Willoughby Hills v. C. C. Bar's Sahara, Inc.

• Decision Date: 17 June 1992
• Docket Number: 91-887,Nos. 91-416,s. 91-416
• Citation: 591 N.E.2d 1203,64 Ohio St.3d 24
• Court: Ohio Supreme Court
• Parties: CITY OF WILLOUGHBY HILLS, Appellant, v. C. C. BAR'S SAHARA, INC., Appellee.

Page 24

64 Ohio St.3d 24

591 N.E.2d 1203

CITY OF WILLOUGHBY HILLS, Appellant, v. C. C. BAR'S SAHARA, INC., Appellee.

Nos. 91-416, 91-887.

Supreme Court of Ohio.

Submitted Jan. 22, 1992.

Decided June 17, 1992.

SYLLABUS BY THE COURT

Where a municipality's charter or its ordinances expressly allow the municipality to seek appellate review of determinations made by its board of zoning appeals, the municipality has standing pursuant to R.C. 2506.01 to "attack or avoid" such decisions in the common pleas court. (State, ex rel. Broadway Petroleum Corp., v. Elyria [1969], 18 Ohio St.2d 23, 32, 47 O.O.2d 149, 154, 247 N.E.2d 471, 477, approved and followed; Kasper v. Coury [1990], 51 Ohio St.3d 185, 555 N.E.2d 310, paragraph two of the syllabus, distinguished.)

Defendant-appellee, C. C. Bar's Sahara, Inc. ("Bar's Sahara"), is a restaurant located in the city of Willoughby Hills ("city"), plaintiff-appellant, a chartered municipality. Appellee's operation of the premises for restaurant purposes is a nonconforming use pursuant to the city's codified ordinances. In July 1989, Bar's Sahara applied to the Board of Building and Zoning Appeals of the city of Willoughby Hills, seeking a variance to expand the nonconforming use by one hundred forty-seven percent, an amount greater than otherwise permitted by zoning ordinances. Appellee justified the requested variance, which called for a roofed enclosure of the space occupied as a patio on the premises, as necessary to protect several palm trees contained within.

On October 24, 1989, after several hearings, the board of building and zoning appeals granted the requested variance. Willoughby Hills had not appeared at the hearings or in any way opposed Bar's Sahara's request for a variance.

On November 22, 1989, appellant filed an administrative appeal of the board's decision pursuant to R.C. 2506.01 with the Lake County Court of Common Pleas. The trial court sua sponte dismissed Willoughby Hills' administrative appeal stating that the city lacked standing to appeal a decision of its own duly appointed and authorized board of building and zoning appeals and cited in support State, ex rel. Broadway Petroleum Corp., v. Elyria (1969), 18 Ohio St.2d 23, 47 O.O.2d 149, 247 N.E.2d 471.

Upon appeal to the Eleventh District Court of Appeals, the appellate court affirmed the judgment of the court of common pleas. The appellate court held that R.C. 2506.01 does not confer standing upon appellant to attack the decision of its own board of building and zoning appeals.

Finding its decision to be in conflict with the decisions of the Eighth District Court of Appeals in Benes v. Cleveland (July 21, 1977), Cuyahoga App. No. 36441, unreported, and Division of Building & Housing v. The Positive Education Program (Oct. 3, 1985), Cuyahoga App. No. 49393, unreported, 1985 WL 8087, the appellate court certified the record of the case to this court for review and final determination (case No. 91-887). The cause is also before this court pursuant to the allowance of a motion to certify the record (case No. 91-416).

Rosplock, Coulson, Perez & Deeb and Charles E. Coulson, Willoughby, for appellant.

Petersen, Ibold & Wantz, Jerry Petersen and David M. King, Chardon, for appellee.

Calfee, Halter & Griswold, John E. Gotherman and Marilyn G. Zack, Cleveland, urging reversal for amicus curiae, Ohio Mun. League.

HOLMES, Justice.

The issue certified for our review is whether a municipality has standing to file a direct appeal of an adverse decision of its own board of zoning appeals to the court of common pleas pursuant to R.C. 2506.01, even in the absence of a showing that the municipality was "directly affected" by the decision. We will also determine the effect, if any, a city charter may have on a city's right to appeal a decision of its own board of zoning appeals.

