Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of Zoning Appeals - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of Zoning Appeals, 91
Ohio St.3d 174, 2001-Ohio-24.]

Midwest Fireworks Manufacturing Company, Inc., Appellee, v. Deerfield
Township Board of Zoning Appeals et al.; Carver, Appellant.
[Cite as Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd. of Zoning Appeals
(2001), 91 Ohio St.3d 174.]
Zoning -- Townships -- Board of zoning appeals -- Neighboring property
owner generally interested in seeing zoning regulations enforced is a
"person aggrieved" who may appeal under R.C. 519.15.
(No. 00-196 -- Submitted November 15, 2000 -- Decided March 28, 2001.)
APPEAL from the Court of Appeals for Portage County, No. 98-P-0131.
__________________

LUNDBERG STRATTON, J. R.C. 519.15 allows "any person aggrieved" by
an administrative officer's zoning decision to appeal to the township board of
zoning appeals. This case asks whether the property owner herein has standing as
a "person aggrieved" by a zoning decision allowing the construction of a building
on neighboring property. For the reasons set forth below, we hold that appellant,
Jesse J. Carver, Jr., is a "person aggrieved" and, therefore, has standing to appeal
the decision to the township board of zoning appeals.
I

Appellee, Midwest Fireworks Manufacturing Company, Inc. ("Midwest"),
operates a fireworks factory on approximately eighty-six acres of land in
Deerfield Township, Portage County. Midwest and its predecessors have
occupied this property since the early 1970s, before any township zoning
regulations were in place. Prior to 1980, the Deerfield Township Board of
Trustees enacted the Deerfield Zoning Regulations ("DZR"), which zoned
Midwest's land as a residential district. Midwest continued its fireworks
operation as a valid, nonconforming use. See R.C. 519.19.

SUPREME COURT OF OHIO

In 1982, an explosion and fire destroyed two buildings and several trailers
on Midwest's property. The fire injured four persons and caused an estimated $1
million in damages. Although Midwest continued its fireworks business and
constructed buildings on other parts of its land, it did not reconstruct the buildings
destroyed in 1982.

Fifteen years later, in 1997, Midwest and Pacific Financial Services, Inc.,
the record owner of the property on which Midwest is situated, applied for a
zoning certificate that would allow Midwest to construct a single building to
replace the two buildings that had burned down in the 1982 fire. The application
stated that the proposed building would be seven thousand two hundred square
feet. Attached to the application was an affidavit from Larry Lomaz, who
controlled Midwest and Pacific Financial Services. According to Lomaz, the
proposed building was approximately the same size as the two buildings
destroyed in 1982. Lomaz also claimed that Midwest had not rebuilt the
destroyed buildings before 1997 due to several years of litigation involving it and
Deerfield Township. A Deerfield Township zoning inspector granted the zoning
certificate nine days after Lomaz submitted the application.

Appellant, Jesse J. Carver, Jr., owns and lives on property directly across a
two-lane highway from Midwest's property. He was living there when the fire
occurred at Midwest in 1982. Carver appealed the issuance of the zoning
certificate to the Deerfield Township Board of Zoning Appeals ("BZA"). He
argued to the BZA that Midwest had abandoned its nonconforming use privileges
by failing to rebuild the destroyed buildings within two years. He testified that he
had regularly viewed Midwest's property and had not observed, since the 1982
fire, any activity related to Midwest's fireworks business on the site of the
proposed building. Carver also presented evidence to the BZA that the two
buildings destroyed in 1982 were of a combined 1,536 square feet--considerably
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January Term, 2001
smaller than the seven-thousand-two-hundred square-foot structure that Midwest
proposed to build.

The BZA conducted hearings on February 11 and 21, 1998. Carver
appeared with counsel at both hearings and testified at the second one. Lomaz
attended on behalf of Midwest the February 11 hearing only. The BZA confined
its inquiry to two issues: whether this was a nonconforming use, and the size of
the proposed building. Following the two hearings, the BZA ruled in Carver's
favor and revoked Midwest's zoning certificate.

Midwest filed an R.C. 2506.01 administrative appeal with the Portage
County Court of Common Pleas. The company argued, among other things, that
Carver lacked standing to appeal to the BZA because he was not a "person
aggrieved" by the zoning inspector's issuance of a zoning certificate. The trial
court disagreed:

"Carver's property and residence is located directly across the road from
[Midwest's] property. Only a two lane roadway separates the two properties.
From his property Carver can see the site where the proposed new building was to
be built. The former buildings had exploded and burned in 1982, creating a
legitimate concern for the safety of his own property. It was Carver's position
that issuance of the zoning permit was unlawful. From all the circumstances
presented in the transcript to proceedings, it can be concluded that Carver was a
`person aggrieved' of [Midwest's] receipt of a zoning permit and had standing to
appeal to the Board from the zoning inspector's decision to issue that zoning
permit."

