Paula J. Wilkins, Plaintiff-Appellant, v. The Village of Harrisburg et al., Defendants-Appellees.
No. 14AP-1028
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 29, 2015
[Cite as Wilkins v. Harrisburg, 2015-Ohio-5472.]
(C.P.C. No. 12CV-14070) (REGULAR CALENDAR)
Rendered on December 29, 2015
Paula J. Wikins, pro se.
Kopech & O‘Grady LLC, and Michael P. O‘Grady, Solicitor, for appellee The Village of Harrisburg.
Plank Law Firm, LPA, and David Watkins, for appellee Larry Taylor.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Paula J. Wilkins (“appellant“), appeals pro se from a judgment of the Franklin County Court of Common Pleas which granted the motions for summary judgment filed by defendants-appellees. Because the trial court erred, we reverse that judgment.
I. Facts and Procedural History
{¶ 2} Appellant owns property located at 8048 Harrisburg Pike, which is commonly known as State Route 3 and/or U.S. Route 62 (“Harrisburg Pike” or “Route 62.“). Appellant‘s property is not located within the Village of Harrisburg. Directly across Harrisburg Pike from appellant‘s property lies property owned by Larry Taylor. Taylor‘s property is located at 8087 Harrisburg Pike and consists of several parcels totaling
{¶ 3} In 2010, the Village of Harrisburg passed two ordinances which involved the rezoning of Taylor‘s property from rural agricultural zoning to a community service II zoning district. (Complaint, ¶ 30.) In 2012, appellant filed a complaint seeking a writ of mandamus, a declaratory judgment, injunctive relief, sanctions, and civil damages. The complaint named as defendants the Village of Harrisburg, several Village of Harrisburg Council members in their official and individual capacities, the Harrisburg Fiscal Officer in her official and individual capacity, several former members of the Harrisburg Council in their individual capacity, the Village of Harrisburg mayor in her individual capacity (collectively, “the Village defendants“), Larry Taylor (“Taylor“), and the Ohio Attorney General. Appellant‘s complaint challenged the two ordinances.
{¶ 4} The trial court granted the Ohio Attorney General‘s motion to dismiss. Subsequently, Taylor and the Village defendants each filed a motion to dismiss. The trial court referred these motions to a magistrate. The magistrate held a non-evidentiary hearing, and the Village defendants waived all of their arguments regarding the motion to dismiss, other than the argument that appellant did not have standing to challenge the ordinances.
{¶ 5} Upon the suggestion of the Village of Harrisburg, after the hearing, the trial court converted the motions to dismiss to motions for summary judgment “on the issue of whether the property owned by Plaintiff is adjacent to or across the street from the rezoned property in the Village of Harrisburg at issue in this case. Specifically, the issue is whether there is a swath of land between the rezoned property and Route 62, across the street from the land owned by Plaintiff.” (June 9, 2014 Notice of Conversion of Motions.) The court permitted the parties to submit affidavits addressing this issue. In response, the Village defendants submitted the affidavit of the Harrisburg Mayor and a map of Taylor‘s property. The magistrate‘s decision, filed August 19, 2014, granted the motions for summary judgment in favor of Taylor and the Village defendants. Appellant requested findings of fact and conclusions of law and, on October 7, 2014, the magistrate denied the request because his August 19, 2014 decision already contained conclusions of law and the
II. Assignments of Error
{¶ 6} On appeal, appellant assigns the following errors for our review:
- TO THE PREJUDICE OF THE APPELLANT, THE COURT GRANTED SUMMARY JUDGMENT TO DEFENDANTS BY ADOPTING THE MAGISTRATE‘S DECISION IN ITS ENTIRETY.
- TO THE PREJUDICE OF THE APPELLANT, THE COURT OVERRULED APPELLANT‘S FIRST OBJECTION TO THE MAGISTRATE‘S DECISION THAT “THERE EXISTS JUSTICIABLE ISSUES OF FACT THAT PRECLUDES THE GRANTING OF SUMMARY JUDGEMENT (sic) IN THE INSTANT CASE.”
- TO THE PREJUDICE OF THE APPELLANT, THE COURT OVERRULED APPELLANT‘S SECOND OBJECTION TO THE MAGISTRATE‘S DECISION THAT “THE MAGISTRATE IN HIS RULING ERRONEOUSLY APPLIED THE DECISION OF THE OHIO SUPREME COURT IN MOORE V. MIDDLETOWN THAT PLAINTIFF LACKS STANDING TO BRING AN ACTION CHALLENGING THE ZONING ENACTMENT OF AN ADJACENT FOREIGN MUNICIPALITY.”
