Lupo v. Columbus

[Cite as Lupo v. Columbus, 2014-Ohio-2792.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Marian E. Lupo, :

Appellant-Appellant, :

No. 13AP-1063

v. : (C.P.C. No. 13CVF-05-5909)

City of Columbus, Board of Zoning : (ACCELERATED CALENDAR)

Adjustment et al.,

:

Appellees-Appellees.

:

D E C I S I O N

Rendered on June 26, 2014

Marian E. Lupo, pro se.

Richard C. Pfeiffer, Jr., City Attorney, and Westley M.

Phillips, for appellee City of Columbus, Board of Zoning

Adjustment.

Isaac Wiles Burkholder & Teetor LLC, and Aaron M.

Glasgow, for appellee.

APPEAL from the Franklin County Court of Common Pleas

KLATT, J.

{¶ 1} Appellant-appellant, Marian E. Lupo, appeals a judgment of the Franklin

County Court of Common Pleas dismissing Lupo's appeal of an order of appellee-appellee,

City of Columbus, Board of Zoning Adjustment ("BZA"). For the following reasons, we

reverse and remand that judgment.

{¶ 2} On February 25, 2013, appellee-appellee, 4 Points Development, Inc. ("Four

Points"), requested from the BZA three variances from the requirements of the city's

No. 13AP-1063 2

zoning code. Four Points plans to build a Family Dollar store at 2395 West Broad Street,

which is located in the Hilltop neighborhood of Columbus. Due to the size of the lot and

the desired configuration of the store, Four Points applied for variances to: (1) reduce the

required number of parking spaces from 21 to 17, (2) locate the parking lot on the side of

the principal building instead of behind the principal building, and (3) construct a

building that is 57 percent—not the required 60 percent—of the lot width.

{¶ 3} The BZA held a hearing on Four Points' variance application on April 23,

2013. Lupo appeared and testified at the hearing. Lupo represented to the BZA that she

lived approximately 400 feet from 2395 West Broad Street, the site of the proposed

development. Lupo primarily objected to the variances because she believed that Four

Points had not given the Hilltop community enough opportunity to express concerns

about, and opposition to, the proposed development. Lupo also contended that proposed

development would create a hazard to pedestrians and increase the traffic and noise in the

neighborhood.

{¶ 4} At the conclusion of the hearing, the BZA orally voted to approve the

requested variances. On May 1, 2013, a Department of Development staff member

certified the written order, entitled "Board Order," that approved the requested variances.

{¶ 5} Lupo appealed the BZA's order to the trial court on May 29, 2013. After

filing a copy of the administrative record with the trial court, the BZA moved to dismiss

the appeal. The BZA argued that the trial court lacked subject-matter jurisdiction over the

appeal, and that Lupo lacked standing to assert the appeal. Lupo responded to that

motion and attached an affidavit, wherein she testified that the BZA's order would cause

increased traffic and deny her ingress to her property. Lupo claimed she had standing

because those two adverse effects would diminish her property value.

{¶ 6} While the motion to dismiss was pending, Lupo filed a motion for an

evidentiary hearing to supplement the administrative record. Lupo supported her motion

with an affidavit, in which she testified that: (1) the BZA's three-minute time limit for

testimony did not permit her to present all of her arguments; (2) she was not permitted to

offer, examine, and cross-examine witnesses at the BZA hearing; (3) she was not

permitted to offer evidence to refute evidence and testimony offered at the BZA hearing to

oppose her arguments; (4) she was unable to present evidence by reason of BZA's inability

No. 13AP-1063 3

to subpoena witnesses and evidence; and (5) the BZA failed to submit to the trial court

conclusions of fact supporting its order. Lupo argued that, under R.C. 2606.03, these

deficiencies entitled her to submit additional evidence. If allowed the opportunity to do

so, Lupo planned to submit testimony from an expert witness that her property value

would decrease as a result of the BZA's order.

{¶ 7} In a judgment dated December 2, 2013, the trial court granted the BZA's

motion to dismiss on the basis that Lupo lacked standing to pursue the appeal. The trial

court did not address the BZA's argument that the court lacked subject-matter jurisdiction

over the appeal, nor did the trial court rule on Lupo's motion for an evidentiary hearing.

{¶ 8} Lupo now appeals from the December 2, 2013 judgment, and she assigns

the following errors:

I. THE TRIAL COURT ERRED IN GRANTING THE

CIV.R. 12(B)(6) MOTION IN FAVOR OF APPELLEE AS THE

TRIAL COURT APPLIED THE IMPROPER STANDARD OF

REVIEW ON A CIV.R.12(B)(6) [sic] MOTION TO DISMISS

FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF

MAY BE GRANTED.

