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

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City of Willoughby Hills, Appellant, v. C. C. Bar's Sahara,

Inc., Appellee.

[Cite as Willoughby Hills v. C. C. Bar's Sahara, Inc.

(1992), Ohio St.3d .]

Municipal corporations -- Charter allows municipality to

seek appellate review of determinations made by its board of

zoning appeals -- Municipality has standing pursuant to R.C. 2506.01

to "attack or void" such decisions in the common pleas 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.)

(Nos. 91-416 and 91-887 -- Submitted January 22, 1992 -- Decided

June 17, 1992.)

Appeal from and Certified by the Court of Appeals for Lake

County, No. 90-L-14-048.

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, 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, for

appellant.

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

appellee.

Calfee, Halter & Griswold, John E. Gotherman and Marilyn G. Zack,

urging reversal for amicus curiae, Ohio Municipal League.

Holmes, J. The issue certified for our review is whether a

municipality has standing to file a d

irect 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, 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, 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 wa

s 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. 2506.0l 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. 2506.0l

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 Gold

Coast Realty v. Bd. of Zoning Appeals (1971), 26 Ohio St.2d 37, 41, 55

O.O.2d 20, 23, 268 N.E.2d 280, 282:

"These sections [R.C. 2506.01 through 2506.04] set forth the

procedure for appeals from administrative officers and agencies to

the courts. A perusal of R.C. Chapter 2506 discloses nothing which would

prohibit the city or commissioner of building from appealing adverse rulings

of the Cleveland Board of Zoning Appeals, so long as such rulings are among

those prescribed by R.C. 2506.0l."2 (Emphasis added.)

In dismissing Willoughby Hills' administrative appeal, the

court of common pleas, and later the court of appeals, relied

primarily upon two cases. The first case is State, ex rel. Broadway

Petroleum Corp., v. Elyria (1969), 18 Ohio St.2d 23, 47 O.O.2d 149,

247 N.E.2d 471. The second and more recent decision relied upon

is Kasper v. Coury (1990), 51 Ohio St.3d 185, 555 N.E.2d 310.

However, the court of appeals failed to observe that neither of

these two cases prohibits Willoughby Hills from filing an

administrative appeal.

In Broadway Petroleum, a relator, whose request for a

building permit was granted by the board of zoning appeals, filed

a petition in mandamus aga

inst the city of Elyria, its building inspector and its mayor

("respondents"), requiring them to comply with the board's

determination that the permit be issued.3 The respondents

challenged the writ of mandamus by appealing to the court of

appeals, which reversed the order issuing the writ. We concluded

that the judgment of the court of appeals was in error because it

"erroneously authorized an attack upon a decision that the Elyria

Board of Zoning Appeals was authorized to make." Id., 18 Ohio

St.2d at 26, 47 O.O.2d at 151, 247 N.E.2d at 474. Specifically,

we held:

"*** [W]here legislation, including the city's charter and its

ordinances, has specifically provided for the review by a city

board of zoning appeals of the determination of its building

inspector in refusing a building permit, neither the building

inspector, the city nor its mayor may attack or avoid in judicial

proceedings a decision of that board, except as authorized by

legislation to do so." (Emphasis added.) Id. at 32, 47 O.O.2d at

154, 247 N.E.2d at 477.

In Kasper, this court revisited Broadway Petroleum and

applied its holding to a situation, similar to the one in the

case at bar, where a township zoning inspector's administrative

appeal of a board of zoning appeals' decision to grant a variance

was dismissed by the common pleas court for lack of standing.

Essentially, the issue presented for our review in Kasper was

"whether R.C. 519.24 provides a township zoning inspector or

township board of trustees the right to appeal a decision of the

board of zoning appeals to the court of common pleas." Kasper,

supra, at 186, 555 N.E.2d at 311. We recognized that Broadway

Petroleum created an exception which would permit the

administrative official to seek appellate review as long as such

right was legislatively authorized. Id. at 187, 555 N.E.2d at

312. In particular, Kasper focused its attention on interpreting

whether R.C. 519.24 was the "legislation" referred to in Broadway

Petroleum which authorized the township trustees to file an

administrative appeal. We concluded in Kasper at 188, 555 N.E.2d

at 313, that R.C. 519.24 neither explicitly nor implicitly

provided the necessary legislative authority to allow for an

appeal of the board's decision and, as a consequence, the

township trustees or zoning inspector did not have the authority

to "attack" a decision of the board of zoning appeals.

Thus, Kasper is distinguishable from the instant appeal in

that we are now faced with ascertaining the legal effect to be

given to a municipality's charter. Unlike Kasper, in the case

sub judice we are presented with the Charter of the city of

Willoughby Hills, which provides the requisite legislation to

enable the city to appeal adverse rulings of its board of zoning

appeals to the common pleas court. Specifically, pursuant to

Sections 3 and 7, Article XVIII of the Ohio Constitution, 4

Willoughby Hills adopted a home-rule charter which empowered the

city to enact and enforce comprehensive zoning regulations

independent of any statutory provisions which authorize municipal

zoning. In accordance with the authority set forth in Section 5.1

of the charter,5 Willoughby Hills promulgated a Master Plan and

comprehensive zoning ordinances for the protection of its

residents by providing for the development, physical character

and future growth of the municipality. The charter also

established a board of building and zoning appeals in Section

5.3, upon which was conferred exclusive authority within the

municipality to grant exceptions to or variances from the zoning

ordinances or building codes. However, Section 5.33 of the

charter specifically authorized Willoughby Hills to attack or

avoid decisions of the board of building and zoning appeals, as

follows:

"Finality of Decisions. Decisions of

the Board of Building and Zoning Appeals shall be final within

the Municipality, except that an appeal therefrom may be taken to

any court of record in accordance with the laws of the State of

Ohio, by any proper and interested party including the

Municipality." (Emphasis added.)

