Schomaeker v. First National Bank of Ottawa

Locher, J.,

dissenting. Appellee alleges that the village of Ottawa planning commission (planning commission) erred when it granted a variance to the First National Bank of Ottawa (bank). I agree with this contention.

The majority fails to address this issue and asserts that the procedural context in which this case arose precludes such a review by this court. Rather, a careful examination of the procedural history compels a thorough review of the facts in light *315of the law upon which the planning commission of the village of Ottawa was required to base its decision in this case.

In the original injunction action (case No. 77-104), the Court of Common Pleas specifically found that, if the bank constructed a parking lot as planned, appellee would be damaged. Accordingly, the court enjoined the bank “from constructing a parking lot* * * until the* * * [bank] obtains a valid Variance permitting said parking lot, by virtue of the actions of the Planning Commission of the Village of Ottawa.”

After the planning commission granted the variance, appellee filed a complaint for declaratory relief against both appellants in the Court of Common Pleas (case No. 78-33). This complaint requested the court to declare that the variance was invalid and that the injunction issued in case No. 77-104 was still in effect.

In the majority opinion, this court erroneously holds that appellee could only seek review of this decision through a proceeding conforming with R. C. Chapter 2506. This approach ignores the real issue presented. Appellee's complaint for declaratory relief in case No. 78-33 did not seek appellate review of the planning commission’s decision. Rather, appellee requested a determination as to whether the injunction issued in case No. 77-104 remained in effect and whether the bank had indeed secured a valid variance.

I.

It is important to consider the policy underlying declaratory judgments in order to determine whether a complaint for declaratory relief is appropriate. “A primary purpose of the declaratory judgment action is to serve the useful end of disposing of uncertain or disputed obligations quickly and conclusively.” Ohio Farmers Indemnity Co. v. Chames (1959), 170 Ohio St. 209, 213. R. C. 2721.02, therefore, provides: “Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed.***”

The legal relation in question in this case is that of parties to a judicial decree by a court in equity. The legal issue in question is whether the injunction issued in case No. 77-104 is still in effect. The attendant question of law and fact is whether the *316bank has performed in accordance with that injunction and secured a valid variance. If the bank has not performed, the legal relation created by the injunction issued in case No. 77-104 continues.

Appellants and the majority of this court ignore the procedural context and characterize this case as one controlled by the holding in Driscoll v. Austintown Associates (1975), 42 Ohio St. 2d 263. Likewise, the majority relies upon Driscoll as authority for holding that a declaratory judgment action is not appropriate.5

Driscoll is not controlling because this case is not an appeal from an administrative decision. Given the facts and procedural history of this case, Driscoll is a weak reed which fails to support the majority’s position.

Indeed, there appears to be no procedure other than déclaratory judgment through which a party could determine whether a judicial decree remains in effect. It is ludicrous to suggest, as appellant village of Ottawa has, that appellee should be denied declaratory relief in case No. 78-33 because she failed to appeal case No. 77-104. The trial court, in case No. 77-104, granted appellee the relief which she requested. When the planning commission issued a variance, the appeal *317time in case No. 77-104 had run; but, prior to the issuance of a variance, it would be impossible to determine whether it was valid.

Rather than dismiss appellee’s request for declaratory-relief, the Court of Common Pleas, in case No. 78-33, exercised its discretion and entertained the action as appellee had framed it. See Schaefer v. First National Bank of Findlay (1938), 134 Ohio St. 511. “Following such determination appropriate appellate procedures are available to the parties.” State, ex rel. Dickison, v. Court of Common Pleas (1971), 28 Ohio St. 2d 179, 180.

In this case, therefore, declaratory judgment serves to determine expeditiously what relationship exists between the two parties to the injunction in case No. 77-104. Unless the trial court abused its discretion by entertaining the request for declaratory relief, it is the duty of this court to determine whether the Court of Appeals was correct in reversing the Court of Common Pleas and reaffirming the effect of the injunction issued in case No. 77-104. Cf. Agricultural Ins. Co. v. Constantine (1944), 144 Ohio St. 275, 284.

