[Cite as Rauch v. Jefferson Twp. Bd. of Zoning Appeals, 2016-Ohio-967.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

MONTGOMERY COUNTY

STEVEN R. RAUCH 

Appellant-Appellee 

v. 

JEFFERSON TOWNSHIP BOARD 

OF ZONING APPEALS 

Appellee-Appellant 

Appellate Case No. 26941 

Trial Court Case No. 2014 CV 06029 

(Civil Appeal from Common Pleas Court) 

 

DECISION AND FINAL JUDGMENT ENTRY

March 8, 2016 

PER CURIAM: 

{¶ 1} This case arises from an administrative appeal taken from the Jefferson 

Township Board of Zoning Appeals (“BZA”) to the Montgomery County Court of Common 

Pleas. Steven R. Rauch appealed to the common pleas court when the BZA denied his 

request for a conditional use permit. On November 5, 2015, the common pleas court 

reversed the BZA’s decision and remanded the matter to the BZA with directions to issue 
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the permit. 

{¶ 2} On December 4, 2015, the BZA filed a notice of appeal, instituting the 

appeal currently before this court. No other parties have appealed or cross-appealed, and 

the time in which to do so has elapsed. App.R. 4. 

{¶ 3} On December 11, 2015, Rauch moved to dismiss this appeal. He argues 

that the BZA lacks standing to appeal the common pleas court’s decision. In response, 

the BZA argues that it was Rauch’s error in naming only the BZA in his appeal to the 

common pleas court that caused the problem. The BZA asserts that Rauch’s error 

deprived the common pleas court of jurisdiction. It also argues that because Rauch made 

it a party below, it may appeal pursuant to R.C. 2506.04 (allowing “any party” to appeal). 

{¶ 4} In the alternative, the BZA seeks to substitute other parties. On December 

21, 2015, the BZA, “joined by” the Jefferson Township Board of Trustees (the “Board”) 

and Jeffrey Payne, the Jefferson Township Zoning Director (the “Zoning Director”), filed a 

motion to substitute the Board and Zoning Director for the BZA pursuant to App.R. 29(B). 

Rauch argues in response that substitution cannot be used to “repair” a notice of appeal in 

this manner. The parties appear to agree that amendment of the notice of appeal 

pursuant to App.R. 3(F) would be untimely and focus their arguments on substitution 

pursuant to App.R. 29(B). They both advance arguments as to whether substitution is 

“necessary” under that rule. 

{¶ 5} We conclude that the BZA lacks standing to appeal, and that the lack of 

standing is a jurisdictional defect. We are therefore required to dismiss the appeal without 

allowing the substitution of entities who did not timely appeal. 

Standing 
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{¶ 6} “It is a fundamental rule that an appeal may generally be instituted only by 

‘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.’ ” In re 

Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, ¶ 5, 

citing Willoughby Hills v. C.C. Bar’s Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203 

(1992). A party has standing when it has a “right to make a legal claim or seek judicial 

enforcement of a duty or right.” Ohio Pyro Inc. v. Ohio Dept. of Commerce, 115 Ohio 

St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27, quoting Black’s Law Dictionary (8th 

Ed.2004) 1442. 

{¶ 7} Rauch argues that the BZA lacks standing to appeal the common pleas 

court’s decision. The Supreme Court of Ohio directly held, in 1952, that “[n]either a 

township board of zoning appeals nor any of its members as such have a right to appeal 

from the judgment of a court, rendered on appeal from a decision of such board and 

reversing and vacating that decision.” Di Cillo & Sons, Inc. v. Chester Zoning Bd. of 

Appeals, 158 Ohio St. 302, 109 N.E.2d 8 (1952), syllabus. As the Fourth Appellate District 

explained: 

“In an appeal to the board of zoning appeals, the board does not become a 

party to that appeal,” but rather is a body to decide whether the issuance of 

a variance is appropriate. [Di Cillo] at 304-305, 109 N.E.2d 8. “[T]he board 

should be as disinterested in deciding matters brought before it as a court 

should be.” Id. at 305, 109 N.E.2d 8. “Just as a common pleas court is not a 

party in a case it decides and may not appeal from a decision of a court of 

appeals that reverses the common pleas’ decision, the board of zoning 
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appeals is not a party to [an] appeal and has no standing to appeal.” Parker 

v. Swancreek Twp. Bd. of Zoning Appeals, 6th Dist. Fulton Nos. F-04-035, 

F-04-036, F-04-038, 2005-Ohio-538, ¶ 4. Instead, the proper party to appeal 

under R.C. Chapter 2506 is “the city, the city official responsible for 

enforcing the zoning regulations, or other persons aggrieved by the court’s 

decision.” Sich v. Bd. of Zoning Appeals for the City [of] Middletown, 12th 

Dist. Butler No. CA83-08-093, 1984 WL 3386, *1 (July 16, 1984), citing Di 

Cillo at 305, 109 N.E.2d 8; Gold Coast Realty, Inc. v. Bd. of Zoning Appeals, 

26 Ohio St.2d 37, 39, 268 N.E.2d 280 (1971). 

Safest Neighborhood Assn. v. Athens Bd. of Zoning Appeals, 2013-Ohio-5610, 5 N.E.3d 

