[Cite as Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780.]




        CLIFTON, APPELLANT, v. VILLAGE OF BLANCHESTER, APPELLEE.
      [Cite as Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780.]
Appropriation—Zoning—Regulatory taking—Standing of owner of property
        outside territory of zoning authority—Inverse condemnation.
   (No. 2010-1196—Submitted September 6, 2011—Decided March 1, 2012.)
               APPEAL from the Court of Appeals for Clinton County,
                        No. CA2009-07-009, 2010-Ohio-2309.
                                  __________________
                                SYLLABUS OF THE COURT
A property owner lacks standing to bring a regulatory-taking claim against a
        municipality when the affected property is outside the municipality’s
        corporate limits.
                                  __________________
        LUNDBERG STRATTON, J.
                                       I. Introduction
        {¶ 1} The issue before the court is whether a property owner has
standing to compel a government entity to initiate appropriation proceedings for
an alleged regulatory taking when the affected property lies outside the limits of
the government entity. Because we hold that a property owner does not have
standing to bring such a claim, we affirm the judgment of the court of appeals.
                            II. Facts and Procedural History
        {¶ 2} J&M Precision Machining, Inc. (“J&M”) owns 23 acres of
property in Clinton and Warren Counties. Robert Clifton, appellant, testified that
prior to 1989, approximately two acres of J&M’s property was zoned “roadside
business” and contained a house and barn. Clifton also testified that J&M had
operated a machine shop on its property since the 1970s.
                              SUPREME COURT OF OHIO




          {¶ 3} In 1993, Clifton purchased approximately 99 acres of property that
is contiguous to J&M’s property. Clifton testified that his property is zoned for
agricultural and residential use.      Clifton has farmed this property since he
purchased it in 1993 and has usually made a profit in doing so.
          {¶ 4} In 1997, Clifton sold approximately two acres to J&M pursuant to
a contract, which indicated that J&M would use the property for drainage for its
factory operation.
          {¶ 5} Clifton testified that in 1998, Clinton County rezoned eight acres
of J&M’s 23 acres to “business industrial,” which included the two acres that had
previously been zoned “roadside business.” Clifton testified that the operation of
the machine shop made no noticeable noise.
          {¶ 6} In 2002, appellee, the village of Blanchester, annexed J&M’s
entire 23-acre parcel and rezoned all 23 acres for “general industrial” use.
Because Clifton’s property is not within the village’s corporate limits, the
rezoning did not apply to his 97-acre parcel.
          {¶ 7} On March 29, 2002, Clifton filed a complaint and notice of an
administrative appeal regarding the rezoning of J&M’s property. Clifton alleged
that the rezoning of J&M’s property was unconstitutional and that the rezoning
resulted in a taking of his property. The court dismissed Clifton’s administrative
appeal.
          {¶ 8} The village filed a motion for summary judgment as to Clifton’s
remaining claims, which the court granted in part and denied in part. The trial
court found that Clifton had not presented evidence that the rezoning of J&M’s
property was unconstitutional and granted summary judgment to the village on
this issue. However, the court also concluded that Clifton had raised a genuine
issue of fact as to whether the rezoning resulted in a taking of his property and
denied the village summary judgment on that issue.          Subsequently, Clifton
voluntarily dismissed his complaint.