- TO THE PREJUDICE OF THE APPELLANT, THE COURT OVERRULED APPELLANT‘S THIRD OBJECTION TO THE MAGISTRATE‘S DECISION THAT “THE MAGISTRATE‘S DECISION IS PREJUDICIAL TO PLAINTIFF AND AN ABUSE OF DISCRETION WHERE THE MAGISTRATE FAILED TO ADDRESS ALL OF THE ISSUES INVOLVED AND NARROWED THE ISSUE OF STANDING TO THE SINGULAR ISSUE OF WHETHER OR NOT A ‘SWATH’ EXISTS BETWEEN THE VILLAGE BOUNDARY AND THE PROPERTY OF THE PLAINTIFF.”
- TO THE PREJUDICE OF THE APPELLANT, THE COURT OVERRULED APPELLANT‘S FOURTH OBJECTION TO THE MAGISTRATE‘S DECISION THAT “THE MAGISTRATE‘S DECISION IS PREJUDICIAL TO THE PLAINTIFF BY GIVING INAPPROPRIATE WEIGHT TO THE ARGUMENTS AND AFFIDAVIT OF DEFENDANTS WHILE AT
THE SAME TIME DISCOUNTING EACH OF THE ARGUMENTS AND AFFIDAVIT OF THE PLAINTIFF.” - TO THE PREJUDICE OF THE APPELLANT, THE COURT OVERRULED APPELLANT‘S FIFTH OBJECTION THAT APPELLEE‘S AFFIDAVIT CONTAINS FALSE AND/OR MISLEADING STATEMENTS AND SHOULD BE DISCOUNTED IN ITS ENTIRETY.
- TO THE PREJUDICE OF THE APPELLANT, THE COURT OVERRULED APPELLANT‘S OBJECTIONS WITHOUT PROVIDING EXPLANATION OR REASONING AS TO HOW THAT DECISION WAS MADE BY THE COURT.
- TO THE PREJUDICE OF THE APPELLANT, THE COURT ADOPTED THE MAGISTRATE‘S DECISION WITHOUT PROVIDING EXPLANATION OR REASONING AS TO HOW THAT DECISION WAS MADE BY THE COURT.
- TO THE PREJUDICE OF THE APPELLANT, THE COURT FAILED TO ADDRESS THE ISSUES RAISED BY APPELLANT THAT DEFENDANTS HAVE PROVIDED BRIEFS AND AFFIDAVITS CONTAINING FALSE AND/OR MISLEADING INFORMATION TO THE COURT, BOTH BEFORE AND SUBSEQUENT TO THE MAGISTRATE‘S DECISION.
- TO THE PREJUDICE OF THE APPELLANT, THE COURT FAILED TO ADDRESS THE ISSUE RAISED BY APPELLANT THAT THE MAGISTRATE MADE CONTRADICTIVE STATEMENTS IN THE MAGISTRATE‘S DECISION AND THE MAGISTRATE‘S DENIAL OF PLAINTIFF‘S REQUEST FOR FINDINGS OF FACTS AND CONCLUSIONS OF LAW, RELATIVE TO EVIDENCE PRESENTED AT THE HEARING BEFORE THE MAGISTRATE ON JUNE 6, 2014.
III. Standard of Review
{¶ 7} We review a grant of summary judgment de novo. Capella III, LLC v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). “De novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court‘s decision.” (Internal citations omitted.) Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is appropriate where “the moving party
IV. Legal Analysis
A. Legal Arguments
{¶ 8} For ease of discussion, we are combining related issues in appellant‘s assignments of error. By her first four assignments of error, appellant contends that the trial court erred in granting appellees’ motions for summary judgment.
{¶ 9} Appellant‘s property is across Route 62 from Taylor‘s property. However, a strip of Taylor‘s property, which borders and runs along Route 62, was not annexed into the Village of Harrisburg. This strip of Taylor‘s property is located between the rezoned part of Taylor‘s property and appellant‘s property. Taking into consideration this strip of land, the magistrate found that “Plaintiff is a non-resident of the municipality who does not own property adjacent to, or directly across the street from, the municipality. Accordingly, under Moore [v. Middleton, 133 Ohio St.3d 55, 2012-Ohio-3897], Plaintiff does not have standing to challenge the Village‘s zoning decision.” (Aug. 19, 2014 Magistrate‘s Decision.) Throughout the decision, the magistrate used the terms
{¶ 10} The Village defendants argue that summary judgment was appropriately granted for three reasons: (1) appellant‘s remedy cannot be provided by mandamus; (2) appellant does not have standing under
{¶ 11} Appellant contends that summary judgment was inappropriate because there are justiciable issues of fact that preclude granting summary judgment, and she has standing to challenge the ordinances pursuant to Moore v. Middleton, 133 Ohio St.3d 55, 2012-Ohio-3897, because her property is adjacent to Taylor‘s property.