694, ¶ 11 (4th Dist.). This court has dismissed a case, on nearly identical procedural 

facts, because the appellant, a board of zoning appeals, lacked standing. See Bd. of 

Zoning Appeals for Harrison Twp. v. Resident Home Assn. for the Mentally Retarded of 

Greater Dayton, Inc., 2d Dist. Montgomery No. 6894, 1981 WL 2715, *2 (Mar. 6, 1981) 

(“Resident Home”). We held that “a township board of zoning appeals is not a person 

adversely affected by an order of the common pleas court reversing one of its decisions, 

and thus may not institute an appeal to the court of appeals in which the order of reversal 

of the common pleas court is challenged.” Id. 

{¶ 8} The Supreme Court’s decision in Di Cillo considered a board of zoning 

appeals’ standing pursuant to Section 3180-39 of the General Code, which allowed “[a]ny 

person adversely affected by a decision of a township board of zoning appeals” to appeal. 

Di Cillo at 304. That statute’s replacement, R.C. 2506.04, provides that the “judgment of 

the court may be appealed by any party on questions of law as provided in the Rules of 
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Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of 

the Revised Code.” (Emphasis added.) The BZA asserts that it was a “party” to the lower 

court proceedings, and it therefore may appeal. 

{¶ 9} We have rejected this argument, as have other courts. In Resident Home, 

for example, we said that “[t]he fact that Section 2506.04, Revised Code, provides that any 

party may appeal from a decision does not authorize one who was not a proper party to 

appeal.” Id. at *2; Spencer v. Bd. of Zoning Appeals of Perry Twp., 171 N.E.2d 914, 918 

(5th Dist.1960). We also find persuasive cases from across the districts that have 

continued to dismiss appeals by boards of zoning appeals for lack of standing or 

otherwise. See, e.g., Safest Neighborhood Assn. at ¶ 11; Rickard v. Trumbull Twp. 

Zoning Bd. of Appeals, 11th Dist. Ashtabula No. 2008-A-0024, 2009-Ohio-2619, ¶ 41-44; 

Parker v. Swancreek Twp. Bd. of Zoning Appeals, 6th Dist. Fulton No. F-04-035, 2005-

Ohio-538, ¶ 4; but see Sich v. Bd. of Zoning Appeals for City of Middletown, 12th Dist. 

Butler No. CA83-08-093, 1984 WL 3386, *1-2 (July 16, 1984) (acknowledging the 

Supreme Court’s directive in Di Cillo, but hearing appeal because there had been no 

objection to standing). We conclude that the BZA lacks standing to appeal the decision of 

the common pleas court that reversed the BZA. 

Substitution 

{¶ 10} The BZA asks this court to substitute the Board and the Zoning Director for 

the BZA as appellants in this action. Before considering whether substitution is 

“necessary” or appropriate under App.R. 29(B), we first consider the effect of the lack of 

standing on our jurisdiction. 

{¶ 11} The Supreme Court of Ohio recently held that standing is “a jurisdictional 
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requirement; a party’s lack of standing vitiates the party’s ability to invoke the jurisdiction of 

a court – even a court of competent subject-matter jurisdiction – over the party’s attempted 

action.” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 

1040, ¶ 22. 

{¶ 12} “For over 15 years, standing challenges were addressed by * * * Ohio courts 

by relying on State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d 70, [77,] 701 N.E.2d 1002 

(1998), a plurality opinion holding that a lack of standing does not deprive the court of 

subject matter jurisdiction and can be cured under Civ.R. 17.” JPMC v. Cochran, 11th 

Dist. Ashtabula No. 2014-A-0048, 2015-Ohio-2452, ¶ 15. “Following a split among the 

districts, the Supreme Court of Ohio in 2012 ultimately dismissed the Suster analysis as 

non-binding, noting its plurality status.” Cochran at ¶ 16, citing Fed. Home Loan Mtge. 

Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 29. The 

court held that “[b]ecause standing to sue is required to invoke the jurisdiction of the 

common pleas court, ‘standing is to be determined as of the commencement of suit.’ ” 

Schwartzwald at ¶ 24 (internal citation omitted). It also departed from Suster in holding 

that “a common pleas court cannot substitute a real party in interest for another party if no 

party with standing has invoked its jurisdiction in the first instance.” Id. at ¶ 38. 

