Hicks v. Union Twp.

[Cite as Hicks v. Union Twp., 2023-Ohio-3828.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

CHRISTOPHER HICKS, :

Appellant, : CASE NO. CA2023-03-014

: OPINION

- vs - 10/23/2023

:

UNION TOWNSHIP, CLERMONT :

COUNTY, BOARD OF TRUSTEES,

:

Appellee.

CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS

Case No. 2022 CVF 1086

Christopher Hicks, pro se.

Bricker Graydon LLP, and Brodi J. Conover, for appellee.

PIPER, P.J.

{¶ 1} Appellant, Christopher Hicks, appeals the decision of the Clermont County

Court of Common Pleas, granting a motion to dismiss in favor of appellee, Union Township,

Clermont County, Board of Trustees ("Board"). The issue on appeal is whether Hicks has

standing to bring an administrative appeal.

Facts and Procedural History

{¶ 2} On October 11, 2022, the Board held a public hearing on an application for

Clermont CA2023-03-014

an amendment to a Planned Development District Plan ("PD Plan") for property located at

4412 Mt. Carmel Tobasco Road, Union Township, Clermont County, Ohio ("Property"). The

amendment would allow a medical marijuana dispensary to operate on the Property.

{¶ 3} The Union Township Development Director began the hearing with the

presentation of a staff report summarizing the proposed amendment, the zoning regulations

applicable to the Property, and recommendations for conditions on the proposed use. The

Development Director concluded that a medical marijuana dispensary is a retail use, which

is a permissible use of the Property pursuant to the PD Plan and Zoning Resolution.

{¶ 4} Following the staff report, the Board heard comments from members of the

public. Hicks spoke during the hearing and questioned whether the location was an

appropriate place for a medical marijuana dispensary. Hicks did not present any evidence

or otherwise claim that the proposed dispensary would impact his property. The Board then

closed the public hearing and deliberated on the amendment. The Board ultimately

approved the amendment by a vote of 2-1.

{¶ 5} Hicks appealed the Board's decision to the Clermont County Court of

Common Pleas. The Board filed a motion to dismiss the administrative appeal based on

Hicks' lack of standing to bring the appeal. Hicks filed a response arguing that the motion

to dismiss was premature. The common pleas court dismissed Hicks' appeal finding he

lacked standing. Hicks filed a timely appeal, raising a single assignment of error for review.

Appeal

{¶ 6} THE CLERMONT COUNTY COURT OF COMMON PLEAS ERRED BY

DISMISSING THE CASE, CLAIMING HICKS LACKED STANDING.

{¶ 7} In his sole assignment of error, Hicks argues the common pleas court erred

by dismissing the case based on lack of standing. It is well established that before an Ohio

court can consider the merits of a legal claim, the person seeking relief must establish

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standing to sue. Ohio Contractors Assn. v. Bicking, 71 Ohio St.3d 318, 320 (1994).

{¶ 8} "Because one cannot appeal an administrative order absent statutory

authority, the trial court has no jurisdiction to hear a case unless authority to appeal is

granted by statute." Alesi v. Warren Cty. Bd. of Commrs, 12th Dist. Warren Nos. CA2013-

12-123, CA2013-12-124, CA2013-12-127, CA2013-12-128, CA2013-12-131, and CA2013-

12-132, 2014-Ohio-5192, ¶ 17. Therefore, standing is a jurisdictional prerequisite that

cannot be waived. Id.

{¶ 9} "The burden of proof to establish standing lies with the party seeking to appeal

and therefore that party must ensure that the record supports his or her claim of standing."

Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 4th Dist. Athens Nos. 12CA32

thru 12CA35, 2013-Ohio-5610, ¶ 20; Kurtock v. Cleveland Bd. of Zoning Appeals, 8th Dist.

Cuyahoga No. 100266, 2014-Ohio-1836, ¶ 10. Whether a party has established standing

to bring an action before the court is a question of law, which we review de novo. Moore v.

Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, ¶ 20.

{¶ 10} The Ohio Supreme Court has delineated standing requirements for third-

party, private-property owners under R.C. 2506.01. Alesi at ¶ 19, citing Roper v. Bd. of

Zoning Appeals, 173 Ohio St. 168, 173 (1962); Schomaeker v. First Natl. Bank, 66 Ohio

St.2d 304 (1981); Willoughby Hills v. C. C. Bar's Sahara, Inc., 64 Ohio St.3d 24, 26 (1992).