B. Mandamus Relief
{¶ 12} To be entitled to a writ of mandamus, appellant must demonstrate that: (1) she has a clear legal right to the requested relief; (2) the Village defendants have a clear legal duty to perform the requested act; and (3) she has no plain and adequate remedy in the ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983), certiorari denied, 464 U.S. 1017 (1983). Here, appellant seeks a writ of mandamus to order the Village defendants not to adopt rezoning ordinances or amendments to zoning regulations that do not comply with
{¶ 13} Although the Supreme Court of Ohio has held that mandamus may be used to determine the constitutionality of statutes (see State ex rel. Michaels v. Morse, 165 Ohio St. 599 (1956)), it has also held that, ” ‘if the allegations of a complaint for a writ of mandamus indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, the complaint does not state a cause of action in mandamus and must be dismissed for want of jurisdiction.’ ” State ex rel. Satow v. Gausee-Miliken, 98 Ohio St.3d 479, 2003-Ohio-2074, ¶ 13, quoting State ex. rel. Grendell v. Davidson, 86 Ohio St.3d 629, 634 (1999). (See also State ex rel. Ohio AFL-CIO v. Taft, 10th Dist. No. 03AP-337, 2003-Ohio-6828.) In State ex rel. Williams v. Trim, 145 Ohio St.3d 204, 2015-Ohio-3372, ¶ 24 (slip opinion), the court also held that, if a complaint in mandamus is really asking for a prohibitory injunction, there is an alternate remedy at law, and a writ of mandamus is precluded.
{¶ 14} The court in Satow instructed that, in order to determine the true objective of the complaint, it is necessary to consider whether it “actually seeks to prevent, rather than to compel, official action.” Id. at ¶ 13.
{¶ 15} At page 15 of her complaint, appellant specifically seeks:
WHEREFORE, Plaintiff hereby prays and request[s] that the Court:
* * *
c. * * * permanently enjoin and/or issue a Writ of Mandamus to the Defendants from adopting rezoning ordinances that are not in compliance with
ORC 713.12 and all other relative Ordinances and Resolutions adopted by the Village of Harrisburg.d. * * * permanently enjoin and/or issue a Writ of Mandamus to the Defendants from adopting amendments to the Village of Harrisburg zoning regulations that are not in compliance with
ORC 713.12 and all other relative Ordinances and Resolutions adopted by the Village of Harrisburg.
{¶ 16} Clearly, although appellant‘s claims are partially couched in terms of compelling affirmative duties, the essence of her claims in these paragraphs involve declaratory judgment and prohibitory injunction. Therefore, appellant fails to establish that she is entitled to a writ of mandamus to order appellees to not adopt rezoning ordinances or zoning regulations in violation of the law. Therefore, we overrule appellant‘s first through fourth assignments of error to the extent they address her mandamus claims.
C. Declaratory Judgment
{¶ 17} In her complaint, appellant also seeks a declaratory judgment that the ordinances and zoning regulations in question are null and void. Appellant requests that the court:
e. * * * render declaratory judgment declaring Ordinance 0-1-10 is null and void as having failed to follow the statutory procedures of
Ohio Revised Code 713.12 and that the effect of such action upon Plaintiff‘s property violates procedural and substantive due process.f. * * * render declaratory judgment declaring Ordinance 0-2-10 is null and void as being arbitrary, capricious, unreasonable, and unconstitutional and having no substantial relation to, nor the substantial advancement of the public health, safety and welfare, and [that] the effect of such action upon Plaintiff‘s property violates procedural and substantive due process.
(Complaint, 15, Sections e and f.) In their memoranda contra, appellees argue that appellant cannot prevail on her declaratory judgment action as she was not entitled to a notice of the zoning changes pursuant to
{¶ 18}
Subject to division (B) of this section, courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for under this chapter. The declaration may be either affirmative or negative in form and effect. The declaration has the effect of a final judgment or decree.
