Safest Neighborhood Assoc. v. City of Athens Bd. of Zoning Appeals

• Decision Date: 17 December 2013
• Docket Number: 12CA34,Nos. 12CA32,12CA35.,12CA33,s. 12CA32
• Citation: 5 N.E.3d 694
• Parties: SAFEST NEIGHBORHOOD ASSOC., et al., Appellants–Appellees, v. City of ATHENS BOARD OF ZONING APPEALS, et al., Appellees–Appellants, and Kevin Gillespie/Integrated Services of Appalachian Ohio, Inc., Appellee–Appellant.
• Court: Ohio Court of Appeals

5 N.E.3d 694

SAFEST NEIGHBORHOOD ASSOC., et al., Appellants–Appellees,

v. City of ATHENS BOARD OF ZONING APPEALS, et al., Appellees–Appellants,andKevin Gillespie/Integrated Services of Appalachian Ohio, Inc., Appellee–Appellant.

Nos. 12CA32, 12CA33, 12CA34, 12CA35.

Court of Appeals of Ohio,

Fourth District, Athens County.

Dec. 17, 2013.

Tiffany C. Miller, Bailey Cavalieri LLC, Columbus, OH, and William R. Walker, Walker & Walker Co., L.P.A., Athens, OH, for appellant Kevin Gillespie/Integrated Services of Appalachian Ohio, Inc.

Garry E. Hunter, Garry E. Hunter Law Offices, Inc., LPA, Athens, OH, for appellees.

HARSHA, J.

{¶ 1} In this consolidated appeal, the City of Athens Board of Zoning Appeals (BZA), the City of Athens Planning Commission (Planning Commission) and Kevin Gillespie/Integrated Services of Appalachian, Ohio, Inc. (Integrated Services) appeal the trial court's entry reversing the BZA and Planning Commission's decisions to permit Integrated Services to construct a two-story, multi-unit residential structure. However, as neutral bodies that decided whether to grant Integrated Services' applications, the BZA and Planning Commission lack standing to appeal the court of common pleas decision. Consequently, we must dismiss their appeals. Conversely, Integrated Services unquestionably has standing to appeal as an aggrieved party who has been adversely affected by the lower court's decision and we consider the merits of its arguments.

{¶ 2} Integrated Services argues, inter alia, that the lower court erred by finding that the appellees, Safest Neighborhood Association (Safest Neighborhood) and over 40 Athens residents, had standing to appeal the BZA and Planning Commission's decisions because each appellee did not show that he or she actively participated at the administrative hearing and was directly affected by the administrative decision. We agree. Because the lower court looked at the appellees collectively, rather than looking at each appellee individually, to determine if they met the requirements for standing, the court abused its discretion and we reverse its decision.

I. OVERVIEW

{¶ 3} This administrative appeal involves the construction of a multi-unit, residential structure by Integrated Services at 10 Graham Drive (the property) in Athens, Ohio. When Integrated Services purchased the property it was classified as a “B–3 General Business Zone” and contained a single-family mobile home, which was a nonconforming use. After removing the mobile home, Integrated Services sought a variance from the BZA to construct a two-story structure. The BZA denied the variance, and rather than appeal that decision, Integrated Services sought approval of a three-story structure from the Planning Commission. The Planning Commission held a hearing on March 16, 2011, and approved the new plan for a three-story structure without residential use on the first floor. Under the B–3 General Business zoning, Integrated Services did not need a variance to build a structure that did not include first-floor residential use. However, Integrated Services then returned the case to the BZA and asked for a substitution of a nonconforming use (the mobile home) for a not more objectionable nonconforming use (the two-story structure). The BZA held a hearing and approved the substitution of a two-story structure with first-floor residential use, which it had previously denied in the request for a variance.

