Groffre Invests. v. Canton Bd. of Zoning Appeals

[Cite as Groffre Invests. v. Canton Bd. of Zoning Appeals, 2013-Ohio-1131.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
GROFFRE INVESTMENTS : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Appellant-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2012-CA-00059
CITY OF CANTON BOARD OF :
ZONING APPEALS AND DARLA :
HINDERER, ZONING INSPECTOR : OPINION
:
Appellee-Appellant

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CV02641

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 22, 2013

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

KEVIN R. L’HOMMEDIEU TIMOTHY J. JEFFRIES
THOMAS A. BURNS 437 Market Avenue N.
Canton Law Department Canton, OH 44702
218 Cleveland Avenue S.W.
Canton, OH 44702
[Cite as Groffre Invests. v. Canton Bd. of Zoning Appeals, 2013-Ohio-1131.]

Gwin, J.

{¶1} Appellant City of Canton appeals the February 23, 2012 judgment entry of

the Stark County Court of Common Pleas as it relates to an administrative zoning

matter.

FACTS & PROCEDURAL HISTORY

{¶2} The underlying facts of this case regard the zoning status of a property

located at 2315 Bolivar Road, S.W., Canton, Ohio. There is a home with a garage

located on the property. The area in which the property is located was originally zoned

residential, but the City of Canton rezoned the area as a light industrial district.

Because the home existed on the property during the zoning change, the City of Canton

allowed the property to maintain its residential status as a non-conforming use.

{¶3} In April 2008, 2315 Bolivar Road lost its status as a non-conforming use

pursuant to the City of Canton Codified Ordinances because the property was vacant

for one year. The property reverted to light industrial and could not be used as a

residence.

{¶4} Kasapis Properties, LLC purchased 2315 Bolivar Road in May 2008.

Kasapis purchased the property as an investment and used it as a residential rental

property. The City of Canton Zoning Department sent Kasapis Properties, LLC a letter

notifying the owner that the property could not be used as a residence. Kasapis filed a

request for residential use of the property with the City of Canton Board of Zoning

Appeals (“BZA”).

{¶5} In August 2008, a hearing was held on Kasapis’s request before the City

of Canton BZA. Mr. G.A. Kasapis was present at the hearing on behalf of Kasapis.
Stark County, Case No. 2012-CA-00059 3

Attorney Tim Jeffries attended the hearing and “explained he’s a rep for Groffre

Investments and they own the un-mowed field (south of property).” T. at 4. Groffe

Investments is a contiguous property owner to the Kasapis property. Groffre

Investments owns multiple properties in the area and markets the properties for light

industrial use. At the hearing, G.A. Kasapis testified he was aware the property was

zoned light industrial when he purchased the property. The BZA denied the request to

allow the non-conforming use. Kasapis did not appeal the decision.

{¶6} Based on the successful zoning variance granted to a property owner in

the immediate area, Kasapis filed a renewed petition for a zoning variance for its

property located at 2315 Bolivar Road. A hearing before the BZA was held on July 19,

2011. Attorney Tim Jeffries appeared at the hearing and stated that he was at the

hearing again “on behalf of Groffre Investments.” T. at 7. Debbie Kasapis appeared on

behalf of Kasapis.

{¶7} Debbie Kasapis testified she and her husband were not aware the

property was zoned light industrial when they purchased the property. Though he did

not specifically state that if the BZA granted the variance Groffre Investments would

appeal the decision, Jeffries argued a decision to grant the request would be in violation

of statutory law and unconstitutional. He further argued that allowing residential use of

the property would harm Groffre Investments’ ability to develop its other properties in

the same area for industrial purposes.

