Trial Court No. CI0201205719
Bradley R. Waugh, for appellant.
Adam W. Loukx, Director of Law, and John T. Madigan, Senior Attorney, for appellee.
DECISION AND JUDGMENT
(¶ 1} Appellant, Alexis Entertainment, LLC, appeals from the February 6, 2013 judgment of the Lucas County Court of Common Pleas dismissing the administrative appeal of appellant from the decision of the Toledo Board of Zoning Appeals. Because we find the trial court properly dismissed the appeal, we affirm.
(¶ 2} Thomas Lemon, Director of the Toledo-Lucas County Plan Commission granted a building permit to Nick Hasan to remodel a unit of a shopping center at 5801 Telegraph Road, Toledo, Ohio. Hasan intended to operate a sexually-oriented business in that unit. From 1997 until 2011, another company had operated a sexually-oriented business in another unit of the shopping center until it was destroyed by fire. Appellant has also been operating a sexually-oriented business since 1997 approximately one mile from the shopping center property at issue.
(¶ 3} After the enactment of a comprehensive zoning code in 2004, the sexually-oriented establishments which were already operating became legal non-conforming uses. Appellant appealed the decision of the director to the Toledo Board of Zoning Appeals asserting that Hasan's proposed sexually-oriented business establishment should not have been deemed a prior non-conforming use under Toledo Municipal Code 1114.0201. The Toledo Board of Zoning Appeals determined that appellant had standing to file the appeal but affirmed the decision of the director.
(¶ 4} Appellant filed a timely notice of appeal from that decision to the Lucas County Court of Common Pleas. The trial court dismissed the appeal on the ground that appellant lacked standing to appeal the decision of the board.
(¶ 5} On appeal to this court, appellant asserts the following single assignment of error:
THE COURT OF COMMON PLEAS, LUCAS COUNTY, OHIO, ERRED AS A MATTER OF LAW IN DETERMINING THAT APPELLANT, ALEXIS ENTERTAINMENT, LLC, HAD NO STANDING TO APPEAL THE ADMINISTRATIVE DECISION OF THE CITY OF TOLEDO, BOARD OF ZONING APPEALS.
(¶ 6} Appellant argues first that the issue of its standing was already raised by the city of Toledo at the board hearing. Because the board concluded that appellant had standing, appellant argues the trial court cannot reach a different conclusion. We disagree. The issue of standing raised by appellee relates to appellant's standing to seek an appeal to the court of common pleas, not appellant's standing to appeal the decision of the director to the board.
(¶ 7} Normally, "standing" is "the capacity of a party to bring an action, not the subject matter jurisdiction of the court." State ex rel Jones v. Suster, 84 Ohio St.3d 70, 77, 701 N.E.2d 1002 (1998). However, standing is a jurisdictional issue in administrative appeals where the "parties must meet strict standing requirements in order to satisfy the threshold requirement for the administrative tribunal to obtain jurisdiction." Id. at fn. 4. Accord Midwest Fireworks Mfg. Co. v. Deerfield Twp. Bd of Zoning Appeals, 91 Ohio St.3d 174, 177, 743 N.E.2d 894 (2001) (the right to appeal an administrative decision must be conferred by statute). Furthermore, standing is a question of law. Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20. Therefore, the appellate court reviews the issue under a de novo standard of review. Id
(¶ 8} Second, appellant argues that it has standing because it sought the appeal to the board and was not just an interested party. Third, appellant argues it was a party "directly affected" by the decision and satisfies the standing requirements. These two issues will be addressed simultaneously.
(¶ 9} The party seeking to appeal has the burden of establishing its standing from the record. Kraus v. Put-In-Bay Twp. Bd. of Zoning & Appeals, 6th Dist. Ottawa No. ...