2022 Ohio 3916
Ohio Ct. App.2022Background
- Cuyahoga County Land Reutilization Corp. (Land Bank) and its subsidiary CLB demolish blighted buildings and must file 10‑day asbestos notices with Ohio EPA (state $75 filing fee). The Cleveland Dept. of Public Health’s Division of Air Quality (CDAQ) functions as the local air agency (LAA) and reviews notices for projects in Cuyahoga County.
- Beginning in practice, Cleveland charged an additional $50 local asbestos review fee tied to demolition permit review; Building & Housing collected demolition permits and CDAQ reviewed and signed off on permits, charging $50 when asbestos was involved.
- Land Bank disputed the $50 fee as unauthorized under the Cleveland Codified Ordinances (C.C.O.) and brought declaratory and injunctive relief; City counterclaimed for unpaid fees back to 2013 (later adjusted upward).
- Trial court held the $50 fee was authorized by C.C.O. 263.01(a)(6) (fee for examination of plans/applications related to air contaminant sources) and that CDAQ could charge the fee when a demolition permit application was reviewed; the court denied recovery for years where the City failed to show permits accompanied notices, but awarded $20,950 for 2018.
- Both sides appealed: appellants challenged authorization and the partial judgment; City challenged the limitation to permit‑accompanied notices and the restriction of recovery to 2018.
- The Eighth District affirmed: ordinance authorizes the fee when tied to a demolition permit application requiring CDAQ review; City lacked sufficient evidence to recover fees for 2013–2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether C.C.O. 263.01(a)(6) authorizes the $50 asbestos review fee | Fee is not authorized by C.C.O.; no ordinance permits it | 263.01(a)(6) covers "any other air contaminant source," including asbestos, so it authorizes the $50 fee for review | Court: 263.01(a)(6) authorizes the $50 fee for examination of plans/applications when tied to an air contaminant source review (asbestos) |
| Whether demolition‑related exemptions (C.C.O. 261.02) preclude the fee | 261.02 exempts demolition from certain permits so fee cannot apply | 261.02 allows permits under other chapters (277,281); CDAQ review is part of demolition permit process | Court: 261.02 does not bar the fee; CDAQ review and fee are authorized in connection with demolition permits requiring asbestos precautions |
| Whether the City may rely on implied authority or agency deference to impose the fee | City’s charter forbids implied fees without ordinance; fee lacks express authorization | Even if implied authority applied, the code and longstanding practice support the fee; agency interpretations get deference if reasonable | Court: fee is explicitly authorized by ordinance (no need to rest on implication); agency practice was given deference but ordinance interpretation was independently confirmed |
| Whether City proved unpaid fees for 2013–2017 and other years beyond 2018 | All ten‑day notices triggered CDAQ duties and fees; City entitled to recover for 2013–2017 | City lacked evidence tying ten‑day notices to demolition permit applications for 2013–2017; only 2018 showed permits with notices | Court: Insufficient evidence for 2013–2017; affirmed award of $20,950 for 2018 where records showed demolition permit applications accompanied notices |
Key Cases Cited
- Prudential Co‑op. Realty Co. v. Youngstown, 160 N.E. 695 (Ohio 1928) (municipality may have implied authority to charge reasonable inspection/regulatory fees)
- Arnott v. Arnott, 972 N.E.2d 586 (Ohio 2012) (declaratory judgment legal questions reviewed de novo)
- State ex rel. Clark v. Great Lakes Constr. Co., 791 N.E.2d 974 (Ohio 2003) (agency interpretation of statutes it enforces merits deference unless unreasonable)
- State ex rel. Plain Dealer Publ. Co. v. Barnes, 527 N.E.2d 807 (Ohio 1988) (municipal charter can limit implied powers of city council/municipality)
- Eastley v. Volkman, 972 N.E.2d 517 (Ohio 2012) (standard for sufficiency of the evidence)
- Salisbury v. FERC, 36 F.4th 1164 (D.C. Cir. 2022) (discussion of the rule of the last antecedent for statutory/ordinance phrase limits)