338 N.E.2d 547 | Ohio Ct. App. | 1975
Lead Opinion
In this appeal the City of Brooklyn (appellants are the agents of the City of Brooklyn and so for convenience shall be referred to as the "City") challenges the jurisdiction of the Court of Common Pleas to test the constitutionality of the City's zoning ordinances in an action initiated by administrative appeal pursuant to Chapter 2506 of the Ohio Revised Code. The appellants also assign as error the Common Pleas Court's refusal to permit the City to introduce evidence in addition to that which was in the *326 transcript of proceedings before the Board of Zoning Appeals.
Plaintiff requested a permit to build a Lawson's Restaurant upon property zoned for single family residential use, located on Ridge Road, adjacent to the Biddulph Plaza Shopping Center. The building inspector refused to issue the permit because the anticipated use was prohibited by the City's zoning ordinances. Plaintiff then appealed to the Board of Zoning Appeals asking it to declare the restrictive ordinances unconstitutional. The plaintiff claimed that its contemplated use of the property was compatible with the area and that the restriction was an unreasonable limitation upon his property rights. No issue other than the constitutionality of the ordinances was before the Board. The Board granted a hearing and permitted plaintiff to present evidence which consisted of four witnesses; namely, a real estate appraiser, a civil engineer, a traffic engineer, and an urban planner. No witnesses were presented on behalf of the building inspector. The Board then ruled that it was without jurisdiction to hear the matter, presumably because it was neither empowered to question the constitutionality of the City's zoning ordinances, nor to change them, the latter, of course, being a matter for the city council. The plaintiff filed an appeal to the Court of Common Pleas pursuant to the authority of Chapter 2506 of the Ohio Revised Code. The City requested the court to permit it to introduce additional evidence, which request was denied. Solely on the basis of the evidence contained in the transcript of proceedings before the Board, the trial court reversed, finding that the Board's decision, in the statutory language of Section
The jurisdictional argument raised by the City reflects the position of the concurring opinions in Mobil Oil Corp. v. Cityof Rocky River (1974),
The premise of the City concerning the authority of the building inspector and the Board is correct. As recognized by the majority in Mobil Oil Corp. v. City of Rocky River, supra at 26: ". . . the issue of constitutionality can never be administratively determined." Mobil Oil involved an appeal from the Board of Zoning Appeals of the City of Rocky River pursuant to R. C. Chapter 2506. Although the Rocky River Board had declined jurisdiction, the jurisdictional issue was not affirmatively raised before the Supreme Court. The court in strong language stated at
"Our decision in State, ex rel. Sibarco Corp., v. City ofBerea (1966),
Our research revealed no case in which the jurisdictional issue has been squarely raised before the Supreme Court with the question framed as it is in this case by an appeal from an administrative decision pursuant to R. C. Chapter 2506. The initial decisions of the Supreme Court declaring that the trial courts should consider the constitutional validity of zoning restrictions in an administrative appeal arose in mandamus actions in which the court upheld the dismissal of the action. In those initial decisions the Supreme Court held that Chapter 2506 constituted an adequate remedy at law for vindicating constitutional challenges to the application of zoning ordinances. The availability of the Chapter 2506 procedure compelled the dismissal of mandamus actions that sought to establish such constitutional claims. State, ex rel. SibarcoCorp., v. City of Berea (1966),
The jurisdictional issue was solidly raised before this court in the case of Shaker Coventry Corp. v. Shaker Heights Board ofZoning Appeals (Cuyahoga, 1962),
"The peculiar proposition advanced by the appellants is that, because the Zoning Board of Appeals refused to take jurisdiction of this matter, the trial court was also without jurisdiction. This, in our opinion, is a fallacious argument. If this contention were sound, no relief could be granted to any property owner who felt aggrieved. The council of the city having established the zoning, the Building Commissioner could not issue the permit contrary thereto. It follows, therefore, that the Zoning Board of Appeals, in its refusal to accept jurisdiction, leaves the complainant with only the remedy of appeal to the courts under Chapter 2506 of the Revised Code. In the instant case, the appellee invoked the only remedy available to it. See State, ex rel. Fredrix, v. Village of Beachwood and other above-cited cases to the same effect."
