Lead Opinion
{¶ 2} Because we find that Appellants Herron, Johansen and Mattson did not meet the "active participation" element of the standing doctrine and failed to establish an exception to the element, we overrule Appellants' first assignment of error. Likewise, because we find that Appellants Ammarell, Grim, Mattson, Fahl and Stokes did not provide prima facie evidence of the "direct effect/unique harm" element of the standing doctrine, we overrule Appellants' second assignment of error. Further, we disagree with Appellants' Fahl and Stokes contention that the trial court dismissed them from the consolidated administrative appeal in reliance upon evidence not *3
contained in the record and, as such, we overrule Appellants' third assignment of error. Finally, in light of our determination, infra, that Appellants did not properly bring a claim alleging a violation of R.C.
{¶ 4} Appellants Ammarell, Grim, Fahl and Stokes participated in the administrative proceedings in which these ordinances were discussed, considered and ultimately passed. Appellants Herron, Johansen and Mattson did not attend or otherwise participate in the administrative proceedings. Council passed both ordinances on December 29, 2005, in a special meeting in which it is undisputed that all Appellants received proper notice. Several Appellants actually attended the special meeting and were permitted to speak in opposition to the passage of the ordinances.
{¶ 5} On January 29, 2006, Appellants Christine Fahl, et al, filed two administrative appeals from Council's passage of the subject ordinances. The appeals were filed pursuant to R.C.
{¶ 6} An evidentiary hearing was held on May 5, 2006. At the hearing, Appellants presented expert testimony in support of their claim that development and construction of the PUD would diminish the value of the properties due to increased risk of flooding, increased traffic and loss of green space. Appellees presented expert testimony contradicting the Appellants' expert testimony. Appellees' experts testified that the development and construction of the PUD would cause little, if any, increased risk of flooding to Appellants' properties. Appellees' experts further testified that while traffic may increase on portions of Morris Avenue, the portions of the street in which Appellants reside would be unaffected. Although some testimony was provided regarding diminution in property value due to loss of green space, the trial court refused to consider such evidence in making its decision, based on the reasoning that the land at issue was not actually green space, but rather was property privately owned by OU. Further, the trial court reasoned that even if the land were considered public property for public use and enjoyment, Appellants could not claim that they suffered any unique harm, different from that suffered by the community at large, from the loss of the space.
{¶ 7} On June 5, 2006, the trial court ultimately dismissed the remaining Appellants, Fahl and Stokes, based on lack of standing. It is from *6 these dismissals for lack of standing that Appellants now bring their current appeal, assigning the following errors for our review.
{¶ 8} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN DISMISSING THEM FROM THE CONSOLIDATED ADMINISTRATIVE APPEAL FOR FAILURE TO ESTABLISH THE `ACTIVE PARTICIPATION' ELEMENT OF THE STANDING DOCTRINE.
{¶ 9} II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN DISMISSING THEM FROM THE CONSOLIDATED ADMINISTRATIVE APPEAL FOR FAILURE TO ESTABLISH THE `DIRECT EFFECT/UNIQUE HARM' ELEMENT OF THE STANDING DOCTRINE.
{¶ 10} III. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS FAHL AND STOKES IN DISMISSING THEM FROM THE CONSOLIDATED ADMINISTRATIVE APPEAL IN RELIANCE UPON EVIDENCE NOT CONTAINED IN THE RECORD.
{¶ 11} IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANTS IN DISMISSING THE CONSOLIDATED ADMINISTRATIVE APPEAL FOR FAILURE TO ESTABLISH STANDING PURSUANT TO OHIO'S SUNSHINE LAW."
"The court may find that the order, adjudication, or decision is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order, adjudication, or decision, or remand the cause * * *. The judgment of the court may be appealed by any party on questions of law as provided in the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505 of the Revised Code."
{¶ 13} Thus, the role of an appellate court in a RC.