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       {¶ 9} On April 3, 2006, Clifton refiled a complaint alleging that the
rezoning of J&M’s property had resulted in a regulatory taking of his property
without just compensation. Specifically, the complaint alleged that the rezoning
of J&M’s property interfered with the enjoyment of his property and resulted in a
diminution in its value. The trial court granted summary judgment to the village,
finding that the village’s rezoning of J&M’s property did not result in a taking of
Clifton’s property, because his property retained economic value.
       {¶ 10} The court of appeals affirmed the decision that the rezoning did not
result in a total taking of Clifton’s property. Clinton App. No. CA2007-09-040,
2008-Ohio-4434, ¶ 12, 14. However, the court found that the trial court had failed
to inquire as to whether the rezoning resulted in a partial taking under Penn Cent.
Transp. Co. v. New York (1978), 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631.
Id. at ¶ 13. Thus, the court of appeals affirmed in part and reversed in part and
remanded to the trial court to undertake a partial-taking analysis under Penn
Central.
       {¶ 11} While the case was pending on remand, the village filed a motion
for reconsideration, alleging that the court of appeals had erred in remanding the
case for a Penn Central analysis and that Clifton lacked standing to bring a taking
claim in the first place. The court of appeals granted the village’s motion in part
and ordered the trial court to also consider the issue of standing on remand. (Nov.
3, 2008), Clinton App. No. CA2007-09-040.
       {¶ 12} On remand, the trial court granted summary judgment to the
village, finding that Clifton had no standing to bring a takings claim and that even
if he had, the rezoning of J&M’s property did not result in a partial taking of
Clifton’s property. The court of appeals affirmed the trial court’s judgment.
Clinton App. No. CA2009-07-009, 2010-Ohio-2309, ¶ 7–8.
       {¶ 13} Clifton’s appeal is before this court pursuant to the acceptance of
his discretionary appeal. 126 Ohio St.3d 1597, 2010-Ohio-4928, 935 N.E.2d 44.



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                                   III. Analysis
       {¶ 14} Clifton’s first proposition asserts that a nonresident contiguous
property owner has standing to litigate a claim for a partial regulatory taking
against an adjacent political subdivision. Clifton’s second proposition asserts that
a partial-taking claim based upon significant negative economic impact does not
fail as a matter of law even though the regulatory action does not deprive the
claimant of all economically viable use of his property. Because our resolution of
the standing issue is dispositive, there is no need for us to address Clifton’s
second proposition regarding a takings claim.
                              A. Standing Generally
       {¶ 15} “It is well established that before an Ohio court can consider the
merits of a legal claim, the person seeking relief must establish standing to sue.”
State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d
451, 469, 715 N.E.2d 1062. “ ‘Standing’ is defined at its most basic as ‘[a]
party’s right to make a legal claim or seek judicial enforcement of a duty or
right.’ ” Ohio Pyro Inc. v. Ohio Dept. of Commerce, 115 Ohio St.3d 375, 2007-
Ohio-5024, 875 N.E.2d 550, ¶ 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.’ ” ’ ” Id.,
quoting State ex rel. Dallman v. Franklin Cty. Court of Common Pleas (1973), 35
Ohio St.2d 176, 178-179, 64 O.O.2d 103, 298 N.E.2d 515, quoting Sierra Club v.
Morton (1972), 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636, quoting Baker
v. Carr (1962), 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663, and Flast v.
Cohen (1968), 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947.




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                   B. Standing to Challenge Government Action
       {¶ 16} “When the suit is one challenging the legality of government
action or inaction, the nature and extent of facts that must be averred (at the
summary judgment stage) or proved (at the trial stage) in order to establish
standing depends considerably upon whether the plaintiff is himself an object of
the action (or forgone action) at issue. If he is, there is ordinarily little question
that the action or inaction has caused him injury, and that a judgment preventing
or requiring the action will redress it. When, however, * * * a plaintiff's asserted
injury arises from the government's allegedly unlawful regulation (or lack of
regulation) of someone else, much more is needed.             In that circumstance,
causation and redressability ordinarily hinge on the response of the regulated (or
regulable) third party to the government action or inaction—and perhaps on the
response of others as well. The existence of one or more of the essential elements
of standing ‘depends on the unfettered choices made by independent actors not
before the courts and whose exercise of broad and legitimate discretion the courts
cannot presume either to control or to predict,’ and it becomes the burden of the
plaintiff to adduce facts showing that those choices have been or will be made in
such manner as to produce causation and permit redressability of injury.”
(Emphasis sic; citations omitted.) Lujan v. Defenders of Wildlife (1992), 504 U.S.
555, 561-562, 112 S.Ct. 2130, 119 L.Ed.2d 351.
       {¶ 17} In this case, the regulation (i.e., the zoning) was not directed at
Clifton’s property. Therefore, the analysis in Lujan regarding causation and
redressability is instructive in determining whether Clifton has standing to bring a
regulatory-taking claim against the village.
                                    1. Causation
       {¶ 18} “[I]n ruling on standing, it is both appropriate and necessary to
look to the substantive issues * * * to determine whether there is logical nexus
between the status asserted and the claim sought to be adjudicated * * * to assure