Of course, an action in declaratory judgment is available to raise the issue of the constitutionality of zoning ordinances.Kaufman v. Village of Newburgh Heights (1971),
The other issue raised by this appeal concerns the ruling of the court below denying the City the opportunity to present evidence. The presentation of evidence in an administrative appeal is rigidly confined by Section
"The officer or body failed to file with the transcript, conclusions of fact supporting the order, adjudication or decision appealed from; in which case, the court shall hear the appeal upon the transcript and such additional evidence as may be introduced by any party. At the hearing, any party may call as if on cross-examination, any witness who previously gave testimony in opposition to such party."
Even if the Board had filed conclusions of fact, we would hold that the court should have permitted the parties to offer additional evidence. As we have indicated, the Board was without authority, nor was it competent, to evaluate the constitutional question. Therefore, the court could not test the Board's conclusions against the evidence presented to it. Although ordinarily judicial review pursuant to Chapter 2506 does not provide for a trial de novo, Schoell v. Sheboy (Cuyahoga, 1973),
The City in this case did not choose to present evidence before the Board of Zoning Appeals and was prohibited from presenting evidence to the Court of Common Pleas. Section
This case is remanded to the Court of Common Pleas with instructions to permit the parties to introduce additional evidence and to try the case as an original action based upon the transcript of proceedings before the Board of Zoning Appeals and such additional evidence as the parties might offer.
Judgment accordingly.
KRENZLER, P. J., and JACKSON, J., concur. *331
Concurrence Opinion
I concur in the judgment of reversal which holds that an attack on the constitutionality of a zoning ordinance may be made in an appeal from an administrative agency under Chapter 2506 Rawle C., but I believe that it would be more consistent with the law to hold that a declaratory judgment action under Chapter 2721 Rawle C. should be the exclusive remedy to challenge the constitutionality of a zoning ordinance as it affects a particular parcel of property.
I recognize that after much litigation as to the appropriate method of attacking constitutionality of a zoning ordinance, it is now well established that a person may challenge the constitutionality of such ordinance as it affects his property either in a declaratory judgment action under Chapter 2721 Rawle C., or by an appeal from an administrative agency to the common pleas court under Chapter 2506 Rawle C. Driscoll v. AustintownAssociates (1975),
A declaratory judgment action under Chapter 2721 Rawle C. is an independent action at law which was created by statute and which may be brought even though a party has an alternative remedy and the use of a declaratory judgment action is not limited to cases in which there is no other available remedy. Schaefer v.First National Bank (1938),
A declaratory judgment action is not an extraordinary remedy such as mandamus nor is it an equitable remedy but it is a remedy in the ordinary course of law. See Burt Realty Corp. v.Columbus (1970),
However, a declaratory judgment action may not be brought if there is an exclusive statutory remedy which that person must use. In such case there is not an alternative remedy but an exclusive remedy and consequently a declaratory judgment action may not be maintained. Dayton Transit Co. v. Dayton Power andLight (1937),
I will now discuss the administrative acts which are subject to appeal under Chapter 2506 Rawle C. While an administrative agency such as a board of zoning appeals or planning and zoning commission may have limited authority to grant relief such as a variance in the event of a hardship, they generally cannot change use, which is the function of a legislative body, nor can they declare a zoning ordinance unconstitutional. Further, a rejected request that a city council rezone property is legislative and not administrative action and therefore may not be appealed under Chapter 2506 Rawle C. Tuber v. Perkins (1966),
As stated above a declaratory judgment action under Chapter 2721 Rawle C. is an independent action and may be brought even though a party has an alternative remedy, and the mere existence of Chapter 2506 Rawle C. does not preclude an action for declaratory judgment because Chapter 2506 Rawle C. is a non-exclusive alternative method of attacking the constitutionality of a zoning ordinance. See Driscoll v.Austintown Associates, supra at p. 269; also see, Krenzler, J., Dissenting Opinion, State of Ohio, ex rel. Iris Sales Company, v. George V. Voinovich, etc. et al. (Cuyahoga County Court of Appeals, 1975), Case No. 33494. *333
The argument that a party must exhaust his administrative remedies before bringing a declaratory judgment action only applies if the administrative agency has authority to grant the relief sought and this defense is timely raised. Otherwise, it is waived. Driscoll v. Austintown, supra at pp. 273-276.
