning certificate to Midwest.

In Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, this court held: "Appeal lies only on behalf of a party aggrieved by the final order appealed from." Id. at syllabus. An "aggrieved" party is one whose interest in the subject matter of the litigation is "`immediate and pecuniary, and not a remote consequence of the judgment.'" Id. at 161, 23 O.O. at 369, 42 N.E.2d at 759, quoting 2 American Jurisprudence (1936) 942, Appeal and Error, Section 50. Thus, in order to have standing to appeal, a person must be "able to demonstrate a present interest in the subject matter of the litigation which has been prejudiced" by the judgment appealed from. Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 26, 591 N.E.2d 1203, 1205. See, also, Black's Law Dictionary (7 Ed.1999) 1144...