IN THE SUPREME COURT OF OHIO

LOFINO'S INC., et al.,

Plaintiffs-Appellants,

-v-

C1TY OF BEAVERCREEK, OHIO CITYCOUNCIL, et al.,

Defendants-Appellees.

Supreme Court Case No.: 2009-1804

On Appeal from the Greene Coimty Court ofAppeals, Second Appellate District

Court of Appeals No. 2008-CA-0061

MEMORANDUM OF DEFENDANT-APPELLEE WAL-MAR'I' STORES, INC.OPPOSING JURISDICTION

Joseph L. Trauth, Jr. (0021803)Thomas M. Tepe, Jr. (0071313)Keating Muetliing & Klekamp PLLOne East Fourth Street, Suite 1400Cincinnati, Ohio 45202Telephone: (513) 579-6400Facsimile: (513) 579-6457

Attorneys for Defendant-AppelleeWal-Mart Stores, Inc.

Timothy M. Burke (0009189)Daniel J. McCarthy (0078388)Manley Burke LPA225 West Court StreetCincinnati, Ohio 45202-1098Telephone: (513) 721-5525Facsimile: (513) 721-4268

LFilt Od- {.:;iitlFIYI . 8UpR.WFCiJllR`T s)I° a

Attorneys for Plaintiffs-Appellants

Lofno's, Inc., et al.

Stephen M. McHugh (0018788)Amelia N. Blankenship (0082254)Altick & Corwin Co., LPA1700 One Dayton CentreOne South Main StreetDayton, Ohio 45402Telephone: (937) 223-1201Facsimile: (937) 223-5100

Attorneys. for Defendant-Appellee City ofBeavercreek City Couneil

TABLE OF CONTENTSPAGE

EXPLANATION OF WHY THIS CASE IS NOT' OF GREAT GENERAL INTEREST .............1

S'1'ATEMENT OF FACTS ...................................................................................3

ARGUMENT IN SUPPORT OF WAL-MART'S POSITION REGARDING LOFINO'SPROPOSED PROPOSITION OF LAW ...................................................................5

Response to ADpellants' Proposed Proposition of Law: A Property Owner is DirectlyAffected and Has Standing to Appeal an Administrative Action That Causes a Reductionin the Owner's Property Values ................................................................................5

Authorities (in order of first appearance):

Stuart Meck and Kenneth Pearlman, Oh. Plan. & Zoning L. § 11:23 (2008) ..............3, 9

Williamson v. Rubich (1960), 171 Ohio St. 253, 168 N.E.2d 876 ..............................5

Jenkins v. Gallipolis (1998), 128 Ohio App.3d 376, 381, 715 N.E.2d 196, 199.......5, 7, 8

Hickory Street Coalition v. Akron Planning Conim., 2004 WL 948747 *2 (Ohio App. 9Dist.) ..... .. ....... .. . ... ..... ....... .. . .. .. .. .. . ... . .. .. .... ........................ .. .... .. ....... ..5, 7

Roper v. Bd. ofZoningAppeals (1962), 173 Ohio St. 168, 180 N.E.2d 591 ..................7

Schomaeker v. First National Bank of Ottawa (1981), 66 Ohio St.2d 304, 312, 421N.E.2d 530, 537 .......................................................................................7

Westgate Shopping Village v. Toledo (1994), 93 Ohio App. 3d 507, 514, 639 N.E.2d126 ........................................................................................................................................7

American Aggregates Corp. v. Columbus (1990), 66 Ohio App.3d 318, 322, 584 N.E.2d26,29 ...................................................................................................7

Willougliby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 27, 591 N.E.2d1203, 1206 ..........................................................................................7, 8

Helrns v. Koncelik, 2008 WL 4416529 *6 (Ohio App. 10 Dist.) ...............................8

Conkle v. S. Ohio Ned. Cir., 2005 WL 1820035 * 3 (Ohio App. 4 Dist.) .....................8

CONCLUSION ...............................................................................................10

CERTIFICATE OF SERVICE .............................................................................11

A. EXPLANATION OF WHY THIS CASE 1S NOTOF GREAT GENERAI, INTEREST

There is nothing about this case that even remotely presents a question of public or great

general interest, nor that merits the time or precious resources of this Court. The law in this

matter is settled. Appellants simply failed to present any evidence that they possessed standing.