{¶ 14} The common-law doctrine of standing holds that only those parties who can demonstrate a present interest in the subject matter of the litigation and who have been prejudiced by the decision of the lower court possess the right to appeal. Willoughby Hills v. C.C. Bar'sSahara (1992),
{¶ 15} In Roper v. Richfield Twp. Bd. of Zoning Appeals (1962),
{¶ 16} Initially, we note that a review of the record reveals that Appellants' first assignment of error actually only applies to Appellants Herron, Johansen and Mattson, as the trial court dismissed their appeals as a result of their failure to participate in the hearing process regarding the subject ordinance. In our view, by advancing this argument, Appellant's have implicitly conceded that they do not meet the active participation requirement of the standing doctrine. Rather, and in support of their assigned error, Appellants contend that they were not required to meet the "active participation" requirement of the standing doctrine because the City of Athens exceeded their authority in passing the subject ordinances, which they assert creates an exception to the standing requirement. Appellants cite the reasoning ofAlihassan v. Alliance Bd. of Zoning Appeals (Dec. 18, *10
2000), Stark App. No. 1999CA00402,
{¶ 17} In Alihassan, the appellant's motion to dismiss the appellee's administrative appeal for lack of standing was denied by the trial court. In that case, the court of appeals affirmed the decision of the trial court, refusing to dismiss the appellee's appeal for lack of standing in light of its finding that the appellee had not received proper notice of the administrative proceedings and therefore could not have actively participated in them. Alihassan, supra. Thus, theAlihassan court recognized an exception to the active participation requirement where an appellant is not provided with sufficient notice and therefore cannot actively participate. On its face,Alihassan is factually distinguishable from the case sub judice. Here, Appellants do not argue that they did not participate because they did not have notice of the administrative proceedings, rather, they argue that Alihassan provides other exceptions to the active participation requirement of the standing doctrine.
{¶ 18} In addition to creating an exception to the standing doctrine when an appellant lacks notice, the Alihassan court further stated as follows:
"Tantamount to these situations are the following two situations: 1) the notice requests a remedy substantially different from the one granted by the *11 tribunal * * * and/or 2) the notice requests a remedy that the tribunal is not authorized to give * * *. Participation before a commission cannot be required of a person in order to preserve the right to appeal the commission's decision when there is no reason for the person to expect the commission's decision from the notice received and/or from knowledge of the limits of the commission's authority. In other words, requiring participation to preserve the right to appeal presupposes sufficient notice to the participant." Alihassan, supra.
{¶ 19} Based upon the reasoning of Alihassan, Appellants assert that there is an exception to the active participation requirement when a political subdivision exceeds its authority. Appellants further assert that they fit within this exception, claiming that the City of Athens exceeded its authority in three ways: 1) as a result of non-compliance with the Athens City Code; 2) in failing to timely implement a revocable license ordinance; and 3) by violating Ohio's Sunshine Law.
{¶ 20} Initially, we note that Appellants' position is supported solely by authority from other appellate districts, which is non-binding on this Court. Further, this Court has recognized active participation as a requirement in establishing standing to bring an administrative appeal pursuant to R.C.
{¶ 21} First, Appellants contend that Appellees failed to comply with the applicable PUD requirements as provided in the Athens City Code. Appellants assert that although ACC section 21.09.18 requires the developer to submit five copies of the final plan to the zoning administrator before final approval, the Commission approved the PUD ordinance without requiring the submission of final plans. Thus, Appellants argue that they were not required to show active participation in the administrative proceedings. Appellants' argument is based upon the premise that the Commission approved the PUD ordinance without requiring submission of final plans; however, other than their mere allegation, Appellants have offered nothing to substantiate their assertion.
{¶ 22} None of the Appellees address the issue of whether, in fact, the PUD ordinance was approved without submission of final plans. Rather, they respond by distinguishing the case sub judice from the cases cited by Appellant, pointing out that notice was at issue inAlihassan and Krause, and is not at issue in the present case. Our review of the meeting minutes, however, indicates that final plans may have been submitted. At the special meeting held on December 29, 2005, Appellant Ammarell commented that the fact that special conditions were added to the ordinance in order to alleviate concerns of residents should not take the place of the submission of *13 plans by the developer. In response to this statement, the meeting minutes reflect that George Barardi, of NCR, responded that planswere submitted to the planning commission. Thus, we conclude that Appellants have not clearly demonstrated that Appellees exceeded their authority in approving the PUD.
