[Cite as Wilkins v. Harrisburg, 2015-Ohio-5472.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Paula J. Wilkins, : 

 Plaintiff-Appellant, : 

 No. 14AP-1028 

v. : (C.P.C. No. 12CV-14070) 

The Village of Harrisburg et al., : (REGULAR CALENDAR) 

 Defendants-Appellees. : 

 

D E C I S I O N 

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 
No. 14AP-1028 2 

26.2150 acres. In 2002, the Franklin County Commissioners approved an application for 

annexation of 23.775 acres of the 26.2150 acres of Taylor's property to the Village of 

Harrisburg. 

{¶ 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 
No. 14AP-1028 3 

ruling on summary judgment merely determined whether a genuine issue of material fact 

exists. Appellant filed objections, but the trial court overruled the objections and adopted 

the magistrate's decision on November 14, 2014. Appellant filed a timely notice of appeal. 

II. Assignments of Error 

{¶ 6} On appeal, appellant assigns the following errors for our review: 

1. TO THE PREJUDICE OF THE APPELLANT, THE COURT 

GRANTED SUMMARY JUDGMENT TO DEFENDANTS BY 

ADOPTING THE MAGISTRATE'S DECISION IN ITS 

ENTIRETY. 

2. 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." 

3. 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." 

4. 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." 

5. 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 
No. 14AP-1028 4 

THE SAME TIME DISCOUNTING EACH OF THE 

ARGUMENTS AND AFFIDAVIT OF THE PLAINTIFF." 

6. 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. 

7. 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. 

8. 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. 

9. 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. 

10. 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 
No. 14AP-1028 5 

demonstrates that: (1) there is no genuine issue of material fact, (2) the moving party is 

entitled to judgment as a matter of law, and (3) reasonable minds can come to but one 

conclusion, and that conclusion is adverse to the party against whom the motion for 

summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit Cty., 104 Ohio 

St.3d 660, 2004-Ohio-7108, ¶ 6. In ruling on a motion for summary judgment, the court 

must resolve all doubts and construe the evidence in favor of the nonmoving party. Pilz v. 

Ohio Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8. See also

Hannah v. Dayton Power & Light Co., 82 Ohio St.3d 482, 485 (1998) ("Even the 

inferences to be drawn from the underlying facts contained in the evidentiary materials, 

such as affidavits and depositions, must be construed in a light most favorable to the party 

opposing the motion."). Therefore, we undertake an independent review to determine 

whether Taylor and the Village defendants were entitled to judgment as a matter of law. 

Furthermore, for purposes of appellate review, a question involving standing is typically a 

question of law and, as such, it is to be reviewed de novo. LULAC v. Kasich, 10th Dist. 

No. 10AP-639, 2012-Ohio-947, ¶ 23, citing Ohio Concrete Constr. Assn. v. Ohio Dept. of 

Transp., 10th Dist. No. 08AP-905, 2009-Ohio-2400, ¶ 9.

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 
No. 14AP-1028 6 

"adjoining," "directly across the street," and "adjacent to" interchangeably. The trial court 

overruled appellant's objections and adopted the magistrate's decision in its entirety. 

{¶ 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 R.C. 713.12 to bring this action as she is not a 

resident of the municipal corporation; and (3) appellant has not alleged damages for 

which injunctive and/or declaratory relief can be granted. Taylor argues that summary 

judgment was appropriate because the magistrate was correct in finding that appellant 

did not have standing to challenge the zoning ordinances. 

{¶ 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 R.C. 713.12 and other relative 

ordinances and resolutions.1 

{¶ 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 

 

1 We note that, at ¶ 12 of her reply brief, appellant states "no where in appellant's complaint is a 'takings' 

claim presented nor even mentioned." Therefore, we do not analyze or opine whether mandamus relief is an 

appropriate remedy when taking is at issue. 
No. 14AP-1028 7 

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, __Ohio St.3d__, 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: 
No. 14AP-1028 8 

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 R.C. 713.12 because her property is not 

contiguous to or directly across the street from Taylor's property. Appellees also contend 

that appellant does not have standing to pursue her declaratory judgment action. 