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that [the litigant] is a proper and appropriate party to invoke” legal proceedings.
Flast v. Cohen, 392 U.S. 83, 102, 88 S.Ct. 1942, 20 L.Ed.2d 947.
       {¶ 19} “For a takings claim to prevail against a motion to dismiss in this
court, the action complained of must be attributable to [a government entity].”
May v. United States (2008), 80 Fed.Cl. 442, 445, citing Erosion Victims of Lake
Superior Regulation v. United States (Fed.Cir.1987), 833 F.2d 297, 301. In the
context of the regulatory-taking jurisprudence, whether a regulation constitutes a
taking depends in large part upon the degree to which the regulation burdens
private property.    Generally speaking, the more severe the burden that the
regulation imposes upon private property, the more likely it is that the regulation
constitutes a compensable taking. Lingle v. Chevron U.S.A., Inc. (2005), 544 U.S.
528, 539, 125 S.Ct. 2074, 161 L.Ed.2d 876. More specifically, if zoning becomes
too burdensome, it can result in a partial or total taking of the regulated property.
See, e.g., State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 119 Ohio St.3d 11,
2008-Ohio-3181, 891 N.E.2d 320 (recognizing that it is possible that zoning could
result in a partial or total taking of the property to which the zoning applies).
       {¶ 20} However, we can find no authority for the proposition that the
zoning of a property is so burdensome on an adjacent property that is not subject
to the zoning that it results in a taking of the adjacent property. Instead, we have
found some precedent that indicates that a government’s regulation of property
does not constitute a taking of an adjacent property.
       {¶ 21} In Fahoome v. St. Clair Shores (Mar. 17, 1998), Mich.App. No.
194020, 1998 WL 2016580, the city of St. Clair Shores rezoned property adjacent
to the plaintiff’s property. The plaintiff alleged that the rezoning of his neighbor’s
property resulted in a taking of his property. The court held that there was no
taking because the zoning was not specifically directed toward plaintiff’s
property.




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                                January Term, 2012




       {¶ 22} Further, in Murphy v. Detroit (1993), 201 Mich.App. 54, 506
N.W.2d 5, the city of Detroit used its eminent-domain powers to purchase and
raze 1,400 residential properties, pursuant to an urban-renewal plan. Business
owners located adjacent to these properties filed inverse-condemnation claims
against the city, alleging that the city’s actions caused a 75 percent decrease in
their businesses and resulted in a de facto taking of their property.
       {¶ 23} The court in Murphy recognized that the value of the plaintiffs’
properties had greatly diminished because of the city’s actions and that the
plaintiffs had purchased their property with the expectation that their customer
base would remain constant. Id. at 57. However, the court pointed out that
expectations are not rights. Ultimately, the court held that there was no taking
because “[d]espite the diminution in value of plaintiffs’ land and buildings,
resulting from defendants’ change in the way they used their land, defendants
took no deliberate action directed toward plaintiffs’ property rights that deprived
plaintiffs of possession or use of their land or buildings.” Id.
       {¶ 24} Together, Fahoome and Murphy can be interpreted to stand for the
proposition that when a government’s taking or regulation of property causes
incidental damage to an adjacent but unregulated property, the damage is not
attributable to the government actor for the purpose of supporting a takings claim.
                                  2. Redressability
       {¶ 25} Next, we examine whether a property owner has a redressable
regulatory-taking claim against a municipality when the affected property is
beyond the municipality’s corporate limits. In order to answer this question, we
again look to the substantive takings law.
       {¶ 26} The remedy for an alleged regulatory taking is for the property
owner to file a complaint seeking a writ of mandamus to compel the regulating
government entity to initiate appropriation proceedings against the property