{¶ 23} Further, we find persuasive the arguments of Appellees with regard to whether this Court should adopt the reasoning ofAlihassan, supra. As Appellees note, the Alihassan decision was criticized in National Amusements, Inc. v. Union Twp. Bd. of ZoningAppeals, Clermont App. No. CA2002-12-107,
{¶ 24} We find the reasoning contained in National Amusements, supra, to be more persuasive than the reasoning of Alihassan, supra. Further, in rejecting the reasoning of Alihassan and accepting the reasoningof National Amusements, we find that we also adhere to our previous reasoning, which, as previously set forth, has recognized that active participation is a prerequisite to establishing standing. Of course, we agree with the reasoning of Alihassan, and for that matter, NationalAmusements, to the extent that an exception should be recognized where it is demonstrated that an appellant did not receive adequate notice. However, in the case sub judice, Appellants do not claim that their failure to actively participate in the administrative proceedings stemmed from their lack of notice of the proceedings. Thus, we find that Appellants have not clearly demonstrated that Appellees did, in fact, exceed their authority, and assuming arguendo that they did, we reject the reasoning of the Alihassan court which would create an additional exception to the standing doctrine in the event that Appellees had exceeded their authority.
{¶ 25} Appellants next contend, under their first assignment of error, that Appellees exceeded their authority in failing to timely implement the *15 revocable license ordinance. In light of our reasoning with respect to Appellants' first allegation that Appellees exceeded their authority in passing the subject PUD ordinance, we decline to address the merits of Appellants argument. We conclude that, based upon our prior consideration and rejection of the reasoning voiced in Alihassan, even if Appellees did exceed their authority in failing to timely implement the revocable license ordinance, such action does not create an exception to the active participation requirement of the standing doctrine. Thus, because Appellants failed to actively participate in the administrative proceedings and voice their concerns at the time within which corrective action could have been taken, we find that they have waived their right to now complain of Appellees' actions.
{¶ 26} Appellants' last contention under their first assignment of error is that they are exempt from the active participation requirement of the standing doctrine because Appellees violated Ohio's Sunshine Law in passing the subject PUD. Appellants contend that the special meeting approving and passing the ordinance was conducted in violation of Ohio's Sunshine Law and were therefore invalid. Appellants further contend that, as a result, they were not required to demonstrate active participation because Appellees exceeded their authority. We must reject Appellants' *16 contention that they are exempt from the active participation requirement for the same reasons we have rejected their prior arguments.
{¶ 27} Further, because Appellants failed to bring an original action in the common pleas court alleging a violation of the sunshine law and requesting appropriate relief, we decline to address Appellants' arguments regarding alleged violations of the Sunshine Law. Appellants brought this action as an appeal pursuant to R.C.
{¶ 28} Essentially, Appellants filed an administrative appeal pursuant to R.C.
{¶ 29} Here, Appellants did not actually raise a claim alleging a violation of the sunshine law, nor did they ask that the court impose appropriate penalties. Instead, Appellants merely asserted that violations of the sunshine law occurred in a brief in which they were attempting to establish standing to bring their R.C.
{¶ 30} In their second assignment of error, Appellants contend that the trial court's decision to dismiss their administrative appeal constitutes reversible error because they alleged prima facie facts, circumstances, and evidence to establish the ordinances would uniquely harm and directly affect them and their respective interests. It appears that this assignment of error applies to Appellants Ammarell, Grim, Mattson, Fahl, and Stokes, as the trial court dismissed their claims for lack of standing because Appellants failed to demonstrate that they were directly affected or suffered a unique harm by the passing of the ordinances.2 Specifically, Appellants assert that the trial court erred in refusing to consider diminution of property value as a result of loss of green space as a unique harm sufficient to confer standing to bring a R.C.
{¶ 31} Our standard of review regarding this issue is the same as in the first assignment of error. As previously set forth, the role of an appellate court in a R.C.