This case stems from an administrative appeal of a garden variety zoning issue, namely

the Beaverareek, Ohio City Council's ("City Council") decision to administratively modify the

Site Plan for an existing Plaimed Unit Development ("PUD"). The subject of this case is not the

opening of a new discount store location, but rather a store that already exists and was originally

approved in 1992. Instead, as lower courts have already discenied, this is a case of a local

grocery store owner attempting to stave off competition from an existing discount retail store.

The decisions by the Greene County, Ohio Court of Common Pleas (the "'I'rial Court")

and the Court of Appeals for Greene County, Ohio (tbe "Appeals Court" or "Court of Appeals")

to dismiss Plaintiffs-Appellants' administrative appeal are based on their review of the factual

evidence contained in the administrative record filed pursuant to R.C. Chapter 2506.

In its August 28, 2009 Opinion, the Appeals Court, like the Trial Court, reviewed the

administrative record and held that Plaintiffs-Appellants Lofino's, Inc., Michael D. Lofino, and

Micliael D. Lofino, Trustee (collectively "Lofino") simply failed to prove that they have standing

to bring an administrative appeal:

[a]t no point, however, did appellants present evidence concerning their businessor property - what it is, where it is located or how the Wal-Mart expansionwould affect it....

[a]ppellants did not for example, present evidence that the expansion woulddecrease the property value of their propertv.... [nlor did appellants presentevidence that the expansion would diniinish access to their business....

[b]ecause appellants failed to present evidence that they are directly affected bythe approval of the proposed expansion, the trial court correctly determined thatthey lack standing to appeal that approval.

(See Appeals Court Opinion in Case No. 2008 CA 61 at p. 8)(emphasis added).

The administrative record is completel devoid of any evidence whatsoever about any

effects of City Council's administrative decision on Lofino's property values. As the Appeals

Court stated in its Opinion, Lofino failed to provide any details about its property or present any

evidence about a decrease in its property values. Neither the Trial Court nor the Appeals Court

could have possibly found that Lofino demonstrated that it was directly affected by the

administrative decision where there is not a scintilla of evidence in the record about the

properties that it alleges were directly affected by the decision.

Lofino owns and operates a competing grocery business in Beavercreek and fears that the

competltion from an expanded store will create overwhelming competition for its grocery

business. Lofino's administrative appeal, contemporaneously 61ed federal court clrallenge, and

this appeal are nothing more than attempts to frustrate and delay a lawful store expansion and to

stave off grocery competition in Beavercreek. Lofino's interest in this case is solely about

business competition - a fact recognized by the Trial Court in its July 25, 2008, Order dismissing

Lofino's appeal for lack of standing:

This reason, as expressed by Lofino's appears to be increased businesscompetition, wliich `is not a proper basis upon which standing can be conferred.'

(See Trial Court's Final Appealable Order dated July 25, 2008 in Case No. 2007 CV 0710 at p.

3) (enlphasis added). Lofino acknowledges that it cannot establish standing simply beeause of

concerns about increased business competition, however, Lofino has never brought forth any

evidence that its appeal is about anything else. (See Lofino's Meinorandum in Support at p. 7).

This Court's time and resources should not be burdened to serve the specific interests of a

business owner concerned about increased business competition.

Because this is a factual matter, namely whetl7er Lofino introduced sutficient evidence in

the record before City Council to convincea court that it was directly affected by City Council's

administrative decision, this case does not involve any unresolved or novel issues of Ohio law.

There are no further issues to be determined, and this Court should decline to exercise

jurisdiction.

B. STATEMENT OF FACTS

On Noveinber 6, 199 1, City of Beavercreek planning staff recommended approval for the

rezoning of 47.3 acres of land along the north side of New Gennany-Trebein Road iimnediately

west of North Fairfield Road in the City of Beavercreek, Greene County, Ohio (the "Property").