Accordingly, we hold that 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. Alternatively,

in the absence of a charter provision or ordinance which

expressly provides for appellate review to the common pleas

court, the municipality may only defend a decision of the board

of zoning appeals on appeal to the common pleas court. See

Kasper, supra, at paragraph two of the syllabus.

As we have previously seen, a statutory or constitutional

grant is necessary before a party can make use of the state court

system. See Roper, supra. The Charter of the city of Willoughby

Hills could not grant a right to such appellate review had the

General Assembly not enacted R.C. Chapter 2506. Absent R.C.

2506.01, the final order of the board of zoning appeals could not

be reviewed by the common pleas court regardless of which party,

the property owner or the municipality, was aggrieved. However,

in the instant case, we have determined the General Assembly by

enacting R.C. 2506.01 provided a mechanism for appeals, thereby

allowing the municipality to appeal under its own charter.

Section 5.33 of the Willoughby Hills Charter specifically

authorized the city to avail itself of an R.C. Chapter 2506

administrative appeal in the common pleas court from the decision

of its own board of building and zoning appeals.

We recognize that Section 5.33 demonstrates appellant's

fundamental interest in protecting the integrity of its zoning

ordinances. Illegal variances undermine legitimate municipal

objectives implemented by comprehensive zoning ordinances. A

decision by a board of zoning appeals which allows a variance to

expand to an area greater than that which is otherwise permitted

by zoning ordinances is, in effect, a legislative act done by a

quasi-judicial body. See Schomaeker, supra, at 312, 20 O.O.3d at

290, 421 N.E.2d at 537. ("The decision of a planning commission

granting a use variance is made in a judicial capacity, and the

reasonableness of such decision is subject to appeal pursuant to

R.C. 2506.01 and 2506.04.") The purpose behind R.C. Chapter 2506

is to authorize judicial review of local quasi-judicial decisions

that are "unconstitutional, illegal, arbitrary, capricious,

unreasonable, or unsupported by the preponderance of substantial,

reliable, and probative evidence on the whole record. ***" R.C.

2506.04. Allowing a municipal corporation standing to appeal to

the common pleas court when its board of zoning appeals either

exceeds its limited jurisdiction or misapplies the standards

established for the granting of variances is certainly within the

purview of R.C. 2506.01.

Accordingly, for the foregoing reasons, we reverse the

judgment of the court of appeals and hold that where permitted by

charter or ordinance, R.C. 2506.01 does not prohibit a

municipality from seeking appellate review of an adverse decision

of its board of zoning appeals. The cause is remanded to the

trial court for further proceedings.

Judgment reversed

and cause remanded.

Moyer, C.J., Sweeney, Wright and Resnick, JJ., concur.

Douglas, J., concurs in judgment only.

H. Brown, J., dissents.

FOOTNOTES:

1 The syllabus in Roper provides:

"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 p

rotests 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 of 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."

2 The reference to "such rulings" in Gold Coast Realty is to

final orders, adjudications, or decisions, which were defined in

former R.C. 2506.01. The statute now reads:

"A 'final order, adjudication, or decision' means an order,

adjudication, or decision that determines rights, duties,

privileges, benefits, or legal relationships of a person, but

does not include any order, adjudication, or decision from which

an appeal is granted by rule, ordinance, or statute to a higher

administrative authority if a right to a hearing on such appeal

is provided, or any order, adjudication, or decision that is

issued preliminary to or as a result of a criminal proceeding."

3 The Broadway Petroleum opinion, 18 Ohio St.2d at 32, 47

O.O. 2d at 154, 247 N.E. 2d at 477, expressly reserved the

question of whether R.C. Chapter 2506 authorizes an

administrative official, or the city itself, to bring an appeal

from an adverse determination of the ultimate administrative

authority.

4 Section 3, Article XVIII, Ohio Constitution, provides:

"Municipalities shall have authority to exercise all powers

of local self-government and to adopt and enforce within their

limits such local police, sanitary and other similar regulations,

as are not in conflict with general laws. (Adopted September 3,

1912.)"

Section 7, Article XVIII, Ohio Constitution, provides::

"Any municipality may frame and adopt or amend a charter for

its government and may, subject to the provisions of section 3 of

this article, exercise thereunder all powers of local self-

government. (Adopted September 3, 1912.)"

5 Section 5.13 of the Willoughby Hills Charter, entitled

"The Master Plan," provides as follows:

"The Planning and Zoning Commission shall be responsible for

the preservation and development of the physical character of the

Municipality, and to that end, shall have the power and be

required to make and to present to Council for their

consideration, a Master Plan for the present needs and future

growth and development of the Municipality. Such Master Plan

shall be comprised of existing ordinances and existing maps, a

future land use plan, a public service plan, a street plan, and

such other plans, maps, charts, and descriptive and explanatory

matters as are necessary to show the Commission's recommendations

for the most effective use of the Municipality's resources.

"The Commission shall make such investigations and inquiries

as are necessary to complete this plan and may require information

to be furnished by the Mayor or any office, department or agency

of the Municipality. The Commission may also, within its budget

appropriation, contract for the occasional services of city

planners and other consultants, as it may require. The

Commission shall promote public interest in and understanding of

the Master Plan and of planning, zoning and urban renewal.

"The initial Master Plan shall be completed not later than

January 1, 1972, and thereafter it shall be revised and amended

or extended by the Commission as it deems necessary, providing

that a complete review of the Plan takes place not less than once

every five (5) years."