[REQUEST PUBLICATION] COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67416 DAVID R. JONES : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION VILLAGE OF CHAGRIN FALLS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MAY 25, 1995 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 261413 JUDGMENT Reversed and vacated; Case dismissed. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: SHELDON BERNS, ESQ. JOSEPH W. DIEMERT, JR., ESQ. BENJAMIN J. OCKNER, ESQ. Joseph W. Diemert, Jr. & Kahn, Kleinman, Yanowitz Associates Co., L.P.A. & Arnson Co., L.P.A. 1360 S.O.M. Center Road 2600 Tower at Erieview Cleveland, Ohio 44124 Cleveland, Ohio 44114-1824 - 2 - JAMES M. PORTER, J., Defendant-appellant Village of Chagrin Falls appeals from a summary judgment of the Common Pleas Court in favor of plaintiff- appellee David R. Jones which held that he could use his property to build a bank in that section of the Village zoned as an office district. The Village contends that a bank is not a proper use in the office district but is permitted in the retail business district; that the trial court improperly interpreted the zoning ordinances and usurped the authority and functions of the Village officials and the Board of Zoning Appeals which rejected plaintiff's contentions in administrative proceedings. We find merit to the appeal, reverse for the reasons hereinafter stated and dismiss the case. Plaintiff Jones is the owner of a vacant parcel of land located at the southwest corner of the intersection of East Washington Street and Senlac Hills Drive in the Village of Chagrin Falls. Plaintiff proposes to build a bank on the property including an outside automated teller machine (ATM). On June 4, 1993, plaintiff gave an option to National City Bank to develop the property and relocate its banking business from the Village's central business district. The subject property is within the area zoned "office district." However, the Village's Planning and Zoning Code, Cod. Ord. 1137.02(a)(3)(c) defines banks as establishments engaged primarily in the sale of services, and, therefore, a use appropriate only to - 3 - the area zoned "retail business district." The retail business district encompasses both retail sales and retail services. The Code states that the objectives of the retail business district regulations include strengthening the "viability of the retail business district by focusing new retail development near the existing Village center and by preserving the pedestrian oriented retail character of the commercial street frontage." Cod. Ord. 1137.01(C). On September 24, 1993, the optionee, National City Bank, through its counsel, discussed with the Village's Chief Administrative Officer the potential use of the Jones' property for a branch bank. The Administrator stated a bank was not a permitted use in the "office district," but was restricted to the "retail business district." With the acquiescence of National City Bank, the Administrator submitted his decision to the Village's Board of Zoning Appeals for an interpretation of the zoning ordinance. The formalities of an application for interpretation, variance or appeal, and publication of notice were not followed as specified in Cod. Ord. 1111.04. On October 4, 1993, the Board considered the Administrator's decision at a regular meeting, at which the Bank, its representatives and counsel attended and participated. The Board focused on whether only banks with drive-through tellers were intended to be included in the retail business district, or whether banks in general were intended to be included in the retail - 4 - business district because of the flow of pedestrian traffic that they generate. In response to one of the Board members, the Bank's counsel said he considered that a bank was indeed a retail operation. At the public hearing, the Board unanimously determined that allowing a bank in the office district, with or without an ATM, was contrary to the language of the Code, and also would violate the intent of the Planning Commission. The Board members commented on the fact that the Code as written locates the retail district near the existing Village center and that its intent was to promote vitality downtown by encouraging pedestrian traffic near the existing Village center. The Board upheld the Administrator's decision by holding that "there is a distinction between a financial office and bank and savings and loan institution" in Chagrin Falls. On October 11, 1993, the Chagrin Falls Village Council took up the matter at its regular meeting. The Bank was represented by counsel who made a presentation to the Council. After discussion, the Council passed an ordinance sustaining the decisions of the Board of Zoning Appeals and Administrator that a bank is a permitted use in the retail business district, but not in the office district where plaintiff's property is located. Plaintiff Jones did not attend any of the zoning proceedings before the Administrator, the Board, or Council, and was not represented by counsel for the Bank at that time. Jones has also not requested a - 5 - use variance so as to seek an