{¶ 19}
Subject to division (B) of section
2721.02 of the Revised Code , * * * any person whose rights, status, or legal relations are affected by a constitutional provision, statute, rule as defined in section119.01 of the Revised Code , municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contracts, or franchise and obtain a declaration of rights, status, or other legal relations under it.
{¶ 21} To obtain declaratory judgment as an alternative to other remedies, one must demonstrate three elements, which are: (1) that a real controversy exists between adverse parties; (2) which is justiciable in nature; and (3) that speedy relief is necessary to the preservation of rights which may be otherwise impaired or lost. Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146, 148 (1991), citing Herrick at 130.
{¶ 22} Before a court can consider the merits of a legal claim, the person seeking relief must establish standing to sue. Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320 (1994). Standing determines ” ‘whether a litigant is entitled to have a court determine the merits of the issues presented.’ ” Moore at ¶ 20, citing State ex rel. Teamsters Loc. Union No. 436 v. Cuyahoga Cty. Bd. of Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, ¶ 10, quoting Ohio Contrs. Assn.
{¶ 23} “Standing” has been defined as a ” ‘party‘s right to make a legal claim or seek judicial enforcement of a duty or right.’ ” State ex rel. Butler Twp. Bd. of Trustees v. Montgomery Cty. Bd. of Commrs., 124 Ohio St.3d 390, 2010-Ohio-169, ¶ 19, quoting Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2005-Ohio-5024, ¶ 27, quoting Black‘s Law Dictionary (8th Ed.2004) 1442. “[T]he question of standing depends upon whether the party has alleged such a personal stake in the outcome of the controversy * * * as to ensure that the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.” (Internal citations and quotations omitted.) Ohio Pyro at ¶ 27.
{¶ 24} The Supreme Court of Ohio has cautioned that “standing is not a technical rule intended to keep aggrieved parties out of court. ’ “Rather, it is a practical concept designed to insure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” ’ ” Moore at ¶ 47, quoting Fort Trumbell Conservancy, L.L.C. v. Alves, 262 Conn. 480, 486, 815 A.2d 1188 (2003), quoting Maloney v. Pac., 183 Conn. 313, 320, 439 A.2d 349 (1981). With this in mind, we must focus on whether appellant has standing to assert her claims, not whether she will be successful in doing so.
{¶ 25} Appellees argue that Driscoll v. Austintown Assocs., 42 Ohio St.2d 263 (1975), controls on the issue of standing and that appellant does not have standing because she is a “surrounding property owner,” who has no legal interest in the outcome of a declaratory judgment action. Appellees also argue that the Supreme Court‘s recent decision in Moore does not apply because the zoning regulations at issue in that case are different from the zoning regulations at issue here. We disagree on both points.
{¶ 26} In Driscoll, the Supreme Court stated:
“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. [
R.C. 2721.12 .]”* * *
This court also subscribes to [the] general policy [that, while] the surrounding property owners may have a practical interest in the outcome of a declaratory judgment action attacking the constitutionality of zoning as it applies to a specific parcel of property, * * * they have no legal interest in the outcome. Therefore, they are not necessary parties-defendant to such an action.
Id. at 273. We distinguish the question in Driscoll from the question before us today. First, Driscoll involved consideration of
{¶ 27} As recognized by the Supreme Court in Moore, the rights to acquire, use, enjoy, and dispose of property are among the most revered in our nation‘s law and traditions and are integral to our theory of democracy and notions of liberty. Id. at ¶ 37, citing Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799, ¶ 34. “Zoning ordinances directly affect, and often limit, property owners’ rights.” Moore at ¶ 38. The government‘s authority to infringe upon a property owner‘s rights depends upon the police powers for the public welfare. Id., citing Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). Thus, if a zoning ordinance has no substantial relation to public health or safety, a property owner may contest its constitutionality. Id., citing Goldberg Cos., Inc. v. Richmond Hts. City Council, 81 Ohio St.3d 207 (1998).
