STATE, ex rel., MIAMI OVERLOOK, INC. v. VILLAGE OF GERMANTOWN
Appellate Case No. 24017; Trial Court Case No. 07-CV-9795
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
July 8, 2011
2011-Ohio-3419
FAIN, J.
Civil Appeal from Common Pleas Court
LYNNETTE DINKLER, Atty. Reg. #0065455, Dinkler Pregon, LLC, 2625 Commons Boulevard, Suite A, Dayton, Ohio 45431 Attorney for Defendant-Appellee
OPINION
FAIN, J.
{¶ 1} Plaintiff/relator-appellant Miami Overlook, Inc., appeals from a summary judgment rendered in favor of defendant/respondent-appellee Village of Germantown. Miami Overlook contends that the trial court erred in concluding that Miami Overlook failed to comply with the statute of limitations in
{¶ 2} We conclude that the trial court did not err in rendering summary judgment in favor of Germantown. The trial court correctly concluded that claims regarding procedural irregularities in the ordinance are barred by Miami Overlook‘s failure to file suit within the statutory period outlined in
I
{¶ 3} In 1997, Miami Overlook, Inc., was formed to purchase a 16.5 acre parcel of property located at 270 W. Warren Street in Germantown, Ohio. The property, part of a parcel known as “Camp Miami,” included a 50,000 square-foot structure that had been used as a military academy, a seminary, and a church camp. The shareholders of Miami Overlook are Kathy Rettich, Robert Rettich, George Kuhn, and Glenda Kuhn, and they intended to market the property to developers.
{¶ 4} At the time of purchase, the parcel was zoned R-3, or multi-family residential. In 1998, Kathy Rettich learned that Germantown was considering rezoning that would affect the property. Consequently, Rettich met with Chris Pozzuto, who was then Germantown‘s zoning compliance officer. Rettich specifically asked Pozzuto if the Camp Miami property
{¶ 5} Rettich‘s affidavit does not state exactly when in 1998 this conversation occurred. As early as July 1998, Pozzuto and the Germantown Village Council were working on changes to the Zoning Code.
{¶ 6} In February 1999, a new zoning code was introduced to the Village Council. The minutes of the meeting indicate that a representative of Choice One Engineering was present to discuss the proposed zoning code. Discussion of the proposed code continued at various Council meetings until May 1, 2000, when Ordinance 00-30 was introduced. The ordinance was titled: “An Ordinance to Repeal Part Eleven of the Codified Ordinances Known as the Planning and Zoning Code with the Exception of Chapter 1169 and to Adopt a Replacement Part Eleven Which Shall Hereafter be Known as the Zoning and Planning Code of the Municipality of Germantown.” Affidavit of Anna Castro, DEF 91-92.
{¶ 7} Legal notice of the ordinance was published in the Germantown Press on May 4, 2000. The notice indicated that a public hearing would be held on June 5, but did not identify the time or location of the hearing. The ordinance was enacted on June 5, 2000.
{¶ 8} In 2004, a potential purchaser expressed interest in the Miami Overlook property, but declined to pursue the matter. When asked why he lost interest, the purchaser stated that the property was only zoned R-1, single family residential. Kathy Rettich then contacted the Village to ask when the zoning change had occurred. She also found the 2000 publication notice of the public hearing to replace the Zoning Ordinances. After discovering
{¶ 9} “The rezoning application states that they [Miami Overlook] would like to rezone the property ‘so that zoning map conforms to continued use of R-3.’ This property has been either vacant and/or used as a single family dwelling for quite some time. Therefore, there really is no continued use of R-3.
{¶ 10} “Based on the recommendations of the Joint Economic Development Plan and the existing use of the building, staff does not recommend that this property be rezoned at this time. When and if the property owner prepares a development plan for the property, the Village can then revisit this issue and possibly consider an R-3 PUD proposal.” Id. at DEF-146.
{¶ 11} A public hearing was held by the Planning Commission on June 22, 2005. At that time, the Planning Commission voted 3-2 to recommend denial of the rezoning request. Id. at DEF-160. The Village Council subsequently held a public hearing on the rezoning request (Ordinance 05-54) on September 19, 2005, but the ordinance failed, 2-4.