Beaverereek plamiing staff recommended that the Property be rezoned frorn an A-1 Agricultural

Zoning District to a C-PUD Commercial Zoning District to allow for a 436,600 square foot

commercial development. The rezoning of the Property to a PUD allows for more flexibility in

the development of the Property. "In a PUD, lot size, setback, bulk, lot coverage, parking, and

other development standards are relaxed in order to achieve better site design, use relationships,

and preservation of open spaces and natural topography." Stuart Meck and Kenneth Pearlman,

Oh. Plan. & Zoning L. § 11:23 (2008). It is important to note that the PUD is specific to the

Property and does not impact the zoning regulations as applied to any other property in

the City of Beaverereek.

The development of the Property was phased. The first stage of the developinent was

capped at 230,000 square feet until a second point of access could be provided from the Property

to North Fairfield Road. Once that access was provided, another 236,600 square feet became

available for development on the Propeity.

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In 1991, City Council adopted Ordinance No. 91-63 which carried out planning stafPs

reconmiendations, rezoned the Propeity as a PUD, and set forth the staging plan. In 1992, witli

the desired zoning in place, the developer of the Property, R.G. Properties of Dayton, Ohio,

applied for approval of a specific site plan ("Site Plan") for the development of a mixed-use

coinmercial center commonly known as "Fairfield Crossing." Included in the proposed

commercial center were plans for a Wal-Mart and Sam's Club store along with several other

buildings. On September 14, 1992, City Council conditionally approved the Site Plan for the

development including plans for a Wal-Mart and Sam's Club store. The stores were

subsequently constructed on the Property in accordance with the Site Plan and have been

successfully operating ever since.

In November, 2006, Wal-Mart filed an application requesting a modification to the

approved Site Plan to allow for a 56,841 square foot addition to the west and south sides of the

Wal-Mart store. Wal-Mart subsequently modified its application to includc a modest 4,021

square feet addition to the Sam's Club store and new facade.

In June, 2007, the Planning Commission voted to recommend administrative approval of

Wal-Mart's proposed plans to City Council. And in July, 2007, City Council held a public

hearing on Wal-Mart's application for an administrative modification to the Site Plan. At that

hearing, Jeff McGrath, City Planner for the City of Beaverereek, made a lengthy presentation of

the application, including the recoimnended approval of plamiing staff's and the Planning

Commission. Attorney Timothy Burke appeared at the hearing on behalf of "Lofino Food

Stores," which is not a party to this case. At that ineeting, City Council voted in favor of

conditionally approving a modification to the Site Plan permitting an expansion of the existing

retail stores on the Property.

The administrative record was compiled from the various public hearings which led to

the administrative decision being appealed by Lofino. The administrative record does not

contain any evidence about Lofino's properties or the effects of the adininistrative decision on

Lofino's property values.

C. ARGUMENT IN SUPPORT OF WAL-MART'S POSITION REGARDINGLOFINO'S PROPOSED PROPOSITION OF LAW

Response to Lofino's Proposed Proposition of Law: A Propet-ty Owner isDirectly Affected and Has Standing to Appeal an Adniinistrative Action ThatCauses a Reduction in the Owner's Property Values.

Before addressing the substantive issues raised by Lofino, this Court must first determine

whether Lofino has presented a question or questionsor public or great interest for this Court to

exercise its discretion to hear this appeal. See Williamson v. Rubich (1960), 171 Ohio St. 253,

168 N.E.2d 876; see also SC Prac.R. II, §l(A)(3). "[T]Fce sole issue for determination at the

hearing upon such motion is whether the cause presents a question or questions of public or great

general interest as distinguished from questions of interest primarily to the parties." Williamson,

171 Ohio St. at 254, 168 N.E.2d at 876 (emphasis in original). "Whether the question or

questions argued are in fact ones of public or great general interest rests within the discretion of

the court." Id.

