STATE OF OHIO ex rel. MONICA LILLIS, et al., Appellants v. COUNTY OF SUMMIT, et al., Appellees
C.A. No. 28307
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT
April 26, 2017
[Cite as State ex rel. Lillis v. Summit, 2017-Ohio-1539.]
CALLAHAN, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2013-07-3400
CALLAHAN, Judge.
{¶1} Monica Lillis, David Horvath, and James Horvath appeal a decision of the Summit County Court of Common Pleas dismissing their petition for a writ of mandamus against the City of Akron for lack of standing. This Court reverses.
I.
{¶2} Because this matter comes before this Court following the grant of a motion to dismiss, this Court relatеs the facts as alleged in the amended complaint.1
{¶3} Ms. Lillis and Messrs. Horvath (“the Owners“) own real property at 2139 Glenmount Avenue in Coventry Township. This property was improved with two apartment buildings. In July 2011, Brewster Creek overflowed and its southern tributary flooded one of the
{¶4} In 2013, the Owners filed suit against the Ohio Department of Transportation, the County of Summit, the City of Akron (“Akron“), Coventry Crossing Community Association, and Coventry Crossing P.U.D. Owners’ Association. They alleged that the defendants and respondents “own and/or otherwise bear responsibility for maintaining storm water management systems and structures that have an impact upon the amount of water that drains into the Brewster Creek,” that construction has increased the storm water burdens on the “Brewster Creek system,” and that the defendants and respondents had not maintained the storm water management systems so as to minimize flooding. They contended that the result was “repeated and worsening flooding” on their propеrty and particularly described the July 2011 flooding. They further alleged that “the public agency [r]espondents have acted in such a way as to constitute a taking of [the Owners‘] property.” With respect to Akron, the Owners also alleged “Akron is a home-rule city * * * and possesses the power to appropriate land through eminent domain under
{¶5} As the case proceeded, all of the defendants except Akron were dismissed. In addition, the private nuisance count against Akron was dismissed. Consequently, by the time of trial, all that remained was a petition for a writ of mandamus to compel Akron to institute eminent domain proceedings concerning the subject property.
{¶6} On the day of the trial, Akron orally moved to dismiss the amended complaint for lack of standing. The trial court proceeded with the trial, after which the parties briefed the standing issue. Akron argued that the Owners’ claim was not redressable bеcause it “has no
{¶7} The trial court dismissed the action for lack of standing. The court reasoned, “Ohio law is clear that property owners do not have standing to bring a mandamus action to compel a municipality to appropriate property outside the municipality‘s jurisdiction” and “none of the enumerated purposes listed in
{¶8} The Owners appeal raising one assignment of error.
II.
ASSIGNMENT OF ERROR
THE [OWNERS] HAVE STANDING UNDER THE U.S. CONSTITUTION AND THE LAWS AND CONSTITUTION OF THE STATE OF OHIO TO BRING A MANDAMUS ACTION IN INVERSE CONDEMNATION AGAINST THE CITY OF AKRON FOR A PHYSICAL TAKING OF THE [OWNERS‘] PROPERTY IN COVENTRY TOWNSHIP, AND THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DECIDED THEY LACKED STANDING.
{¶9} In their sole assignment of error, the Owners argue that the trial court erred in finding they lacked a redressable claim and, therefore, lacked standing. This Court agrees.
{¶10} The trial court construed Akron‘s motion to dismiss for lack of standing as a motion to dismiss under
{¶11} “A motion for judgment on the pleadings is akin to a delayed motion to dismiss for failure to state а claim.” Cashland Fin. Servs., Inc. v. Hoyt, 9th Dist. Lorain No. 12CA010232, 2013-Ohio-3663, ¶ 7. The standard applied by a trial court in resolving motions under
{¶12} Standing is a preliminary issue that is decided before a court considers the merits of a claim. Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, ¶ 9. It is an issue of law that is reviewed de novo on appeal. Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, ¶ 20. Standing requires (1) an injury; (2) that is fairly traceable to the defendant; and (3) that the relief sought in the complaint is likely to redress. Id. at ¶ 22, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
{¶13} Akron‘s motion to dismiss focused оn the issue of redressability and the trial court‘s decision was based on that issue. Consequently, this Court reviews the narrow issue of whether the Owners’ alleged injury was likely to be redressed by the relief sought in their complaint. This Court does not address whether the Owners met the other requirements for standing or the merits of the Owners’ claim.