{¶ 12} In October 2005, Miami Overlook filed an administrative appeal and complaint against Germantown. The complaint contained the following causes of action: (1) an improper taking of property without due process; (2) an administrative appeal of the denial of rezoning to R-3, pursuant to
{¶ 13} Germantown‘s answer raised various affirmative defenses, including failure to comply with the statute of limitations. Shortly after the complaint was filed, Miami Overlook filed a partial motion for summary judgment. Miami Overlook contended that summary judgment should be rendered in its favor on Count I, based on Germantown‘s failure to provide proper notice of the public hearing required by
{¶ 14} In June 2008, the trial court issued decisions overruling both motions for summary judgment, due to factual issues regarding whether Miami Overlook knew of the rezoning. Germantown then filed a motion for clarification, contending that the trial court had failed to address certain issues. The trial court sustained the motion for clarification and said it would reconsider motions for summary judgment, upon proper motion. Germantown promptly refiled the motion for summary judgment.
{¶ 16} Miami Overlook appeals from the summary judgment rendered in favor of Germantown.
II
{¶ 17} Miami Overlook‘s First Assignment of Error is as follows:
{¶ 18} “THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANT/APPELLEE, VILLAGE OF GERMANTOWN.”
{¶ 19} Under this assignment of error, Miami Overlook contends that the trial court erred in rendering summary judgment in favor of Germantown. The court‘s decision was based on Miami Overlook‘s failure to file an action within two years after June 5, 2000, which is the date that Germantown enacted Ordinance 00-30, adopting the new Zoning Code. The trial court applied two different statutes of limitation: (1) the two-year limitations period in
A. Claims Based on R.C. 713.12
{¶ 20} “We review summary judgment decisions de novo, which means that we apply
{¶ 21} The facts in the case before us are essentially undisputed. Miami Overlook filed two actions. The first was filed in October 2005, more than five years after the zoning ordinance was enacted. That action was dismissed. The second action was filed in November 2007, as a declaratory judgment and mandamus action. In both actions, Miami Overlook alleged that Germantown failed to comply with
{¶ 22} “Before any ordinance, measure, regulation, or amendments thereto, authorized by sections 713.07 to 713.11, inclusive, of the Revised Code, may be passed the legislative authority of the municipal corporation shall hold a public hearing thereon, and shall give at least thirty days’ notice of the time and place thereof in a newspaper of general circulation in the municipal corporation.”
{¶ 23} The materials submitted to the trial court reveal that Germantown did not comply with this statute. Germantown gave thirty days notice that a public hearing on the ordinance would take place on June 5, but the notice failed to state the time, place, or even the specific year of the hearing (although it could be assumed from the context of the publication notice that the hearing would be held in the year 2000). Therefore, the ordinance could have
{¶ 24} In this regard,
{¶ 25} “No action challenging the validity of a zoning ordinance or regulation or of any amendment to such an ordinance or regulation because of a procedural error in the adoption of the ordinance, regulation, or amendment shall be brought more than two years after the adoption of the ordinance, regulation, or amendment.”
{¶ 26} Miami Overlook‘s claim for procedural irregularity is barred by this statute, because the claim was not filed within two years after the ordinance was adopted in June 2000. Miami Overlook contends, however, that we should apply a discovery rule, which would allow suit to be filed within two years after the time that Miami Overlook discovered the zoning change.
{¶ 27} As support for its assertion that a discovery rule should be applied, Miami Overlook relies on Village of Wintersville v. Argo Sales Co., Inc. (1973), 35 Ohio St.2d 148. In Wintersville, a village attempted to obtain a permanent injunction against the defendants’ use of residentially zoned property for a commercial purpose, in violation of an ordinance that the village had enacted in 1957. Id. at 148-50. The Supreme Court of Ohio affirmed the denial of the injunction, concluding that the ordinance was ineffective and invalid, because the clerk of council failed to publish a thirty-day notice of the time and place of the hearing, as required by
{¶ 28}
{¶ 29} Miami Overlook also argues that the Eighth District Court of Appeals applied a discovery rule in Martin v. Cleveland Bd. of Bldg. Std. & Bldg. Appeals, Cuyahoga App. No. 86039, 2005-Ohio-6242. We disagree.
