The opinion
[Cite as Philbin v. Cleveland, 2017-Ohio-9162.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105356
ANDREW P. PHILBIN, ET AL.
PLAINTIFFS-APPELLANTS
vs.
CITY OF CLEVELAND, OHIO, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-851571
BEFORE: E.T. Gallagher, J., Keough, A.J., and Jones, J.
RELEASED AND JOURNALIZED: December 21, 2017
ATTORNEYS FOR APPELLANTS
For Andrew P. Philbin
Doron M. Kalir
Cleveland-Marshall Civil Litigation
Cleveland-Marshall College of Law
2121 Euclid Avenue, LB 138
Cleveland, Ohio 44115
For Luis S. Sandoval
Kenneth J. Kowalski
Cleveland-Marshall Civil Litigation
Cleveland-Marshall College of Law
2121 Euclid Avenue, LB 138
Cleveland, Ohio 44115
Also Listed
Andrew P. Philbin, pro se
Luis S. Sandoval, pro se
1518 West 32nd Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For the City of Cleveland
Barbara A. Langhenry
Law Director
City of Cleveland
BY: Carolyn M. Downey
Assistant City Prosecutor
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
For Triban Investment, L.L.C. and
Knez Construction, Inc.
Gillian Hall
7555 Fredle Drive, Suite 210
Concord, Ohio 44077
EILEEN T. GALLAGHER, J.:
{¶1} Appellants, Andrew P. Philbin and Luis S. Sandoval (“appellants”), appeal
the dismissal of their administrative appeal. Their sole assignment of error states:
The trial court erred by dismissing this administrative appeal for lack of
standing.
{¶2} We find no merit to the appeal and affirm.
I. Facts and Procedural History
{¶3} Appellants own a home in the historic Ohio City neighborhood of Cleveland,
Ohio. In 2015, Triban Investment, L.L.C. (“Triban”) applied for zoning variances to
construct a six-unit, four-story condominium building on property located at 3703-3707
Clinton Avenue, in Cleveland. The property is located in a B1 zoning district, which
limits housing to one or two-family residences under the Cleveland Codified Ordinances
(“C.C.O.”). Appellants’ home is located one block away from the subject property. (Tr.
26.)
{¶4} In August 2015, the Cleveland Board of Zoning Appeals (“the board”) held a
public hearing on Triban’s application. Notice of the public hearing was published as
required by law. Sandoval attended the hearing and identified what he viewed as several
problems with the proposed construction. In his opinion, the six-unit condominium
structure would increase parking difficulties, overburden the sewer system, and adversely
affect government services such as garbage collection and snow removal. He also
testified that he believed the proposed condominiums would diminish the value of
neighboring properties. He stated:
I believe that the granting of the [v]ariances will negatively impact the
property values of nearby homes in the long term, including my home
because they are in direct contradiction to the 20/20 Plan and existing
[o]rdinances that protect the quality of life of the residents of this area of
Cleveland. They prevent unnecessary density from overdevelopment and
promote a responsible project that contributes to the integrity and quality of
life in the neighborhood.
(Tr. 53.) Philbin, who was unable to attend the meeting due to his employment, sent a
letter to the board, which states in relevant part: “I fear that my home value will be
diminished by the construction of condominiums in my historic neighborhood.” Neither
Sandoval, Philbin, nor any other resident, offered expert testimony regarding the impact
the proposed condominiums would have on nearby property values.
{¶5} William Sanderson, an officer of Triban, testified that before Triban applied
for the variances, it worked with the city’s Landmarks Commission to ensure “that the
building is of high quality and high value for the neighborhood” and that it reinforces “the
residential characteristics of the neighborhood.” (Tr.16.) Sanderson also stated that
Triban met with neighbors and that the majority of the neighborhood “block club,” known
as the Clifton/Franklin Block Club, voted in favor of the project. (Tr. 17.)
{¶6} Kerry McCormack, then director of community affairs of Ohio City, Inc. and
a resident who lives directly across the street from the proposed condominiums, stated
that the Clifton/Franklin Block Club approved Triban’s project by a vote of 16 to six.
(Tr. 33, 39.) However, a couple of residents who attended the hearing and also live very
close to the proposed condominiums expressed concern that some members of
Clifton/Franklin Block Club who voted in favor of the project live further away and
would not be directly impacted by it. (Tr. 42.)
{¶7} Ben Trimble, also from Ohio City, Inc., stated that the Ohio City Design
Review Committee supported Triban’s plans for the six-unit condominiums because the
plans have a historic design, and the condominiums would meet the demand for people
who want to live in Ohio City but do not want single family homes. Trimble explained
that the project suits the “character of the neighborhood” in part because the subject
property was once home to a multifamily structure that burned in a fire in the 1970s. (Tr.
37.)
{¶8} Trevor Hunt, a neighborhood planner, explained that the supplemental plans
submitted to the city’s long-term “20/20 Plan” call for more dense populations near
Detroit Road and Lorain Avenue in order to “activate those streets” with retail. In his
opinion, the six-unit condominiums “would support walkability to those establishments
up and down both Detroit and Lorain Avenue.” (Tr. 39.)
