[Cite as Dempsey v. Shawnee Hills, 2015-Ohio-257.]


                                      COURT OF APPEALS
                                  DELAWARE COUNTY, OHIO
                                  FIFTH APPELLATE DISTRICT

FREDRICK DEMPSEY                                        JUDGES:
                                                        Hon. William B. Hoffman, P.J.
        Plaintiff-Appellant                             Hon. W. Scott Gwin, J.
                                                        Hon. Sheila G. Farmer, J.
-vs-
                                                        Case No. 14 CAH 03 0015
VILLAGE OF SHAWNEE HILLS

        Defendant-Appellee                              OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Delware County Court of
                                                     Common Pleas, Case No. 12 CVF 12 1416


JUDGMENT:                                            Reversed and Remanded


DATE OF JUDGMENT ENTRY:                              January 15, 2015


APPEARANCES:


For Plaintiff-Appellant                              For Defendant-Appellee


FREDERICK R. DEMPSEY                                 PAUL-MICHAEL LA FAYETTE
68 Buckeye Drive                                     Poling Law
Powell, Ohio 43065                                   300 East Broad S. Suite 350
                                                     Columbus, Ohio 43215
Delaware County, Case No. 14 CAH 03 0015                                                   2

Hoffman, P.J.


       {¶1}    Plaintiff-appellant Fredrick Dempsey appeals the February 12, 2014

Judgment Entry entered by the Delaware County Court of Common Pleas, which

granted defendant-appellee Village of Shawnee Hills’ (“the Village”) motion to dismiss

for lack of standing.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}    On October 12, 2012, David Armeni filed an application for conditional use

with the Village relating to property adjacent to Dempsey’s property.           Pursuant to

Shawnee       Hills   Ordinance   1133.02(b),   the   Village   sent   a   letter   to   each

“Adjoining/Affected Property Owner”, including Dempsey, which provided notice of the

application as well as the hearing scheduled before the Village Board of Zoning Appeals

(“BZA”) on November 13, 2012.

       {¶3}    Dempsey, a practicing attorney licensed in the State of Ohio, attended the

BZA hearing and verbally opposed the application. At the conclusion of the hearing, the

BZA orally granted the application.       The BZA did not render a written decision.

However, the November 13, 2012 hearing was recorded. Pursuant to R.C. 2506.01,

Dempsey filed a timely appeal of the BZA’s decision to the Delaware County Court of

Common Pleas.

       {¶4}    The Village filed a motion to dismiss for lack of standing. Therein, the

Village argued Dempsey had failed to establish standing during the BZA hearing. Via

Judgment Entry filed February 12, 2014, the trial court granted the Village’s motion to

dismiss.
Delaware County, Case No. 14 CAH 03 0015                                                  3


         {¶5}   It is from this judgment entry Dempsey appeals, raising the following as

error:

         {¶6}   "I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT-

APPELLEE'S MOTION TO DISMISS FOR LACK OF STANDING AND DENIED ALL

OTHER PENDING MOTIONS AS BEING MOOT."

                                                 I

         {¶7}   The issue of standing is a question of law; therefore, is reviewed de novo.

Dinks II Company, Inc. v. Chagrin Falls Village Council, 8th Dist. No. 84939, 2005-Ohio-

2317, at ¶ 16, citing Shelton v. LTC Management Services, 4th Dist. No. 03CA10, 2004-

Ohio-507, at ¶ 5.

         {¶8}   The common-law doctrine of standing provides only those individuals who

can demonstrate a present interest in the subject matter of the litigation and who have

been prejudiced by the decision at issue are entitled to appeal the same. Willoughby

Hills v. C.C. Bar's Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203, 1992-Ohio-111.

The burden of establishing such entitlement rests with the individual seeking to appeal.

Id., see, also, Fahl v. City of Athens, 4th Dist. No. 06CA23, 2007-Ohio-4925, at ¶ 14.

         {¶9}   R.C. 2506.01 specifically limits the right to appeal an administrative

decision to final decisions which determine “rights, duties, privileges, benefits or legal

relationships of a person * * *.” R.C. 2506.01(C). The statute, however, fails to

specifically identify who has standing to appeal administrative decisions.

         {¶10} In Roper v. Bd. of Zoning Appeals, Township of Richfield (1962), 173 Ohio

St. 168, 180 N.E.2d 591, the Ohio Supreme Court determined it would be inappropriate

to limit standing, as it pertains to an administrative appeal, to parties whose applications
Delaware County, Case No. 14 CAH 03 0015                                               4


for zoning modification had been denied. The Court reasoned, 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, 180 N.E.2d 591.

Thus, the Roper Court held standing to appeal an administrative decision lies in an

applicant for a zoning change as well as:

             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.

      {¶11} In Schomaeker v. First Natl. Bank of Ottawa (1981), 66 Ohio St.2d 304,

421 N.E.2d 530, the Court built upon its holding in Roper, supra, stating a party must be

“a person directly affected” by the administrative decision to have standing to appeal

pursuant to R.C. Chapter 2506. Id. at 312. The Schomaeker Court held:

             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.
Delaware County, Case No. 14 CAH 03 0015                                               5

      {¶12} In Willoughby Hills, supra, the Court explained 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. Willoughby Hills, supra, at 27, 591 N.E.2d 1203.

      {¶13} In conjunction with this clarification, the Court in Willoughby Hills

rephrased, but essentially reiterated the requirements set forth in Roper and

Shomaeker, stating: “[a]djacent or contiguous property owners who oppose and

participate in administrative proceedings concerning the issuance of a variance are

equally entitled to seek appellate review under R.C. 2504.01.” Id. at 26, 180 N.E.2d 591.

      {¶14} The trial court ruled Dempsey lacked standing to bring the appeal, finding,

although Dempsey was present and actively participated in the November 13, 2012

hearing, he failed to show how he, “as an adjacent property owner, would suffer unique

harm to himself if the conditional use was granted.” February 12, 2014 Judgment Entry

at 6. We find the trial court erred in finding Dempsey lacked standing and in dismissing

his appeal.

      {¶15} To reiterate, in Schomaeker, the Ohio Supreme Court held, “A person

owning property contiguous to the proposed use who has previously indicated an
Delaware County, Case No. 14 CAH 03 0015                                           6


interest in the matter * * * 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.” Schomaeker at Headnote

11.

      {¶16} Applying Schomaeker, we find Dempsey was within the class of persons

directly affected by the decision. Because he appeared before the BZA, represented

himself, opposed and protested the zoning change, and advised the BZA, on the record,

he intended to appeal from the decision, we find he has standing to appeal under R.C.

Chapter 2506.

      {¶17} The decision of the Delaware County Court of Common Pleas is reversed

and the matter remanded to the trial court for further proceedings.

By: Hoffman, P.J.

Gwin, J. and

Farmer, J. concur