{¶ 32} In Schomaeker, supra, at 311-312,
{¶ 33} We note that there is a marked absence of case law regarding the specific issue of whether or not diminution of property value associated with loss of green space constitutes a unique harm sufficient to demonstrate that a property owner has been directly and adversely affected by the administrative actions of a planning and zoning board. Nonetheless, we find the trial court's reliance on the reasoning ofWilloughby Hills, supra, to be persuasive and sound. Thus, we conclude that the trial court did not abuse its discretion in refusing to consider diminution of property value associated with loss of green space as evidence that Appellants suffered a unique harm *21 from and were directly affected by the passage of the subject ordinances. Further, despite Appellants' arguments to the contrary, we conclude that the fact that the alleged "green space" at issue is private property owned by Ohio University, rather than public property dedicated for recreational purposes for use by the community at large, is of great importance. Ohio University, as the owner of this property, has a right to develop the property for its own use. Therefore, even if this property was not utilized by NCR for the construction of a retirement center, Ohio University could develop it for other uses, such as dormitories or other educational uses.
{¶ 34} In their brief, Appellants cite this Court to testimony by their expert regarding the effects of loss of green space on their property values. However, because the General Assembly did not vest this court with the power to weigh the evidence like a common pleas court, we decline to engage in an analysis of whether Appellants presented evidence that outweighed the evidence presented by Appellees. Accordingly, we cannot conclude that the trial court abused its discretion in failing to find that Appellants had demonstrated that they were directly affected by and suffered unique harm from the passage of the subject ordinances. Thus, we overrule Appellants' second assignment of error. *22
{¶ 35} In their third assignment of error, Appellants contend that the trial court's June 5, 2006 decision dismissing them was contrary to the law and that the trial court abused its discretion when it ignored the evidence presented or otherwise considered facts not in evidence. Initially, we note that the arguments advanced under this assignment of error relate only to Appellants Fahl and Stokes, as they were the only Appellants dismissed by the June 5, 2006 trial court decision.
{¶ 36} Appellants advance two arguments under this assignment of error. First, Appellants assert that the trial court erred when it ignored evidence presented regarding loss of green space. Appellants again argue that the loss of green space is a unique harm and that the trial court committed reversible error in failing to consider this evidence. In light of our prior findings in Appellants' second assignment of error regarding loss of green space, we find these duplicative arguments not well taken. In accordance with our foregoing reasoning, we cannot conclude that the trial court abused its discretion in refusing to consider evidence offered by Appellants related to this particular issue.
{¶ 37} Secondly, Appellants assert that the trial court committed reversible error when it concluded that a change in the characteristics of the Morris Avenue neighborhood, as a consequence of the proposed retirement *23 center, from single family owner-occupied homes to rental properties, would actually increase property values for Appellants. Appellants specifically challenge the trial court's finding that a change in character from owner-occupied homes to tenant-occupied homes would increase Appellants' property values. Appellants further contend that the trial court relied on evidence not contained in the record in making this finding, arguing that the only citation to this assertion appears in the form of a question posed by Appellees' counsel, over objection.
{¶ 38} A review of the record indicates that the trial court did, in fact, state that tenant-occupied homes, as opposed to owner-occupied homes, would increase Appellants' property values. However, the trial court made this assertion merely as one reason, in addition to other reasons, in support of its finding that the weight of Appellants' expert's testimony should be lessened. In addition to making a finding that an increase in tenant-occupied homes would increase Appellants' property values, the trial court also stated, in support of its conclusions with regard to the weight to be afforded this expert testimony, that Appellants' expert erroneously used loss of green space in reaching his determination that Appellants' property values would decrease. Additionally, the trial court concluded that the testimony provided *24 by Appellants' expert, with respect to increased traffic on Morris Avenue, was not persuasive.
{¶ 39} As previously noted, R.C.
{¶ 40} In their fourth and final assignment of error, Appellants contend that the trial court's decision dismissing them constitutes reversible error as they maintain express standing to enjoin actions of council that are taken in *25
violation of Ohio's sunshine law. On the surface, we agree with Appellants' contention. Appellants do have standing to bring an action seeking to enjoin actions of council that are taken in violation of the sunshine law. However, as previously discussed, Appellants cannot maintain that action solely as part of an administrative appeal pursuant to R.C.