{¶9} At the conclusion of the hearing, the five-member board voted unanimously
to grant the variances. Sandoval and Philbin filed a timely notice of appeal to the
Cuyahoga County Court of Common Pleas. Cleveland filed a motion to dismiss their
appeal, arguing that Sandoval and Philbin lacked standing to challenge the board’s
decision because they are not adjacent property owners, and they have not demonstrated
that they will be directly affected by the variances.
{¶10} While the motion was pending, Knez Construction Inc. (“Knez”) filed a
motion to substitute itself as a party to the proceedings, alleging that it was the transferee
of Triban’s interest in the property. The trial court simultaneously granted the motion to
substitute Knez and the city’s motion to dismiss the appeal. In its journal entry
dismissing the appeal, the trial court stated, in relevant part:
Appellees the city of Cleveland and B.R. Knez Construction, Inc.’s motion
to dismiss the appeal are granted. Appellants lack standing to appeal the
Cleveland Board of Zoning Appeals’ (BZA) decision in this case because
they have not demonstrated that they have suffered a unique harm as a
result of the BZA’s decision. * * * A property owner is directly affected
by the decision “when the party can demonstrate a unique harm.” * * *
This injury “must be more than speculation and supported by credible
evidence.” * * * While plaintiffs speculate that the proposed
development will adversely affect their property values, they have failed to
present to this court any credible evidence to support their assertion.
(Judgment entry dated December 29, 2016, quoting Kurtock v. Cleveland Bd. of Zoning
Appeals, 8th Dist. Cuyahoga No. 100266, 2014-Ohio-1836.) Appellants now appeal the
trial court’s judgment.
II. Law and Analysis
{¶11} In their sole assignment of error, appellants argue the trial court erred in
dismissing their administrative appeal for lack of standing.
{¶12} Whether a party has standing to invoke the trial court’s jurisdiction is a
question of law, which we review de novo. Moore v. Middletown, 133 Ohio St.3d 55,
2012-Ohio-3897, 975 N.E.2d 977, ¶ 20, citing Cuyahoga Cty. Bd. of Commrs. v. State,
112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.
{¶13} The right to appeal is neither inherent nor inalienable and must be derived
from some constitutional or statutory authority. Willoughby Hills v. C. C. Bar’s Sahara,
Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203 (1992). R.C. 2506.01 establishes the right
to appeal an administrative decision of a political subdivision that determines “rights,
duties, privileges, benefits or legal relationships of a person * * *.” R.C. 2506.01(C).
However, R.C. 2506.01 does not specifically identify who has standing to appeal
administrative decisions.
{¶14} In Roper v. Bd. of Zoning Appeals, Twp. of Richfield, 173 Ohio St. 168, 180
N.E.2d 591 (1962), the Ohio Supreme Court concluded it would be inappropriate to limit
standing to bring an administrative appeal to parties whose applications for zoning
modification had been denied. The court reasoned that such a “‘heads I win, tails you
lose’” approach would be contrary to the intent of the administrative appeals statute and
“repugnant” to the sensibilities of the court’s majority. Id. at 173. Accordingly, the
Roper court held:
A resident, elector and property owner of a township, who appears before
the 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 the 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. Although we know that Roper was a resident and landowner in the
township, the opinion is silent as to the proximity of his land to the property of the
proposed variance. Nevertheless, the court recognized that Roper “came as a person
whose interests were adversely affected, and he appeared with his lawyer in person in
opposition to a zoning change which would damage Roper and his property.” Id. at 173.
{¶15} In Schomaeker v. First Natl. Bank, 66 Ohio St.2d 304, 311-312, 421 N.E.2d
530 (1981), the court held that an individual whose property was contiguous to the zoning
applicant’s property had standing to challenge a variance because her property was
“directly affected” by it. Id. at 312. The “directly affected” language clarified “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.” Willoughby
Hills, 64 Ohio St.3d at 27, 591 N.E.2d 1203. In Willoughby Hills, the court further
explained this distinction:
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.
Id. Thus, a person owning property contiguous to the proposed use who actively
participates at the hearing on the variance “is within that class of persons directly affected
by the administrative decision and is entitled to appeal under R.C. Chapter 2506.”
Schomaeker at paragraph two of the syllabus; see also Willoughby Hills at 27.
{¶16} The term “contiguous” means “[s]haring an edge or boundary; touching” or
“adjacent.” The American Heritage Dictionary 407 (3d Ed.1996). Schomaeker and
Willoughby Hills establish that while contiguous landowners are within the class of
persons “directly affected” by zoning decisions, landowners “across town” are not.
Appellants’ property is neither contiguous to the proposed condominiums nor “across
town.” Their property falls in the nebulous middle ground between the two.
{¶17} This court has held that a noncontiguous property owner has standing to
appeal an administrative zoning decision if the property owner “actively participated at
the administrative hearing and has been directly affected by the decision.” Kurtock, 8th
Dist. Cuyahoga No. 100266, 2014-Ohio-1836, ¶ 11. In determining whether a property
owner has been “directly affected” by the zoning variance, this court explained:
One is directly affected, as distinguished from the public at large, when the
party can demonstrate a unique harm. * * * For instance, concerns
regarding increased traffic alone have generally been regarded as affecting
the public at large, while evidence showing a diminution in property value
because of an administrative decision has been found to constitute a direct
effect sufficient to confer standing.