{¶ 18} R.C. 2721.02(A) provides for declaratory judgments, as follows: 

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} R.C. 2721.02(A) is read in conjunction with R.C. 2721.03, which provides in 

pertinent part, as follows: 

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 section 119.01 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. 

 
No. 14AP-1028 9 

{¶ 20} The purpose of the Declaratory Judgment Act is to settle and to afford relief 

from uncertainty and insecurity with respect to rights, status, and other legal relations. It 

is remedial in nature and is to be liberally construed and administered. Rose v. Primal 

Ability, Ltd., 10th Dist. No. 14AP-114, 2014-Ohio-3610, ¶ 13, citing Jones v. Greyhound 

Lines, Inc., 10th Dist. No. 11AP-518, 2012-Ohio-4409, ¶ 26. 

{¶ 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 
No. 14AP-1028 10 

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, Discroll involved consideration of R.C. 519.12; whereas, the case before us does not. 

Second, Driscoll addressed whether certain parties were necessary party-defendants to a 

challenge to the zoning ordinances. In the instant case, appellant is the plaintiff bringing 

the declaratory judgment action, not a necessary party-defendant who could be affected 

by the same.2 We find to be more on point the Supreme Court's recent instruction in 

Moore to the question of whether appellant has standing to bring the declaratory action. 

The Supreme Court stated that, to succeed in establishing standing, a plaintiff must 

demonstrate that he 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 

 

2We note that the dissent in Moore cited Driscoll and specifically to the passage therefrom quoted above. 

Yet, the majority was not persuaded, nor did the majority address Driscoll. 
No. 14AP-1028 11 

relief." Moore at ¶ 22, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 

"These three factors–injury, causation, and redressability–constitute 'the irreducible 

constitutional minimum of standing.' " Id., quoting Lujan at 560. As the Supreme Court 

in Moore reiterated, "standing does not depend on the merits of a plaintiff's contention 

that particular conduct is illegal or unconstitutional. Rather, standing turns on the nature 

and source of the claim asserted by the plaintiffs." Id. at ¶ 23, citing Warth v. Seldin, 422 

U.S. 490, 500 (1975). 

{¶ 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 
No. 14AP-1028 12 

residentially zoned property, which would be caused by the construction of a coke plant, 

which could then be pursued with the rezoning. Middletown filed a motion to dismiss, 

arguing that the Moores did not have standing because their property was located outside 

Middletown. 

{¶ 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. 

{¶ 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 

 

3 In Dixon, one of the issues was whether an adjacent property owner could change or cancel the restrictive 

covenants in property deeds. 

4 In Loichot, the court examined whether plaintiff was a proper party to the action as an "adjacent or 

neighboring property owner" pursuant to R.C. 519.24 and Article 18 of the Plain Township Zoning 

Resolution. R.C. 519.24 states: 

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 519.01 to 519.99, 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 
No. 14AP-1028 13 

{¶ 33} The Ninth District Court of Appeals used Black's Law Dictionary to define 

"adjacent" as: " 'Lying near or close to; sometimes contiguous; neighboring. Adjacent

implies that the two objects are not widely separated, though they may not actually touch, 

* * * while adjoining imports that they are so joined or united to each other that no third 

object intervenes.' " (Emphasis sic.) Structural Sales Corp. v. City Council of Village of 

Boston Hts., Ohio, 9th Dist. No. 19020 (Jan. 13, 1999),5 quoting Black's Law Dictionary, 

41 (1990). " 'Adjacent' means 'near or in close proximity' and does not require that the 

residential zoned property actually be contiguous or touching, but would include property 

that is contiguous or touching. The term 'adjacent' when modified by the term 

'immediately' means contiguous or touching." Id.

{¶ 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 

 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. 

(Emphasis added.) 

5 Structural Sales involved an appeal from the common pleas court, which affirmed the denial of a specialuse zoning permit and whether the ingress and egress at issue would be "adjacent" to a residential district, as 

used in Section 1161.01 of the Village of Boston Heights codified ordinances. 