{¶ 28} In Moore, the Supreme Court stated that “[w]e will not limit property owners’ standing to raise constitutional claims simply because our law prevents them from raising a takings claim or because they face a difficult battle in marshalling sufficient evidence to overcome the presumption that the ordinance is constitutional.” Id. at ¶ 40. The Moore court addressed in particular the redressability requirement of standing. Moore involved property owners in Monroe, Ohio. The Moores’ property was located adjacent to a parcel of property known as the Martin-Blake property. The Martin-Blake property was located in Middletown, Ohio. Middletown rezoned the Martin-Blake property from low-density residential use to a general industrial use. The Moores filed an action seeking both a declaratory judgment and a writ of mandamus alleging that the rezoning was not for the benefit of the public and was arbitrary, capricious, unreasonable, and unconstitutional violating due process and equal protection clauses. The Moores alleged that the rezoning ignored the serious pollution, substantial impairment of public health and safety, and drastic diminution in value of surrounding low intensity
{¶ 29} In Moore, the Supreme Court found to be instructive the reasoning of Creskill v. Dumont, 15 N.J. 238, 104 A.2d 441 (1954), that a municipality‘s responsibility for zoning does not end at the municipal boundary lines. Following Creskill, the Moore court held that “property owners whose property is adjacent to property rezoned by a foreign municipality may use a declaratory-judgment action to challenge the constitutionality of the zoning action.” (Emphasis added.) Id. at ¶ 44.
{¶ 30} In this case, appellant argues that she has standing to bring this action because, although her property is outside of the Village of Harrisburg, her property is adjacent to Taylor‘s property. In Moore, the Supreme Court did not define the term “adjacent.” However, the Supreme Court and other Ohio courts have defined “adjacent” in other property law contexts.
{¶ 31} In Dixon v. Van Sweringen Co., 121 Ohio St. 56 (1929),3 the Supreme Court defined “adjacent” as: “Ordinarily, it means ‘to lie near, close, or contiguous.’ Webster. Even in its strictest sense it means no more than lying near, close or contiguous, but not actually touching.’ ” Id. at 68, quoting Hoopes v. City of Omaha, 99 Neb. 460, 156 N.W. 1047, 1048 (1916).
{¶ 32} Similarly, the Fifth District Court of Appeals recognized definitions of “adjacent” by Ohio courts as follows: “lying near, to lie near, close, or contiguous. It is a relative term, and its meaning must be determined in connection with the manner in which it is used.” (Citations omitted.) Loichot v. Allstate Dev. Corp., 33 Ohio App.2d 121, 125 (5th Dist.1963).4
{¶ 34} In a case involving the jurisdiction of a park ranger, the Eighth District Court of Appeals also used Black‘s Law Dictionary to define “adjacent” as “lying near or close to.” Cleveland Metro. Park Dist. v. Sandler, 72 Ohio App.3d 617, 618 (8th Dist.1991),6 citing State v. Wilson, 3d Dist. No. 5-89-22 (Aug. 21, 1990), citing Black‘s Law Dictionary. See also West v. Hall, 23 Ohio C.C. (N.S.) 575 (1912) (” ‘adjacent’ has a broader meaning than ‘adjoining’ and that things may be said to be adjacent, even if something intervenes between them.“); Village of Mt. Healthy v. Harlow, 11 Ohio Supp. 64 (1943) (following Dixon, 121 Ohio St. at 68, where court defined “adjacent” as ” ‘[o]rdinarily, it means ‘to lie near, close or contiguous.’ Webster.”
{¶ 35} Consistent with this case law, we adopt the definition of “adjacent” set forth in Black‘s Law Dictionary, as follows: “Lying near or close to, but not necessarily
{¶ 36} Our finding on the element of redressability, however, does not end the inquiry on standing. In Moore, the Supreme Court cautioned, “[c]ourts have the duty to ensure that plaintiffs plead these elements for purposes of declaratory-judgment actions and that the complaint sufficiently avers injury, causation, and redressability.” Moore at ¶ 49. As stated above, for appellant to succeed in establishing standing, she must demonstrate that she has suffered “(1) an injury that is (2) fairly traceable to the defendant‘s allegedly unlawful conduct, and (3) likely to be redressed by the requested relief.” Id. at ¶ 22, citing Lujan at 561. Although we have found that appellant has established the third element of standing, redressability, appellees argue that appellant has not established the first element of standing, as she has not alleged an injury sufficient for standing.