{¶8} The decision of the BZA was to grant Kasapis the residential use of their

property. Groffre filed an administrative appeal of the decision with the Stark County

Court of Common Pleas under Case No. 2011CV02641. Groffre argued Canton’s
Stark County, Case No. 2012-CA-00059 4

zoning ordinance was unconstitutional and that the BZA’s decision was illegal, arbitrary,

capricious, unreasonable, and unsupported by the preponderance of the substantial,

reliable, and probative evidence. The City of Canton raised only the issue of standing in

their brief and argued the case should be dismissed because Groffre did not have

standing to appeal the decision.

{¶9} On February 23, 2012, the trial court issued a judgment entry. The trial

court reviewed the record and found that Groffre established it had standing to pursue

an administrative appeal. The trial court went on to analyze the merits of the

administrative appeal and determined the BZA decision to allow the non-conforming use

was arbitrary, capricious, unreasonable, or unsupported by the preponderance of the

substantial, reliable, and probative evidence. The court focused on the fact that the

testimony of Debbie Kasapis at the July 2011 hearing as to whether they knew the

property was zoned light industrial when the property was purchased was in direct

conflict with the testimony given by her husband during the August 2008 hearing. The

trial court reversed the decision of the BZA. The City of Canton appealed the decision

to this Court under Case No. 2012CV00059.

{¶10} Appellant now raises the following assignments of error on appeal:

{¶11} “THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT

GROFFRE HAD STANDING TO CHALLENGE KASAPIS’S REQUEST FOR A NON-

CONFORMING USE OF THEIR PROPERTY.”

{¶12} Groffre filed its administrative appeal of the BZA decision pursuant to R.C.

2506.01. R.C. 2506.01(C) limits the right to appeal administrative decisions that

determine the “rights, duties, privileges, benefits, or legal relationships of a person * * *.”
Stark County, Case No. 2012-CA-00059 5

However, the statute fails to identify who has standing to appeal administrative

decisions.

{¶13} “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.” Fahl v.

City of Athens, 4th Dist. No. 06CA23, 2007-Ohio-4925, ¶ 14 citing Willoughby Hills v.

C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992).

{¶14} In Willoughby Hills v. C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26, 591

N.E.2d 1203 (1992), the Supreme Court discussed the issue of standing and held that,

in addition to the party who was denied the variance, the adjacent or contiguous

property owners who opposed and participated in the administrative proceedings

concerning the issues had standing to seek appellate review. Id., citing Roper v. Bd. of

Zoning Appeals, Twp. of Richfield, 173 Ohio St. 168, 180 N.E.2d 591 (1962).

{¶15} The syllabus in Roper states,

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, has a right to appeal to the common pleas court if the appeal is

properly and timely made pursuant to Sections 519.15 and 2506.01 to

2506.04, inclusive, and Chapter 2505, Revised Code.
Stark County, Case No. 2012-CA-00059 6

{¶16} In Schomaeker v. First Natl. Bank of Ottowa, 66 Ohio St.2d 304, 421

N.E.2d 530 (1981), the Supreme Court found that the property owner had standing to

appeal because the order affected and determined her rights as a property owner, and

she had previously indicated her interest, both by a prior challenge to the grant of a

certificate of occupancy and by her presence with counsel at the hearing on the

variance. Id.

Direct Affect

{¶17} The first element the non-applicant must establish under the standing

doctrine is that it is directly affected by the administrative decision. Though the trial

court did not make a separate finding on direct affect, the court specifically found the

record contained sufficient facts to satisfy the requirements for standing. On appeal,

Groffre Investments argues it has standing to file an administrative appeal because the

decision of the BZA directly affects Groffre Investments. We agree.

{¶18} There is no dispute Groffre Investments is a contiguous property owner.

Groffre argues it will suffer unique harm as a contiguous property owner if the property

is allowed to remain residential. Groffre has made real estate investments in the area to

market its properties for light industrial use. It argues that a property zoned residential

will diminish the value of its investments.

{¶19} In Roper, the Supreme Court determined the order of the BZA “affected

and determined Roper’s rights as a property owner, and thus he came within the class

of ‘specified’ persons referred to in Section 2506.01, Revised Code.” 173 Ohio St. at

170, 180 N.E.2d 591.