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allegedly burdened by the regulation. State ex rel. Gilbert v. Cincinnati, 125 Ohio
St.3d 385, 2010-Ohio-1473, 928 N.E.2d 706.
       {¶ 27} The government entity responsible for the zoning in the instant
case is a village. Villages are municipalities. Section 1, Article XVIII of the
Ohio Constitution (“Municipal corporations are hereby classified into cities and
villages”). Municipalities have inherent and statutory authority to appropriate
property, but the scope of this authority is limited. “Section 3, Article XVIII of
the Ohio Constitution, commonly known as the Home Rule Amendment, gives
municipalities the ‘authority to exercise all powers of local self-government and
to adopt and enforce within their limits such local police, sanitary and other
similar regulations, as are not in conflict with general laws.’ ” Cleveland v.
State, 128 Ohio St.3d 135, 2010-Ohio-6318, 942 N.E.2d 370, ¶ 7.                    A
municipality’s home-rule authority includes the power of eminent domain. State
ex rel. Bruestle v. Rich (1953), 159 Ohio St. 13, 14, 50 O.O. 6, 110 N.E.2d 778.
However, aside from acquiring property to operate a public utility that serves its
own residents, a municipality has no authority to exercise its inherent eminent-
domain powers beyond its corporate limits. Britt v. Columbus (1974), 38 Ohio
St.2d 1, 67 O.O.2d 1, 309 N.E.2d 412, at paragraph one of the syllabus.
       {¶ 28} 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. R.C. 719.02 and 719.01. However, none
of the enumerated purposes listed in R.C. 719.01 include appropriating property
for an alleged regulatory taking.
       {¶ 29} Thus, a municipality has no authority to initiate appropriation
proceedings in response to a property owner’s complaint in mandamus alleging a
regulatory-taking claim if the affected property lies outside the municipality’s
limits. A municipality’s liability for a regulatory taking is limited to the property




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that it is authorized to regulate, i.e., the property within its limits. Accordingly, a
property owner has no redressable regulatory-taking claim against a municipality
when the affected property lies outside the municipality’s corporate limits.
                                     IV. Conclusion
       {¶ 30} Applying our holding to the facts of this case, we conclude that
Clifton lacks standing to bring a takings claim against the village. However, we
emphasize that we do not hold that an adjoining property owner may never have
standing. Instead, we hold that a property owner lacks standing under the facts
and circumstances presented here.
       {¶ 31} The zoning at issue applies to J&M’s property, not Clifton’s.
Therefore, the zoning imposes no limitation on Clifton’s use of his property
whatsoever. Further, the alleged diminution in value of Clifton’s property is not a
direct result of the village’s zoning, but instead is caused by J&M’s use of its
property, as allowed by the rezoning. Finally, the rezoning that changed part of
J&M’s property from “business industrial” to “general industrial” merely
expanded a similar, existing, permitted use. Under these particular facts, we hold
that there is an insufficient nexus between the rezoning of J&M’s property and the
alleged diminution in value of Clifton’s adjacent property to indicate that Clifton
is a proper party to bring a regulatory-taking claim.
       {¶ 32} Furthermore, because Clifton’s property is outside the village
limits, the village has no authority to appropriate his property for an alleged
regulatory taking. Accordingly, Clifton also has no redressable claim against the
village for a regulatory taking.
       {¶ 33} Accordingly, we affirm the judgment of the court of appeals.
                                                                  Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, LANZINGER, CUPP, and MCGEE
BROWN, JJ., concur.
       PFEIFER, J., dissents.