{¶ 30} In Martin, the plaintiff, Martin, was cited in July 2001 for violating certain ordinances of the City of Cleveland. During the administrative process, Martin contended that the City had failed to give proper notice when it initially adopted a 1996 ordinance that rezoned his district from general industry to residence-industry. Id. at ¶3. The Eighth District Court of Appeals rejected Martin‘s procedural due process challenge, noting that the claim was barred by the two-year statute of limitations in
{¶ 31} “Even if Martin were to argue that the statute of limitations began to run when he received notice of the zoning change, Martin‘s previous administrative appeal to this court involving a citation for similar violations demonstrates that he had notice of the zoning change as early as December 1997. Martin v. City of Cleveland (Apr. 20, 2000), Cuyahoga App. No. 75405.” 2005-Ohio-6242, ¶20.
{¶ 32} These observations are dicta, however, because the court of appeals had already concluded that Martin‘s action was barred by the statute of limitations. Consequently, the court did not need to consider the discovery issue. The court‘s own comments also indicate that Martin did not even raise the argument.
{¶ 33} As a further matter, our research has not disclosed cases where a “discovery rule” has been applied to
{¶ 34} The logic of allowing a limited time-frame for contesting procedural irregularities is clear. If a legislative body fails to follow procedural requirements, the failures are often technical oversights, as in the case before us. Germantown did publish notice of the hearing date, as required. Germantown also noted in the trial court that meetings of the Village Council are always held in the same place, so no confusion would have existed about that fact. A phone call could have elicited the time of the meeting - the records before the court indicate that council meetings typically begin at 7:00 p.m. In light of these technical irregularities, a reasonable time for bringing procedural challenges is appropriate; a potentially unlimited time-period is not.
{¶ 35} Accordingly, the trial court did not err in rendering summary judgment on the claims based on the ordinance‘s procedural invalidity under
{¶ 36} The trial court also dismissed the mandamus claim, based on Miami Overlook‘s failure to comply with the two-year statute of limitations in
{¶ 37}
{¶ 38} “(A) An action against a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, whether brought as an original action, cross-claim, counterclaim, third-party claim, or claim for subrogation, shall be brought within two years after the cause of action accrues, or within any applicable shorter period of time for bringing the action provided by the Revised Code. The period of limitation contained in this division shall be tolled pursuant to section 2305.16 of the Revised Code. This division applies to actions brought against political subdivisions by all persons, governmental entities, and the state.”
{¶ 39} At first blush,
{¶ 41} “In fact, many states that have judicially or legislatively abolished the general defense of sovereign immunity recognize that immunity remains for a governmental body when it is acting in a legislative capacity. See Visidor Corp. v. Borough of Cliffside Park (1966), 48 N.J. 214, 225 A.2d 105, and cases cited therein. Those cases place sovereign immunity, as it applies to legislation, on a higher plane than sovereign immunity, as it applies to tort actions. The continuation of immunity for legislative acts is based upon a policy decision which favors the free exercise of legislative discretion over the remedying of economic harm suffered by individuals affected by legislation which is subsequently struck down.” 39 Ohio St.2d at 40-41.
{¶ 42} Accordingly, the Supreme Court of Ohio concluded that municipal corporations are “not required to respond in damages for losses allegedly sustained by a property owner whose realty was subject to a rezoning ordinance which was subsequently declared invalid.” Id. at 41. Consistent with this theory, the court reversed the award of damages to the property owner in Superior Uptown, while affirming the invalidation of a rezoning ordinance that affected the owner‘s property. Id.
{¶ 44} “This court‘s abrogation of municipal immunity does not mean that a municipal entity is liable for all harm that results from its activities; it is only to those harms which are torts that municipalities may now be held liable. This decision merely subjects municipal entities to the same rules as private persons or corporations if a duty has been violated and a tort has been committed.
{¶ 45} ” * * * *
{¶ 46} “Most importantly, this decision should not be interpreted as abolishing immunity to those certain acts which go to the essence of governing. * * * This court does not contemplate that the essential acts of governmental decision-making be the subject of judicial second-guessing or harassment by the actual or potential threat of litigation.” 6 Ohio St.3d at 35 (citations omitted).
