Midwest Fireworks Manufacturing Co. v. Deerfield Township Board of Zoning Appeals

Cook, J.,

dissenting. This case asks whether a property owner is a “person aggrieved” by a zoning decision absent a showing by. the property owner of a present and substantial interest in the decision beyond a desire to see zoning regulations properly enforced. Because an immediate personal or pecuniary injury is an indispensable element of standing, I respectfully dissent.

Carver claims a statutory right to appeal under R.C. 519.15 and Deerfield Zoning Regulation 701.52, both of which allow “any person aggrieved * * * by any decision of the administrative officer” to appeal that decision to the Board of Zoning Appeals (“BZA”). To be “aggrieved” for purposes of appellate standing, a person must have a present and substantial interest in the challenged action (in this case, the issuance of the zoning certificate). For a private litigant in a zoning appeal, a present and substantial interest consists of harm that is unique to that *180party. Willoughby Hills v. C.C. Bar’s Sahara, Inc. (1992), 64 Ohio St.3d 24, 27, 591 N.E.2d 1203, 1205-1206. A future, contingent, or speculative interest will not suffice. Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140 Ohio St. 160, 161, 23 O.O. 369, 42 N.E.2d 758, 759.

The majority concludes that Carver is uniquely harmed by the issuance of the building permit in view of the fact that Midwest’s fireworks facilities exploded in 1982 and could explode again, posing a serious threat to Carver’s personal and proprietary interests. But Carver alleged no personal or pecuniary injury when he filed his BZA appeal. He simply alleged that Midwest’s proposed structure was larger than the buildings it was supposed to replace and that the zoning inspector did not make a “reasonable effort to determine” whether the building was a proper nonconforming use. Similarly, in his brief to this court, Carver describes his harm as the “blatantly wrongful issuance” of a zoning certificate that allows Midwest to “expand” its commercial fireworks operation in a residential zone. Carver maintains that he has a right “to expect and to demand” enforcement of the township zoning regulations, which exist for his family’s health, safety, and welfare.

The common thread in Carver’s allegations of harm is that they have less to do with his personal or proprietary interests than they do with ensuring Midwest’s compliance with duly enacted zoning regulations. But enforcement of zoning laws is a concern shared by other citizens of the township at large. Carver’s asserted interest is therefore akin to a generalized grievance shared equally by other members of the public. And such harm normally will not confer standing to appeal. Am. Aggregates Corp. v. Columbus (1990), 66 Ohio App.3d 318, 323, 584 N.E.2d 26, 29, citing Warth v. Seldin (1975), 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343, 354.

I also disagree with the majority’s view that Carver’s asserted harm is “unique” to him in light of his status as an owner of property across the road from Midwest’s. Neither Carver nor the majority has explained how Carver’s personal, pecuniary, or property rights would be adversely affected by Midwest’s construction of one more building on a parcel that already contains multiple buildings devoted to Midwest’s commercial fireworks business. Nevertheless, the majority concludes that there is a “real and serious threat” to Carver’s property because the manufacture of fireworks carries “the risk of catastrophic explosion * * * at all times.” But these fears of future explosion are speculative at best and based on little more than the assumption, without support in the record, that Midwest is generally vulnerable to explosions and fires regardless of how safely it engages in its business. Even if Carver has a general fear for life and limb because of Midwest’s activities, he cannot use an intangible possibility of future injury as a springboard to R.C. 519.15 review. Standing exists only if the *181appealing party can show a present interest in the matter appealed, not simply a concern of future injury that may or may not occur. Cf. In re Petition for Incorp. of Holiday City (1994), 70 Ohio St.3d 365, 371, 639 N.E.2d 42, 47 (arguments concerning what injuries may occur in event of incorporation were “speculative at best and fail to expose a present interest in the matters at issue”).

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

Moreover, the majority inexplicably overlooks a fact that undermines its finding of immediate harm based on a perceived fear of future explosion. Midwest’s application for a zoning certificate expressly stated that the proposed building would be used as garage storage for company vehicles and not for fireworks manufacturing or storage. Although the majority emphasizes the “risk of catastrophic explosion” related to fireworks manufacturing, the zoning application on its face suggests a significantly diminished threat of this type of harm.

To buttress its conclusion, the majority cites Roper v. Richfield Twp. Bd. of Zoning Appeals (1962), 173 Ohio St. 168, 18 O.O.2d 437, 180 N.E.2d 591, and Schomaeker v. First Natl. Bank of Ottawa (1981), 66 Ohio St.2d 304, 20 O.O.3d 285, 421 N.E.2d 530, to support a finding that Carver has standing to bring an R.C. 519.15 appeal. Carver relies on both of these cases to support the proposition that he would have standing, as a neighboring property owner, if this were an R.C. 2506.01 appeal and that he should therefore have standing under R.C. 519.15. But these cases provide weak support for this conclusion. Neither Roper nor Schomaeker suggests that mere adjacency of one’s property is enough to confer standing to bring an administrative zoning appeal. When read together, these cases clarify that harm unique to the complaining party provides the basis upon which a private property owner, as distinguished from the public at large, can challenge a zoning decision in an administrative appeal. See Willoughby Hills, 64 Ohio St.3d at 27, 591 N.E.2d at 1205-1206. An adjacent or neighboring property owner may have standing to bring an appeal under R.C. 519.15 if that owner demonstrates the immediate personal or pecuniary injury required to be a “person aggrieved” within the meaning of the statute. Carver has not demonstrated unique harm in this case and thus cannot rely on Roper and Schomaeker to support his argument for standing.

Absent sufficient allegations of a present and substantial interest in the litigation that is unique compared to that shared by the public at large, Carver has not established that he has standing to appeal to the BZA under R.C. 519.15. I would therefore affirm the judgment of the court of appeals.

F.E. Sweeney and Pfeifer, JJ., concur in the foregoing dissenting opinion. Craig T. Conley, for appellant.