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                              __________________
       PFEIFER, J., dissenting.
       {¶ 34} This is a difficult case. The majority opinion has some logic on its
side, and the end result is hardly unconscionable, but I am concerned that the
resolution of this case will make it harder for future plaintiffs with legitimate
complaints to force the government to initiate appropriation actions in similar
circumstances.
       {¶ 35} The majority reaches three conclusions: (1) the city of
Blanchester’s zoning change “imposes no limitation on Clifton’s use of his
property whatsoever” and, therefore, Clifton cannot show a nexus between the
zoning change and a diminution in the value of his property, (2) Blanchester
cannot appropriate Clifton’s property, because it is not in Blanchester, and,
therefore, (3) Clifton does not have standing to initiate an inverse-condemnation
proceeding against Blanchester. I will address each of these conclusions in turn.
                                  No Limitation
       {¶ 36} It is clear that Blanchester’s zoning change does not directly limit
Clifton’s use of his property. It cannot, because it is outside the Blanchester
village limits.   But it can indirectly limit Clifton’s use, and it can cause a
diminution of value in his property. It is obvious that it is possible for a zoning
change to diminish the value of adjacent property within a municipality, even if
indirectly. So naturally it is possible for a zoning change to diminish the value of
adjacent property that is in a different political subdivision.      I dispute the
majority’s claim that there is “no limitation,” because it is possible that certain
uses of the property are less feasible and that certain uses have less economic
value than before the zoning change was made.
       {¶ 37} The Supreme Court of the United States has stated that “regulatory
takings challenges are governed by the standards set forth in Penn Cent. Transp.
Co. v. New York City, 438 U.S. 104 [98 S.Ct. 2646, 57 L.Ed.2d 631] (1978).”




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Lingle v. Chevron U.S.A., Inc. (2005), 544 U.S. 528, 538, 125 S.Ct. 2074, 161
L.Ed.2d 876. The court in Lingle stated that the primary factors to consider when
evaluating regulatory-takings claims are “ ‘[t]he economic impact of the
regulation on the claimant and, particularly, the extent to which the regulation has
interfered with distinct investment-backed expectations.’ ”         Id. at 538–539,
quoting Penn Cent. at 124. These inquiries are aimed at identifying “regulatory
actions that are functionally equivalent to the classic taking in which government
directly appropriates private property or ousts the owner from his domain.
Accordingly, each of these tests focuses directly upon the severity of the burden
that government imposes upon private property rights.” Lingle at 539. A “Penn
Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a
regulation's economic impact and the degree to which it interferes with legitimate
property interests.” Id. at 540.
       {¶ 38} It is quite clear that the majority in this case has engaged in no
such analysis. It may be difficult for Clifton to show that the zoning change has
interfered with his legitimate property interests, but he should have the
opportunity to establish that his rights under the federal or Ohio constitution have
been infringed.
                          Blanchester Can’t Appropriate
       {¶ 39} This is a troubling aspect of the case but one that ought not prevent
this court from doing justice to the parties. It is obvious, as the majority opinion
discusses, that Blanchester does not have the authority to appropriate property that
is not within its jurisdiction. A plausible solution in this situation, if Blanchester
is shown to have effected a taking, is to require Blanchester to buy the affected
property or pay the amount of diminution. That remedy would fall within the
concept of a virtual taking. Relying on United States Supreme Court precedent,
the Court of Appeals of Utah has written that “if a regulation falls short of
eliminating all economically beneficial use of land, an analysis of a complex of



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factors indicates whether the interference is so great that a virtual taking has
nonetheless occurred.” Arnell v. Salt Lake Cty. Bd. of Adjustment (2005), 2005
Utah App. 165, 112 P.3d 1214, ¶ 17, citing Palazzolo v. Rhode Island (2001), 533
U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592. The factors to be considered
include “ ‘[t]he economic impact of the regulation on the claimant and,
particularly, the extent to which the regulation has interfered with distinct
investment-backed expectations * * * [and] the character of the governmental
action.’ ” Id., quoting Penn Cent., 438 U.S. at 124, 98 S.Ct. 2646, 57 L.Ed.2d
631. “These inquiries are informed by the purpose of the Takings Clause, which
is to prevent the government from ‘forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a
whole.’ ” Palazzolo, 533 U.S. at 617–618, quoting Armstrong v. United States
(1960), 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554.
       {¶ 40} In this case, Clifton is seeking to avoid bearing alone the burden of
a zoning change and the effect that it has on his property. Whether he will be able
to prove a taking or diminution in value is beside the point at this time. We
should analyze the various factors that the United States Supreme Court has
determined bear on the issue and decide whether Blanchester has effected a
virtual taking.   If it has, we should order an equitable remedy and require
Blanchester to make Clifton whole, either by buying his property or by paying
him the amount of diminution. The end result would be the same as in an
appropriation action—the government entity (Blanchester) would own the
property, and the affected property owner (Clifton) would be compensated for
harm suffered, whether directly or indirectly inflicted, at the hand of a
governmental entity (Blanchester).
                                     Standing
       {¶ 41} The majority ultimately concludes that Clifton lacks standing
because his problem is not redressable by an appropriation action because