{¶20} In Willoughby Hills, the Supreme Court stated as follows:
Stark County, Case No. 2012-CA-00059 7

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.

64 Ohio St.3d at 27, 591 N.E. 2d 1203.

{¶21} Concerns shared equally by the public at large, such as increased traffic in

the area or the general effect on the status or character of the city as a whole are not

adequate to confer standing. Westgate Shopping Village v. Toledo, 93 Ohio App.3d

507, 513-514, 639 N.E.2d 126, 130 (6th Dist. 1994). It has been held in a R.C. 2506

administrative appeal, “evidence that the challenging party’s property value may be

reduced by a decision of the zoning board constitutes a direct effect sufficient to confer

standing.” Jenkins v. Gallipolis, 128 Ohio App.3d 376, 382, 715 N.E.2d 196 (4th Dist.

1998).

{¶22} We find the trial court did not err in concluding that Groffre was directly

affected by the zoning board’s decision. Groffre is in the business of industrial real

estate and has significant property adjacent to the property in question and in the
Stark County, Case No. 2012-CA-00059 8

immediate area held for industrial development. Jeffries stated residential use of

Kasapis’s property would affect the marketability of Groffre’s contiguous property.

Further, it would impede Groffre’s ability to develop the property in the immediate area

for light industrial development and thus reduce the value of Groffre’s contiguous

property. This harm is unique to Groffre and different from the harm that could

potentially come to the community at large, as it is directly related to its investment in

contiguous property.

Active Participation

{¶23} The second prong of the standing doctrine has been characterized as the

“active participation” requirement. See Fahl v. City of Athens, 4th Dist. No. 0623, 2007-

Ohio-4925. The trial court determined Groffre established the active participation

requirement because counsel appeared on Groffre’s behalf and opposed the granting of

the request for nonconforming use at the BZA hearing. The City of Canton argues that

Roper requires the presence of both the property owner and attorney. We disagree.

{¶24} In Roper, Mr. Nagy, the property owner seeking the zoning change,

argued he was the only party with the right to appeal a decision of the BZA because he

was the applicant for the zoning change.

{¶25} In deciding that Mr. Roper was a party for the purpose of appeal of the

BZA’s decision to the common pleas court, the Ohio Supreme Court rejected Nagy’s

argument that Roper was simply a witness at the BZA hearing, stating:

Roper came to this hearing not as a witness, and he appeared not as a

witness. He came as a person whose interests were adversely affected,

and he appeared with his lawyer in person in opposition to a zoning
Stark County, Case No. 2012-CA-00059 9

change which would damage Roper and his property. He was present

pursuant to the language in Section 519.15 Revised Code, that ‘upon the

hearing, any party may appear in person or by attorney.’ (Italics supplied.)

The order of the Board of Zoning Appeals affected and determined

Roper’s rights as a property owner, and thus he came within the class of

‘specified’ persons referred to in Section 2506.01, Revised Code. The

board was advised prior to its decision that, if it decided adversely to

Roper, his attorney intended to appeal the matter.

These facts are sufficient to make Roper a party for the purpose of

appeal to the Common Pleas Court from an adverse decision of the Board

of Zoning Appeals, pursuant to Sections 519.15 and 2506.01 to 2506.04,

inclusive, and Chapter 2505, Revised Code.

Roper at 173-174.

{¶26} We find that Attorney Jeffries’ appearance at the hearing is sufficient to

meet the requirement of “active participation” set forth in Roper and its progeny. As

indicated by the Supreme Court’s discussion of R.C. 519.15 (“upon the hearing, any

party may appear in person or by attorney”), the fact that Roper and his attorney

appeared at the hearing and voiced their objection to the zoning variance was utilized to

explain why Roper “actively participated” in the administrative proceedings, not to

preclude standing to appeal in every instance where only an attorney appears at an

administrative hearing to represent the adjacent or contiguous property owner.