6 In Cleveland Metro. Park, the court determined the authority of the park ranger to issue violations 

pursuant to R.C. 1545.13, which grants designated employees of a park commission, "all the powers of police 

officers within and adjacent to the lands under the jurisdiction and control of such board." Id. at 618. 

Appellant crossed double yellow lines approximately 1,500 to 2,000 feet from the Cleveland Metroparks. 
No. 14AP-1028 14 

touching." (Black's Law Dictionary 10th Ed.2014.) Applying this definition to the 

evidence presented, we find appellant owns property adjacent to the municipality and 

that, therefore, per Moore, she may have standing to bring a declaratory judgment action 

to challenge the constitutionality of the Village of Harrisburg zoning ordinances and 

amendments. We find that the trial court erred in granting the motions for summary 

judgment in favor of appellees on the grounds that appellant did not establish the 

redressability element of standing. Therefore, we sustain appellant's first through fourth 

assignments of error to the extent they address her declaratory judgment claims. 

{¶ 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 

 

7 "A trial court may not * * * sua sponte convert a Civ.R. 12(B)(6) motion to dismiss into a motion for 

summary judgment and dispose of it without giving notice to the parties of its intent to do so." 

Eichenberger v. Woodlands Assisted Living Residence, LLC, 10th Dist. No. 12AP-987, 2013-Ohio-4057, 

¶ 19, citing Powell v. Vorys, Sater, Seymour & Pease, 131 Ohio App.3d 681, 684 (10th Dist.1998). Failure to 
No. 14AP-1028 15 

{¶ 38} "A motion to dismiss for lack of standing is properly brought pursuant to 

Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted." Beard v. N.Y. 

Life Ins., 10th Dist. No. 12AP-977, 2013-Ohio-3709, ¶ 7, citing Brown v. Columbus City 

Schools. Bd. of Edn., 10th Dist. No. 08AP-1067, 2009-Ohio-3230, ¶ 4. When presented 

with a motion to dismiss for failure to state a claim for which relief can be granted, 

pursuant to Civ. R. 12(B)(6), a trial court must presume that all factual allegations in the 

complaint are true, construe the complaint in a light most favorable to the plaintiff, and 

draw all reasonable inferences in favor of the plaintiff. Mitchell v. Lawson Milk Co., 40 

Ohio St.3d 190, 192 (1988). In order to dismiss the complaint, it must appear beyond 

doubt from the complaint that the plaintiff can prove no set of facts entitling the plaintiff 

to recover. O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), 

syllabus. 

{¶ 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 assure 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, 

 notify the parties that the court is converting a Civ.R. 12(B)(6) motion to dismiss into one for summary 

judgment is, in itself, reversible error. Id., citing Charles v. Conrad, 10th Dist. No. 05AP-410, 2005-Ohio6106, ¶ 30. Because the court narrowed the issue solely to redressability, the court did not give notice to 

appellant of its intent to convert the motion to dismiss to a motion for summary judgment regarding the 

elements of injury and/or causation. 
No. 14AP-1028 16 

including: (1) appellant alleged that "the TAYLOR property at 8087 Harrisburg Pike has 

been designated by the Ohio Department of Natural Resources has (sic) having a 

groundwater pollution potential index rating of 175. A rating of 175 falls within the 

second highest level of the scale. The higher the rating, the greater the pollution 

potential" and "[p]laintiff's water is supplied by ground water via a well" and "stormwater 

flows from the area west of Harrisburg Pike," but "[p]laintiff's property is located on the 

east side of Harrisburg Pike" (Complaint ¶ 26-27; 29); (2) the rezoning "will have a 

negative impact on the Plaintiff's home of 35 years due to * * * increased stormwater 

runoff, decline in enjoyment of home, a diminution in value of residentially zoned 

property and an especially increased potential for contamination of Plaintiff's drinking 

water" (Complaint, ¶ 55-56); and (3) the "[a]ctions of defendants have caused Plaintiff 

great undue and unnecessary mental anguish and a tremendous interference with her 

enjoyment of life and property rights." (Complaint, ¶ 93.) 