{¶15} To be entitled to a writ of mandamus for inverse condemnation, an owner “must establish a clear legal right to compel the city to commence appropriation, a corresponding legal duty on the part of the city to institute that action, and the lack of an adequate remedy * * * in the ordinary course of law.” Gilbert at ¶ 15. The parties and the trial court focused on whether Akron had the authority to appropriate the Owners’ property. Both the Owners’ right to compel appropriation and Akron‘s duty to institute an action depend on the existence of this authority. Whether a municipality has the authority to appropriate property for a particular purpose and whether a property owner has a redressable claim where such a taking occurs without compensation are in essence opposite sides of the same coin.
{¶16} In determining that the Owners’ claim was not redressable, the trial court relied on Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, and Moore, 133 Ohio St.3d 55,
{¶17} The issue in Clifton was “whether a property owner has standing to compel a government entity to initiate appropriation proceedings for аn alleged regulatory taking when the affected property lies outside the limits of the government entity.” Clifton at ¶ 1. The Moore court noted that it “expressly cautioned in Clifton that the decision should not be construed too broadly beyond the facts and posture of that case.” Moore at ¶ 29, citing Clifton at ¶ 30-32. Clifton “does not stand for the proposition that a property owner always lacks standing to bring a mandamus claim against a municipality when the affected property is outside the municipality‘s corporate limits.” Moore at ¶ 30. “Rather, Clifton must be understood in conjunction with the unique facts and circumstances upon which it rests * * * including the fact that it was a mandamus claim against a foreign municipality by a property owner who attempted to challenge the rezoning of contiguous land from one industrial use to another.” (Emphasis added.) Id.
{¶18} There were two “unique facts” in Clifton. First, the property that was alleged to have been taken was outside of the municipality. Clifton at ¶ 32. Second, the alleged taking occurred by a zоning change within the municipality. Id. at ¶ 31. The present case is similar in that the Owners’ property is outside of Akron. But, it is dissimilar in that the Owners alleged a physical taking based on flooding, not a regulatory taking based on zoning.
{¶19} The trial court noted that municipalities have inherent and statutory power to appropriate property. Addressing a municipality‘s inherent authority, the trial court quoted portions of Clifton and Moore indicating a municipality‘s inherent authority is based on the home-rule amendment to the Ohio Constitution and, as such, is generally restricted to a
{¶20} Addressing a municipality‘s statutory authority, the trial court noted that
{¶21} The trial court recognized that a municipality has statutory authority to appropriate property outside of its boundaries. Before addressing that authority, the court quoted Clifton. “The General Assembly has also provided municipalities with statutory authority to use eminent-domain powers to acquire property that lies outside the municipality‘s corporate limits ‘when reasonably necessary,’ but only for certain enumerated public purposes.” Clifton at ¶ 28, quoting
{¶22} Akron argues that, in reaching this conclusion, the trial court “echoe[d]” the Clifton court‘s finding that “none of the enumerаted purposes listed in
{¶23} A review of the purposes listed in
{¶24} Initially, Akron points out that the Owners did not argue below that
{¶25}
[f]or constructing, opening, excavating, improving, or extending any canal or watercourse, located in whole or in part within the limits of the municipal corporation or adjacent and contiguous thereto, and which is not owned in whole or in рart by the state, or by a company or individual authorized by law to make such improvement.
The Owners contend that this section empowers Akron to appropriate their property because the “consistent and uncontroverted evidence in this case was * * * that most of the Brewster Creek‘s course runs through the City of Akron” and “the City [of Akron], not the State, owns the water in Brewster Creek.”
{¶26} When deciding a motion for judgment on the pleadings under
{¶27}
{¶29} When words have a technical or legislative definition, they are construed in accordance with that definition.
{¶30} Moreover, the legislature did not use the term “sewers” in isolation in
{¶31} Indeed, other appellate districts have found that
{¶32} This Court concludes that
{¶33} Finally, the Owners make arguments concerning the United States and Ohio Constitutions and common law riparian rights. Akron contends that these arguments were not raised below and cannot be raised for the first time on appeal. Akron further contends that the Owners’ constitutional and common law arguments concern the injury prong, not the redressability prong, for standing. Having already determined that the Owners alleged a redressable claim based on
III.
{¶35} The Owners’ assignment of error is sustained. The judgment of the Summit County Court of Common Pleas is reversed and this matter is remanded for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the jоurnal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
JACQUENETTE S. CORGAN, WILLIAM H. CORGAN, and GEORGE J. EMERSHAW, Attorneys at Law, for Appellants.
EVE V. BELFANCE, Director of Law, and SEAN W. VOLLMAN and BRIAN D. BREMER, Assistant Directors of Law, for Appellee.