{¶ 37} As stated previously, the trial court converted appellees’ motions to dismiss to motions for summary judgment but narrowed the issue to whether “the property owned by Plaintiff is adjacent to or across the street from the rezoned property in the Village of Harrisburg at issue in this case. Specifically, the issue is whether there is a swath of land between the rezoned property and Route 62, across the street from the land owned by Plaintiff.” (Notice of Conversion of Motions, June 9, 2014.) Because the conversion to motions for summary judgment was specific to the issue of redressability, it is necessary for the court to consider the additional standing elements of injury and causation, pursuant to the standard of review applicable to motions to dismiss.7
{¶ 39} Appellees contend that appellant did not allege any injuries sufficient to provide her standing. “An individual plaintiff has standing to sue only if he or she has a sufficient stake in the outcome of a justiciable controversy. * * * To meet that test, a plaintiff must show that he or she has suffered or will suffer a specific injury as a result of the challenged action, and that the court can redress such injury.” (Citations omitted.) Town Ctrs. Ltd. Partnership v. Ohio State Attorney General, 10th Dist. No. 99AP-689 (Apr. 4, 2000). “The standing doctrine requires that a litigant have ‘such a personal stake in the outcome of the controversy as to ensure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult * * * questions.’ ” Williams v. Ohio State Attorney General, 10th Dist. No. 97APE08-980 (Apr. 30, 1998), quoting Baker v. Carr, 369 U.S. 186, 205 (1962). Thus, a “[p]laintiff must show some injury to himself caused by the defendant, such injury having a remedy in law or equity.” Williams.
{¶ 40} In addition to community and general damages appellant asserts in her complaint, she alleges several damages that are specific to her and her property,
{¶ 41} In its ruling, the trial court did not indicate that it had considered the elements of injury and/or causation pursuant to the
{¶ 42} With this in mind, we remand this matter to the trial court to consider, pursuant to the
{¶ 43} Accordingly, we overrule in part and sustain in part appellant‘s first, second, third, and fourth assignments of error.
{¶ 44} Having overruled in part and sustained in part appellant‘s first through fourth assignments of error, we find appellants’ fifth through tenth assignments of error to be moot and, therefore, will not address the same.
V. Conclusion
{¶ 45} For the foregoing reasons, appellant‘s first, second, third, and fourth assignments of error are overruled in part and sustained in part, and her fifth, sixth, seventh, eighth, ninth, and tenth assignments of error are rendered moot. The judgment of the Franklin County Court of Common Pleas is affirmed in part and reversed in part,
Judgment affirmed in part, reversed in part, and cause remanded.
SADLER, J., concurs.
BRUNNER, J., concurs separately.
BRUNNER, J., concurring separately.
{¶ 46} I concur with the opinion of the majority but wish to emphasize that, before we can examine even the question of standing with respect to declaratory judgment, or whether the party seeking declaratory judgment has demonstrated the three elements the majority cites in ¶ 21 as set forth in Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d 146, 149 (1992), citing Herrick v. Kosydar, 44 Ohio St.2d 128, 130 (1975); Buckeye Quality Care Ctrs., Inc. v. Fletcher, 48 Ohio App.3d 150, 154 (10th Dist.1988), we must recognize that naming all affected parties is a matter of jurisdiction before both the trial court and this court.
{¶ 47} While there is no argument that appellant, a resident of the Village of Harrisburg, did not name and serve all necessary parties, our statement of what must be demonstrated to obtain declaratory judgment in ¶ 21 of the majority‘s opinion should include the jurisdictional requirement that “all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding” as is set forth in {¶ 48} Therefore, I would add at ¶ 21, that the elements of declaratory judgment are subject to jurisdictional requirements that all affected parties be named in the complaint, as is required by {¶ 49} Further, in ¶ 19, the majority states concerning statutes governing declaratory judgment that, ” {¶ 50} In ¶ 12, I respectfully posit that there is no need to address in the footnote the applicability of an action in mandamus to claims for an unconstitutional taking of property, even in the negative. I would eliminate this reference to avoid creating any inference about the court‘s proclivity as to whether such a claim can be brought in mandamus, especially since appellant specifically disavowed that she was making this claim. {¶ 51} Finally, in ¶ 37, the procedural threshold requirement that a trial court that converts a {¶ 52} For these reasons I respectfully concur in judgment with the majority but would exercise caution in the approach taken on instructions for remand and for future litigants who would avail themselves of the law in this decision.
Notes
In case any building is or is proposed to be located, erected, constructed, reconstructed, enlarged, changed, maintained, or used or any land is or is proposed to be used in violation of sections(Emphasis added.)519.01 to519.99 , inclusive, of the Revised Code, or of any regulation or provision adopted by any board of township trustees under such sections, such board, the prosecuting attorney of the county, the township zoning inspector, or any adjacent or neighboring property owner who would be especially damaged by such violation, in addition to other remedies provided by law, may institute injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent, enjoin, abate, or remove such unlawful location, erection, construction, reconstruction, enlargement, change, maintenance, or use. The board of township trustees may employ special counsel to represent it in any proceeding or to prosecute any actions brought under this section.