The question Lofino asks this Court to consider is in no way of public or great interest

that would justify consideration of this appeal. T'he issues raised by Lofino do not present a

conflict of laws, require any interpretation of a novel legal issue, or invoke the need to create a

new precedent. Lofino's mere disagreement with the Appeals Court and desire for another bite

at the apple does not by itself justify granting jurisdiction to hear this appeal.

The only real issue presented in this case is whether the evidence in the record supports a

finding that Lofino satisfied its burden of proving that it was directly affected by City Council's

administrative decision to establish standing to bring an administrative appeal. See Jenkins v.

Gallipolis (1998), 128 Ohio App.3d 376, 381, 715 N.E.2d 196, 199; see also Hiclcory Street

Coalition v. Akron Planning Comm., 2004 WL 948747 *2 (Ohio App. 9 Dist.) (tlie

administrative appellant has the burden to prove standing). This issue is specific to and of

interest only to Lofino. It does not have any broader impact nor is the outcome of the issue of

any great interest to the public.

The detennination by the Trial Court and the Appeals Court about whether Lofino has

standing to bring an administrative appeal is solely dependant upon the evidence contained in the

administrative record. The administrative record was filed with and reviewed by the Trial Court

and the Appeals Court, each of which reaclied the same conclusion that the administrative record

lacks evidence to support a finding that Lofino has standing. The factors for detennining

whether a party has standing are well established by this Court and have been properly applied

by all reviewing bodies in this case. As the Trial Court and the Appeals Court correctly held,

Lofino did not present and the administrative record does not reflect any evidence about its

properties or any alleged effects on its property values, or any other evidence about how Lofino

is directly and uniquely affected by the administrative decision:

[a]t no point, however, did appellants present evidence concerning their businessor property - what it is, where it is located or how the Wal-Mart expansionwould affect it....

***

[a]ppellants did not, for example, present evidence that the expansion woulddecrease the propertv value of their property....(n]or did appellants presentevidence that the expansion would diminish access to their business....

**x

[b]ecause appellants failed to present evidence that they are directly affected bythe approval of the proposed expansion, the trial court correctly determined thatthey lack standing to appeal that approval.

(See Appeals Court Opinion in Case No. 2008 CA 61 at p. 8)(emphasis added). Therefore, the

lower courts could not possibly have ruled that Lofino has stlnding to bring such appeal under

well-settled Ohio law. To do so would have been reversible error.

While this case may be of economic interest to Lofino and its business, it does not

present any novel issue of law or any issue of great public import. The issue presented by Lofino

is a factual one about whether the administrative record contains evidence to support an

argument that Lofino suffered direct hami from the administrative decision at hand, whieh is

hardly a question of public or great general interest and which has been sufficiently addressed in

the lower courts.

Because Lofino's appeal is nothing more than an attempt to further delay and frustrate a

lawful store expansion in order to defend against the alleged increased business competition,

Lofino's proposition of law should be disregarded and this Court should decline to exercise

jurisdiction to consider this appeal. See Westgate Shopping Village v. Toledo (1994), 93 Ohio

App. 3d 507, 514, 639 N.E.2d 126, quoting American Aggregates Corp. v. Columbus (1990), 66

Ohio App.3d 318, 322, 584 N.E,2d 26, 29 (inoreased business competition is not a proper basis

for conferring standing).

Lofino's proposed proposition of law-that an owner's property values may be considered

to satisfy the "directly affected" test for deterrnining standing-may well be legally accurate, but,

the administrative appellant must prove the direct affect with evidence contained in the

adininistrative record. In the instant case, the administrative record does not contain any

evidence that City Council's administrative decision in any way directly affects Lofino's

property values. In fact, Lofino mentioned property values for the first time in its Appeals Court

brief. Such a claim, as confinned by the Trial Court and the Appeals Court, was never rnade at

the public hearings leading to the instant administrative decision. Even if Lofino had alleged a

negative impact on its property values, Ohio law does not automatically confer standing based on

a mere allegation. "But a mere allegation that property value has been or will be diminished is

not sufficient to sustain an appellant's burden to prove standing." Helms v. Koncelik, 2008 WL

