United Homes, L.L.C. v. Akron

2025 Ohio 1437

• Court: Ohio Court of Appeals
• Decided: April 23, 2025
• Docket: 31071
• Status: Published

Opinion

[Cite as United Homes, L.L.C. v. Akron, 2025-Ohio-1437.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

UNITED HOMES, LLC C.A. No. 31071

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE CITY OF AKRON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CV 2023-05-1501

DECISION AND JOURNAL ENTRY

Dated: April 23, 2025

HENSAL, Judge.

{¶1} The City of Akron appeals a judgment of the Summit County Court of Common

Pleas that reversed a decision of the City’s Vacant Commercial or Industrial Building Appeals

Board (“the Board”). For the following reasons, this Court reverses.

I.

{¶2} In 2020, United Homes, LLC (“United”) purchased a vacant grocery store in Akron

with plans to renovate it. According to the City, United failed to make any meaningful progress

on securing or rehabilitating the structure over the next few years. Instead, the City repeatedly had

to remove trash from the property, mow high grass and weeds, and make repairs to the structure.

The police department also had to respond to multiple calls of trespassers, and the fire department

found a person living in the building after responding to a report of arson.

{¶3} An employee of the City’s department of neighborhood assistance eventually

referred the property to the Board under Section 154.051 of the Akron Code of Ordinances for 2

consideration of whether the property should be repaired or demolished. Following a hearing, the

Board concluded that the structure should be demolished. United appealed to the common pleas

court, which reversed the Board’s decision. The court held that the City had violated United’s due

process rights because it did not provide sufficient notice of violations United had committed. The

City has appealed, assigning as error that the common pleas court’s decision is incorrect as a matter

of law.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT VACATED THE CITY OF AKRON’S VACANT COMMERCIAL OR INDUSTRIAL BUILDINGS APPEALS BOARD’S ORDER TO DEMOLISH THE FORMER FIRESTONE PARK IGA STORE.

{¶4} In its assignment of error, the City argues that the common pleas court incorrectly

applied its ordinances when it reviewed the Board’s decision. “A party who disagrees with a

decision of a court of common pleas” in an administrative appeal under Revised Code Section

2506.04 “may appeal that decision to the court of appeals but only on ‘questions of law.’” Shelly

Materials, Inc. v. City of Streetsboro Plan. & Zoning Comm., 2019-Ohio-4499, ¶ 17, quoting R.C.

2506.04. An appeal to the court of appeals is limited in scope, and the court of appeals may not

weigh the evidence. Id. “Apart from deciding purely legal issues, the court of appeals can

determine whether the court of common pleas abused its discretion, which in this context means

reviewing whether the lower court abused its discretion in deciding that an administrative order

was or was not supported by reliable, probative, and substantial evidence.” Id.

{¶5} Chapter 154 of the City’s codified ordinances addresses vacant commercial or

industrial buildings. Section 154.051(A) provides that, “[o]n receipt of a report of” the director of

the department of neighborhood assistance or their authorized representative “that a vacant 3

commercial or industrial building or property is in such a condition as to create a risk of hazard to

the public health or safety,” the Board shall give notice to the owner, hold a hearing and hear

testimony, make written findings of fact “as to whether the building or structure is maintained in

such a condition as to constitute a public nuisance” and issue an order that commands the building

to be repaired or demolished. A “‘[p]ublic nuisance”’ means all buildings, structures, and property

that constitute a dangerous and unsafe hazard to the health, safety, or general welfare of the

occupants [or] the public” because of the following defects:

1. Those having walls, floors, foundations, or other members so out of plumb, level, or original position, or so deteriorated or overloaded, as to be unlikely to perform their intended structural function, or in such condition or of such size as to cause stresses in any structural members likely to result in failure or collapse; or

2. Those so dilapidated, decayed, or unsafe, or which so substantially fail to provide the basic elements of shelter of safety, that they are unfit for human habitation or use or dangerous to life or property; or

3. Those which, in the opinion of the Fire Chief, constitute a serious fire hazard due to their use, construction, unprotected exposure, or lack of maintenance; or

4. Those presenting a hazard to the health, safety, general welfare, or morals of occupants, neighboring properties, or the public; or

5. Those which, despite order by the Director to make or keep them in a condition compliant with this chapter, have not been brought into compliance with the terms and conditions of this chapter or an approved building plan, if applicable.

Akron Code of Ordinances 154.01.

{¶6} In this case, an employee of the department of neighborhood assistance issued a

report that provided that “[t]he deteriorating condition of [United’s] property makes it a public

nuisance and a blight and safety hazard on the neighborhood.” The Board, therefore, scheduled a

hearing regarding whether the structure on the property should be demolished.

{¶7} At the hearing, the Board received testimony from two of United’s members. They

did not contest the condition of the property but focused on the hardships they had endured in 4

attempting to rehabilitate it and their intention to make repairs in the future. At the conclusion of

the hearing, a member of the Board moved for the property to be demolished noting it was “vacant,

heavily vandalized, dilapidated with police activity involved, no utilities, [and] tax delinquent . . .

