2023 Ohio 416
Ohio Ct. App.2023Background
- Relator Richard Duncan bought a 3-acre, partly pond-covered lot in 1994 at a forfeited land sale; he alleges the subdivision homeowners association never formed and restrictions became inapplicable.
- Over ~20 years he queried Mentor about permitted uses; in 2021 he sought a building permit (filed Nov. 8, 2021) to place a recreational houseboat on the pond.
- Mentor denied the permit on Nov. 22, 2021 for multiple zoning/engineering reasons; Duncan requested variances and submitted a written rebuttal on Dec. 14, 2021.
- The Board of Building and Zoning Appeals heard the matter Jan. 11, 2022, denied continuance and denied all variance requests; Duncan did not pursue a Chapter 2506 administrative appeal to common pleas.
- Duncan filed an original mandamus action in the Court of Appeals (Nov. 10, 2022) asserting four counts (Taking, Quiet Title, Estoppel/Laches, Access for Landlocked Property); Mentor moved to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Taking of Property (temporary/total regulatory taking) | Duncan says the denial deprives him of any use, constituting a taking requiring relief. | Mentor says Duncan has an adequate legal remedy by Chapter 2506 administrative appeal and failed to exhaust remedies. | Dismissed: relator must exhaust administrative remedies / obtain final administrative decision before mandamus takings claim. |
| Quiet Title (challenge to covenants/restrictions) | Restrictions, covenants, zoning, etc., are invalid and cloud title because HOA never formed. | Mentor argues the claim is outside the appeals court’s original jurisdiction. | Dismissed for lack of original jurisdiction. |
| Estoppel / Laches (prevent enforcement of regulations) | Mentor and neighbors should be estopped from enforcing regulations against Duncan. | Mentor argues the appellate court lacks original jurisdiction over such equitable claims. | Dismissed for lack of original jurisdiction. |
| Access for Landlocked Property (easements on plat) | Duncan claims entitlement to access easements shown on the approved Hollycroft plat. | Mentor says this claim is not within the appeals court’s original jurisdiction. | Dismissed for lack of original jurisdiction. |
Key Cases Cited
- O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975) (standard for dismissal under Civ.R. 12(B)(6): must appear beyond doubt plaintiff can prove no set of facts entitling recovery)
- Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190 (1988) (on construing complaints: assume factual allegations true and draw inferences for nonmoving party)
- State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543 (1997) (subject-matter jurisdiction cannot be waived and may be raised sua sponte)
- State ex rel. Dynamic Industries, Inc. v. Cincinnati, 147 Ohio St.3d 422 (2016) (must await a final administrative decision before asserting a takings claim)
- State ex rel. Sibarco Corp. v. Hicks, 177 Ohio St. 81 (1964) (appeal pursuant to Chapter 2506 is an adequate remedy at law)
- The Chapel v. Solon, 40 Ohio St.3d 3 (1988) (proper procedure to challenge a building-permit refusal is appeal to common pleas after exhausting administrative remedies)