exception to the Village's interpretation regarding his parcel of land. Neither the Bank nor plaintiff Jones took an administrative appeal from the decisions to the Common Pleas Court as permitted by R.C. Chapter 2506. On November 18, 1993, plaintiff Jones filed a declaratory judgment complaint in the Common Pleas Court seeking a determination that it was entitled to build a bank in the office district under the Chagrin Falls Zoning Code. The Village answered and raised affirmative defenses that the complaint failed to state a cause of action, the court lacked jurisdiction over the subject matter and plaintiff had failed to exhaust his administrative remedies. The parties filed cross-motions for summary judgment with copies of the relevant zoning ordinances and the minutes of the Board and Council proceedings. On May 19, 1994, the trial court found for plaintiff Jones and, contrary to the Board's and Council's decision held, "that a bank or savings and loan is a financial office and as such is a permitted use in the Office District of the Village of Chagrin Falls." From that judgment the Village's timely appeal ensued. The Village did not appeal the denial of its summary judgment motion. At the appellate oral argument on March 28, 1995, the Court raised the issue sua sponte as to whether or not the trial court had jurisdiction to entertain plaintiff's declaratory judgment action de novo rather than hear an administrative appeal from the - 6 - Village's decisions under R.C. Chapter 2506. Plaintiff did not challenge the constitutionality of the Village's zoning laws. The parties filed supplemental briefs on the jurisdictional issues and the matter is now ripe for decision. The Village asserts three assignments of error for our review. We will consider the second assignment of error as it is dispositive of this appeal. II. THE TRIAL COURT ERRED BY INTERPRETING THE CHAGRIN FALLS ZONING CODE, A JOB ALREADY PERFORMED BY THE CHIEF ADMINISTRATIVE OFFICER OF CHAGRIN FALLS, THE BOARD OF ZONING APPEALS, AND THE VILLAGE COUNCIL, A JOB NOT WITHIN THE PURVIEW OF A COURT UNLESS THE ORDINANCE OR ITS APPLICATION IS UNCONSTITUTIONAL OR ARBITRARY. (JUDGMENT AND OPINION). We will first address the jurisdictional issues raised by the Court and briefed by the parties. The trial court and this Court have an independent obligation to determine whether there is subject matter jurisdiction to entertain the declaratory judgment action regardless of whether the parties raised it or pursued it. "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction on the subject matter, the court shall dismiss the action." Civ. R. 12(H)(3). Subject matter jurisdiction can be raised at any time, including for the first time on appeal. Jenkins v. Keller, et al. (1966), 6 Ohio St.2d 122; Gates Mills Investment Co. v. Parks, et al. (1971), 25 Ohio St.2d 16; McNea v. Cleveland (1992), 78 Ohio App.3d 123, 124. Jurisdiction is never waived and it is not waivable. Nor can it be consented to by the parties. Weatherfield Township v. Trumbull - 7 - County Budget Comm. (1994), 69 Ohio St.3d 394, 395; Dollar Bank v. The Bernstein Group, Inc. (1991), 71 Ohio App.3d 530. In its answer, the Village asserted affirmative defenses of failure to state a cause of action upon which relief can be granted, that the court lacked subject matter jurisdiction, and plaintiff Jones failed to exhaust his administrative remedies. (Ans. of Def. 5,6,7). Although the Village did state in its formal assignment of error that the court's review of the administrative interpretation was "a job not within the purview of a court unless the ordinance or its application is unconstitutional or arbitrary," it did not address the issue of lack of subject matter jurisdiction in its original brief. In its Supplemental Brief however, the Village assigned the following error: IN THAT PLAINTIFF-APPELLEE HAD AN AVAILABLE ADMINISTRATIVE REMEDY, BUT FAILED TO EXHAUST THAT REMEDY, THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION. In any event, lack of jurisdiction may be raised sua sponte by the court. Bd. of Educ. of Springfield Local School Dist. v. Lucas Cty. Budget Comm. (1994), 71 Ohio St.3d 120, 121; Fox v. Eaton Corp. (1976), 48 Ohio St.2d 236, 238; State ex rel. Lawrence Dev. Co. v. Weir (1983), 11 Ohio App.3d 96, 97; Petitioners v. Bd. of Twinsburg Twp. Trustees (1965), 4 Ohio App.2d 171, 176. Therefore, this Court has the affirmative duty to determine whether the trial court had jurisdiction to entertain the declaratory judgment - 8 - action. In doing so: "A trial court has authority to consider any pertinent evidentiary materials when determining its own jurisdiction." Nemazee v. Mt. Sinai Medical Ctr. (1990), 56 Ohio St.3d 109, 111, fn. 3. Plaintiff Jones contends that he was not a party to the administrative process, was not bound by the Village's interpretation of its own Zoning Code and was not obliged to resort to a R.C. Chapter 2506 administrative appeal to protect his interests. In short, plaintiff submits that the trial court could determine the interpretation question de novo in a declaratory judgment action without regard to the