Lupo v. Columbus , 2014 Ohio 2792 ( 2014 )

[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.