In the absence of constitutional or statutory authority, the aggrieved party may not seek appellate review of the order of an administrative determination as the right to appeal is neither inherent nor inalienable. See Roper v. Bd. of Zoning Appeals (1962), 173 Ohio St. 168, 173, 18 O.O.2d 437, 440, 180 N.E.2d 591, 594. While administrative appeals on the state level are governed by the Administrative Procedure Act (R.C. Chapter 119), administrative appeals at the township and municipal levels are governed by R.C. Chapter 2506. R.C. 2506.01, in relevant part, provides:

"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." (Emphasis added.)

R.C. Chapter 2506, while providing generally for administrative appeals from administrative determinations by political subdivisions, does not address the question of who has standing to bring such an appeal. Under the common law, it is well settled that the right to appeal can be exercised only by those parties who are able to demonstrate a present interest in the subject matter of the litigation which has been prejudiced by the judgment of the lower court. Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 161, 23 O.O. 369, 370, 42 N.E.2d 758, 759. "Appeal lies only on behalf of a party aggrieved by the final order appealed from. Appeals are not allowed for the purposes of settling abstract questions, but only to correct errors injuriously affecting the appellant." Id. at syllabus.

In prior cases involving standing to appeal a board of zoning appeals' determination to the common pleas court, this court has not interpreted R.C. 2506.01 as limiting standing only to the party whose requested variance was denied. Adjacent or contiguous property owners who oppose and participate in the administrative proceedings concerning the issuance of a variance are equally entitled to seek appellate review under R.C. 2506.01. See Roper, supra, at syllabus. ¹ "The Legislature, in our opinion, recognized the need for an opportunity for review of the decisions of administrative agencies and broadened the right of review to include 'every final order, adjudication, or decision of any * * * board * * * of any political subdivision of the state.' " Roper, supra, 173 Ohio St. at 173, 18 O.O.2d at 440, 180 N.E.2d at 595.

The court of appeals, in the case sub judice, limited the municipality's ability to challenge decisions of its own board of zoning appeals by grafting a "directly affected" requirement for standing to the provisions of R.C. 2506.01. This language was taken from our prior decision in Schomaeker v. First Natl. Bank (1981), 66 Ohio St.2d 304, 20 O.O.3d 285, 421 N.E.2d 530. In Schomaeker, a contiguous property owner challenged the village planning commission's grant of a use variance by seeking declaratory judgment relief in the court of common pleas. Id. at 305, 20 O.O.3d at 286, 421 N.E.2d at 533. We held that such an action did not lie because the property owner had standing to bring a direct appeal pursuant to R.C. Chapter 2506. Id. at 310, 20 O.O.3d at 289, 421 N.E.2d at 536. In other words, since the property owner was a person "directly affected" by the order of the planning commission, she possessed standing to seek review in the courts of common pleas. Id. at 312, 20 O.O.3d at 290, 421 N.E.2d at 537.

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, could challenge the board of zoning appeals' approval of the variance. The private litigant has standing to complain of harm which is unique to himself. In contrast, 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. The latter litigant would, therefore, be unable to demonstrate the necessary unique prejudice which resulted from the board's approval of the requested variance.

The case sub judice does not involve a particular landowner aggrieved by a board of zoning appeals' decision to grant a requested variance. Rather, it is the municipality itself which demands appellate review. Appellee Bar's Sahara's position is that it is only under the narrowest of circumstances that a municipality could be directly affected by a decision of its board of zoning appeals. According to appellee, an example of such limiting circumstance would be a variance permitting a noxious or heavy industrial use adjacent to property owned by a municipality, such as a park, which would directly affect the municipality, thereby entitling it to appeal the issuance of the variance. This interpretation of Schomaeker's "directly affected" language would deny the city appellate review of the board's determination unless the city could establish standing via the interests of a property owner.

We conclude that there is absolutely no reason to limit the municipality's standing through the use of a "directly affected" test and thereby preclude it from initiating an appeal under R.C. Chapter 2506. R.C. 2506.01 makes no mention of a "directly affected" requirement. Instead, the statute applies to "[e]very final order." It is doubtful that the General Assembly would have used the term "every" if it had intended to exclude orders adverse to municipalities. The broad language of R.C. 2506.01 necessitates the conclusion that municipalities do have legislative authority to appeal rulings of their own boards of zoning appeals.

Additionally, we recognize that there is nothing in R.C. 2506.01 that would limit the rights of a municipality, or treat it differently than any other party. As this court noted in ...