Willoughby Hills v. C. C. Bar's Sahara, Inc. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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City of Willoughby Hills, Appellant, v. C. C. Bar's Sahara,
Inc., Appellee.
[Cite as Willoughby Hills v. C. C. Bar's Sahara, Inc.
(1992), Ohio St.3d .]
Municipal corporations -- Charter allows municipality to
seek appellate review of determinations made by its board of
zoning appeals -- Municipality has standing pursuant to R.C. 2506.01
to "attack or void" such decisions in the common pleas court.
Where a municipality's charter or its ordinances expressly
allow the municipality to seek appellate review of
determinations made by its board of zoning appeals, the
municipality has standing pursuant to R.C. 2506.01 to
"attack or avoid" such decisions in the common pleas court.
(State, ex rel. Broadway Petroleum Corp., v. Elyria [1969], 18 Ohio
St.2d 23, 32, 47 O.O.2d 149, 154, 247 N.E.2d 471, 477,
approved and followed; Kasper v. Coury [1990], 51 Ohio St.3d
185, 555 N.E.2d 310, paragraph two of the syllabus,
distinguished.)
(Nos. 91-416 and 91-887 -- Submitted January 22, 1992 -- Decided
June 17, 1992.)
Appeal from and Certified by the Court of Appeals for Lake
County, No. 90-L-14-048.
Defendant-appellee, C. C. Bar's Sahara, Inc. ("Bar's
Sahara"), is a restaurant located in the city of Willoughby Hills
("city"), plaintiff-appellant, a chartered municipality.
Appellee's operation of the premises for restaurant purposes is a
nonconforming use pursuant to the city's codified ordinances. In
July 1989, Bar's Sahara applied to the Board of Building and
Zoning Appeals of the city of Willoughby Hills, seeking a
variance to expand the nonconforming use by one hundred forty-
seven percent, an amount greater than otherwise permitted by
zoning ordinances. Appellee justified the requested variance,
which called for a roofed enclosure of the space occupied as a
patio on the premises, as necessary to protect several palm trees
contained within.
On October 24, 1989, after several hearings, the board of
building and zoning appeals granted the requested variance.
Willoughby Hills had not appeared at the hearings or in any way
opposed Bar's Sahara's request for a variance.
On November 22, 1989, appellant filed an administrative
appeal of the board's decision pursuant to R.C. 2506.01 with the
Lake County Court of Common Pleas. The trial court sua sponte
dismissed Willoughby Hills' administrative appeal stating that
the city lacked standing to appeal a decision of its own duly
appointed and authorized board of building and zoning appeals and
cited in support State, ex rel. Broadway Petroleum Corp., v. Elyria
(1969), 18 Ohio St.2d 23, 47 O.O.2d 149, 247 N.E.2d 471.
Upon appeal to the Eleventh District Court of Appeals, the
appellate court affirmed the judgment of the court of common
pleas. The appellate court held that R.C. 2506.01 does not
confer standing upon appellant to attack the decision of its own
board of building and zoning appeals.
Finding its decision to be in conflict with the decisions of
the Eighth District Court of Appeals in Benes v. Cleveland (July 21,
1977), Cuyahoga App. No. 36441, unreported, and Division of
Building & Housing v. The Positive Education Program (Oct. 3, 1985),

Cuyahoga App. No. 49393, unreported, the appellate court
certified the record of the case to this court for review and
final determination (case No. 91-887). The cause is also before
this court pursuant to the allowance of a motion to certify the
record (case No. 91-416).

Rosplock, Coulson, Perez & Deeb and Charles E. Coulson, for
appellant.
Petersen, Ibold & Wantz, Jerry Petersen and David M. King, for
appellee.
Calfee, Halter & Griswold, John E. Gotherman and Marilyn G. Zack,
urging reversal for amicus curiae, Ohio Municipal League.

Holmes, J. The issue certified for our review is whether a
municipality has standing to file a d