{¶27} Further, the consistent focus for standing to appeal for adjacent or

contiguous property owners is “active participation.” See Willoughby Hills, 64 Ohio St.3d
Stark County, Case No. 2012-CA-00059 10

24, 26, 591 N.E.2d 1203 (1992), (stating that adjacent or contiguous property owners

who opposed and participated in the administrative proceedings concerning the issues

had standing to seek appellate review); City of Brunswick v. Medina Bd. of Cty.

Commrs., 9th Dist. No. 1440, 1986 WL 5114 (April 30, 1986), (holding that the City

actively advocated its position before the County Board by having the law director

support the granting of an annexation at an administrative hearing); Fahl v. City of

Athens, 4th Dist. No. 0623, 2007-Ohio-4925 (holding that certain appellants did not

meet the active participation requirement because neither the individuals or counsel

attended the administrative hearing); Byers Dipaloa Castle, LLC v. Ravenna City

Planning Comm., 11th Dist. No. 2010-P-0063, 2011-Ohio-6095 (holding that the

contiguous property owners actively participated during the administrative proceedings

because they continually objected to the proposed plans and argued that the plans did

not comply with the Ravenna City Code); Robin’s Trace Homeowners’ Assn. v. City of

Green Planning and Zoning Comm., 9th Dist. No. 24872, 2010-Ohio-1168 (holding that

a homeowner’s association did not actively participate in the administrative proceedings

because no representative on behalf of the association or their counsel attended the

administrative hearing or voiced concerns about the proposed site plan).

{¶28} This court previously discussed Roper and its progeny in Guttentag v.

Etna Twp. Bd. of Zoning Appeals, 177 Ohio App.3d 53, 2008 -Ohio- 2642, 893 N.E.2d

890. In Guttentag, the township resident seeking to challenge the zoning board’s

decision failed to appear at the administrative level, but the resident alleged he had

standing to appeal because he appeared by his counsel, who attended the hearing and

opposed the request. We rejected the resident’s standing argument not because we
Stark County, Case No. 2012-CA-00059 11

found both the attorney and the party had to appear, but because the record did “not

demonstrate that Guttentag’s attorney entered an appearance on his behalf or

otherwise indicated that he was representing Guttentag.” Id. at 896. In the instant

case, Attorney Jeffries entered an appearance on Groffre’s behalf and indicated that he

was representing Groffre.

{¶29} In this case, Attorney Jeffries appeared at both the original 2008 BZA

hearing and the July 19, 2011 BZA hearing on behalf of Groffre. Attorney Jeffries is

counsel for Groffre and is the nephew of the partners in Groffre Investments.

{¶30} At the August 2008 hearing, Attorney Jeffries stated he was a “rep for

Groffre Investments” and at the July 2011 hearing, Attorney Jeffries specifically stated

he appeared “on behalf on Groffre Investments.” At both hearings, Attorney Jeffries

argued a decision to grant the zoning request would be in violation of statutory law and

unconstitutional. He further argued that allowing residential use of the property would

harm Groffre Investments’ ability to develop its other properties in the same area for

industrial purposes. We find such facts sufficient to demonstrate that Groffre “actively

participated” in the administrative proceedings concerning the issuance of the variance.

Notice of Intent to Appeal

{¶31} Roper states that the non-applicant individual must advise 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.

{¶32} The trial court found by questioning the constitutionality of the ordinance at

the BZA hearing and arguing against the proposed zoning variance, Groffre indicated its
Stark County, Case No. 2012-CA-00059 12

intent to appeal any adverse ruling. The City of Canton argues the trial court erred

when it found Groffre met the third standing element. We disagree.

{¶33} In Schomaeker, the Court considered the elements in Roper and focused

on whether the contiguous property owner indicated her interest in the proceeding. The

Court in Willoughby Hills summarized the requirements of Roper as “. . . contiguous

property owners who oppose and participate in administrative proceedings concerning

the issuance of a variance are equally entitled to seek appellate review . . .” 64 Ohio

St.3d at 26, 180 N.E.2d 591.