{¶ 41} Accordingly, we overrule Appellants' first, second, third and fourth assignments of error and affirm trial court's dismissal of their appeal for lack of standing.
*34JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error IV and Concurs in Judgment Only as to Assignments of Error I, II, and III. Kline, J.: Concurs in Judgment Only, in part, and Dissents in part as to Assignments of Error I and III; Dissents as to Assignments of Error II and IV with Opinion.
Notes
Dissenting Opinion
{¶ 42} I respectfully dissent in part.
{¶ 44} Accordingly, I would dissent as to the fourth assignment of error and part of the first assignment of error. I would concur in judgment only as to the remainder of the first assignment of error.
{¶ 46} As this court has noted, the Supreme Court of Ohio, inSchomaeker, "did not limit the class of persons possessing standing to contiguous or adjacent property owners." Jenkins v. Gallipolis (1998),
{¶ 47} When determining whether an appellant is among those directly affected by an administrative action, courts "must 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." Am. Aggregates Corp.,
{¶ 48} Here, the majority agrees with the trial court's conclusion that loss of the green space was a loss shared by the community at large, as opposed to a unique harm to Appellants. I agree with that assessment, however, in my view, the loss of the green space itself is not the issue. The issue is whether the loss of the green space decreases the value of *29 Appellants' property, and whether that loss of value is a harm unique to Appellants, as opposed to the community at large.
{¶ 49} As pointed out by this court in Jenkins, while an increase in traffic is a concern "shared equally by the public at large[,]" the decrease in value due to increased traffic "is precisely the sort [of unique harm] contemplated by the court in Westgate Shopping Village
[
{¶ 50} Further, the majority finds that because the "green space" is private land owned by OU, as opposed to "public property dedicated for recreational purposes for use by the community at large, is of great importance." I believe that the characterization of the land as private, as opposed to public, is irrelevant for the limited purpose of determining whether Appellants have standing. The question is whether the Appellants are directly affected and suffer unique harm as a result of the administrative acts. *30
{¶ 51} The case of Schomaeker concerned an administrative act that allowed a bank to construct a parking lot on private property it owned in a residential zone. The Supreme Court of Ohio held that a contiguous property owner "had standing to bring a direct appeal pursuant to R.C. Chapter 2506 * * * since the property owner was a person `directly affected' by the order of the planning commission." Willoughby,
{¶ 52} In Anderson v. Vandalia,
{¶ 53} Therefore, I disagree with the majority. I would find that the *31 trial court erred in excluding and refusing to consider evidence concerning whether Appellants' property values would diminish as a result of the ordinances of the alleged loss of the nearby green space. I would reverse and remand for further proceedings for a determination of whether the appellants who actively participated in the administrative proceedings are directly affected by the ordinances.
{¶ 54} Accordingly, I dissent as to the second assignment of error.
{¶ 56} Accordingly, I would dissent in part on this issue as to the third assignment of error.
{¶ 58} During direct, Moclnikar testified that, generally, the market value of owner-occupied single-family homes is higher than that of tenant-occupied single-family homes. On cross-examination, Moclnikar was asked to assume that Athens, because it is a college town, had a high number of tenant-occupied single-family homes, and that those properties, in Athens, sold at a value of two to three times that of owner-occupied single-family homes. Upon assuming that fact, Moclnikar was asked that, assuming such *33 to be true, whether that fact would change his opinion. Moclnikar testified that it would. However, such an assumption was never proven with facts during trial. However, the trial court relied upon that testimony in discrediting Moclnikar's testimony.
{¶ 59} Therefore, I agree that the trial court's reliance on this factor in discrediting Moclnikar's testimony was improper. However, this was not the sole factor considered by the court in discrediting Moclnikar's testimony. Further, Appellees presented evidence in opposition to Moclnikar's general testimony, upon which the trial court, as the finder of fact, was free to rely. As such, Appellants were not prejudiced by such error.
{¶ 60} Accordingly, I concur in judgment only for this part of the third assignment of error. *1