irect appeal of an adverse decision of its own board of zoning
appeals to the court of common pleas pursuant to R.C. 2506.01,
even in the absence of a showing that the municipality was
"directly affected" by the decision. We will also determine the
effect, if any, a city charter may have on a city's right to
appeal a decision of its own board of zoning appeals.
In the absence of constitutional or statutory authority, the
aggrieved party may not seek appellate review of the order of an
administrative determination as the right to appeal is neither
inherent nor inalienable. See Roper v. Bd. of Zoning Appeals (1962),
173 Ohio St. 168, 173, 18 O.O.2d 437, 440, 180 N.E.2d 591, 594.
While administrative appeals on the state level are governed by
the Administrative Procedure Act (R.C. Chapter 119),
administrative appeals at the township and municipal levels are
governed by R.C. Chapter 2506. R.C. 2506.01, in relevant part,
provides:
"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, except as modified
by this chapter." (Emphasis added.)
R.C. Chapter 2506, while providing generally for
administrative appeals from administrative determinations by
political subdivisions, does not address the question of who has
standing to bring such an appeal. Under the common law, it is
well settled that the right to appeal can be exercised only by
those parties who are able to demonstrate a present interest in
the subject matter of the litigation which has been prejudiced by
the judgment of the lower court. Ohio Contract Carriers Assn., Inc. v.
Pub. Util. Comm. (1942), 140 Ohio St. 160, 161, 23 O.O. 369, 42
N.E.2d 758, 759. "Appeal lies only on behalf of a party
aggrieved by the final order appealed from. Appeals are not
allowed for the purposes of settling abstract questions, but only
to correct errors injuriously affecting the appellant." Id. at
syllabus.
In prior cases involving standing to appeal a board of
zoning appeals' determination to the common pleas court, this
court has not interpreted R.C. 2506.01 as limiting standing only
to the party whose requested variance was denied. Adjacent or
contiguous property owners who oppose and participate in the
administrative proceedings concerning the issuance of a variance
are equally entitled to seek appellate review under R.C. 2506.01.
See Roper, supra, at syllabus.1 "The Legislature, in our opinion,
recognized the need for an opportunity for review of the
decisions of administrative agencies and broadened the right of
review to include 'every final order, adjudication, or decision
of any *** board *** of any political subdivision of the state.'"
Roper, supra, at 173, 18 O.O. 2d at 440, 180 N.E.2d at 595.
The court of appeals, in the case sub judice, limited the
municipality's ability to challenge decisions of its own board of
zoning appeals by grafting a "directly affected" requirement for
standing to the provisions of R.C. 2506.01. This language was
taken from our prior decision in Schomaeker v. First Natl. Bank
(1981), 66 Ohio St.2d 304, 20 O.O.3d 285, 421 N.E.2d 530. In

Schomaeker, a contiguous property owner challenged the village
planning commission's grant of a use variance by seeking
declaratory judgment relief in the court of common pleas. Id. at
305, 20 O.O. 3d at 286, 421 N.E.2d at 533. We held that such an
action did not lie because the property owner had standing to
bring a direct appeal pursuant to R.C. Chapter 2506. Id. at 310,
20 O.O.3d at 289, 421 N.E.2d at 536. In other words, since the
property owner wa

s a person "directly affected" by the order of the planning
commission, she possessed standing to seek review in the courts
of common pleas. Id. at 312, 20 O.O.3d at 290, 421 N.E.2d at
537.
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.
The case sub judice does not involve a particular landowner
aggrieved by a board of zoning appeals' decision to grant a
requested variance. Rather, it is the municipality itself which
demands appellate review. Appellee Bar's Sahara's position is
that it is only under the narrowest of circumstances that a
municipality could be directly affected by a decision of its
board of zoning appeals. According to appellee, an example of
such limiting circumstance would be a variance permitting a
noxious or heavy industrial use adjacent to property owned by a
municipality, such as a park, which would directly affect the
municipality, thereby entitling it to appeal the issuance of the
variance. This interpretation of Schomaeker's "directly
affected" language would deny the city appellate review of the
board's determination unless the city could establish standing
via the interests of a property owner.
We conclude that there is absolutely no reason to limit the
municipality's standing through the use of a "directly affected"
test and thereby preclude it from initiating an appeal under R.C.
Chapter 2506. R.C. 2506.0l makes no mention of a "directly
affected" requirement. Instead, the statute applies to "[e]very
final order." It is doubtful that the General Assembly would
have used the term "every" if it had intended to exclude orders
adverse to municipalities. The broad language of R.C. 2506.0l
necessitates the conclusion that municipalities do have
legislative authority to appeal rulings of their own boards of
zoning appeals.
Additionally, we recognize that there is nothing in R.C.
2506.01 that would limit the rights of a municipality, or treat
it differently than any other party. As this court noted in Gold
Coast Realty v. Bd. of Zoning Appeals (1971), 26 Ohio St.2d 37, 41, 55
O.O.2d 20, 23, 268 N.E.2d 280, 282:
"These sections [R.C. 2506.01 through 2506.04] set forth the
procedure for appeals from administrative officers and agencies to
the courts. A perusal of R.C. Chapter 2506 discloses nothing which would
prohibit the city or commissioner of building from appealing adverse rulings
of the Cleveland Board of Zoning Appeals, so long as such rulings are among
those prescribed by R.C. 2506.0l."2 (Emphasis added.)
In dismissing Willoughby Hills' administrative appeal, the
court of common pleas, and later the court of appeals, relied
primarily upon two cases. The first case is State, ex rel. Broadway