Id., citing Safest Neighborhood Assn. v. City of Athens Bd. Of Zoning Appeals, 4th Dist.
Athens Nos. 12CA32, 12CA33, 12CA34, and 12CA35, 2013-Ohio-5610, ¶ 11.
{¶18} Appellants argue they have standing because they participated at the
administrative hearing and the variances will negatively impact their property values.
The city argues that Philbin did not attend the hearing in person and therefore does not
have standing. However, Philbin participated at the hearing through Sandoval as his
representative, who read Philbin’s letter to the board. A written copy of Philbin’s letter
was also submitted to the board. We recognize that zoning boards cannot accommodate
everyone’s schedules, and to preclude someone from participation simply because his
physical presence was not possible is neither practical nor just. Moreover, the city has
not provided any legal authority for its position that an individual must be physically
present in order to “actively participate” at administrative hearings. Therefore, Philbin’s
letter, which was submitted in writing and spoken through a personal representative,
constituted active participation at the hearing.
{¶19} The city also contends, citing Roper, 173 Ohio St. 168, 180 N.E.2d 591, that
appellants failed to actively participate at the hearing because they were not represented
by lawyers. Although the appellant in Roper was represented by counsel at the zoning
hearing, representation by counsel is not a requirement of active participation at such a
hearing. Individuals often represent their own interests pro se. To hold that legal
representation at a zoning hearing is required for standing to file an administrative appeal
would deny many aggrieved citizens access to the courts. Therefore, appellants have
established that they actively participated at the hearing before the Cleveland Board of
Zoning Appeals.
{¶20} The more difficult question is whether appellants are directly affected by the
variances in this case. Appellants contend, quoting the “as the crow flies” language from
the dissenting opinion in Kurtock, that they are directly harmed by the proposed
condominiums due to the close proximity of the condominiums to their home. 1 See
Kurtock, 8th Dist. Cuyahoga No. 100266, 2014-Ohio-1836 (Stewart, J., dissenting).
However, as previously stated, “[o]ne is directly affected, as distinguished from the public
at large, when the party can demonstrate a unique harm.” Id. at ¶ 11.
We note that Kurtock is procedurally distinguishable from the facts of this case. In
1
Kurtock, this court reversed the trial court’s judgment because it failed to address the issue of
standing. In this case, the trial court made a determination that appellants did not have standing.
{¶21} Appellants stated at the hearing that they believed the value of their property
will be negatively impacted by the construction of the six-unit condominium building.
Sandoval testified that while there were no single family homes for sale in the
neighborhood at the time of the hearing, there were four condominiums for sale
“according to the total 4 Realtor lockboxes on the outside of the building * * * on
Franklin and 32nd.” Appellants also provided information regarding recent sale prices of
single-family homes built by Knez. This information was offered to show that the
proposed condominiums are unnecessary because Knez could make a profit by building
single-family homes on the property. However, appellants failed to explain how any of
this evidence related to the impact the six-unit condominium building would have on the
value of their single-family home.
{¶22} Moreover, appellants did not provide any expert evidence to support their
contention that property values will decline if the condominiums are built. To establish
that a noncontiguous property owner is adversely affected by an administrative decision,
the property owner may not rest on speculation, but must support his claims with
competent evidence. Kurtock , 8th Dist. Cuyahoga No. 100266, 2014-Ohio-1836, at ¶
13; see also Zelnick v. Troy City Council, 85 Ohio Misc.2d 67, 684 N.E.2d 381
(C.P.1997) (“[T]estimony by expert witnesses that the value of the appellant’s
noncontiguous property would be reduced by the enactment of a zoning ordinance will
support a finding that an appellant was directly affected by the zoning ordinance.”);
Westgate Shopping Village v.Toledo, 93 Ohio App.3d 507, 514, 639 N.E.2d 126 (6th
Dist.1994) (Shopping center had standing to challenge zoning ordinance that would
expand size of existing mall where evidence showed that, as a result of the ordinance,
“money that would have been spent at Westgate’s shopping center will instead be spent at
the Mall.”); In re Appeal of Jefferson Twp. Bd. of Trustees, 78 Ohio App.3d 493, 605
N.E.2d 435 (10th Dist.1992) (Township trustees lacked standing to challenge annexation
where they failed to provide evidence of “concrete adverse impact” on its legal rights.).
{¶23} Appellants’ statements regarding the potential effect the condominiums may
have on their property value is too speculative and vague to support a conclusion that they
have been uniquely harmed by the variances in this case. Appellants are not real estate
appraisal experts, and they did not provide any evidence concerning projected property
values from an expert with special knowledge in the field of real estate sales and
marketability. Therefore, in the absence of competent, credible evidence that appellants
have been directly affected by the variance, the trial court properly dismissed appellant’s
administrative appeal for lack of standing.
{¶24} Judgment affirmed.
It is ordered that appellees recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
LARRY A. JONES, SR., J., CONCUR