[Cite as Dempsey v. Shawnee Hills, 2015-Ohio-257.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

FREDRICK DEMPSEY 

 Plaintiff-Appellant 

-vsVILLAGE OF SHAWNEE HILLS 

 Defendant-Appellee 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. W. Scott Gwin, J. 

Hon. Sheila G. Farmer, J. 

Case No. 14 CAH 03 0015 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Delware County Court of 

Common Pleas, Case No. 12 CVF 12 1416 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: January 15, 2015 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

FREDERICK R. DEMPSEY PAUL-MICHAEL LA FAYETTE 

68 Buckeye Drive Poling Law 

Powell, Ohio 43065 300 East Broad S. Suite 350 

 Columbus, Ohio 43215 
Delaware County, Case No. 14 CAH 03 0015 2

Hoffman, P.J. 

{¶1} Plaintiff-appellant Fredrick Dempsey appeals the February 12, 2014 

Judgment Entry entered by the Delaware County Court of Common Pleas, which 

granted defendant-appellee Village of Shawnee Hills’ (“the Village”) motion to dismiss 

for lack of standing. 

STATEMENT OF THE FACTS AND CASE 

{¶2} On October 12, 2012, David Armeni filed an application for conditional use 

with the Village relating to property adjacent to Dempsey’s property. Pursuant to 

Shawnee Hills Ordinance 1133.02(b), the Village sent a letter to each 

“Adjoining/Affected Property Owner”, including Dempsey, which provided notice of the 

application as well as the hearing scheduled before the Village Board of Zoning Appeals 

(“BZA”) on November 13, 2012. 

{¶3} Dempsey, a practicing attorney licensed in the State of Ohio, attended the 

BZA hearing and verbally opposed the application. At the conclusion of the hearing, the 

BZA orally granted the application. The BZA did not render a written decision. 

However, the November 13, 2012 hearing was recorded. Pursuant to R.C. 2506.01, 

Dempsey filed a timely appeal of the BZA’s decision to the Delaware County Court of 

Common Pleas. 

{¶4} The Village filed a motion to dismiss for lack of standing. Therein, the 

Village argued Dempsey had failed to establish standing during the BZA hearing. Via 

Judgment Entry filed February 12, 2014, the trial court granted the Village’s motion to 

dismiss. 
Delaware County, Case No. 14 CAH 03 0015 3

{¶5} It is from this judgment entry Dempsey appeals, raising the following as 

error: 

{¶6} "I. THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANTAPPELLEE'S MOTION TO DISMISS FOR LACK OF STANDING AND DENIED ALL 

OTHER PENDING MOTIONS AS BEING MOOT." 

I 

{¶7} The issue of standing is a question of law; therefore, is reviewed de novo. 

Dinks II Company, Inc. v. Chagrin Falls Village Council, 8th Dist. No. 84939, 2005-Ohio2317, at ¶ 16, citing Shelton v. LTC Management Services, 4th Dist. No. 03CA10, 2004-

Ohio-507, at ¶ 5. 

{¶8} The common-law doctrine of standing provides only those individuals who 

can demonstrate a present interest in the subject matter of the litigation and who have 

been prejudiced by the decision at issue are entitled to appeal the same. Willoughby 

Hills v. C.C. Bar's Sahara, Inc., 64 Ohio St.3d 24, 26, 591 N.E.2d 1203, 1992-Ohio-111. 

The burden of establishing such entitlement rests with the individual seeking to appeal. 

Id., see, also, Fahl v. City of Athens, 4th Dist. No. 06CA23, 2007-Ohio-4925, at ¶ 14. 

{¶9} R.C. 2506.01 specifically limits the right to appeal an administrative 

decision to final decisions which determine “rights, duties, privileges, benefits or legal 

relationships of a person * * *.” R.C. 2506.01(C). The statute, however, fails to 

specifically identify who has standing to appeal administrative decisions. 

{¶10} In Roper v. Bd. of Zoning Appeals, Township of Richfield (1962), 173 Ohio 

St. 168, 180 N.E.2d 591, the Ohio Supreme Court determined it would be inappropriate 

to limit standing, as it pertains to an administrative appeal, to parties whose applications 
Delaware County, Case No. 14 CAH 03 0015 4

for zoning modification had been denied. The Court reasoned, such a “‘heads I win, tails 

you lose’“ approach would be contrary to the intent of the administrative appeals statute 

and “repugnant” to the sensibilities of the Court's majority. Id. at 173, 180 N.E.2d 591. 

Thus, the Roper Court held standing to appeal an administrative decision lies in an 

applicant for a zoning change as well as: 

 A resident, elector and property owner of a township, who appears 

before the township Board of Zoning Appeals, is represented by an 

attorney, opposes and protests 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 the 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.” Id. at 

syllabus. 

{¶11} In Schomaeker v. First Natl. Bank of Ottawa (1981), 66 Ohio St.2d 304, 

421 N.E.2d 530, the Court built upon its holding in Roper, supra, stating a party must be 

“a person directly affected” by the administrative decision to have standing to appeal 

pursuant to R.C. Chapter 2506. Id. at 312. The Schomaeker Court held: 

 A person owning property contiguous to the proposed use who has 

previously indicated an interest in the matter by a prior court action 

challenging the use, and who attends a hearing on the variance together 

with counsel, is within that class of persons directly affected by the 

administrative decision and is entitled to appeal under R.C. Chapter 2506. 
Delaware County, Case No. 14 CAH 03 0015 5

{¶12} In Willoughby Hills, supra, the Court explained 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. Willoughby Hills, supra, at 27, 591 N.E.2d 1203. 

{¶13} In conjunction with this clarification, the Court in Willoughby Hills

rephrased, but essentially reiterated the requirements set forth in Roper and 

Shomaeker, stating: “[a]djacent or contiguous property owners who oppose and 

participate in administrative proceedings concerning the issuance of a variance are 

equally entitled to seek appellate review under R.C. 2504.01.” Id. at 26, 180 N.E.2d 591. 

{¶14} The trial court ruled Dempsey lacked standing to bring the appeal, finding, 

although Dempsey was present and actively participated in the November 13, 2012 

hearing, he failed to show how he, “as an adjacent property owner, would suffer unique 

harm to himself if the conditional use was granted.” February 12, 2014 Judgment Entry 

at 6. We find the trial court erred in finding Dempsey lacked standing and in dismissing 

his appeal. 

{¶15} To reiterate, in Schomaeker, the Ohio Supreme Court held, “A person 

owning property contiguous to the proposed use who has previously indicated an 
Delaware County, Case No. 14 CAH 03 0015 6

interest in the matter * * * and who attends a hearing on the variance together with 

counsel, is within that class of persons directly affected by the administrative 

decision and is entitled to appeal under R.C. Chapter 2506.” Schomaeker at Headnote 

11. 

{¶16} Applying Schomaeker, we find Dempsey was within the class of persons 

directly affected by the decision. Because he appeared before the BZA, represented 

himself, opposed and protested the zoning change, and advised the BZA, on the record, 

he intended to appeal from the decision, we find he has standing to appeal under R.C. 

Chapter 2506. 

{¶17} The decision of the Delaware County Court of Common Pleas is reversed 

and the matter remanded to the trial court for further proceedings. 

By: Hoffman, P.J. 

Gwin, J. and 

Farmer, J. concur