Petroleum Corp., v. Elyria (1969), 18 Ohio St.2d 23, 47 O.O.2d 149,
247 N.E.2d 471. The second and more recent decision relied upon
is Kasper v. Coury (1990), 51 Ohio St.3d 185, 555 N.E.2d 310.
However, the court of appeals failed to observe that neither of
these two cases prohibits Willoughby Hills from filing an
administrative appeal.
In Broadway Petroleum, a relator, whose request for a
building permit was granted by the board of zoning appeals, filed
a petition in mandamus aga

inst the city of Elyria, its building inspector and its mayor
("respondents"), requiring them to comply with the board's
determination that the permit be issued.3 The respondents
challenged the writ of mandamus by appealing to the court of
appeals, which reversed the order issuing the writ. We concluded
that the judgment of the court of appeals was in error because it
"erroneously authorized an attack upon a decision that the Elyria
Board of Zoning Appeals was authorized to make." Id., 18 Ohio
St.2d at 26, 47 O.O.2d at 151, 247 N.E.2d at 474. Specifically,
we held:
"*** [W]here legislation, including the city's charter and its
ordinances, has specifically provided for the review by a city
board of zoning appeals of the determination of its building
inspector in refusing a building permit, neither the building
inspector, the city nor its mayor may attack or avoid in judicial
proceedings a decision of that board, except as authorized by
legislation to do so." (Emphasis added.) Id. at 32, 47 O.O.2d at
154, 247 N.E.2d at 477.
In Kasper, this court revisited Broadway Petroleum and
applied its holding to a situation, similar to the one in the
case at bar, where a township zoning inspector's administrative
appeal of a board of zoning appeals' decision to grant a variance
was dismissed by the common pleas court for lack of standing.
Essentially, the issue presented for our review in Kasper was
"whether R.C. 519.24 provides a township zoning inspector or
township board of trustees the right to appeal a decision of the
board of zoning appeals to the court of common pleas." Kasper,
supra, at 186, 555 N.E.2d at 311. We recognized that Broadway
Petroleum created an exception which would permit the
administrative official to seek appellate review as long as such
right was legislatively authorized. Id. at 187, 555 N.E.2d at
312. In particular, Kasper focused its attention on interpreting
whether R.C. 519.24 was the "legislation" referred to in Broadway
Petroleum which authorized the township trustees to file an
administrative appeal. We concluded in Kasper at 188, 555 N.E.2d
at 313, that R.C. 519.24 neither explicitly nor implicitly
provided the necessary legislative authority to allow for an
appeal of the board's decision and, as a consequence, the
township trustees or zoning inspector did not have the authority
to "attack" a decision of the board of zoning appeals.
Thus, Kasper is distinguishable from the instant appeal in
that we are now faced with ascertaining the legal effect to be
given to a municipality's charter. Unlike Kasper, in the case
sub judice we are presented with the Charter of the city of
Willoughby Hills, which provides the requisite legislation to
enable the city to appeal adverse rulings of its board of zoning
appeals to the common pleas court. Specifically, pursuant to
Sections 3 and 7, Article XVIII of the Ohio Constitution, 4
Willoughby Hills adopted a home-rule charter which empowered the
city to enact and enforce comprehensive zoning regulations
independent of any statutory provisions which authorize municipal
zoning. In accordance with the authority set forth in Section 5.1
of the charter,5 Willoughby Hills promulgated a Master Plan and
comprehensive zoning ordinances for the protection of its
residents by providing for the development, physical character
and future growth of the municipality. The charter also

established a board of building and zoning appeals in Section
5.3, upon which was conferred exclusive authority within the
municipality to grant exceptions to or variances from the zoning
ordinances or building codes. However, Section 5.33 of the
charter specifically authorized Willoughby Hills to attack or
avoid decisions of the board of building and zoning appeals, as
follows:
"Finality of Decisions. Decisions of