4416529 *6 (Ohio App. 10 Dist.), citing Jenkins v. Gallipolis (1998), 128 Ohio App.3d at 383-

384, 715 N.E.2d at 196; also citing Conkle v. S. Ohio Med. Ctr., 2005 WL 1820035 *3 (Ohio

App. 4 Dist.). Ohio law requires proo£ The burden of proving standing to appeal is squarely

on Lofino, and Lofino unequivocally failed to satisfy its burden. See Jenkins v. Gallipolis

(1998), 128 Ohio App.3d at 381, 715 N.E.2d at 199; see also Hickory Street Coalition v. Akron

Planning Comm., 2004 WL 948747 at *2; see also Helms v. Koncelik-, 2008 WL 4416529 at *6;

see also ConTcle v. S. Ohio Med. Ctr., 2005 WL 1820035 at *3.

Under well-settled Ohio law, there are two prongs to the analysis for the establishment of

standing to bring an administrative appeal. First, this Court in Roper v. Bd. of Zoning Appeals

(1962), 173 Ohio St. 168, 180 N.E.2d 591, held that a person who is represented by counsel and

who attends and participates in an adniinistrative hearing and inakes known their intent to appeal

an adverse decision has standing to appeal a decision of that agency. In Schomaeker v. First

National Bank of Ottawa (1981), 66 Ohio St.2d 304, 312, 421 N.E.2d 530, 537, this Court added

a second prong to the analysis which requires a demonstration of hann resulting from the

decision that is unique to the appellant. In the Willoughby Hills case, this Court clarified that it

adopted the Schomaelcer test to distinguish between a private property owner from the public at

large. Willoughby Hills v. C.C. Bar's Sahara, Inc. (1992), 64 Ohio St.3d 24, 27, 591 N.E.2d

1203, 1206.

The Trial Court and the Court of Appeals correctly held that based on the filed

administrative record, Lofino did not satisfy its burden of deinonstrating that it would be affected

by City Council's adn-iinistration decision any differently than anyone else in Beavercreek. The

administrative record is devoid of any evidence that Lofino voiced any concems before any

administrative body which are specific to Lo fino or its properties.

Lofino now claims that "[t]he major modification created more than a generalized

grievance among the cornrnunity; it created direct harm to those specific grocers and retail

developers, like Lofino, that are prevented by law from using their property to the same extent as

their direct coinpetition, the party bene6ting from the modification." (See Lofino's

Memorandum in Support at p. 7). Lofino asserts that Wal-Mart is being treated more leniently

by the City, is undercutting zoning regilations, and, as such, is putting other property owners in

the City, including Lofino, at a competitive disadvantage. (See Lofino's Memorandum in

Support at p. 7-9). Lofino failed to support this assertion with any evidence in the administrative

record. Even if it had, the argument is completely baseless since the Property is located in an

PUD which is specific to the Property and has absolutely no relation whatsoever to any of

Lofino's properties - the closest of which is located approxiniately four miles away - or any

other property in the City of Beaverereek.

Understanding the purpose of a PUD is instructive in dispensing of Lofino's argument:

A PUD is an alternative to conventional lot-by-lot development in which zoningregulations control the placement of buildings and other activities on each lot. Inessence, a PUD merges elements of zoning and subdivision control. A unitarysite plan designates the location of uses, buildings and structures, and facilities,such as roads. The local govermnent reviews and approves the plan as a wholeand it becomes part of the PUD's regulatory scheme, and is applicable only tothat property. Under such a plan, the residential density is typically averagedover the entire site or the portion of the site devoted to residences. Someregulations offer a density bonus-in effect a reduction in lot area per unit,

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boosting the number of units allowed on the site-to induce the developer to usea PUD rather than conventional development approaches.

Stuart Meck and Keiuieth Pearlman, Oh. Plan. & Zoning L. § 11:23 (2008) (emphasis added).

Clearly, the PUD is only applicable to the Property. As such, any administrative modification of

the PUD Site Plan would also be specific to the Property.