The trial court also rejected Midwest's remaining arguments and affirmed
the BZA's decision to revoke the zoning certificate. The Eleventh District Court
of Appeals reversed and entered judgment in favor of Midwest. The court of
appeals concluded that Carver made "no showing that allowing Midwest to build
one more building on property that already contained multiple buildings would
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affect Mr. Carver's personal, pecuniary or property rights." Absent such a
showing, Carver was not a "person aggrieved" by the zoning inspector's issuance
of the zoning certificate. The court concluded that Carver lacked standing to
appeal to the BZA and, consequently, the BZA lacked authority to revoke the
zoning certificate issued to Midwest.

This cause is now before this court upon the allowance of a discretionary
appeal.
II

The sole issue before us is whether Carver had standing to challenge the
issuance of Midwest's zoning certificate by bringing an appeal to the BZA. The
right to appeal an administrative decision is neither inherent nor inalienable; to the
contrary, it must be conferred by statute. See Roper v. Richfield Twp. Bd. of
Zoning Appeals (1962), 173 Ohio St. 168, 173, 18 O.O.2d 437, 440, 180 N.E.2d
591, 594. Carver claims a statutory right to appeal under R.C. 519.15 and DZR
701.52, both of which allow "any person aggrieved * * * by any decision of the
administrative officer" to appeal that decision to the BZA. Therefore, whether
Carver had standing to bring an appeal before the BZA depends upon whether he
was a "person aggrieved" by the zoning inspector's issuance of a zoning
certificate to Midwest.
In
Ohio Contract Carriers Assn., Inc. v. Pub. Util. Comm. (1942), 140
Ohio St. 160, 23 O.O. 369, 42 N.E.2d 758, this court held: "Appeal lies only on
behalf of a party aggrieved by the final order appealed from." Id. at syllabus. An
"aggrieved" party is one whose interest in the subject matter of the litigation is "
`immediate and pecuniary, and not a remote consequence of the judgment.' " Id.
at 161, 23 O.O. at 369, 42 N.E.2d at 759, quoting 2 American Jurisprudence
(1936) 942, Appeal and Error, Section 50. Thus, in order to have standing to
appeal, a person must be "able to demonstrate a present interest in the subject
matter of the litigation which has been prejudiced" by the judgment appealed
4

January Term, 2001
from. Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 26,
591 N.E.2d 1203, 1205. See, also, Black's Law Dictionary (7 Ed.1999) 1144
(defining "aggrieved party" as one whose "personal, pecuniary, or property rights
have been adversely affected by another person's actions or by a court's decree or
judgment"). A future, contingent, or speculative interest is not sufficient to confer
standing to appeal. Ohio Contract Carriers, 140 Ohio St. at 161, 23 O.O. at 369,
42 N.E.2d at 759.

The question of Carver's standing to appeal the issuance of the zoning
certificate did not become an issue until Midwest's appeal to the common pleas
court. To initiate the appeals process, Carver had completed a preprinted form
entitled "Deerfield Township Application for Appeal." The form instructs the
appealing party to describe the "error" allegedly made by the zoning inspector. It
does not require the person to explain or give reasons why the person is entitled to
appeal the decision. At the hearings, the BZA expressly limited its inquiry by
proceeding under the assumption that Carver had standing. Therefore, the record
before the BZA on the issue is sparse at best.

In its appeal to the common pleas court, Midwest argued that Carver was
not a "person aggrieved" and, therefore, the BZA lacked jurisdiction to consider
the administrative appeal. We agree with the trial court that the facts adduced
before the BZA support a conclusion to the contrary. The record establishes that
Carver sufficiently satisfied the term "person aggrieved" within the meaning of
R.C. 519.15.

Carver is a taxpayer and property owner who lives immediately adjacent
to the fireworks factory, separated only by a two-lane road. In 1982, two
buildings on the fireworks property exploded and burned, causing injuries to four
persons. The company plans to replace the two destroyed buildings with one
structure that would be nearly five times the combined size of the two former
buildings. The fact that Midwest's property already contains multiple buildings
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does not diminish the impact of yet another building with a proposed size of seven
thousand two hundred square feet. To an adjacent property owner, construction
of an additional, larger building may be an immediate concern under certain
circumstances. Carver's position is unique as compared to others within the
general community who do not live across the street from the fireworks factory.

