GARY BOLLENBACHER, et al., Appellants v. WAYNE COUNTY BOARD OF COMMISSIONERS, et al., Appellees
C.A. No. 11CA0062
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF WAYNE
September 17, 2012
2012-Ohio-4198
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 11-CV-0669
Dated: September 17, 2012
MOORE, Judge.
{¶1} Plaintiffs, Gary and Janet Bollenbacher, individually and as co-trustees of the Gary Bollenbacher Irrevocable Living Trust Agreement, (“the Bollenbachers“) appeal from the judgment of the Wayne County Court of Common Pleas, which dismissed their action for lack of subject matter jurisdiction pursuant to
I.
{¶2} In 2011, the Bollenbachers filed a complaint against Wayne County and the Wayne County Board of Commissioners (“the Board“) alleging the following facts. On June 2, 2010, the Board adopted a resolution declaring the necessity of a project to abate ground water pollution in the area of Batdorf Road and Scenic Heights in Wayne County (“Necessity Resolution“). The Board included in its resolution an estimated cost of the project and a
{¶3} The Bollenbachers own an improved, residential parcel of land in the project area, and they are co-trustees of the trust which owns an adjoining, unimproved parcel of land, also located in the project area. The Bollenbachers sought the Board‘s approval to combine these parcels and to pay only a single assessment, and the Board denied the request. The Bollenbachers further requested a deferment of the assessment pursuant to
{¶4} In their complaint, the Bollenbachers sought a declaratory judgment, an injunction, and other relief, contending that the June 30, 2010 resolution was unlawful and unconstitutional and also arguing that their request for deferment should have been granted. In response to the complaint, the Board filed a motion to dismiss pursuant to
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN ITS NOVEMBER 29, 2011 JUDGMENT ENTRY GRANTING [THE BOARD‘S] MOTION TO DISMISS THE COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION.
{¶6}
{¶7} Here, in their complaint, the Bollenbachers raised challenges to the June 30, 2010 resolution prohibiting the combination of parcels for purposes of the assessment. They also challenge the Board‘s denial of their request for deferment. We will discuss the trial court‘s jurisdiction over these issues separately.
Assessment Resolutions
{¶8} The board of county commissioners is statutorily granted the authority to impose special assessments in compliance with the procedures outlined in
{¶9} An affected property owner may appeal from an improvement resolution pursuant to
Any owner of property to be assessed or taxed for an improvement under sections 6117.01 to 6117.45 or sections 6103.01 to 6103.30 of the Revised Code, may appeal to the probate court from the action of the board of county commissioners in determining to proceed with the improvement in regard to any of the following matters:
(A) The necessity of the improvement, including the question whether the cost of the improvement will exceed the benefits resulting therefrom;
(B) Boundaries of the assessment district;
(C) The tentative apportionment of the assessment.
{¶10} Here, in its motion to dismiss, the Board provided the trial court with a copy of its September 28, 2010 “Improvement Resolution” wherein it had resolved to proceed with the sewer project as set forth in the Necessity Resolution and as thereafter amended. See
{¶11} The Bollenbachers argue that
{¶12} “A declaratory judgment action allows a court of record to declare the rights, status, and other legal relations of the parties whether or not any further relief is or could be claimed.
{¶13} As a related issue, where a statutory remedy is available, “[a] taxpayer who failed to pursue the remedy provided by statute is not entitled to alternative relief.” Food Franchises, Inc. v. Donofrio, 16 Ohio App.3d 118, 119 (9th Dist.1984). Although the failure to exhaust statutory remedies is not a matter of jurisdiction, it may constitute a defense to a complaint for declaratory judgment and injunction. See Jones v. Chagrin Falls, 77 Ohio St.3d 456 (1997). The Ohio Supreme Court has held that property owners challenging the apportionment of an assessment cannot seek to enjoin the assessment if they have failed to follow the statutory remedies available. Wagner v. Messner, 136 Ohio St. 514, 516 (1940).
{¶14} However, in Domito v. Maumee, 140 Ohio St. 229 (1942), the Court determined that, although property owners forfeit their rights to enjoin the apportionment of the assessment on statutory grounds if they do not comply with statutory procedures, this does not preclude them from seeking to enjoin the assessment on constitutional grounds. See also Jones at 460. Relying on Domito, the Fourth District in Smith addressed a case similar to the one at bar. In that case, Smith, a property owner, filed a complaint in the common pleas court which challenged the board of commissioners’ levy of a sewer assessment. Id. at *1. In her complaint, Smith argued that assessment was confiscatory and unconstitutional. Id. Citing
{¶15} Smith appealed the trial court‘s dismissal of her complaint to the Fourth District. Id. at *1-2. The Fourth District determined that Smith‘s allegations raised the claim of an unconstitutional taking of property without due process of law. Id. at *2-3. Therefore, pursuant to the Supreme Court‘s decision in Domito, the Fourth District reversed the trial court‘s dismissal, as it had jurisdiction to hear her action pertaining to an unconstitutional taking, and she had not forfeited her ability to seek to enjoin the assessment on constitutional grounds. Id. at *2-3.
{¶16} Here, the Bollenbachers alleged in their complaint that the June 30, 2010 resolution constituted “an unlawful assessment by [the Board] under Chapter 6117,” and that it was adopted without proper notice and constituted a taking of property without due process of law. See Smith at *3, citing Domito at paragraph one of the syllabus. Therefore, their complaint raises both statutory and constitutional challenges to the resolution. To the extent that the Bollenbachers challenged the apportionment of the assessment as not compliant with Chapter 6117, the trial court correctly dismissed the complaint, as such a challenge was proper only before the probate court. See Domito at paragraph two of the syllabus. However, to the extent that the Bollenbachers argue that the assessment constituted an unconstitutional taking of property without due process of law, this claim was cognizable by the trial court, and thus the complaint should not have been dismissed for lack of jurisdiction. See id. Further, the Bollenbachers did not forfeit their right to seek injunction on constitutional grounds. See Jones at 460.
{¶17} In regard to the Bollenbachers’ challenge to the Board‘s denial of their request for deferment,
{¶18} In their brief, the Bollenbachers contend that “[c]ourts in Ohio exist to construe and interpret statutes of the Ohio legislature such as the one at issue relating to deferment of assessment.” However, the Bollenbachers do not develop an argument which would support the proposition that the trial court had jurisdiction to review the Board‘s decision denying the deferment. We decline to develop an argument on their behalf. See
III.
{¶19} We overrule the Bollenbachers’ assignment of error to the extent that they challenge the trial court‘s dismissal of their statutory claims against the assessment and their claim regarding their request for deferment. We sustain their assignment of error to the extent that they challenge the trial court‘s dismissal of their constitutional claims pertaining to the assessment.
{¶20} Accordingly, the judgment of the trial court is affirmed in part, reversed in part, and this matter is remanded to the trial court for further proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
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.
Costs taxed equally to both parties.
CARLA MOORE FOR THE COURT
WHITMORE, P. J. DICKINSON, J. CONCUR.
APPEARANCES:
KEVIN J. BREEN, Attorney at Law, for Appellants.
DANIEL R. LUTZ, Prosecuting Attorney, for Appellees.