the Board of Building and Zoning Appeals shall be final within
the Municipality, except that an appeal therefrom may be taken to
any court of record in accordance with the laws of the State of
Ohio, by any proper and interested party including the
Municipality." (Emphasis added.)
Accordingly, we hold that where a municipality's charter or
its ordinances expressly allow the municipality to seek appellate
review of determinations made by its board of zoning appeals, the
municipality has standing pursuant to R.C. 2506.01 to "attack or
avoid" such decisions in the common pleas court. Alternatively,
in the absence of a charter provision or ordinance which
expressly provides for appellate review to the common pleas
court, the municipality may only defend a decision of the board
of zoning appeals on appeal to the common pleas court. See
Kasper, supra, at paragraph two of the syllabus.
As we have previously seen, a statutory or constitutional
grant is necessary before a party can make use of the state court
system. See Roper, supra. The Charter of the city of Willoughby
Hills could not grant a right to such appellate review had the
General Assembly not enacted R.C. Chapter 2506. Absent R.C.
2506.01, the final order of the board of zoning appeals could not
be reviewed by the common pleas court regardless of which party,
the property owner or the municipality, was aggrieved. However,
in the instant case, we have determined the General Assembly by
enacting R.C. 2506.01 provided a mechanism for appeals, thereby
allowing the municipality to appeal under its own charter.
Section 5.33 of the Willoughby Hills Charter specifically
authorized the city to avail itself of an R.C. Chapter 2506
administrative appeal in the common pleas court from the decision
of its own board of building and zoning appeals.
We recognize that Section 5.33 demonstrates appellant's
fundamental interest in protecting the integrity of its zoning
ordinances. Illegal variances undermine legitimate municipal
objectives implemented by comprehensive zoning ordinances. A
decision by a board of zoning appeals which allows a variance to
expand to an area greater than that which is otherwise permitted
by zoning ordinances is, in effect, a legislative act done by a
quasi-judicial body. See Schomaeker, supra, at 312, 20 O.O.3d at
290, 421 N.E.2d at 537. ("The decision of a planning commission
granting a use variance is made in a judicial capacity, and the
reasonableness of such decision is subject to appeal pursuant to
R.C. 2506.01 and 2506.04.") The purpose behind R.C. Chapter 2506
is to authorize judicial review of local quasi-judicial decisions
that are "unconstitutional, illegal, arbitrary, capricious,
unreasonable, or unsupported by the preponderance of substantial,
reliable, and probative evidence on the whole record. ***" R.C.
2506.04. Allowing a municipal corporation standing to appeal to
the common pleas court when its board of zoning appeals either
exceeds its limited jurisdiction or misapplies the standards
established for the granting of variances is certainly within the
purview of R.C. 2506.01.
Accordingly, for the foregoing reasons, we reverse the
judgment of the court of appeals and hold that where permitted by
charter or ordinance, R.C. 2506.01 does not prohibit a
municipality from seeking appellate review of an adverse decision
of its board of zoning appeals. The cause is remanded to the

trial court for further proceedings.

Judgment reversed

and cause remanded.
Moyer, C.J., Sweeney, Wright and Resnick, JJ., concur.
Douglas, J., concurs in judgment only.
H. Brown, J., dissents.
FOOTNOTES:
1 The syllabus in Roper provides:
"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 p

rotests 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."
2 The reference to "such rulings" in Gold Coast Realty is to
final orders, adjudications, or decisions, which were defined in
former R.C. 2506.01. The statute now reads:
"A 'final order, adjudication, or decision' means an order,
adjudication, or decision that determines rights, duties,
privileges, benefits, or legal relationships of a person, but
does not include any order, adjudication, or decision from which
an appeal is granted by rule, ordinance, or statute to a higher
administrative authority if a right to a hearing on such appeal
is provided, or any order, adjudication, or decision that is
issued preliminary to or as a result of a criminal proceeding."
3 The Broadway Petroleum opinion, 18 Ohio St.2d at 32, 47
O.O. 2d at 154, 247 N.E. 2d at 477, expressly reserved the
question of whether R.C. Chapter 2506 authorizes an
administrative official, or the city itself, to bring an appeal
from an adverse determination of the ultimate administrative
authority.
4 Section 3, Article XVIII, Ohio Constitution, provides:
"Municipalities shall have authority to exercise all powers
of local self-government and to adopt and enforce within their
limits such local police, sanitary and other similar regulations,
as are not in conflict with general laws. (Adopted September 3,
1912.)"
Section 7, Article XVIII, Ohio Constitution, provides::
"Any municipality may frame and adopt or amend a charter for
its government and may, subject to the provisions of section 3 of
this article, exercise thereunder all powers of local self-
government. (Adopted September 3, 1912.)"
5 Section 5.13 of the Willoughby Hills Charter, entitled
"The Master Plan," provides as follows:
"The Planning and Zoning Commission shall be responsible for
the preservation and development of the physical character of the
Municipality, and to that end, shall have the power and be
required to make and to present to Council for their
consideration, a Master Plan for the present needs and future
growth and development of the Municipality. Such Master Plan
shall be comprised of existing ordinances and existing maps, a
future land use plan, a public service plan, a street plan, and
such other plans, maps, charts, and descriptive and explanatory
matters as are necessary to show the Commission's recommendations
for the most effective use of the Municipality's resources.
"The Commission shall make such investigations and inquiries
as are necessary to complete this plan and may require information
to be furnished by the Mayor or any office, department or agency
of the Municipality. The Commission may also, within its budget
appropriation, contract for the occasional services of city
planners and other consultants, as it may require. The
Commission shall promote public interest in and understanding of
the Master Plan and of planning, zoning and urban renewal.

"The initial Master Plan shall be completed not later than
January 1, 1972, and thereafter it shall be revised and amended
or extended by the Commission as it deems necessary, providing
that a complete review of the Plan takes place not less than once
every five (5) years."