II. THE TRIAL COURT ERRED IN GRANTING THE

CIV.R. 12(B)(6) MOTION IN FAVOR OF APPELLEE AS THE

TRIAL COURT IMPROPERLY CONVERTED THE

CIV.R. 12(B)(6) MOTION TO A CIV.R. 56 MOTION BY

RELYING ON STATEMENTS OUTSIDE THE PLEADINGS.

III. THE TRIAL COURT ERRED IN GRANTING THE CIV.R.

12(B)(6) MOTION IN FAVOR OF APPELLEE AS THE TRIAL

COURT IMPROPERLY CONVERTED THE CIV.R. 12(B)(6)

MOTION TO A CIV.R. 56 MOTION WITHOUT PROVIDING

THE REQUIRED CIV.R. 56(C) NOTICE OF CONVERSION.

IV. THE TRIAL [sic] THE TRIAL COURT ERRED IN

GRANTING THE CIV.R. 12(B)(6) MOTION IN FAVOR OF

APPELLEE AS THE TRIAL COURT IMPROPERLY

CONVERTED THE CIV.R. 12(B)(6) MOTION TO A CIV.R. 56

MOTION AND APPLIED THE INCORRECT STANDARD OF

REVIEW.

V. THE TRIAL COURT ERRED IN FAILING TO PROVIDE

THE EVIDENTIARY HEARING REQUESTED BY

APPELLANT PURSUANT TO O.R.C. § 2506.03(A).

No. 13AP-1063 4

{¶ 9} Before considering Lupo's assignments of error, we must address Four

Points' argument that the trial court lacked subject-matter jurisdiction over Lupo's

appeal. " 'Subject-matter jurisdiction of a court connotes the power to hear and decide a

case upon its merits' and 'defines the competency of a court to render a valid judgment in

a particular action.' " Cheap Escape Co. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-

Ohio-6323, ¶ 6, quoting Morrison v. Steiner, 32 Ohio St.2d 86, 87 (1972). Because a

court without subject-matter jurisdiction lacks the power to adjudicate the merits of a

case, parties may challenge jurisdiction at any time during the proceedings. Pratts v.

Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 11. Whether a trial court possessed

subject-matter jurisdiction is a question of law, which we consider de novo. John Roberts

Mgt. Co. v. Obetz, 188 Ohio App.3d 362, 2010-Ohio-3382, ¶ 8 (10th Dist.).

{¶ 10} Article IV, Section 4(B) of the Ohio Constitution provides, "The courts of

common pleas * * * shall have * * * such powers of review of proceedings of administrative

officers and agencies as may be provided by law." Pursuant to this authority, the General

Assembly enacted R.C. 2506.01, which permits parties to appeal the final orders,

adjudications, and decisions of political subdivisions that result from a quasi-judicial

proceeding in which notice, a hearing, and the opportunity for the introduction of

evidence have been given. AT&T Communications of Ohio, Inc. v. Lynch, 132 Ohio St.3d

92, 2012-Ohio-1975, ¶ 8. R.C. 2506.01(A) states:

Except as otherwise provided in sections 2506.05 to 2506.08

of the Revised Code, and except as modified by this section

and sections 2506.02 to 2506.04 of the Revised Code, 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.

As used in R.C. 2506.01(A), "final order, adjudication, or decision" means "an order,

adjudication, or decision that determines rights, duties, privileges, benefits, or legal

relationships of a person." R.C. 2506.01(C).

{¶ 11} Here, no party disputes that the BZA is an agency of the city of Columbus,

which is a political subdivision of the state. Additionally, all parties agree there is a final

No. 13AP-1063 5

order of the BZA that granted zoning variances to Four Points. Based on these

undisputed facts, we conclude that R.C. 2506.01 allowed appeal of the BZA's final order.

{¶ 12} Even if R.C. 2506.01 provides a right to appeal, a common pleas court does

not acquire subject-matter jurisdiction over the appeal unless and until the appeal is

perfected. Lynch at ¶ 17. When a statute confers the right to appeal, an appeal can be

perfected only in the manner prescribed by the applicable statute. Welsh Dev. Co., Inc. v.

Warren Cty. Regional Planning Comm., 128 Ohio St.3d 471, 2011-Ohio-1604, ¶ 14.

