Community Concerned Citizens, Inc. v. Union Township Board of Zoning Appeals

66 Ohio St. 3d 452
CourtOhio Supreme Court
DecidedJune 23, 1993
DocketNo. 92-207
StatusPublished
Cited by94 cases

This text of 66 Ohio St. 3d 452 (Community Concerned Citizens, Inc. v. Union Township Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Community Concerned Citizens, Inc. v. Union Township Board of Zoning Appeals, 66 Ohio St. 3d 452 (Ohio 1993).

Opinion

Alice Robie Resnick, J.

In what should have been a relatively straightforward process, for several reasons, this case has become a procedural quagmire. On appeal to this court, appellant expends a great deal of effort arguing that the “complaint” it filed in the court of common pleas should not have been dismissed. Specifically, appellant asserts that its constitutional claims and corresponding plea for a declaratory judgment should have survived appellee’s motion to dismiss. However, “[a]n appeal from a final administrative decision denying a property owner a variance is filed under R.C. Chapter 2506.” (Emphasis added.) Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 15, 526 N.E.2d 1350, 1354. In addition, or in the alternative, a separate declaratory judgment action pursuant to R.C. Chapter 2721 may be pursued. Id.

On appeal of a zoning board decision, an aggrieved party may argue that the ordinance, as applied in its particular case, is unconstitutional. This limited constitutional argument is to be considered by the trial court in addition to any other arguments. The determination of constitutionality turns on the specific proposed use of the property. “In making such a limited determination, it is possible that the existing zoning could be unconstitutional, but the zoning would not be declared unconstitutional because the prohibition against the specific proposed use is valid.” Id. at 16, 526 N.E.2d at 1355.

In a declaratory judgment action filed pursuant to R.C. Chapter 2721, the landowner sets forth a challenge to the regulation’s overall constitutionality. “ * * * [T]he declaratory judgment action is independent from the administrative proceedings; it is not a review of the final administrative order.” Driscoll v. Austintown Assoc. (1975), 42 Ohio St.2d 263, 271, 71 O.O.2d 247, [454]*454251, 328 N.E.2d 395, 401. Such action does not raise the denial of the variance as an issue.

In this case, appellant attempted to create a hybrid constitutional challenge. On December 1,1989, appellant filed a “Notice of Appeal and Complaint; Jury Demand Endorsed Hereon.” In this filing, appellant appealed the zoning decision pursuant to R.C. Chapter 2506, set forth four claims for relief in complaint form, asked for an R.C. Chapter 2721 declaratory judgment, and sought damages.

We find that appellant could have challenged the constitutionality of the ordinance as applied to the specific proposed use; however, in order to request a declaratory judgment appellant was required to file a separate R.C. Chapter 2721 action. Procedurally, appellant’s request for declaratory judgment could not be combined with its appeal.

Notwithstanding the fact that we hold that appellant’s complaint was properly dismissed, we find that the reasons given therefor served to further complicate this case. On May 9, 1990, the trial court entered a decision that stated: “It is axiomatic that prior to the commencement of a declaratory judgment action to determine the validity of a zoning ordinance as applied to a specific parcel of property and [sic] owner must exhaust administrative remedies. * * * Two exceptions exist to this general rule. * * * Plaintiffs [sic] herein have shown neither exception to the general rule.

“The Court also notes that the thrust of Plaintiff’s complaint is not attacking the Constitutionality of the zoning ordinance but rather upon the action of the [appellee] in this particular instance.

“The Court finds that the Motion to Dismiss the Complaint of Plaintiff is well taken and the same is hereby granted. * * *” The case then proceeded, according to the court’s June 4, 1989 entry, “purely as an administrative appeal.”

Our analysis of this case indicates that at the time the trial court dismissed appellant’s complaint, the issues of whether appellant had exhausted its administrative remedies or whether the complaint was properly framed were not before the court. If appellant had filed a separate action seeking a declaratory judgment, the court’s inquiry into appellant’s prior exhaustion of its administrative remedies would have been proper. See Driscoll, 42 Ohio St.2d at 273, 71 O.O.2d at.252, 328 N.E.2d at 402. In this case, appellant did not separate its appeal and its complaint for declaratory judgment; therefore, the complaint should have simply been dismissed prior to any determination regarding appellant’s exhaustion of remedies and/or the appropriateness of its arguments. Nevertheless, the fact that the complaint was ultimately [455]*455dismissed, albeit after an improper analysis, renders further discussion of this issue unnecessary.

Appellant argues that it was improper for appellee to consider factors other than the requirements set forth in the zoning resolution concerning the grant of a conditional use. Appellant asserts that because it was capable of conforming to all the specific requirements for the day-care-center use, appellee was required to grant the conditional use. The failure to authorize the conditional use was, according to appellant, legislative in nature and, therefore, an improper exercise of appellee’s powers.

The power of a township zoning board to grant a conditional use is ultimately derived from R.C. 519.14. This section provides, in relevant part: “The township board of zoning appeals may: * * * (C) Grant conditional zoning certificates for the use of land, buildings, or other structures if such certificates for specific uses are provided for in the zoning resolution.”

According to Section 604 of the Union Township Zoning Resolution, township property zoned R-2 has two principal permitted uses, one conditional use requiring board approval, and one accessory use. Appellant applied to use the R-2 property for its “conditional use” purpose, which under Section 604 permits: “Nursery schools and child care centers when located not less than thirty feet (30') from any lot in any ‘R’ District, providing that there are established and maintained in connection therewith one or more completely and securely fenced play lots which if closer than fifty feet (50') to any property line, shall be screened by a masonry wall or compact evergreen hedge no less than five feet (5') in height, located not less than twenty feet (20') from any lot line in any ‘R’ District and maintained in good condition.”

It is undisputed that appellant’s day care center would conform to each of the specific conditional use requirements. However, appellant fails to recognize that Section 304 of the same township zoning resolution required appellee to consider additional information prior to deciding whether to grant a conditional use. Section 304, “Board of Zoning Appeals: Procedures and Powers,” provides, in paragraph three: “Conditional Uses[.] The Board shall have the power to hear and decide, in accordance with the provisions of this Resolution, applications, filed as hereinbefore provided, for conditional uses * * *. In considering an application for a conditional use, * * * the Board shall give due regard to the nature and condition of all adjacent uses and structures * *

The decision to deny an application for a conditional use is clearly administrative in nature. It is not a narrowing of a zoning classification that could easily be construed as legislative in character and, therefore, an improper [456]

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Bluebook (online)
66 Ohio St. 3d 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/community-concerned-citizens-inc-v-union-township-board-of-zoning-ohio-1993.