[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