.” He, therefore, argued that the condition of the building was “a public nuisance and a blight and

a safety hazard to the neighborhood.” The Board subsequently passed the motion. The minutes

of the hearing indicate that the Board resolved a motion to demolish the building “due to the fact

that the structure is vacant, dilapidated, tax delinquent, a safety hazard, a blight to the community,

and a public nuisance . . . .”

{¶8} Following the hearing, the Board issued a written demolition order that contained

its findings of fact. The order explained that the Board had found that the department of

neighborhood assistance had proven by the preponderance of substantial, reliable, and probative

evidence that the property should be demolished. Specifically, the Board had found that “the

structure is dilapidated, decayed, unsafe, unsanitary and a blighting influence on the neighborhood,

that the property is in violation of the Building Code, is unfit for human habitation or use, is a

public nuisance, is injurious to the surrounding neighborhood and the people of Akron and that

demolition is reasonably necessary to abate the nuisance.”

{¶9} United appealed the Board’s decision to the common pleas court. In its

memorandum in support of its appeal, United argued that the Board could not order the demolition

of its property until it followed the procedures of Section 154.03 and that the Board had not

provided proper notice under it. United also argued that it was not provided with a list of specific

violations it had committed, and the remedial actions required or given a reasonable amount of

time to bring its property into compliance. It also argued that the Board’s decision was

unconstitutional because it amounted to a taking of its property. United further argued that the 5

Board improperly ignored the hardships it was facing, disregarded the insurance claims it was

pursuing, and unreasonably failed to grant it an extension of time to renovate the building.

{¶10} Following the completion of briefing by the parties, the common pleas court issued

an order that reversed the Board’s decision. The court determined that the City had to comply

with Section 154.03 before proceeding under 154.051. Considering the evidence and testimony

that had been presented at the hearing, the court determined that the Board’s finding of a public

nuisance turned on United’s inability to bring the property into compliance with Chapter 154 of

the Code of Ordinances. Noting that Section 154.03 authorizes the department of neighborhood

assistance to issue orders to comply, the court concluded that the City could not find there is a

public nuisance under the fifth definition of public nuisance unless the City complied with Section

154.03. Because the City had not complied with that section, the court concluded that the Board’s

decision violated United’s right to due process and reversed it.

{¶11} The City argues that the common pleas court misconstrued Section 154.051. It

argues that Section 154.03 and 154.051 both allow the Board to order a building to be repaired or

demolished. Section 154.03 applies if a property owner does not comply with violation notices

while Section 154.051 applies to public nuisances. The City also notes that Section 154.03 does

not contain any language applying to public nuisances. It further notes that only one subsection

of the definition of public nuisance mentions noncompliance with a department of neighborhood

assistance order. According to the City, the Board’s decision was based on two other parts of the

definition of public nuisance that do not require a code violation. It argues that any of the

requirements of Section 154.03, therefore, did not apply, and United was not deprived of due

process. 6

{¶12} As previously noted, the Board’s written explanation for ordering the demolition of

the structure was its finding “that the structure is dilapidated, decayed, unsafe, unsanitary and a

blighting influence on the neighborhood, that the property is in violation of the Building Code, is

unfit for human habitation or use, is a public nuisance, [and] is injurious to the surrounding

neighborhood and the people of Akron . . . .” Although those findings do not align exactly with

any of the subparts of the definition of public nuisance, they most closely match the requirement

that a building be “so dilapidated, decayed, or unsafe . . . that they are . . . dangerous to life or

property” under the second subpart or that the building “present[ ] a hazard to the health, safety,

general welfare or morals of occupants, neighboring properties, or the public” under the fourth

subpart. Akron Code of Ordinances 154.01. The Board’s findings, either in its written order or at

the hearing, do not match the fifth subpart, which is that, “despite order by the Director to make

or keep them in a condition compliant with this chapter, have not been brought into compliance

with the terms and conditions of this chapter or an approved building plan, if applicable.” Id.

{¶13} The Board’s written findings also refer to violations of “the Building Code[,]” but

the City’s building code is in Title 19 of its codified ordinances, not Chapter 154. The “terms and

conditions” of Chapter 154 concern registering the building as vacant, submitting a vacant building

plan, maintaining buildings to certain standards, and disclosing violations of the chapter to buyers

of the property. The only two provisions in Chapter 154 that mention the City’s building code are

one that provides that anyone in control of a building shall give the owner of the building access

so that the owner can make any repairs necessary to comply with the building code and one that

provides that the exterior surfaces and openings of vacant building must be maintained to the

standards specified in the building code. 7

{¶14} The common pleas court considered “the evidence and the testimony from the

hearing” and determined that the Board’s public nuisance finding must have been under the fifth