{¶ 47} Thus, the decisions abolishing immunity did not apply to the type of situation involved in Superior Uptown, and the legislature did not need to restore legislative immunity when it enacted the Political Subdivision Tort Liability Act.
{¶ 49} “Finally, Plaintiffs alleged a taking of their property by the City without just compensation. While this was alleged to be ‘wrongful,’ in the sense of a tort, the claim invokes the protections of the Fifth Amendment to the United States Constitution and Article I, Section 19, of the Ohio Constitution. The rights which those provisions confer are not subject to the limitations of the Political Subdivision Tort Liability Act.
{¶ 50} “Plaintiffs’ claim, in essence, creates an action for inverse condemnation, not one for money damages to which the Political Subdivision Tort Liability Act applies.” Id.
{¶ 51} The Sixth District Court of Appeals recently agreed with our conclusion. See Seiler v. City of Norwalk, Huron App. No. H-10-008, 2011-Ohio-548, ¶41. See. also, State ex rel. Post v. Speck, Mercer App. No. 10-2006-001, 2006-Ohio-6339, ¶56 (noting that an appropriation action is not a tort action).
{¶ 52} These cases are consistent with the decision of the Supreme Court of Ohio in State ex rel. Shemo v. Mayfield Hts., 96 Ohio St.3d 379, 2002-Ohio-4905, which distinguished between appropriation actions and actions for damages against political subdivisions. In Shemo, the City of Mayfield Heights asked the Supreme Court of Ohio to reconsider its decision, which held that property owners had established a compensable taking of their property. Id. at ¶1. The City argued, among other things, that the decision had effectively
{¶ 53} “Respondents raise three claims in support of reconsideration. In their first claim, they assert that Shemo sub silentio overruled established Ohio law, i.e., Superior Uptown, Inc. v. Cleveland (1974), 39 Ohio St.2d 36, 68 O.O.2d 21, 313 N.E.2d 820. In Superior Uptown, at the syllabus, we held, ‘A cause of action for money damages can not be maintained against a municipality for losses sustained as the result of the adoption of a rezoning ordinance which is subsequently declared invalid.’
{¶ 54} “Respondents’ claim lacks merit. Shemo does not overrule Superior Uptown. Superior Uptown involved a direct action for money damages against a municipality and was based upon the doctrine of sovereign immunity. By contrast, this case involves a mandamus claim to compel public authorities to institute appropriation proceedings where an involuntary taking of private property was alleged and ultimately proven by relators.” Id. at ¶7.
{¶ 55} In Shemo, the Supreme Court of Ohio did mention that the City had waived an argument regarding the
{¶ 56} More importantly, however, a few months after Shemo, the Supreme Court of Ohio held that the six-year statute of limitations in
{¶ 57} “While none of the limitations listed in R.C. Chapter 2305 is a perfect fit for an action to compel appropriation proceedings, we find that the most appropriate statute of limitations is set out in
{¶ 58} “A contract implied in fact is ‘a contract that the parties presumably intended, either by tacit understanding or by the assumption that it existed.’ Black‘s Law Dictionary (7th Ed.1999) 322. In an appropriation action, although the amount may be in dispute, when the state takes property, it is impliedly contracting that it will pay the property owner just compensation. See, e.g., Yearsley v. W.A. Ross Constr. Co. (1940), 309 U.S. 18, 21 (if a regulation is determined to be a taking, the government has impliedly promised to pay compensation). Accordingly, we hold that the statute of limitations applicable to a mandamus action to compel the state to begin appropriation proceedings is the six-year limitation set out in
{¶ 59} Based on R.T.G., the statue of limitations for bringing appropriation claims
{¶ 60}
{¶ 61} “Except as provided for in division (C) of this section, an action for any of the following causes shall be brought within four years after the cause thereof accrued:
{¶ 62} ” * * * *
{¶ 63} “(E) For relief on the grounds of a physical or regulatory taking of real property.”