First, the property owner must have actively participated in the administrative hearing. Lupo

v. Columbus, 10th Dist. Franklin No. 13AP-1063, 2014-Ohio-2792, ¶ 29. Second, the

property owner must demonstrate that he is "directly affected by the administrative decision"

and the decision will cause him to suffer a harm that is "unique to himself." Alesi at ¶ 19-

21; Willoughby Hills at 27.

{¶ 11} The common pleas court determined Hicks failed to satisfy the second part of

the standing analysis, i.e., a showing that he will suffer a unique harm. The "directly

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affected" requirement is met where the property owner shows some unique harm that is

distinct from the harm suffered by the community at large. Safest Neighborhood at ¶ 25;

Kurtock, 2014-Ohio-1836 at ¶ 11-13. In determining whether a property owner has suffered

unique harm, courts look "'beyond physical proximity to determine if the order constitutes a

determination of the rights, duties, privileges, benefits or legal relationships of a specified

person.'" Citizens Against Blasting on our Miami v. Anderson Twp. Bd. of Zoning Appeals,

1st Dist. Hamilton Nos. C-120011 thru C-120015, 2012-Ohio-6145, quoting Jenkins v.

Gallipolis, 128 Ohio App.3d 376, 382 (4th Dist. 1998).

Analysis

{¶ 12} In the present case, Hicks failed to meet his burden of proof establishing that

he has standing to appeal the Board's decision. It is undisputed that Hicks does not live on

property adjacent or contiguous to 4412 Mt. Carmel Tobasco Road. 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. Philbin v. Cleveland, 8th Dist. Cuyahoga No. 105356, 2017-Ohio-9162, ¶ 22.

{¶ 13} Despite his arguments to the contrary, Hicks has not presented any evidence

that he will be directly affected by the Board's decision. His statements during the hearing

questioned the location of the medical marijuana dispensary referencing nearby homes and

a school in the vicinity, but those are generalized concerns about the community, rather

than concerns that are unique to him. In his response to the motion to dismiss, Hicks

suggested that allowing a medical marijuana dispensary could increase crime or traffic in

the area, which he claims could lower his residential property value. However, he did not

present any evidence to substantiate his assertions. Furthermore, as correctly noted by the

common pleas court "such non-specific, unsupported allegations are too speculative in

nature to establish standing." Helms v. Koncelik, 10th Dist. Franklin No. 08AP-323, 2008-

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Clermont CA2023-03-014

Ohio-5073, ¶ 33 ("[A] mere allegation that property value has been or will be diminished is

not sufficient to sustain an appellant's burden to prove standing").

{¶ 14} On appeal, Hicks argues the common pleas court did not consider his

argument that he has a legally protected interest to ensure the Board follow its zoning laws

in his "unique area of the Township," and that the Board's failure to follow the Zoning

Resolution causes him an "injury in fact." However, Hicks' arguments are not supported by

law. Hicks failed to show that he had unique or distinct harm making him "directly affected"

by the administrative decision. Willoughby Hills, 64 Ohio St.3d at 27. In his reply brief,

Hicks argues that the supreme court's decision in Willoughby Hills should confer standing

to him. Yet, Willoughby Hills involved a municipality's right to appeal where the municipal

charter expressly allowed the municipality to seek appellate review of determinations made

by its board of zoning appeals. Id. at 31. In that decision, the supreme court expressly

recognized the difference between a municipality and a third-party property owner. Id. at

27. Despite Hicks' argument to the contrary, we find nothing in the record to support Hicks'

claim that he has standing. He identifies no unique harm and fails to establish how he is

directly affected by the administrative decision. His arguments to the contrary are simply

conclusory and speculative. Accordingly, we agree with the common pleas court that Hicks

does not have standing.

Conclusion

{¶ 15} For the reasons detailed above, we find the common pleas court did not err

in finding that Hicks lacked standing. Therefore, we find Hicks' sole assignment of error is

without merit and is hereby overruled.

{¶ 16} Judgment affirmed.

M. POWELL and BYRNE, JJ., concur.

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