{¶ 13} In 2014, the Supreme Court again discussed the connection between 

standing and jurisdiction. It held that a “determination of standing necessarily looks to the 

rights of the individual parties to bring the action, as they must assert a personal stake in 

the outcome of the action in order to establish standing.” (Emphasis in original.) Bank of 

Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 23, citing 

Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 
7

N.E.2d 550, ¶ 27. The court held that “[l]ack of standing is certainly a fundamental flaw 

that would require a court to dismiss the action, Schwartzwald at ¶ 40, and any judgment 

on the merits would be subject to reversal on appeal.” Kuchta at ¶ 23. 

{¶ 14} The Supreme Court’s analysis was conducted in the context of foreclosure 

proceedings instituted in the common pleas courts. The zoning matter before us 

originated in the BZA, was then appealed to the common pleas court, and then further 

appealed to this court. We have found little direct guidance as to whether the Supreme 

Court’s analysis would extend to appeals in appellate courts. The analysis has, however, 

been applied to other kinds of cases at the trial court level. See, e.g. Murray v. Miller, 5th 

Dist. Richland No. 15CA02, 2015-Ohio-3726 (legal malpractice claim brought by 

bankruptcy debtor); Shefkiu v. Worthington Industries, Inc., 2014-Ohio-2970, 15 N.E.3d 

394 (6th Dist.) (workplace injury claim by bankruptcy debtor). Similar analysis was applied 

prior to Schwartzwald and Kuchta to dismiss an administrative appeal without allowing 

substitution. See Hills & Dales v. Ohio Dept. of Edn., 10th Dist. Franklin No. 06AP-1249, 

2007-Ohio-5156 (affirming common pleas court’s dismissal of appeal and denial of 

substitution as moot where appellant lacked standing). And, courts have explicitly held 

they “cannot allow new parties to be amended into a notice of appeal that was insufficient 

to invoke the court's jurisdiction in the first place,” because of a lack of standing. State v. 

Langston, 6th Dist. Lucas No. L-12-1014, 2012-Ohio-6249, ¶ 12, citing Ambrosia Coal & 

Constr. Co. v. C.B.G., Inc., 7th Dist. No. 00 C.A. 101, 2001 WL 1123901 (Sept. 14, 2001); 

see also Beneficial Mtge. Co. v. Dickerson, 10th Dist. Franklin No. 14AP-282, 2014-Ohio5045, ¶ 10, citing Ambrosia Coal. 

{¶ 15} We see no principled reason the Schwartzwald/Kuchta analysis should not 
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apply here. Given that an appellant must also have standing in the court of appeals, In re 

Guardianship of Santrucek, 120 Ohio St.3d 67, 2008-Ohio-4915, 896 N.E.2d 683, ¶ 5, and 

given the Supreme Court’s unambiguous statement that lack of standing is a fundamental, 

jurisdictional flaw requiring a court to dismiss an action, we conclude that the BZA’s lack of 

standing requires this court to dismiss its appeal. Kuchta at ¶ 23, citing Schwartzwald at ¶ 

40. Further, the Supreme Court’s holding that lack of standing cannot be “cured” later in 

the proceedings persuades us that we may not permit the type of substitution sought here 

by the BZA. Schwartzwald at ¶ 38-39. 

{¶ 16} Even if this court could permit the BZA to “cure” the lack of standing, we are 

not convinced that App.R. 29, under which the BZA seeks substitution, should be used in 

the manner suggested. Before Schwartzwald and Kuchta, standing problems in the trial 

court could be cured by substitution or correction pursuant to Civ.R. 17’s real party in 

interest provision. See Suster, supra. The Appellate Rules contain no analog to Civ.R. 

17. Rather, the Appellate Rules contain a substitution rule analogous to Civ.R. 25. Civ.R. 

25 allows substitution of parties because of death, incompetency, transfer of interest, or 

when a named public officer dies, resigns, or otherwise ceases to hold office. Similarly, 

App.R. 29 permits substitution upon a party’s death, when a named public officer dies, 

resigns, or otherwise ceases to hold office, or where it “is necessary for any reason other 

than death.” App.R. 29(B). 

{¶ 17} Both Civ.R. 25 and App.R. 29 contemplate substitution when there is some 

equivalence between the new party and the old, e.g., a personal representative and her 

decedent, or a public official and his predecessor. There is no such relationship here. 

The Board of Zoning Appeals, the Board of Township Trustees, and the Township Zoning 
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Director1 all appear to be separate entities, with separate statutory rights and 

responsibilities. Compare R.C. 519.13 and R.C. 519.14 (concerning boards of zoning 

appeals); R.C. 505.01 et seq. (concerning boards of township trustees); R.C. 519.16 

(concerning township zoning inspectors). They are not equivalent as a matter of fact, and 

we decline to construe “necessary” in this context to allow them to be treated as such as a 

matter of law. 