The Supreme Court in Driscoll v. Austintown stated, "* * * This court has recognized at least two situations in which exhaustion of administrative remedies is not required prior to filing a declaratory judgment action challenging the constitutionality of zoning. One, of course, is the situation in which there is not an administrative remedy available which could provide the relief sought. Kaufman v. Newburgh Heights
(1971),
The Supreme Court of Ohio has now stated in clear terms that the constitutionality of a zoning ordinance may be attacked in an appeal from a decision of an administrative agency under Chapter 2506 Rawle C. to the Common Pleas Court even though the administrative agency has limited authority to act and may not act directly on the issue of constitutionality. Mobil Oil Corp. v. Rocky River, supra; State, ex rel. Sibarco Corp., v. City ofBerea, supra. The Supreme Court did not explain in detail why the issue of constitutionality of a zoning ordinance can be raised in an appeal from an administrative agency under Chapter 2506 when that agency has no authority or jurisdiction to rule on that issue. It is noted that Justice Brown of the Ohio Supreme Court in his Concurring Opinion in Mobil Oil Corp. v. RockyRiver, supra at p. 33, stated, "that * * * [if a board of zoning appeals] was without power to grant the requested variance, then an appeal under Chapter 2506 Rawle C. was inappropriate." He also stated on p. 34, "* * * Since the overall constitutionality of the zoning ordinance could not have been administratively determined, a declaration of the ordinance's unconstitutionality in the appeal to the trial court would have been particularly inappropriate."
But since the common pleas court does have general authority *334 to rule on the constitutionality of the zoning ordinance, apparently the Supreme Court believed that it made no difference whether the issue was raised in a declaratory judgment action or in an appeal under Chapter 2506 Rawle C.
Perhaps the Supreme Court reached this conclusion because of the inconsistent position taken by governmental agencies whenever a property owner brought either a declaratory judgment action under Chapter 2721 Rawle C. or attempted to take an appeal under Chapter 2506 Rawle C. and raise the issue of the constitutionality of the zoning ordinance. The governmental agency usually attacked and defended such actions by stating that whichever action was taken, it was not the appropriate remedy and that the other remedy whether it be by declaratory judgment action or by an appeal under Chapter 2506 Rawle C. was the appropriate remedy. Consequently property owners were forced to take an appeal under Chapter 2506 Rawle C. and simultaneously file a declaratory judgment action under Chapter 2721 Rawle C., and move for consolidation of the cases.
Because the Supreme Court's holding in Mobil Oil Corp. v.Rocky River, supra and State, ex rel. Sibarco, v. City of Berea,supra expedites the judicial process and neither side is prejudiced by this holding it appears to be an appropriate ruling and naturally will be followed by the courts in Ohio.
Lastly, it is especially noted that whenever there is an attack on the constitutionality of a zoning ordinance, whether in a declaratory judgment action under Chapter 2721 Rawle C. or an appeal under Chapter 2506 Rawle C., the court must first determine whether the existing zoning ordinance in question is constitutional and if it does find that such ordinance is unconstitutional as it applies to the particular property in issue, it must then decide whether the use or uses sought by the property owner is reasonable. Mobil Oil Corp. v. Rocky River,supra. *335
