2023 Ohio 4419
Ohio Ct. App.2023Background
- Plaintiff Irving J. Franklin Realty owned a Collamer Street house in East Cleveland; city issued a public-nuisance demolition notice dated April 26, 2018.
- On May 2, 2018 Franklin mailed a written demand for a hearing (certified mail) addressed to the Director of Community Development; the city received the letter May 4, 2018.
- E.C. Ord. 1313.07(c) required an owner to "within seven days" make a written demand for a hearing; subsection (d) required the city to hold a hearing no later than ten days following receipt of the written demand.
- The city never held a predeprivation hearing, did not notify plaintiff that the appeal was denied, and the house was demolished between March 29 and April 26, 2019.
- Trial court found notice adequate but held the city denied procedural due process by failing to hold a predeprivation hearing despite plaintiff’s timely written demand; awarded $30,477.45.
- City appealed, arguing the trial court misinterpreted the ordinance, required less than strict compliance, and that plaintiff’s mailed demand was not effective/timely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether E.C. Ord. 1313.07(c) requires receipt/filing of the written demand within seven days | Franklin: ordinance requires only that owner "make" a written demand within seven days; mailing satisfies that requirement | City: "to the Director" means the city must receive the demand within seven days; therefore Franklin’s demand was untimely | Court: "to" is a preposition indicating the addressee; ordinance requires making the demand within seven days, not city receipt; plaintiff complied by mailing within seven days |
| Whether strict compliance (receipt/formal filing) is required or substantial compliance suffices | Franklin: substantial compliance with the ordinance and appellate procedures is sufficient, especially where due process is implicated | City: strict compliance with procedural deadlines and delivery is required; failure to strictly comply waives hearing rights | Court: did not require strict compliance; substantial compliance adequate here and no waiver where city provided no hearing |
| Whether mailing (placing in mail) makes the written demand effective | Franklin: demand was effective upon mailing (certified mail with prompt receipt) | City: effectiveness depends on city receipt within seven days; cite statutes/cases requiring receipt or filing | Court: mailing within seven days satisfied the ordinance’s maker-based timeline; receipt requirement appears only in subsection (d) for city scheduling; therefore mailing was effective |
| Whether plaintiff waived due process by failing to follow additional procedures listed in an attached letter | Franklin: those additional items were not required by ordinance and some granted longer time than ordinance; plaintiff substantially complied | City: failure to follow the extra listed steps forfeited right to a hearing | Court: additional procedures were not part of ordinance and inconsistent with it; plaintiff did not waive due process; city never afforded any meaningful opportunity to be heard |
Key Cases Cited
- Ohio Assn. of Pub. School Emps. v. Lakewood City School Dist. Bd. of Edn., 68 Ohio St.3d 175 (procedural due process requires notice and meaningful opportunity to be heard)
- Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532 (due-process standard for property interests: predeprivation notice and hearing)
- D. H. Overmyer Co. of Ohio v. Frick Co., 405 U.S. 174 (waiver of procedural rights is recognized)
- Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St.2d 202 (appeals/perfection rules under statutory schemes—distinguishable)
- Toledo v. Schmiedebusch, 192 Ohio App.3d 402 (municipality must provide an administrative hearing before demolishing a building as a nuisance)
- Bosher v. Euclid Income Tax Bd. of Rev., 99 Ohio St.3d 330 (statutory construction principles; words read in context)
- Van Meter v. Segal-Schadel Co., 5 Ohio St.2d 185 (remedial provisions construed liberally to promote justice)
- Bd. of Rev. v. Roppo, 61 Ohio App.2d 220 (procedural filing/receipt rules in administrative appeals—distinguishable)