{¶ 4} Safest Neighborhood and approximately 40 Athens residents filed an appeal with the Athens County Court of Common Pleas in case No. 11 CI0149 contesting the BZA's decision. Many of the same residents also filed a related taxpayers' action and asserted in their complaint that the City of Athens failed to properly notify the public of the March 16, 2011 Planning Commission hearing as required by the city code. Thereafter, the Planning Commission posted the notification and re-heard the matter on August 17, 2011. It again approved the three-story structure and also for the first time approved the substituted two-story structure. The appellees then filed an appeal with the Athens County Court of Common Pleas in case No. 11 CI0254 contesting the Planning Commission's August 17 decision.

{¶ 5} The lower court consolidated the appellees' appeals and issued an entry reversing both the BZA and Planning Commission's rulings. The trial court found that the two-story structure expanded the mobile home's prior nonconforming use contrary to the city code and the Planning Commission's decision was not supported by a preponderance of substantial, reliable and probative evidence. Integrated Services, the BZA and Planning Commission now appeal the court of common pleas' decision.

II. ASSIGNMENTS OF ERROR

{¶ 6} In Case No. 12CA32 Integrated Services raises four assignments of error for our review:

1. “THE TRIAL COURT ERRED RULING IN FAVOR OF APPELLANTS ABSENT APPELLANTS PRESENTING ANY ASSIGNMENTS OF ERROR OR CITATION OF FACTS IN THE RECORD TO SUPPORT THEIR ARGUMENT.”

2. “THE TRIAL COURT ERRED FINDING THAT EVERY APPELLANT BELOW HAD STANDING TO BRING AN APPEAL TO THE TRIAL COURT.”

3. “THE TRIAL COURT ERRED OVERRULING THE PLANNING COMMISSION ABSENT ANY FACTS OR FINDING THE PLANNING COMMISSION ENGAGED IN ANYTHING UNCONSTITUTIONAL, ILLEGAL, ARBITRARY, CAPRICIOUS, OR UNREASONABLE IN ARRIVING AT ITS DECISION.”

4. “THE TRIAL COURT ERRED SUBSTITUTING ITS JUDGMENT AND OPINIONS FOR THAT OF THE PLANNING COMMISSION.”

{¶ 7} In Case No. 12CA33 Integrated Services raises four assignments of error:

1. “THE TRIAL COURT ERRED RULING IN FAVOR OF APPELLANTS ABSENT APPELLANTS PRESENTING ANY ASSIGNMENTS OF ERROR OR CITATION OF FACTS IN THE RECORD TO SUPPORT THEIR ARGUMENTS.”

2. “THE TRIAL COURT ERRED FINDING THAT EVERY APPELLANT BELOW HAD STANDING TO BRING AN APPEAL TO THE TRIAL COURT.”

3. “THE TRIAL COURT ERRED OVERRULING THE BZA RESOLUTION ABSENT FACTS OR FINDINGS THE BZA DID ANYTHING UNCONSTITUTIONAL, ILLEGAL, ARBITRARY, CAPRICIOUS, OR UNREASONABLE IN ARRIVING AT ITS DECISION.”

4. “THE TRIAL COURT ERRED SUBSTITUTING ITS JUDGMENT AND OPINIONS FOR THAT OF THE BZA.”

{¶ 8} In Case No. 12CA34 the BZA raises five assignments of error:

1. “THE COMMON PLEAS COURT ERRED IN FINDING THAT IT WAS IMPLICIT UNDER THE CIRCUMSTANCES OF THE CASE THAT ALL APPELLANTS IN SAFEST NEIGHBORHOOD ASSOC., ET AL., DEMONSTRATED UNIQUE HARM BY SIMPLY LIVING IN THE NEIGHBORHOOD.”

2. “THE COMMON PLEAS COURT ERRED IN NOT CONSIDERING THE AFFIDAVITS OF JOHN PASZKE

AND KEVIN GILLESPIE IN ITS DECISION OF OCTOBER 1, 2012.”

3. “THE COMMON PLEAS COURT ERRED IN RULING THAT THERE WAS NO CLEAR TESTIMONY PRESENTED TO THE BOARD OF ZONING APPEALS AS TO WHETHER THE HOUSE WAS REMOVED WITHIN THE ONE YEAR TIME LIMIT.”