subpart of the definition instead of referring to the Board’s written decision. Because that subpart

refers to compliance orders issued by the department, it determined that the City had to comply

with Section 154.03 before it could institute a proceeding under Section 154.051. Section 154.03,

however, applies when “the Director determines that there has been a violation of any the

provisions of this chapter” while a proceeding under Section 154.051 begins “[o]n receipt of a

report of the Director that a vacant . . . building . . . is in such condition as to create a risk of hazard

to the public health or safety . . . .” There is no requirement under Section 154.051 that the

department of neighborhood assistance must have determined that there has been a violation of the

chapter or that the department’s director has imposed an administrative penalty before a

proceeding under that section may begin. We note that a proceeding under Section 154.03 results,

at most, in a fine and imprisonment for the owner or person in control of a building and does not

address the underlying condition of the building at issue. Section 154.051, on the other hand,

provides a procedure to repair or demolish buildings that are creating “a risk of hazard to the public

health or safety” and that “constitute a public nuisance . . . .”

{¶15} We also note that Section 154.051(A)(1) identifies the notice that the board must

provide before proceeding under that section. It provides that the Board shall give written notice

to the owner and any others having an interest in the building “by the method stated in Section

154.03(A)(4) of this chapter.” Id. Section 154.03(A)(4) concerns how notice of the proceedings

must be mailed, where it should be mailed, and what to do if the mail is returned undelivered.

Section 154.051(A)(1) does not require compliance with Section 154.03(A)(2), which requires a

notice to “[i]nclude a list of violations [and] refer to the sections and subsections violated . . . .” 8

United did not allege, and the common pleas court did not find, that the City failed to comply with

Section 154.03(A)(4) when it notified United of the Section 154.051 hearing. Furthermore, even

if the notice requirements of Section 154.03 apply when a finding of public nuisance is under the

fifth subpart of the definition, the Board’s finding in this case was not under that subpart.

{¶16} The dissent is concerned about confusion caused by the Board’s findings. We agree

that the Board could have more clearly indicated in its written decision which subparts of the

definition of public nuisance that the City established existed. The dissent also argues, however,

that the notice requirements of Sections 154.03 and 154.051 should be read together and that both

need to be satisfied before the City can proceed with a demolition hearing. We disagree. Section

154.03 applies when “the Director determines that there has been a violation” of the chapter and

requires that “he shall give notice of the violation to the person responsible therefor . . . .” Section

154.051, on the other hand, directs “the Board” to “[g]ive written notice to the owner and all other

persons having an interest in the premises” after it receives “a report of the Director that a . . .

building or property is in such a condition as to create a hazard to the public health or safety.” One

section requires the Director to provide a notice to a particular individual while the other requires

the Board to give notice to anyone with an interest in the property. The notice under Section

154.03 is required to include a list of violations and specify a reasonable time in which to comply

while the notice under Section 154.051 provides notice of a hearing date before the Board.

Violations only come before the Board if a person appeals an order issued by the Director. Akron

Code of Ordinances 154.05(A). As the dissent acknowledges, “Section 154.051 contains a

separate notice requirement that is pertinent to the demolition process” and it is the only notice

requirement that the City had to comply with to provide due process to United. 9

{¶17} Upon review of the record, we conclude that the common pleas court incorrectly

concluded that the Board could not initiate a proceeding under Section 154.051 unless it notified

United of specific violations of Chapter 154 that had occurred related to the building. The City’s

assignment of error is sustained.

III.

{¶18} The City’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas is reversed, and this matter is remanded for further proceedings consistent

with this decision.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellee.

JENNIFER HENSAL FOR THE COURT 10

FLAGG LANZINGER, P. J. CONCURS.

CARR, J. DISSENTING.

{¶19} I respectfully dissent as I would affirm the trial court’s judgment. I am troubled by

the due process concerns in this case, particularly given that the Board’s findings created some

confusion regarding the legal standard that United Homes was required to satisfy in order to avoid

demolition. Chapter 154 of the Akron Code of Ordinances deals with vacant commercial or

industrial buildings in the City. The notice requirement in Section 154.03 applies “[w]henever the

Director determines that there has been a violation of any of the provisions of this chapter[.]”

Section 154.051 contains a separate notice requirement that is pertinent to the demolition process.

Statutory provisions should be construed in pari materia, meaning in a like manner, when the

provisions are not in conflict. See generally State v. Nixon, 2006-Ohio-72, ¶ 9 (9th Dist.). I would

affirm the trial court’s judgment on the basis that satisfying the notice requirement in Section

154.051 does not negate the need to satisfy the notice requirement in Section 154.03.

APPEARANCES:

DEBORAH S. MATZ, Director of Law, and JOHN R. YORK and JACQUENETTE S. CORGAN, Assistant Directors of Law, for Appellant.

WARNER MENDENHALL and FRANK LUCAS, Attorneys at Law, for Appellee.