{¶ 41} In its ruling, the trial court did not indicate that it had considered the 

elements of injury and/or causation pursuant to the Civ.R. 12(B)(6) motion to dismiss 

standard. We decline to address for the first time issues not previously addressed by the 

trial court. 

{¶ 42} With this in mind, we remand this matter to the trial court to consider, 

pursuant to the Civ.R. 12(B)(6) standard, whether appellant has established standing by 

sufficiently pleading the elements of injury and causation. 

{¶ 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, 
No. 14AP-1028 17 

and this cause is remanded to that court for further proceedings in accordance with law 

and consistent with this decision. 

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 R.C. 2721.12(A). I believe this is important to include in our 

description of what is necessary to obtain declaratory judgment, lest we convey that 

such a statutory remedy is solely obtainable on issues relating to merits and not based 

on jurisdictional threshold requirements as well. 

{¶ 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 R.C. 2721.12, and Spencer v. Freight Handlers, Inc., 131 

Ohio St.3d 316, 2012-Ohio-880, ¶ 19 ("We have recognized that naming proper parties 

and fulfilling service requirements are jurisdictional requirements in cases that involve 

statutes that clearly require such for jurisdiction."). Case law interpreting R.C. 2721.12 

specifically provides that "[t]he Supreme Court of Ohio has interpreted R.C. 2721.12 as 

mandating that the absence of a necessary party constitutes a jurisdictional defect which 
No. 14AP-1028 18 

precludes a court of common pleas from properly rendering a declaratory judgment. 

Plumbers & Steamfitters Local Union 83 v. Union Local School Dist. Bd. of Edn. (1999), 

86 Ohio St.3d 318, 321 * * *. [Because] the statute is jurisdictional in nature, the defense 

of failure to join a necessary party in a declaratory judgment action may not be waived." 

Nicholas v. State Farm Ins., 11th Dist. No. 99-T-0030 (June 9, 2000), citing Gannon v. 

Perk, 46 Ohio St.2d 301, 310 (1976). Upon a plain review of the complaint, I see no 

jurisdictional defects, but I believe it is incumbent on us to note, when setting forth the 

elements of declaratory judgment, the jurisdictional requirements. Any court before 

which declaratory judgment is brought in the first instance or reviewed upon appeal 

should be cognizant of this requirement before it delves into the merits of claims or even 

of procedural matters such as standing. Moreover, before litigants enter the quagmire 

of what can often be protracted declaratory judgment litigation, they should be wary of 

this requirement. There is no need to avoid it in our discussion, and accordingly, I 

would include it, just as we would examine whether an appeal before us is a final 

appealable order, which also is jurisdictional. 

{¶ 49} Further, in ¶ 19, the majority states concerning statutes governing 

declaratory judgment that, "R.C. 2721.02(A) is read in conjunction with R.C. 2721.03" 

(thereafter followed by inclusion of a quote from R.C. 2721.03). I would clarify that R.C. 

2721.03, as well as 2721.02(A), are dependent on and must be read in conjunction with 

the language in R.C. 2721.02(B), and not one upon another, since each is "[s]ubject to 

division (B)" of section 2721.02 of the Revised Code. I would do this for the sake of 

clarity and not to create a new legal inference that these two divisions and sections must 

be read in conjunction with one another as a matter of practice. 

{¶ 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 Civ.R. 12(B)(6) motion to dismiss to a motion for summary judgment 
No. 14AP-1028 19 

must provide notice to the parties that it is doing so, is an incredibly important issue 

relating to due process guaranteed to parties in litigation. Even though the court 

narrowed the issues on summary judgment, it was still required to provide notice that it 

was even considering the parties' issues on dismissal in the context of summary 

judgment. I would address this more squarely before approaching the merits of the trial 

court's findings or the parties' substantive arguments. In the interest of promoting a fair 

decision by the trial court, this issue of notice should receive more than a footnote 

reference and be squarely the foundational issue upon which other, substantive issues 

depend on remand. 

{¶ 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.