Village's administrative process or its decision. We disagree and hold that the trial court had no subject matter jurisdiction to entertain a declaratory judgment action in the circumstances of this case. The obligation to administer the Zoning Code of the Village 1 rests, in the first instance, with its duly elected officials. In 1 Chagrin Falls is a chartered municipality with consti- tutional rights of Home Rule conferred by the Ohio Constitution, Art. XVIII, Section 3. Its Charter provides for a Planning and Zoning Commission, and a Board of Zoning Appeals. Charter, Art. VII, Sec. 1. The Board is empowered "To hear appeals on decisions made by the Administrator, or by any administrative officer on matters relating to this Zoning Code ***" and "shall hear any questions or disputes involving the interpretation of provisions of this zoning code ***." Code 1111.01-02. On an appeal from the Administrator, the Board is required to hold a public hearing, and afterwards "forward its written recommendation to Council with respect to such application." Code 1111.04. "The Board of Zoning Appeals shall have the power, in specific cases, to vary the application of certain provisions of this Zoning Code *** where unnecessary hardships would result from literal application ***." Code 1111.07. "The Board shall conduct all of its meetings pursuant to Ohio R.C. - 9 - the absence of a constitutional challenge which plaintiff Jones expressly disclaims (Appellee's Brf. at 1), the Common Pleas Court does not have original jurisdiction to decide zoning issues de novo without regard to the deference that must be shown to the Village's administrative zoning process. In Wagner v. Cleveland (1988), 62 Ohio App.3d 8, 15, this Court held: It is not appropriate to bypass a special statutory procedure by means of a declaratory judgment action. [Citation omitted.] To bypass an administrative agency's authority to decide an issue by filing a declaratory judgment action would circumvent the agency's authority in contravention of the power conferred to that agency by the General Assembly. In Rispo Invest. Co. v. Seven Hills (1993), 90 Ohio App.3d 245, 254, we recently explained the rationale behind this principle: The power of a municipality to establish zones, to classify property and to determine land use policy is a legislative function with which a court may not interfere unless the power is exercised in such an arbitrary, confiscatory or unreasonable manner as to be in violation of constitutional guarantees. Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28, 30 OBR 33, 505 N.E.2d 966. A municipality has a legitimate interest in aesthetics and preserving the status quo. Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 9 OBR 273, 458 N.E.2d 852. Moreover, enhancing property rights is an interest within the police power of a municipality. See, e.g., Silverman v. Barry (C.A.D.C. 1988), 851 F.2d 434, at 437. 2506 and amendments thereto." Code 136.03. - 10 - For the foregoing reasons, the courts have long recognized and insisted that parties affected by zoning determinations must first seek their administrative remedies before the duly elected municipal officials before seeking judicial review. In his declaratory judgment complaint, plaintiff states that the controversy before the court is "whether or not Section 1135.02 of the Village's Zoning Code permits the use of the [Jones] Property for a bank." (Complt. 6). This is an issue to be resolved in the first instance by the Village Board of Zoning Appeals and the Village Council. Their decision must be challenged pursuant to R.C. Chapter 2506 by an appeal from a final decision by an administrative agency. "The R.C. Chapter 2506 appeal is a judicial review of a final administrative decision denying a variance to a property owner. *** In contrast, a declaratory judgment action challenges the constitutionality of an existing zoning ordinance." Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 16. Plaintiff has judicially disclaimed any challenge to the constitutionality of the Village Code. The Supreme Court held in Schomaeker v. First Natl. Bank (1981), 66 Ohio St.2d 304, paragraph three of syllabus: A person entitled under R.C. Chapter 2506 to appeal the order of a planning commission granting a variance pursuant to a village ordinance is not entitled to a declaratory judgment where failure to exhaust adminis- trative remedies is asserted and maintained. In Schomaeker, a plaintiff who sought relief "essentially on the basis that the granting of a use variance was against the - 11 - weight of the evidence and contrary to law" fell far short of attacking the validity or constitutionality of the ordinance, and declaratory relief was, therefore, unavailable: We further hold that plaintiff was not entitled to declaratory judgment relief in the common pleas court, because such an action does not lie when a direct appeal to the common pleas court pursuant to R.C. Chapter 2506 is available. In any event, plaintiff was collaterally estopped from raising the propriety of a use variance, given a prior judgment necessarily adjudicating this issue. * * * Given the availability of an R.C. Chapter 2506 direct appeal, a property owner *** adversely affected by the granting of the use variance *** may not challenge the granting of such use variance in a declaratory judgment action where such property owner does not assert the invalidity or unconstitutionality of the ordinance. 