Carver's position is further buttressed by this court's opinion in Roper v.
Bd. of Zoning Appeals, 173 Ohio St. 168, 18 O.O.2d 437, 180 N.E.2d 591. In
Roper, this court decided whether a particular property owner had standing to
appeal a board of zoning appeals' issuance of a variance to another property
owner in the township. Although the opinion does not state whether Roper's
property was neighboring or adjacent to the rezoned property, Roper commenced
an administrative appeal to the common pleas court that was ultimately dismissed
for lack of standing. This court reversed the dismissal and held that Roper had
standing to bring an administrative appeal because he (1) was a resident, elector,
and property owner of the township, (2) appeared before a township board of
zoning appeals with an attorney to protest a zoning change, and (3) stated his
intention on the record to appeal the board's decision to the common pleas court.
Id. at syllabus. See, also, Schomaeker v. First Natl. Bank of Ottawa (1981), 66
Ohio St.2d 304, 20 O.O.3d 285, 421 N.E.2d 530. Schomaeker was an adjacent
property owner who was "directly affected" by the grant of a zoning variance to
property contiguous to her and who had previously challenged the proposed use.
Therefore, she was within the "class of persons * * * entitled to appeal." Id. at
paragraph two of the syllabus.

Here, there were no public hearings where Carver could voice his
concerns before the zoning inspector unilaterally issued the permit to Midwest.
Yet, within twenty days of issuance of the zoning certificate, Carver made his
opposition known when he appealed to the BZA. He personally attended the
public hearing held by the BZA and was represented by counsel. Carver's lack of
6

January Term, 2001
participation prior to the initial zoning decision (where he had no opportunity to
object) does not diminish his concerns for safety due to his proximity to the
construction of yet another larger building on Midwest's property.

Midwest argues that fear of a future explosion is a speculative or remote
consequence. Had there never been an explosion or fire on the property, this
argument may be more persuasive. Indeed, we find that the opposite is true.
With the manufacture of fireworks, requiring the use and handling of explosive
materials, the risk of catastrophic explosion exists at all times. In addition,
fireworks explosions have the potential to propel ignited materials directly onto
Carver's property, thereby spreading the risk of fire. This creates a real and
serious threat to persons or property. The fact that an explosion has occurred in
the past only augments a neighboring property owner's concern about the
operation.

Consequently, we hold that, under the facts of this case, Carver is a
"person aggrieved" within the meaning of R.C. 519.15 and, therefore, he has
standing to appeal the decision of Deerfield Township granting a zoning
certificate to Midwest Fireworks. The judgment of the court of appeals is
reversed, and the cause is remanded to the court of appeals to consider the case on
its merits.
Judgment reversed
and cause remanded.

MOYER, C.J., DOUGLAS and RESNICK, JJ., concur.
F.E. SWEENEY, PFEIFER and COOK, JJ., dissent.
__________________

COOK, J., dissenting. This case asks whether a property owner is a
"person aggrieved" by a zoning decision absent a showing by the property owner
of a present and substantial interest in the decision beyond a desire to see zoning
7

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regulations properly enforced. Because an immediate personal or pecuniary
injury is an indispensable element of standing, I respectfully dissent.

Carver claims a statutory right to appeal under R.C. 519.15 and Deerfield
Zoning Regulation 701.52, both of which allow "any person aggrieved * * * by
any decision of the administrative officer" to appeal that decision to the Board of
Zoning Appeals ("BZA"). To be "aggrieved" for purposes of appellate standing,
a person must have a present and substantial interest in the challenged action (in
this case, the issuance of the zoning certificate). For a private litigant in a zoning
appeal, a present and substantial interest consists of harm that is unique to that
party. Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 27,
591 N.E.2d 1203, 1205-1206. A future, contingent, or speculative interest will
not suffice. 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.

The majority concludes that Carver is uniquely harmed by the issuance of
the building permit in view of the fact that Midwest's fireworks facilities
exploded in 1982 and could explode again, posing a serious threat to Carver's
personal and proprietary interests. But Carver alleged no personal or pecuniary
injury when he filed his BZA appeal. He simply alleged that Midwest's proposed
structure was larger than the buildings it was supposed to replace and that the
zoning inspector did not make a "reasonable effort to determine" whether the
building was a proper nonconforming use. Similarly, in his brief to this court,
Carver describes his harm as the "blatantly wrongful issuance" of a zoning
certificate that allows Midwest to "expand" its commercial fireworks operation in
a residential zone. Carver maintains that he has a right "to expect and to demand"
enforcement of the township zoning regulations, which exist for his family's
health, safety, and welfare.