II.

Section 402.3 of Ottawa Zoning Ordinance No. 944 (Section 402.3), quoted in the majority opinion, properly requires that the planning commission may grant variances from the zoning plan only when unnecessary hardship exists. The purpose of the proposed parking lot was to provide additional off-street parking for bank employees. The record in case No. 78-33 is clear, however, that several other lots in the area which were already zoned for business use would have served the same purpose. It is difficult, therefore, to envision how denying this variance would create an unnecessary hardship for the bank.

In addition to the unnecessary hardship criterion, Section 402.3(b), quoted by the majority, supra, imposes four additional standards, each of which must be met before the planning commission may issue a variance. Applying these standards to the facts of this case yields the following conclusions: (1) in light of the discussion above regarding unnecessary hardship, it is difficult to imagine how any “exceptional or *318extraordinary circumstances or conditions” exist; (2) likewise, this variance may not be “necessary for the preservation and enjoyment of a substantial property right”; (3) the only “circumstance” which exists is a need, perceived by the bank, for off-street employee and customer parking; yet, this is caused solely by the bank, the current property owner, as no third party has intervened to create this “need”; and finally (4) the trial court, in case No. 77-104, specifically found that appellee would indeed be damaged if the bank received the variance which it requested.

Perhaps, the most persuasive critique of the decision by the planning commission is the dissenting opinion of Judge Whiteside of the Court of Appeals. Although Judge Whiteside disagreed with the majority’s holding that the action of the planning commission was rezoning, he observed that “[t]he evidence in the record in this case raises some question as to the propriety of the factual findings of the Planning Commission.” Judge Whiteside’s dissenting opinion, therefore, suggests that a review of the findings of the planning commission would have led to a conclusion that the record did not support these findings. The majority of this court, without elaboration, has found otherwise. Even if one assumes that the Court of Appeals erred in holding that the action by the planning commission was tantamount to rezoning, this court has a duty to affirm the Court of Appeals when its decision is correct. See Agricultural Ins. Co. v. Constantine, supra.

This court, therefore, must thoroughly review the basis of the decisions made by the lower courts. Having done so, I would affirm the decision of the Court of Appeals. I would specifically hold that, because the bank failed to get a valid variance within the requirements of the ordinances of the village, the injunction issued in case No. 77-104 remains in effect. This case should, therefore, be remanded to the Court of Common Pleas for an entry consistent with this opinion.

Rather, Driscoll presents a different procedural sequence than this case does. In Driscoll, the first step was a county planning commission review of a rezoning application which was approved by a township board of trustees; then, a complaint was filed seeking a declaratory judgment and equitable relief as well as alleging that the rezoning was an unconstitutional taking of property; and, finally, years later, a complaint for an injunction seeking to nullify the declaratory judgment and injunction decree described above was filed and ultimately appealed to this court. This court held that, in cases dealing with the application of zoning ordinances, declaratory judgment is appropriate as a means of obtaining relief only when the validity or constitutionality of the ordinance is in issue. In all other circumstances, parties are required to appeal in accordance with R. C. Chapter 2506, appeals from orders of administrative officers, and agencies. The issue of whether a declaratory judgment action is appropriate to determine the legal relation of parties to a prior judicial decree was not before this court.

The only other case from this court which the majority cites for this proposition is Gates Mills Investment Co. v. Pepper Pike (1975), 44 Ohio St. 2d 73. In a per curiam opinion which quoted the entire syllabus of Driscoll, supra, the court, in Gates Mills, merely held that the Court of Common Pleas, in an action for declaratory relief, had jurisdiction of the subject matter to determine whether an ordinance is applicable to a particular parcel of property and whether that ordinance is unconstitutional either as written or as applied. Obviously, the case now before the court presents different issues.