Where a party appeals pursuant to R.C. 2506.01, R.C. 2505.04 and 2505.07 govern the

manner in which the party must perfect the appeal. According to R.C. 2505.04,

administrative appeals are "perfected when a written notice of appeal is filed * * * with the

administrative officer, agency, board, department, tribunal, commission, or other

instrumentality involved." R.C. 2505.07 prescribes the time period for perfecting an

appeal and provides, "After the entry of a final order of an administrative officer, agency,

board, department, tribunal, commission, or other instrumentality, the period of time

within which the appeal shall be perfected, unless otherwise provided by law, is thirty

days." Failure to file a written notice of appeal with the instrumentality involved within

30 days of the entry of a final order deprives a common pleas court of subject-matter

jurisdiction over the appeal.

{¶ 13} Here, Four Points argues that the trial court lacked jurisdiction because

Lupo did not file her appeal within 30 days of the oral vote taken on April 23, 2013. Four

Points contends that the BZA's oral vote was a "final action" that triggered the 30-day

appeal period.

{¶ 14} As we stated above, R.C. 2506.01 authorizes an appeal to a common pleas

court from every "final order, adjudication, or decision" of an administrative agency of a

political subdivision. The 30-day period in which to file that appeal begins when an

administrative agency enters a final order, adjudication, or decision. R.C. 2505.07. Here,

although the BZA orally voted to approve the variances on April 23, 2013, the document

designated as the "Board Order" was not certified until May 1, 2013. The issuance of that

written order triggered the running of the appeal time. McGath v. Hamilton Local School

Dist., 10th Dist. No. 10AP-340, 2010-Ohio-5445, ¶ 14-16. Lupo, therefore, had 30 days

from May 1, 2013—a period which ended May 31, 2013—to perfect her appeal.

No. 13AP-1063 6

{¶ 15} To succeed in perfecting her appeal, Lupo had to file a written notice of

appeal with the BZA. R.C. 2505.04. Filing occurs when an appellant actually and timely

delivers the written notice of appeal to the correct tribunal. Welsh Dev. Co. at ¶ 38. An

appellant "may use any method reasonably certain to accomplish delivery to the agency

within the required 30 days, which is filing that satisfies the jurisdictional requirement for

an administrative appeal." Id. at ¶ 40.

{¶ 16} Here, Lupo adduced affidavit testimony establishing that she personally

delivered a copy of her notice of appeal to the clerk at the front desk of the BZA on May 31,

2013. Appellees do not dispute this fact. Consequently, we conclude that Lupo timely

perfected her appeal. The trial court, therefore, had subject-matter jurisdiction over

Lupo's appeal.

{¶ 17} We now turn to Lupo's assignments of error. Because they are interrelated,

we will address Lupo's first through fourth assignments of error together. By these

assignments of error, Lupo argues that the trial court failed to properly apply

Civ.R. 12(B)(6) when deciding the motion to dismiss. As Civ.R. 12(B)(6) does not pertain

to R.C. 2506.01(A) appeals, we find no such error.

{¶ 18} The Ohio Rules of Civil Procedure, "to the extent that they would by their

nature be clearly inapplicable, shall not apply to procedure (1) upon appeal to review any

judgment, order or ruling." Civ.R. 1(C). As a general matter, Civ.R. 12(B)(6) permits a

defendant to file a motion to dismiss asserting the defense that the plaintiff has failed to

state a claim upon which relief can be granted. "[S]uch a motion has no place in an

appeal." State ex rel. Soley v. Dorrell, 69 Ohio St.3d 514, 515 (1994). Appellate

proceedings do not commence with a claim, so an appellant's failure to state a claim is not

a basis for dismissal of an appeal. When a common pleas court adjudicates an

R.C. 2506.01 appeal, it " ' performs an appellate function.' " Lynch, 132 Ohio St.3d 92,

2012-Ohio-1975, at ¶ 15, quoting Dvorak v. Athens Mun. Civ. Serv. Comm., 46 Ohio St.2d

99, 103 (1976). Civ.R. 12(B)(6), therefore, is clearly inapplicable in R.C. 2506.01 appeals.

Horner v. Bd. of Washington Twp. Trustees, 12th Dist. No. CA2011-02-008, 2011-Ohio-

5871, ¶ 29.