{¶ 18} We also do not believe that App.R. 29(B) was intended to be used as a real 

party in interest rule. Parties who substitute into an appeal in the customary situation seek 

to vindicate or protect the rights of the original party. A personal representative, for 

example, asserts the rights of her decedent, not her own rights. We do not view App.R. 

29(B) as a mechanism to introduce a new party seeking to pursue its own rights. We 

decline to construe the word “necessary” under the rule to include situations where 

substitution is the only way for an appeal to proceed, not because a proper party became 

unable to litigate, but because an improper party appealed and the proper parties did not. 

The contrary result would allow placeholder appeals to be filed by entities without any 

cognizable interest in the outcome, and the later substitution by entities that, as here, 

failed to intervene or timely assert their rights in these proceedings or the proceedings 

below. We decline to construe “necessary” in this manner. 

{¶ 19} Finally, even if we had discretion to allow a lack of standing to be cured by 

substitution, we would not exercise our discretion to do so here. The Board and the 

Zoning Director failed to file a timely notice of appeal. As they argue, they have an 

interest in the matter and could properly be parties. See Gold Coast Realty, Inc. v. Bd. of 

 

1 The statute contemplates a zoning inspector, necessary assistants, and a fiscal officer. R.C. 519.16. While 

not directly addressed by the parties, we observe that the Zoning Director in this case appears to have acted 
10

Zoning Appeals of City of Cleveland, 26 Ohio St.2d 37, 39, 268 N.E.2d 280 (1971) (finding 

that a municipality has standing to appeal a decision of the common pleas court that 

reversed the BZA). By finding it “necessary” for them to be substituted in, we would create 

a loophole through which litigants could apply to this court for relief in violation of this 

court’s primary jurisdictional requirement: that the appellant timely filed a notice of appeal. 

See App.R. 4(A). 

{¶ 20} We are cognizant that the Supreme Court of Ohio has held that the only 

jurisdictional requirement for a valid appeal is the timely filing of a notice of appeal, without 

specifying who must file it. Transamerica Inc. Co. v. Nolan, 72 Ohio St.3d 320, 649 

N.E.2d 1229 (1995), syllabus. To the extent that this statement survives or incorporates 

the mandates of Schwartzwald and Kuchta, we would note that Transamerica considered 

a motion to amend a notice of appeal, not a motion to substitute a party. Transamerica

also considered errors in the form of the notice of appeal itself, not the appellant’s lack of 

standing. See Beneficial Mtge. Co. v. Dickerson, 10th Dist. Franklin No. 14AP-282, 2014-

Ohio-5045, ¶ 10 (distinguishing Transamerica and finding the court’s jurisdiction not 

properly invoked by a notice of appeal filed by a non-existent entity who lacked standing). 

Together, these cases persuade us that the timely filing of a notice of appeal by a person 

with standing to file it is required. 

{¶ 21} Under the circumstances presented here, we conclude that the motion to 

substitute parties pursuant to App.R. 29(B) is not well-taken. 

Conclusion 

{¶ 22} The BZA lacks standing to appeal the common pleas court’s decision 

overruling the BZA. Rauch’s motion to dismiss this appeal is therefore SUSTAINED. The 

 

similarly to a zoning inspector. 
11

motion to substitute parties is OVERRULED. Montgomery App. No. 26941 is 

DISMISSED. 

{¶ 23} Pursuant to Ohio App.R. 30(A), it is hereby ordered that the Clerk of the 

Montgomery County Court of Appeals shall immediately serve notice of this judgment 

upon all parties and make a note in the docket of the mailing. 

 SO ORDERED. 

 

 MARY E. DONOVAN, Presiding Judge 

 

 MIKE FAIN, Judge 

 

 MICHAEL T. HALL, Judge 

Copies to: 

Jeffrey Turner 

Dawn Frick 

Kevin Lantz 

Surdyk, Dowd & Turner Co., LPA 

8163 Old Yankee Street, Suite C 

Dayton, Ohio 45458 

Attorneys for Appellant, Jefferson Township Board of Zoning Appeals 

Terry Posey, Jr. 

Scott King 

Thompson Hine, LLP 

Austin Landing I 

10050 Innovation Drive, Suite 400 

Miamisburg, Ohio 45342 

Attorneys for Appellee, Steven R. Rauch 

Hon. Mary Wiseman 

Montgomery County Common Pleas Court 
12

41 N. Perry Street 

P.O. Box 972 

Dayton, Ohio 45422 

CA3/KY