2 Id. at 306, 312. The converse would also be true, i.e., the denial of a variance would be subject to the same requirement of exhausting administrative remedies. Plaintiff Jones cannot thwart the administrative process by simply declaring he is not bound by it and filing a declaratory judgment action. To permit such a course 2 The reason that declaratory judgment is available without exhausting the administrative remedy when a constitutional challenge is made is based on the "well-established rule that an administrative agency may not rule on constitutional issues before it." Perrico Property Systems v. Independence (1994), 96 Ohio App.3d 134, 143; Herrick v. Kosydar (1975), 44 Ohio St.2d 128, 130. - 12 - of action would remove local zoning disputes from the administrative process and vest it in the Common Pleas Court. The Schomaeker principles have been repeatedly followed in the later cases: Fairview Gen. Hosp. v. Fletcher (1992), 63 Ohio St.3d 146, 150 (exhaustion of remedies is a necessary prerequisite to declaratory judgment action which requests declaration of purely statutory rights; "Allowance of declaratory relief under these circumstances served only to circumvent an adverse decision of an administrative agency and to bypass the legislative scheme"); Neforos v. Richfield Village Board of Zoning Appeals (July 28, 1993), Summit App. No. 16037, unreported (plaintiff's declaratory judgment action did not challenge the constitutionality or validity of the Richfield ordinance therefore the relief sought was attainable through an R.C. Chapter 2506 review of the administrative decision and plaintiff failed to consequently exhaust its administrative remedies); Brown v. Board of Trustees (July 22, 1986), Hardin App. No. 6-85-8, unreported (in Schomaeker, the plaintiff was required to appeal the administrative decision to the lower court because "the plaintiff was already locked into the administrative proceedings relating to obtaining a variance whereas in G.S.T. the declaratory judgment plaintiff had merely sought rezoning, a legislative process."); Mad River Egg Farm v. York Township of Union County (June 27, 1986) Union App. No. 14-85-5, unreported ("Schomaeker, however, stands for the proposition that a party involved in administrative proceedings who has an adequate - 13 - remedy by way of an administrative appeal may not, instead, resort to an action in declaratory judgment to obtain substantially the same relief."); Rider v. Lynch (April 20, 1983), Summit App. No. 10935, unreported ("[a] declaratory judgment will not lie when a direct appeal of the board's order granting the variance is available and when the existence of such appeal is raised as a defense.") The principle of exhausting administrative remedies as a condition precedent to subject matter jurisdiction of the courts is widely accepted in administrative law precedents. See Fairview General Hosp. v. Fletcher (1992), 63 Ohio St.3d 146, 148 ("[A]ppellee had failed to exhaust all of its administrative remedies, including adjudication by the CONRB, before it invoked the subject matter jurisdiction of the common pleas court"); Noernberg v. Brook Park (1980), 63 Ohio St.2d 26, 30 ("[P]rior to seeking court action in an administrative matter, the party must exhaust the available avenues of administrative relief ***. Because appellee in this case did not appeal his suspension order, the court of common pleas was without jurisdiction ***"); McNea v. Cleveland (1992), 78 Ohio App.3d 123, 127 ("The Ohio Supreme Court has recognized in this context that applicable civil service procedures must be exhausted for the court of common pleas to obtain subject matter jurisdiction over the dispute. Lack of subject matter jurisdiction *** may be raised at anytime"); Porter v. Ohio Dept. of Adm. Serv. (1990), 70 Ohio App.3d 240, 242 ("The - 14 - failure to exhaust her administrative remedies supports the trial court's decision to dismiss appellant's appeal on the basis it lacked jurisdiction"); Campbell v. Bur. of Emp. Serv. (1991), 74 Ohio App.3d 603, 605 ("Jurisdiction to review administrative determinations is conferred upon the court of common pleas only after an interested party has exhausted available remedies"). Since plaintiff disclaims any constitutional challenge to the Village's Zoning Code, we find that his failure to exhaust administrative remedies available to him deprives the trial court of subject matter jurisdiction to hear his declaratory judgment action. Pursuant to the Ohio Constitution, Art. IV, Section 4 and R.C. Chapter 2506, the Court of Common Pleas only has subject matter jurisdiction to "review" final orders of agencies and administrative officers. Requiring plaintiff to file a direct administrative appeal pursuant to R.C. Chapter 2506 would follow the traditional policy