{¶ 19} The inapplicability of Civ.R. 12(B)(6) to R.C. 2506.01 appeals does not

preclude an appellee from moving for dismissal, or the trial court from granting such a

No. 13AP-1063 7

motion, on the ground that the appellant lacks standing. Civ.R. 7(B)(1) permits parties to

make motions seeking court orders. Such a motion must state with particularity the

grounds for the motion and set forth the relief or order sought. Id. Unlike

Civ.R. 12(B)(6), Civ.R. 7(B)(1) is not, by its nature, clearly inapplicable to appellate

proceedings. The Ohio Rules of Appellate Procedure include App.R. 15—a rule similar to

Civ.R. 7(B)(1)—that allows the filing of motions.

{¶ 20} Furthermore, trial courts have inherent authority to manage their own

dockets and the cases before them. State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 2007-

Ohio-2882, ¶ 23; Flynn v. Flynn, 10th Dist. No. 03AP-612, 2004-Ohio-3881, ¶ 10. Trial

courts, therefore, possess the innate ability to rule on a motion to dismiss for lack of

standing. Thus, Civ.R. 7(B)(1) enabled the BZA to file its motion to dismiss, and the trial

court's inherent power supplied the court with the authority to entertain and rule on that

motion.

{¶ 21} Neither the BZA's motion nor the trial court's decision relied on

Civ.R. 12(B)(6). The trial court, therefore, did not err by eschewing the Civ.R. 12(B)(6)

standard and the procedural requirements for converting a Civ.R. 12(B)(6) motion to a

summary judgment motion. Accordingly, we overrule Lupo's first through fourth

assignments of error.

{¶ 22} By her fifth assignment of error, Lupo argues that the trial court erred in

failing to provide her with an evidentiary hearing pursuant to R.C. 2506.03(A). We agree.

{¶ 23} The trial court granted the BZA's motion to dismiss without ruling on

Lupo's motion for an evidentiary hearing. Ordinarily, when a trial court decides a case

without expressly ruling on a pending motion, an appellate court will presume that the

trial court denied the motion. Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985,

¶ 13; Burkhart v. Burkhart, 191 Ohio App.3d 169, 2010-Ohio-5363, ¶ 30 (10th Dist.). We,

therefore, will presume that the trial court denied Lupo's motion and address whether

that denial constituted reversible error.

{¶ 24} In R.C. 2506.01 appeals, "the officer or body from which the appeal is

taken * * * shall prepare and file in the court to which the appeal is taken [ ] a complete

transcript of all the original papers, testimony, and evidence offered, heard, and taken

into consideration in issuing the final order, adjudication, or decision." R.C. 2506.02.

No. 13AP-1063 8

Generally, a common pleas court is confined to that administrative record.

R.C. 2506.03(A). However, the court may admit and consider new evidence if the

appellant establishes that one of the following applies:

(1) The transcript does not contain a report of all evidence

admitted or proffered by the appellant.

(2) The appellant was not permitted to appear and be heard

in person, or by the appellant's attorney, in opposition to the

final order, adjudication, or decision, and to do any of the

following:

(a) Present the appellant's position, arguments, and

contentions;

(b) Offer and examine witnesses and present evidence in

support;

(c) Cross-examine witnesses purporting to refute the

appellant's position, arguments, and contentions;

(d) Offer evidence to refute evidence and testimony offered in

opposition to the appellant's position, arguments, and

contentions;

(e) Proffer any such evidence into the record, if the admission

of it is denied by the officer or body appealed from.

(3) The testimony adduced was not given under oath.

(4) The appellant was unable to present evidence by reason of

a lack of the power of subpoena by the officer or body

appealed from, or the refusal, after request, of that officer or

body to afford the appellant opportunity to use the power of

subpoena when possessed by the officer or body.

(5) The officer or body failed to file with the transcript

conclusions of fact supporting the final order, adjudication, or

decision.

R.C. 2506.03(A)(1) to (5). Even if an exception is applicable, the moving party is not

entitled to a de novo hearing; instead, the purpose of R.C. 2506.03 is to allow a common

pleas court to "fill in the gaps" in the administrative record. Hirsi v. Franklin Cty. Dept.

No. 13AP-1063 9

of Job & Family Servs., 10th Dist. No. 13AP-39, 2014-Ohio-1804, ¶ 44; Moody v.

Westerville City School Dist. Bd. of Edn., 10th Dist. No. 07AP-551, 2008-Ohio-591, ¶ 14.

{¶ 25} Here, Lupo sought a hearing, in part, because she recognized that she could

not establish her standing to appeal with the evidence in the administrative record. In

deciding a standing issue, a court resolves " 'whether a litigant is entitled to have a court

determine the merits of the issues presented.' " State ex rel. Teamsters Local Union No.