The common thread in Carver's allegations of harm is that they have less
to do with his personal or proprietary interests than they do with ensuring
8

January Term, 2001
Midwest's compliance with duly enacted zoning regulations. But enforcement of
zoning laws is a concern shared by other citizens of the township at large.
Carver's asserted interest is therefore akin to a generalized grievance shared
equally by other members of the public. And such harm normally will not confer
standing to appeal. Am. Aggregates Corp. v. Columbus (1990), 66 Ohio App.3d
318, 323, 584 N.E.2d 26, 29, citing Warth v. Seldin (1975), 422 U.S. 490, 499, 95
S.Ct. 2197, 2205, 45 L.Ed.2d 343, 354.

I also disagree with the majority's view that Carver's asserted harm is
"unique" to him in light of his status as an owner of property across the road from
Midwest's. Neither Carver nor the majority has explained how Carver's personal,
pecuniary, or property rights would be adversely affected by Midwest's
construction of one more building on a parcel that already contains multiple
buildings devoted to Midwest's commercial fireworks business. Nevertheless, the
majority concludes that there is a "real and serious threat" to Carver's property
because the manufacture of fireworks carries "the risk of catastrophic explosion *
* * at all times." But these fears of future explosion are speculative at best and
based on little more than the assumption, without support in the record, that
Midwest is generally vulnerable to explosions and fires regardless of how safely it
engages in its business. Even if Carver has a general fear for life and limb
because of Midwest's activities, he cannot use an intangible possibility of future
injury as a springboard to R.C. 519.15 review. Standing exists only if the
appealing party can show a present interest in the matter appealed, not simply a
concern of future injury that may or may not occur. Cf. In re Petition for Incorp.
of Holiday City (1994), 70 Ohio St.3d 365, 371, 639 N.E.2d 42, 47 (arguments
concerning what injuries may occur in event of incorporation were "speculative at
best and fail to expose a present interest in the matters at issue").

Moreover, the majority inexplicably overlooks a fact that undermines its
finding of immediate harm based on a perceived fear of future explosion.
9

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Midwest's application for a zoning certificate expressly stated that the proposed
building would be used as garage storage for company vehicles and not for
fireworks manufacturing or storage. Although the majority emphasizes the "risk
of catastrophic explosion" related to fireworks manufacturing, the zoning
application on its face suggests a significantly diminished threat of this type of
harm.

To buttress its conclusion, the majority cites Roper v. Richfield Twp. Bd.
of Zoning Appeals (1962), 173 Ohio St. 168, 18 O.O.2d 437, 180 N.E.2d 591, and
Schomaeker v. First Natl. Bank of Ottawa (1981), 66 Ohio St.2d 304, 20 O.O.3d
285, 421 N.E.2d 530, to support a finding that Carver has standing to bring an
R.C. 519.15 appeal. Carver relies on both of these cases to support the
proposition that he would have standing, as a neighboring property owner, if this
were an R.C. 2506.01 appeal and that he should therefore have standing under
R.C. 519.15. But these cases provide weak support for this conclusion. Neither
Roper nor Schomaeker suggests that mere adjacency of one's property is enough
to confer standing to bring an administrative zoning appeal. When read together,
these cases clarify that harm unique to the complaining party provides the basis
upon which a private property owner, as distinguished from the public at large,
can challenge a zoning decision in an administrative appeal. See Willoughby
Hills, 64 Ohio St.3d at 27, 591 N.E.2d at 1205-1206. An adjacent or neighboring
property owner may have standing to bring an appeal under R.C. 519.15 if that
owner demonstrates the immediate personal or pecuniary injury required to be a
"person aggrieved" within the meaning of the statute. Carver has not
demonstrated unique harm in this case and thus cannot rely on Roper and
Schomaeker to support his argument for standing.

Absent sufficient allegations of a present and substantial interest in the
litigation that is unique compared to that shared by the public at large, Carver has
10

January Term, 2001
not established that he has standing to appeal to the BZA under R.C. 519.15. I
would therefore affirm the judgment of the court of appeals.
F.E. SWEENEY and PFEIFER, JJ., concur in the foregoing dissenting
opinion.
__________________

Cole Co., L.P.A., and Mark H. Ludwig, for appellee.

Craig T. Conley, for appellant.
__________________
11