{¶ 64} The 2004 amendment lessened the applicable statute of limitations from six years to four years. ” ‘[A] period of limitations already running may also be shortened by the legislature’ as long as ‘a period sufficiently long to allow a reasonable time to begin suit’ is allowed. See generally 1A Sackman, Nichols on Eminent Domain (3d Ed.2006) 4-74, Section 4.102[3] (recognizing this rule in takings cases) * * * .” State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 455, 2010-Ohio-606, ¶29.
{¶ 65} Germantown‘s ordinance was enacted on June 5, 2000. Under the then-existing six-year statute of limitations, Miami Overlook had until June 5, 2006, to file suit. Under the amended statute, however, the applicable statute of limitations would expire
{¶ 66} In Smith v. New York Central RR. Co. (1930), 122 Ohio St. 45, the Ohio Supreme Court dealt with the effect of shortening the statute of limitations for bringing personal injury actions from four years to two years. The statutory change had no internal effective date and had not been declared an emergency, so it was effective 90 days after being filed by the Governor with the Secretary of State.
{¶ 67} In the case before us,
{¶ 68} Thus, Miami Overlook‘s cause of action in mandamus to compel Germantown to commence an appropriation action became time-barred on May 31, 2004. Even if the
{¶ 69} Although the trial court erred in applying a two-year statute of limitations, that error is harmless, since Miami Overlook‘s takings claim was barred by the applicable four-year statute of limitations.
{¶ 70} Miami Overlook‘s First Assignment of Error is overruled.
III
{¶ 71} Miami Overlook‘s Second Assignment of Error is as follows:
{¶ 72} “THE TRIAL COURT‘S DECISION IS UNCONSTITUTIONAL.”
{¶ 73} Under this assignment of error, Miami Overlook contends that
{¶ 74}
{¶ 75} “All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.”
{¶ 76} The Supreme Court of Ohio recently rejected a constitutional challenge under
{¶ 77} ” ‘Any constitutional analysis must begin with the presumption of constitutionality enjoyed by all legislation, and the understanding that it is not this court‘s duty to assess the wisdom of a particular statute.’ Groch v. Gen. Motors Corp., 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶141. In Groch, this court reaffirmed the principles set forth in Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, 199, 551 N.E.2d 938, that the right-to-a-remedy provision of Section 16, Article I applies only to existing, vested rights, and it is state law that determines what injuries are recognized and what remedies are available.” 2010-Ohio-1860, ¶40.
{¶ 78} In Pratte, the plaintiff argued that the statute of limitations unfairly deprived her of a remedy before she became aware of her repressed memories, and knew she had a claim. This is the same argument that Miami Overlook makes. The Supreme Court of Ohio rejected that reasoning, stating that if the plaintiff‘s view prevailed:
{¶ 79} “any statute of limitations that does not afford explicit discovery tolling provisions would violate the right-to-a-remedy provision, irrespective of whether it is applied retroactively or prospectively. Furthermore, the adoption of Pratte‘s position would discount the axiom that statutes of limitation serve a gate-keeping function for courts by ‘(1) ensuring fairness to the defendant, (2) encouraging prompt prosecution of causes of action, (3) suppressing stale and fraudulent claims, and (4) avoiding the inconveniences engendered by delay-specifically, the difficulties of proof present in older cases.’ * * * Justice is not served in such cases.” Id. at ¶42 (citation omitted).
{¶ 80} The limitations period in
{¶ 81} Accordingly, Miami Overlook‘s Second Assignment of Error is Overruled.
IV
{¶ 82} Miami Overlook‘s Third Assignment of Error is as follows:
{¶ 83} “THE TRIAL COURT‘S DECISION WRONGFULLY DEPRIVES THE APPELLANT OF PROPERTY.”
{¶ 84} Under this assignment of error, Miami Overlook contends that the trial court‘s decision deprived it of the ability to be heard on the rezoning. Germantown responds by contending that the trial court found the merits of the case to be moot, based on the statute of limitations. We agree with Germantown. Miami Overlook‘s causes of action are barred by applicable statutes of limitation.
{¶ 85} Miami Overlook‘s Third Assignment of Error is overruled.
{¶ 86} All of Miami Overlook‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
HALL and KLINE, JJ., concur.
(Hon. Roger L. Kline, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Robert W. Rettich, III
Lynnette Dinkler
Hon. Frances E. McGee