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Blanchester cannot appropriate property outside its jurisdiction. Given the current
state of the law, that is a sound conclusion. But ought not the law seek to do
equity in such a circumstance? If a zoning change really does diminish the value
of an adjacent property, then it diminishes the value whether the adjacent property
is in the same or a different political subdivision.         Why would the law
countenance a remedy in one instance but not the other? All of the involved
parties are in Ohio. Ought not the law of Ohio provide a remedy for an aggrieved
landowner even if he lives in a different political subdivision from the one whose
zoning change diminishes the value of his property?
       {¶ 42} Courts have considered similar issues and concluded that residents
of adjacent political subdivisions can have standing for some purposes. For
instance, in Scott v. Indian Wells (1972), 6 Cal.3d 541, 549, 99 Cal.Rptr. 745, 492
P.2d 1137, the Supreme Court of California stated that a political subdivision
considering a zoning change “owes adjoining landowners who are not city
residents a duty of notice to the extent given similarly situated city residents, a
duty to hear their views, and a duty to consider the proposed development with
respect to its effect on all neighboring property owners. We are also satisfied that
adjoining landowners who are not city residents may enforce these duties by
appropriate legal proceedings and have standing to challenge zoning decisions of
the city which affect their property.” (Emphasis sic.) In Cresskill v. Dumont
(1954), 15 N.J. 238, 247, 104 A.2d 441, the Supreme Court of New Jersey stated
that a political subdivision “owes a duty to hear any residents and taxpayers of
adjoining municipalities who may be adversely affected by proposed zoning
changes and to give as much consideration to their rights as they would to those
of residents and taxpayers of [itself]. To do less would be to make a fetish out of
invisible municipal boundary lines and a mockery of the principles of zoning.”
See also Koppel v. Fairway (1962), 189 Kan. 710, 371 P.2d 113, paragraph one of




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the syllabus; Constr. Industry Assn. of Sonoma Cty. v. Petaluma (C.A.9, 1975),
522 F.2d 897, 905.
       {¶ 43} I am persuaded that Clifton’s problem is redressable. The concept
of a regulatory taking or a virtual taking and our authority when sitting in equity
are broad enough to fashion a remedy for Clifton. By concluding that Clifton has
no standing and consequently that property owners can never have standing when
a political subdivision other than the one where their property is located makes a
zoning change, this court is giving a green light to political subdivisions to make
zoning changes that unduly affect property owners in adjacent cities and towns.
Surely this court does not want that to happen.
       {¶ 44} I conclude that it is possible for Clifton to show that the
Blanchester zoning change limits his use of his property, that even though
Blanchester cannot appropriate Clifton’s property, it can compensate him as if it
had appropriated his property, and therefore that Clifton raises an issue that is
redressable. I conclude that Clifton has standing. I would allow the case to move
forward on its merits.
       {¶ 45} I dissent.
                                  __________________
       Fowler, Demos, & Stueve, William G. Fowler, and Gregory J. Demos, for
appellant.
       Schroeder, Maundrell, Barbiere & Powers, Lawrence E. Barbiere, and
Robert S. Hiller, for appellee.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and Laura Eddleman Heim, Deputy Solicitor, urging affirmance for
amicus curiae, state of Ohio.
                            ______________________




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