4. “THE COMMON PLEAS COURT ERRED IN RULING THAT THE CITY BOARD OF ZONING APPEALS FAILED TO CONSIDER WHETHER THE TWO STORY MULTI–FAMILY UNIT WAS NOT MORE OBJECTIONABLE THAN THE ORIGINAL ONE STORY SINGLE FAMILY RESIDENCE.”

5. “THE COMMON PLEAS COURT ERRED IN CONCLUDING THAT THE BZA WAS CONFUSED ON THE ISSUE OF THE RESOLUTION.”

{¶ 9} In Case No. 12CA35 the Planning Commission raises five assignments of error:

1. “THE COMMON PLEAS COURT ERRED IN ORDERING THE PLANNING COMMISSION TO VERIFY THE TRANSCRIPTS.”

2. “THE COMMON PLEAS COURT ERRED IN NOT CONSIDERING SURREPLY BRIEFS OF THE PLANNING COMMISSION AND INTEGRATED SERVICES.”

3. “THE COMMON PLEAS COURT ERRED IN FINDING THAT SAFEST NEIGHBORHOOD ASSOC., ET AL., DEMONSTRATED UNIQUE HARM BY SIMPLY LIVING IN THE NEIGHBORHOOD WHEN SOME OF THEM APPEARED AT THE HEARING.”

4. “THE COMMON PLEAS COURT ERRED IN NOT CONSIDERING THE AFFIDAVITS OF JOHN PASZKE AND KEVIN GILLESPIE IN ITS DECISION OF OCTOBER 1, 2012.”

5. THE COMMON PLEAS COURT ERRED IN RULING THAT THE HEARING BEFORE THE PLANNING COMMISSION WAS PERFUNCTORY AT BEST WHEN THE TRANSCRIPT IS REPLETE WITH INFORMATION ABOUT THE DISABILITIES COMMISSION, TREES AND PARKING.”

III. LAW AND ANALYSIS

A. The BZA and Planning Commission Lack Standing to Appeal the Court of Common Pleas' Decision

{¶ 10} Before considering the merits of the parties' appeals, we first address the BZA and Planning Commission's standing to appeal the court of common pleas' decision. “Whether a party has standing to appeal ‘is jurisdictional and may be raised sua sponte.’ ” Liquidation Properties v. Mosley, 4th Dist. Scioto No. 11 CA3453, 2012-Ohio-6281, 2012 WL 6765602, ¶ 14, quoting In re Forfeiture of John Deere Tractor, 4th Dist. Athens No. 05CA26, 2006-Ohio-388, 2006 WL 225368, ¶ 10.

{¶ 11} “Neither a township board of zoning appeals nor any of its members as such have a right to appeal from the judgment of a court, rendered on appeal from a decision of such board and reversing and vacating that decision.” Di Cillo & Sons, Inc. v. Chester Zoning Bd. Of Appeals, 158 Ohio St. 302, 109 N.E.2d 8 (1952), syllabus. “In an appeal to the board of zoning appeals, the board does not become a party to that appeal,” but rather is a body to decide whether the issuance of a variance is appropriate. Id. at 304–305, 109 N.E.2d 8. “[T]he board should be as disinterested in deciding mattersbrought before it as a court should be.” Id. at 305, 109 N.E.2d 8. “Just as a common pleas court is not a party in a case it decides and may not appeal from a decision of a court of appeals that reverses the common pleas' decision, the board of zoning appeals is not a party to [an] appeal and has no standing to appeal.” Parker v. Swancreek Twp. Bd. of Zoning Appeals, 6th Dist. Fulton Nos. F–04–035, F–04–036, F–04–038, 2005-Ohio-538, 2005 WL 327182, ¶ 4. Instead, the proper party to appeal under R.C. Chapter 2506 is “the city, the city official responsible for enforcing the zoning regulations, or other persons aggrieved by the court's decision.” Sich v. Bd. of Zoning Appeals for the City Middletown, 12th Dist. Butler No. CA83–08–093, 1984 WL 3386, *1 (July 16, 1984), citing Di Cillo at 305, 109 N.E.2d 8;Gold Coast Realty, Inc. v. Bd. of Zoning Appeals, 26...