436 v. Bd. of Cty. Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, ¶ 10, quoting Ohio

Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320 (1994). While R.C. Chapter 2505

specifies the method for perfecting an R.C. 2506.01 appeal, neither it nor R.C. Chapter

2506 explicitly "address[es] the question of who has standing to bring" a R.C. 2506.01

appeal. (Emphasis sic.) Willoughby Hills v. C. C. Bar's Sahara, Inc., 64 Ohio St.3d 24,

26 (1992). Thus, we must examine precedent from the Supreme Court of Ohio to answer

that question.

{¶ 26} In Roper v. Bd. of Zoning Appeals, 173 Ohio St. 168 (1962), the Supreme

Court first addressed whether a person other than an applicant for a zoning change had

standing to appeal an administrative zoning order. The court found it "contrary to the

intention of the Legislature" to limit standing to an applicant only. Id. at 173. The court

held that:

[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 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.

Id. at syllabus.

{¶ 27} The Supreme Court next considered the issue of third-party standing in

Schomaeker v. First Natl. Bank, 66 Ohio St.2d 304, 311-12 (1981), where it limited

standing to appeal under R.C. 2506.01 to those "directly affected" by an administrative

decision. The court found that:

No. 13AP-1063 10

[a] person owning property contiguous to the proposed use

who has previously indicated an interest in the matter by a

prior court action challenging the use, and who attends a

hearing on the variance together with counsel, is within that

class of persons directly affected by the administrative

decision and is entitled to appeal under R.C. Chapter 2506.

Id. at paragraph two of the syllabus.

{¶ 28} In Willoughby Hills, the Supreme Court summarized its prior holdings,

stating that "[a]jacent or contiguous property owners who oppose and participate in the

administrative proceedings concerning the issuance of a variance" have standing to seek

appellate review under R.C. 2506.01. Id. at 26. The Supreme Court also clarified what it

meant by the "directly affected" language it used in Schomaeker. It explained:

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.

Willoughby Hills at 27.

{¶ 29} The synthesis of these cases results in the conclusion that a third-party

property owner has standing to appeal an administrative zoning order under R.C. 2506.01

when that property owner: (1) has opposed the proposed zoning change through active

participation at the administrative hearing and (2) has been directly affected by the

administrative zoning order. Safest Neighborhood Assn. v. Athens Bd. of Zoning

Appeals, 4th Dist. No. 12CA32, 2013-Ohio-5610, ¶ 24. We reject Four Points' contention

that an appellant must also announce at the administrative hearing his or her intention to

appeal an adverse decision. Although the appellant in Roper took that action, neither

Schomaeker nor Willoughby Hills included voicing one's intention to appeal as a

requirement for standing. See Safest Neighborhood Assn. at ¶ 30 ("[W]e do not read the

Court's statement in Roper as an exhaustive list of requirements that a third party must

meet to have standing to appeal an administrative agency's decision. Rather, we view this

No. 13AP-1063 11

statement as descriptive of Roper's actions in that case, not prescriptive as [the appellant]

contends.").

{¶ 30} As articulated in Willoughby Hills, an administrative order directly affects a

party when that party can demonstrate a unique injury caused by the administrative

order. Id. at 27. Generally, concerns about increased traffic are shared equally by the

public at large, and, consequently, such concerns do not engender a unique harm that

establishes standing. Kurtock v. Cleveland Bd. of Zoning Appeals, 8th Dist. No. 100266,

2014-Ohio-1836, ¶ 11; Safest Neighborhood Assn. at ¶ 26; Groffre Invests. v. Canton Bd.

of Zoning Appeals, 5th Dist. No. 2012-CA-00091, 2013-Ohio-1227, ¶ 21; Citizens Against

Blasting on Our Miami v. Anderson Twp. Bd. of Zoning Appeals, 1st Dist. No. C-120011,

2012-Ohio-6145, ¶ 22. On the other hand, evidence that an appellant's property value

may decrease due to an administrative decision demonstrates a direct effect sufficient to

confer standing. Kurtock at ¶ 11; Safest Neighborhood Assn. at ¶ 26; Groffre Invests. at

¶ 21; Citizens Against Blasting on Our Miami at ¶ 18; Westgate Shopping Village v.

Toledo, 93 Ohio App.3d 507, 514 (6th Dist.1994).

