Country Club Hills Homeowners Ass'n v. Jefferson Metropolitan Housing Authority

• Decision Date: 10 April 1981
• Citation: 449 N.E.2d 460,5 OBR 189,5 Ohio App.3d 77
• Parties: , 5 O.B.R. 189 COUNTRY CLUB HILLS HOMEOWNERS ASSOCIATION et al., Appellees, v. JEFFERSON METROPOLITAN HOUSING AUTHORITY et al., Appellants. *
• Court: Ohio Court of Appeals

Page 77

5 Ohio App.3d 77

449 N.E.2d 460, 5 O.B.R. 189

COUNTRY CLUB HILLS HOMEOWNERS ASSOCIATION et al., Appellees, v. JEFFERSON METROPOLITAN HOUSING AUTHORITY et al., Appellants. ^*

Court of Appeals of Ohio, Seventh District, Jefferson County.

April 10, 1981.

Syllabus by the Court

1. Placing the burden on the trial judge to check the records of the county recorder's office to determine whether plaintiffs were property owners and taxpayers is not "capable of * * * ready determination" within the meaning of Evid.R. 201(B).

2. A metropolitan housing authority is a political subdivision of the state of Ohio performing state functions which are governmental in character.

3. Caution should be exercised in granting injunctions especially in cases affecting a public interest where the court is asked to interfere with or suspend the operation of important public works or to control the action of another department of government.

Gary M. Stern, Steubenville, for appellees.

Dominic J. Bianco, Steubenville, for appellant Jefferson Metropolitan Housing Authority.

Donald C. Steiner, Canton, for appellant Eslinger & Rappaport.

LYNCH, Presiding Judge.

Defendants-appellants are appealing the February 17, 1981 judgment of the court of common pleas which enjoined them from commencing construction of one hundred units of low and moderate income housing in the Country Hills Subdivision of the city of Steubenville.

On June 11, 1980, eighty-six individuals and an unincorporated association of persons filed a taxpayers' suit to obtain subject injunction. In their complaint the individual plaintiffs alleged that they are property owners and taxpayers of Jefferson County, Ohio, and resided adjacent to or in proximity to subject housing project. In their answers, both defendants either denied or refused to admit the plaintiffs' allegations. Upon a review of the entire record of this case, we find that no evidence was introduced to prove that plaintiffs were property owners and taxpayers of Jefferson County, Ohio.

Defendant-appellant Jefferson Metropolitan Housing Authority, which will hereinafter be referred to as "JMHA," is a governmental corporation of the state of Ohio which was created pursuant to R.C. 3735.27 et seq. On March 5, 1980, JMHA selected defendant-appellant Eslinger & Rappaport, which will hereinafter be referred to as "E & R," as developer for Turnkey Construction of subject one hundred units subject to approval by the Department of Housing and Urban Development ("HUD").

By letter dated June 6, 1980, JMHA notified E & R that E & R's proposal for subject housing project had been selected subject to a number of conditions and requirements.

On July 3, 1980, JMHA received a letter from HUD that the preliminary site report had not been modified.

This evidence established that subject housing project would be funded entirely by the federal government; that no state, county or city funds would be used for subject project; that the estimated cost of this project would be between four and five million dollars, and that if JMHA should build subject housing project, it would be exempt from property taxes pursuant to R.C. 3735.34, but would make payments in lieu of taxes pursuant to R.C. 3735.35.

In their amended complaint plaintiffs alleged that as taxpayers of the Indian Creek School District they would suffer special damage to their own property rights different in character than that sustained by the public generally due to the fact that if subject housing project were built it would be exempt from all taxation pursuant to R.C. 3735.34.

Defendants' assignments of error are as follows:

"1. The trial court erred in overruling defendants-appellants' motion for dismissal of plaintiffs-appellees' case and for judgment in their favor made at the end of plaintiffs-appellees' case.

"2. The judgment of the trial court was contrary to law.

"3. The judgment of the trial court was against the greater weight of the evidence.

"4. The trial court's findings of fact were not supported by probative evidence.

"5. Even if the trial court did not err in its findings of fact, it erred in applying the law to said facts.

"6. The trial court abused its discretion in issuing the injunction."

Defendants, in their brief, did not discuss each assignment of error separately but their arguments were presented under issue headings; therefore, we will do the same.

Defendants' first two issues are that plaintiffs had no standing as a matter of law to maintain a "Common Law Taxpayers' Suit."

The seventh paragraph of the headnotes of Cuyahoga Metropolitan Housing Authority v. Cleveland (N.D.Ohio 1972), 342 F.Supp. 250 , states, at page 257:

" * * * a metropolitan housing authority is a political subdivision of the State of Ohio which by delegation performs state functions which are governmental in character."

The first paragraph of the syllabus of State ex rel. Masterson v. Ohio Racing Comm. (1954), 162 Ohio St. 366, 123 N.E.2d 1 , is as follows:

"In the absence of statutory authority, a taxpayer lacks legal capacity to institute an action to enjoin the expenditure of public funds unless he has some special interest therein by reason of which his own property rights are placed in jeopardy."

In Masterson, the court stated at page 368, 123 N.E.2d 1, as follows:

" * * * private citizens may not restrain official acts when they fail to allege and prove damage to themselves different in character from that sustained by the public generally. 39 Ohio Jurisprudence, 22, Section 12; 52 American Jurisprudence, 3, Section 3."

See, Andrews v. Ohio Building Authority (1975), 74 O.O.2d 184.

Since federal funds are being used to finance this project, it is clear that no part of the funds to be expended on subject housing project can be shown by plaintiffs to damage them differently than the public generally. However, plaintiffs claim that as taxpayers of the Indian Creek School District they will suffer special damage to their property rights different in character than that sustained by the public generally due to the fact that if subject housing project were built it would be exempt from all taxation pursuant to R.C. 3735.34.

There is no evidence in the record of this case that proves that plaintiffs were property owners and taxpayers of Jefferson County. When defense counsel called this fact to the attention of the trial court, counsel for plaintiffs asked the trial court, pursuant to Evid.R. 201(D), to take judicial notice that the plaintiffs are property owners pursuant to Evid.R. 201(B), which provides as follows:

"A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

Counsel for plaintiffs argued that the question whether plaintiffs were property owners and taxpayers of Jefferson County could be readily determined at the county recorder's office in the courthouse.

The trial court in its "Findings of Fact" found that plaintiffs were property owners and taxpayers of the city of Steubenville and the Indian Creek School District but did not state the basis of such finding.

We hold that placing the burden on the trial judge to check the records of the county recorder's office to determine whether plaintiffs were property owners and taxpayers is not "capable of * * * ready determination" within the meaning of Evid.R. 201(B). The burden of proof is on the plaintiffs and not on the trial judge. All that was necessary was for some plaintiffs to testify that they were property owners and taxpayers.

Therefore, we hold that the trial judge could not take judicial notice that plaintiffs were property owners and taxpayers under the facts of this case.

Even if such plaintiffs had established that they were property owners and taxpayers and resided near subject project, their alleged increase in taxation caused by the construction of subject public housing project would be the same as every other property owner and taxpayer in the Indian Creek School District. The evidence established that if plaintiffs were property owners and taxpayers they would only be a part of the property owners and taxpayers of said school district.

Furthermore, plaintiffs contend that their damage would be caused by the fact that if subject housing project were built it would be exempt from all taxation...