{¶34} Further, in Schomaeker, Byers Dipaloa Castle, LLC, and City of Brunswick

v. Medina Bd. of Cty. Commrs., the challengers were found to have standing. While in

each case the parties challenging the administrative decisions or their counsel

appeared at the administrative proceeding and objected to the decision and/or argued

the statute was unconstitutional, there are no specific findings that the parties directly

stated to the board that if the decision went against them, they intended to appeal the

ruling to the common pleas court. Schomaeker v. First Natl. Bank of Ottowa, 66 Ohio

St.2d 304, 421 N.E.2d 530 (1981), Byers Dipaloa Catle, LLC, 11th Dist. No. 2010-P-

0063, 2011-Ohio-6095, and City of Brunswick v. Medina Bd. Of Cty. Commrs., 9th Dist.

No. 1440, 1986 WL 5114 (April 30, 1986).

{¶35} In the Kasapis case, Attorney Jeffries specifically stated he was speaking

in opposition to the zoning variance at the both the 2008 and 2011 hearings. At the

2011 Kasapis case hearing, Jeffries specifically stated he “just ha[s] to raise these

arguments” that the ordinance itself was unconstitutional and the way it was being

applied or interpreted was unconstitutional. At that point, Attorney Jeffries had no
Stark County, Case No. 2012-CA-00059 13

indication as to whether the BZA was going to rule in his favor or against him, but made

a point of stating his arguments on the record. Accordingly, we find Attorney Jeffries

indicated his intent to appeal any adverse ruling by specifically stating he was speaking

in opposition to the zoning variance and arguing that the ordinance was unconstitutional

on its face and in its application.

{¶36} Upon our review of the record, we find the trial court did not err in finding

Appellee Groffre Investments met its burden to establish its standing to appeal the BZA

decision pursuant to the elements of the Roper standing doctrine.

{¶37} The sole Assignment of Error of Appellant City of Canton is overruled.

{¶38} The judgment of the Stark County Court of Common Pleas is affirmed.

By Gwin, J.,

Wise, J., concur;

Delaney, P.J., dissents

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. PATRICIA A. DELANEY

_________________________________
HON. JOHN W.WISE

WSG:clw 0228
Stark County, Case No. 2012-CA-00059 14

Delaney, P.J., dissenting

{¶39} I respectfully dissent from the majority opinion.

{¶40} I would sustain the sole Assignment of Error and reverse the decision of

the trial court. The record reflects a personal representative of Groffre Investments did

not appear at the BZA hearing with Attorney Jeffries nor advise the BZA on the record

that if the decision of the BZA was adverse to Groffre Investments, it intends to appeal

the decision to the court. Under the Ohio Supreme Court’s holding in Roper v. Bd of

Zoning Appeals, Township of Richfield, 173 Ohio St. 168, 180 N.E.2d 59 (1962), the

failure to comply with these requirements fails to confer standing upon Groffre

Investments to appeal the decision of the BZA to allow the nonconforming use of the

property.

{¶41} Upon review of the record, the trial court erred as a matter of law in finding

Appellee Groffre Investments had met its burden to establish standing pursuant to the

elements of the Roper standing doctrine.

______________________________
JUDGE PATRICIA A. DELANEY
[Cite as Groffre Invests. v. Canton Bd. of Zoning Appeals, 2013-Ohio-1131.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

:
:
GROFFRE INVESTMENTS :
:
Appellant-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CITY OF CANTON BOARD OF ZONING :
APPEALS AND DARLA HINDERER :
ZONING INSPECTOR :
:
:
Appellee-Appellant : CASE NO. 2012-CA-00059

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Stark County Court of Common Pleas is affirmed. Costs to City of Canton Board of

Zoning Appeals.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. PATRICIA A. DELANEY

_________________________________
HON. JOHN W. WISE