of obligating courts to defer to local officials on zoning matters. In Mayfield Hts. v. Cardarelli (1989), 63 Ohio App.3d 812, this Court acknowledged again the deference that must be shown to administrative interpretations by the municipal bodies charged with the enforcement of the Zoning Code. We stated: Properly enacted zoning ordinances are presumed to be valid. Brown v. Cleveland (1981), 66 Ohio St.2d 93, 95, 20 O.O.3d 88, 89, 420 N.E.2d 103, 105. * * * - 15 - A zoning ordinance will be held unconsti- tutional on its face or as applied if its provisions are clearly arbitrary and unreasonable, and have no substantial relation to the public health, safety, or general welfare. Euclid v. Amber Realty Co. (1926), 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303; Consolidated Mgt. Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 242, 6 OBR 307, 310, 452 N.E.2d 1287, 1290. If the validity of the legislative zoning classification is fairly debatable, a court will not substitute its judgment for the legislative judgment. Euclid v. Amber Realty Co., supra, at 388, 47 S.Ct. at 118, 71 L.Ed. at 311; Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 71, 9 OBR 273, 274, 458 N.E.2d 852, 854; Willott v. Beachwood (1964), 175 Ohio St. 557, 560, 26 O.O.2d 249, 251, 197 N.E.2d 201, 203. The question therefore presented is whether appellant established beyond fair debate the zoning ordinance on its face or as applied was clearly arbitrary and unreasonable and had no substantial relation to the public health, safety or general welfare. Before this court can declare the ordinance unconstitutional, the invalidity of the legislation must be plain and apparent. Id. at 815-816. We are convinced that the plaintiff may not disregard the interpretation and determination of the Village's Board of Zoning Appeals adopted by the Village Council and file the declaratory judgment action seeking de novo review based on the courts's own independent interpretation of the Code. The test the court must apply in reviewing a zoning decision on appeal is that set forth in Community Concerned Citizens, Inc. v. Union Township Bd. of Zoning Appeals (1993), 66 Ohio St.3d 452, 456: In reviewing appellee's decision, a court is bound by the nature of administrative proceedings to presume that the decision of the - 16 - administrative agency is reasonable and valid. C. Miller Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298, 67 O.O.2d 358, 313 N.E.2d 400. Courts evaluating the decision of an administrative body must weigh the evidence in the record in order to determine whether there is a preponderance of reliable, probative, and substantial evidence supporting the decision. R.C. 2506.04 and Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 207, 12 O.O.3d 198, 202, 389 N.E.2d 1113, 1117. However, a reviewing court should not substitute its judgment for that of the agency. Dudukovich, supra. Although the decision at hand involves an interpretation or construction of the Village Zoning Code rather than a challenge to its constitutionality, we believe the reasons behind requiring the trial court's deference to the administrative decisions by the procedure of administrative appeal remain sound. The trial court may not interfere with the zoning power of the municipality unless it is exercised in an arbitrary, confiscatory or unreasonable manner. This standard of review is guaranteed by a direct appeal to the court pursuant to R.C. Chapter 2506. A common pleas court may not usurp the powers of the community by exercising jurisdiction over a subject matter that must first be decided at the administrative level. We also find that if plaintiff Jones lacked standing to pursue an administrative appeal, as he contends, then he lacks standing to pursue a declaratory action due to his lack of a specific dispute or actual controversy with the Village. This appears from his admissions. Plaintiff Jones vigorously argues in his Supplemental Brief (pp. 8-18) that he does not have standing to appeal from the - 17 - Village's administrative decisions under R.C. Chapter 2506; that he was not in privity with National City Bank by reason of the option or otherwise; that he did not receive notice of, attend, participate in or control the administrative proceedings nor was he represented thereat by the Bank's counsel; that he did not agree to be bound by the outcome; that he was not bound by res judicata or collateral estoppel; that he did not learn about the proceedings until he read about the result in the local newspaper; that the Village's determination that a bank was not a suitable use in the office district was a generic determination not relevant to plaintiff's use of his specific property. The essence of plaintiff's argument is that he was a stranger to the administrative proceedings and was not required to pursue an R.C. 2506 appeal therefrom to the Common Pleas Court. He postulates the corollary to that argument to be that he was therefore at liberty to seek a de novo determination by a declaratory judgment action in the court. However, Jones' posture on this issue bears significantly on his ability