At the rnost basic level, the Property and Lofino's properties are zoned to allow for their

current uses. Therefore, there is no issue about opposing a new use, but rather modifying an

existing per7nitted use. If Lofino or any other property owner in Beavercreek desires to develop

its property as a PUD or obtain a variance to achieve the same type of development as is

approved for the Property, then they are free to apply to the City for this assistance.

Lofino claims Beaverereek's administrative modification of the Site Plan creates unequal

treatment of its properties, however, Lofino has never made any showing that it has applied for

an expansion of its stores. Lofino cannot now cry foul because the Property was rezoned to a

PUD 18 years ago and is zoned differently than its properties. Any alleged dainage to Lofino

would have been realized back in 1991 when the Property was rezoned from an agricultural use

to a PUD to allow for the existing commercial development. Each property in Beaverereek is

imiquely situated and each property owner is free to attempt to achieve the maximum

development potential of their property. The Property happens to be in a PUD by virtue of the

foresight of its developers who anticipated the need for flexibility in the development plan at the

outset of the development.

If Ohio law was as Lofino suggests, and it was true that every property must be treated

exactly like every other property in Beavercreek, then no property owner would ever be able to

obtain a variance from the strict letter of the Zoning Ordinance or to zone their property as a

PUD to enjoy flexible development plans. Under that logic, an amendment to the text of the

Zoning Ordinance would be necessary each and every time a property owner seeks relief from

the strict letter of the Zoiung Ordinance. Such a result is absurd and would completely eliminate

the ability of local governments to grant zoning variances and PUD modifications.

The totality of the evidence in this case is contained in the filed administrative record,

which is unique to this case. The Trial Court and the Appeals Court held that Lofino lacked

standing because Lofino presented absolutely no evidence that it was in any way directly

affected by the City Council's administrative decision. Lofino has the burden of proving

standing. This Court cannot do anything to cure the deficiency of evidence in the administrative

record.

The only way to grant Lofino's appeal is to ignore or abolish the rule that an

administrative appellant has the burden to prove standing and to allow an adininistrative appeal

based merely on a post facto allegation that the administi-ative appellant has been directly

affected by the administrative decision. Such a rule would apply across all factual scenarios and

would be completely contrary to the well-settled law of standing set forth in the Schoemalcer and

Willougliby Hills cases, supra.

The 'Trial Court and the Appeals Court reviewed the administrative record on separate

occasions and reached the same correct conclusion. Thcre is nothing for this Court to do.

D. CONCLUSION

For all of these rcasons, this Court should deny jurisdiction to hear Lofino's appeal.

Respectfully submitted,

Joseph L. Trauth, Jr. (002180Thomas M. Tepe, Jr. (00713One East Fourth Street, Suite 1400Cincimiati, Ohio 45202Tel: (513) 579-6400Fax: (513) 579-6457jtrauth@kmklaw.comttepe@kinklaw.comAttotneys for Defendant-AppelleeWal-Mart Stores, Inc.

OF COUNSEL:

KEATING MUETHING & KLEKAMP PLLOne East Fourth Street, Suite 1400Cinciimati, Ohio 45202(513)579-6400

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing MEMORANDUM OF DEFENDANT-APPELLEE WAL-MART STORES, INC. OPPOSING JURISDICTION, was served uponthe following by ordinary U.S. mail this 23"d day of October, 2009.

Timothy M. Burke (0009189)Daniel J. McCarthy (0078388)Manley Burke LPA225 West Court StreetCincinnati, Ohio 45202-1098Telephone: (513) 721-5525Facshnile:(513) 721-4268Counsel for Plaintiff-AppellantLofino's, Inc., et al.

3162319.5

Stephen M. McHugh (0018788)Amelia N. Blankenship (0082254)Altick & Corwin Co., LPAOne South Main StreetDayton, Ohio 45402Telephone: (937) 223-1201Facsinnile: (937) 223-5100Attorneys for Defendant-AppelleeCity of Beavercreek City Council

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