{¶ 31} Here, the administrative record demonstrates that Lupo expressed her

opposition to the variances sought by Four Points during the BZA hearing. Lupo,

therefore, established the first element necessary to prove standing. However, beyond

Lupo's testimony that she owns property located 400 feet from the site of the proposed

development, the administrative record contains no evidence relevant to whether the

BZA's order will directly affect Lupo.1 Recognizing this gap in the evidence, Lupo tried to

correct it through an affidavit in which she alleged that the variances granted in the BZA's

order will cause traffic changes and deny her ingress to her property, which will, in turn,

diminish her property value.

{¶ 32} In addition to submitting her affidavit testimony, Lupo moved for an

evidentiary hearing pursuant to R.C. 2606.03. Lupo identified multiple shortcomings in

1

Appellees contest Lupo's representation that she lives 400 feet from the proposed development. The

BZA alleges that Lupo's property is approximately 2,250 feet from the development site. Four Points

calculates the distance at .42 miles, which converts to 2,217.6 feet. Neither the BZA nor Four Points has

adduced any evidence to support these figures. At oral argument, Lupo told this court that her property is

1,600 feet from 2395 West Broad Street. Our purview does not include deciding factual disputes in the

first instance. Consequently, we decline to determine the distance between Lupo's property and the

proposed development.

No. 13AP-1063 12

the administrative hearing, including those specified in R.C. 2606.03(A)(2)(b), (c), and

(d). If granted an opportunity to present supplemental evidence, Lupo stated that she

planned to submit expert testimony showing a decrease in her property value due to the

BZA's order.

{¶ 33} In granting the motion to dismiss, the trial court criticized Lupo for failing

to present any evidence of a unique harm at the BZA hearing. Although the trial court

discussed the allegations of diminution of property value that appeared in Lupo's

affidavit, it rejected them as evidence establishing Lupo's standing. The reason for that

rejection is unclear. To the extent that the trial court found that a decrease in property

value is not a unique injury that confers standing, the trial court erred. As we discussed

above, a diminution in property value is a direct adverse effect that, together with active

opposition at an administrative hearing, creates standing. Alternatively, the trial court

could have found Lupo's affidavit testimony insufficient or not credible. That finding is

problematic because the trial court effectively denied Lupo the opportunity to strengthen

the evidence that the value of her property will decrease.

{¶ 34} In American Aggregates Corp. v. Columbus, 66 Ohio App.3d 318 (10th

Dist.1990), we faced a scenario similar to that presented by this appeal. There, a third-

party property owner sought to appeal an administrative order granting a zoning variance

under R.C. 2506.01. The trial court granted the appellees' motions to dismiss the appeal

on the basis that the appellant lacked standing. The appellant had moved to present

supplemental evidence pursuant to R.C. 2606.03, but the trial court did not rule on that

motion.

{¶ 35} On appeal, the appellant argued that it had standing because it had property

and contractual rights that the zoning variance adversely affected. The appellees

contended that neither the trial court nor this court could consider that argument because

the administrative record contained no evidence to support it. After reviewing the

administrative record, we concluded that a deficiency in the administrative hearing

entitled the appellant to an evidentiary hearing under R.C. 2606.03. Consequently, we

held that "it was error to dismiss appellant's appeal for lack of standing without granting

appellant's motion to present additional evidence." Id. at 323.

No. 13AP-1063 13

{¶ 36} Like the administrative record in American Aggregates Corp., the

administrative record here shows at least one deficiency identified in R.C. 2606.03;

namely, Lupo lacked the opportunity to offer and examine witnesses at the BZA hearing.

Lupo has proffered that, if provided an evidentiary hearing, she would supplement the

record with expert testimony establishing the facts necessary to prove her allegations of a

unique injury due to the devaluation of her property. Applying American Aggregates

Corp., we conclude that the trial court erred by dismissing Lupo's appeal for lack of

standing without giving her an opportunity to present that evidence.2 Accordingly, we

sustain Lupo's fifth assignment of error.

{¶ 37} For the foregoing reasons, we overrule Lupo's first, second, third, and fourth

assignments of error, and we sustain Lupo's fifth assignment of error. We reverse the

judgment of the Franklin County Court of Common Pleas, and we remand this matter to

that court so that Lupo may present expert testimony showing a diminution in the value

of her property as a consequence of the BZA's order.

Judgment reversed; cause remanded with instructions.

CONNOR and LUPER SCHUSTER, JJ., concur.

2 In her motion for a hearing, Lupo also sought to introduce evidence on the merits of her appeal. Our

finding of error implicates only the standing question. Therefore, on remand, the hearing should focus

solely on standing.