to pursue declaratory judgment relief. It is settled in Ohio that the three elements necessary to obtain a declaratory judgment as an alternative to other remedies are (1) that a real controversy between adverse parties exists; (2) which is justiciable in character; (3) and that speedy relief is necessary to the preservation of rights which may otherwise be impaired or lost. - 18 - Fairview Gen'l Hosp. v. Fletcher (1992), 63 Ohio St.3d 146, 148; Perrico Property Sys. v. Independence (1994), 96 Ohio App.3d 134, 139. Plaintiff alleges in his complaint for declaratory judgment that "[T]here is a real and justiciable controversy between the parties as to whether or not Section 1135.02 of the Village's Zoning Code permits the use of [Jones'] Property for a bank, which controversy will be terminated by the declaratory judgment requested herein." (Complt. 7). In order to give Jones standing to assert a claim for declaratory relief, he had to assert there was a dispute and justiciable controversy "between the parties" (i.e., the Village and Jones) over use of his property for a bank. Jones cannot, on the one hand, maintain that he had nothing to do with the Village's interpretation of the zoning ordinances and was not bound by it, while on the other hand, claim that he is in a real dispute or controversy with the Village in order to give himself declaratory judgment standing. Put another way, unless the Village's decision directly impacted his interest in his site- specific property, he has no standing for a declaratory judgment action. Jones cannot claim he has a dispute or controversy with the Village when he never knew about the administrative proceedings and contends he is a stranger to them, not bound by them and no different than any other disinterested property owner in the Village. - 19 - Accepting Jones' appellate argument at face value, no actual or justiciable controversy exists between Jones and the Village for declaratory judgment purposes. "A prerequisite to a determination that an actual controversy exists in a declaratory judgment action is a final decision concerning the application of the zoning regulation to the specific property in question." Karches v. Cincinnati, supra, paragraph two of syllabus; Perrico, supra at 139. Jones contends that the Village's decision only generically determined that a bank is not a financial office and therefore is not permitted in the office district. If we agree with Jones' rationale, then there was no "final decision concerning the application of the zoning regulation to [his] specific property in question." He is estopped to claim standing to invoke the declaratory judgment powers of the trial court. Furthermore, Jones did not seek a use variance from the Village regarding whether a bank could be placed on his property in spite of the Village's interpretation. It is admitted that "Jones' approved plans and drawings were different from the site plan that had been proposed by National City Bank to the BZA." (Jones' Supp. Brf. p. 25, fn. 7.) If the Village denied Jones' variance request based on his "different" plans and drawings, that act would create an actual dispute and controversy. But, he never submitted them. Jones' argument that his submission to the Village would necessarily be futile is without merit. "A 'vain act' is defined in the context of lack of authority to grant administrative relief - 20 - and not in the sense of lack of probability that the application for administrative relief will be granted." Nemazee, supra at 115. Nor do we find that the third element of a declaratory judgment action has been established. We find no evidence that "speedy relief" was necessary to the preservation of rights which may otherwise be impaired or lost. The Village is capable of responding to a Jones' submission for a use variance in a reasonable time span as it demonstrated when approached by National City Bank, the optionee. Therefore, we are compelled to the conclusion that if Jones was not obliged to file a direct appeal from the Village's decision (as he contends), he likewise would have no standing to bring a declaratory judgment action claiming he had a justiciable controversy with the Village. We hold that plaintiff Jones has failed to meet the threshold requirements necessary to maintain the declaratory judgment action below and that the trial court did not have subject matter jurisdiction over the action. New Boston Coke Corp. v. Tyler (1987), 32 Ohio St.3d 216, 218; State, ex rel. Dallman v. Court (1973), 35 Ohio St.2d 176, 179; Rothchild v. Central Motors Corp. (Oct. 7, 1993), Cuyahoga App. No. 63743, unreported. For all the reasons hereinabove set forth, we sustain Assignment of Error II and the Supplemental Assignment of Error. In view of this disposition, we find the other assignments of error to be moot. App. R. 12(A)(1)(c). - 21 - The judgment of the lower court is reversed and vacated; case dismissed. - 22 - It is, therefore, considered that said appellant recover of said appellee its costs herein taxed. It is ordered that a special mandate be sent to the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .