Union Twp.-Clermont Cty., C.I.C., Inc. v. LampingUnion Twp.-Clermont Cty., C.I.C., Inc. v. Lamping
G. Ernie Ramos, Jr., 101 East Main Street, Batavia, Ohio 45103, for appellant
O P I N I O N
M. POWELL, J.
{¶ 1} Appellant, Carl Lamping, Building Official, Clermont County Building Department (building department), appeals a decision of the Clermont County Court of Common Pleas vacating an order of the Ohio Board of Building Appeals (BBA). The BBA‘s order affirmed an adjudication order issued by the building department finding appellee,
{¶ 2} In 2013, renovations began on a building owned by CIC. As a part of the renovations, felt and shingles were removed and then replaced on a portion of the roof. The roof work was completed by a contractor by the end of April 2013. Prior to completing the roof work, employees of the building department happened to drive by CIC‘s building and noticed the renovations in progress. The employees of the building department stopped and inquired as to whether CIC had obtained a permit for the roof work. A contractor performing the work for CIC indicated that a permit would be sought. CIC later determined that no permit was needed, and no permit was ever obtained.
{¶ 3} On June 7, 2013, the building department issued an adjudication order finding CIC in violation of the Ohio Building Code for failing to obtain a permit for the roof work. CIC appealed the adjudication order to the BBA. A hearing was held on July 22, 2013, whereby both parties presented testimony and evidence. Included in the evidence was testimony and documentation that at the time the roof work was being performed, the building department‘s website stated in its section of frequently asked questions that a permit was required for “new roofs, not shingles only.” The building department presented testimony that the information included on the website was incorrect and further presented evidence that a permit was in fact required. On July 26, 2013, the BBA issued a final order upholding the adjudication order and finding CIC in violation of the Ohio Building Code.
{¶ 4} CIC filed an appeal of the BBA‘s order to the common pleas court. After filing briefs and the record of the BBA, a hearing was held. The common pleas court found that
{¶ 5} Lamping now appeals and asserts two assignments of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE COURT ERRED IN THAT IT APPLIED THE WRONG STANDARD OF REVIEW.
{¶ 8} The building department asserts the common pleas court applied an incorrect standard of review when it vacated the BBA‘s order. Specifically, the building department contends that the common pleas court utilized the standard outlined in
{¶ 9}
{¶ 10} The Tenth District held in 84 Lumber Co. v. McMillen, 10th Dist. Franklin No. 76AP-364, 1976 WL 190437 (Dec. 14, 1976), that a common pleas court engaged in proper analysis despite utilizing the incorrect statutory standard to review an order from the Board of Building Appeals. In discussing the availability and breadth of judicial review of an administrative agency‘s order, the Tenth District discussed the similarities between the
{¶ 11} The two standards are substantially similar in that each requires the court of common pleas to weigh the evidence and overturn an agency‘s order if it is unreasonable. Although
{¶ 12} Given the foregoing, we find that any error by the common pleas court applying the incorrect standard of review is harmless as it did not affect the substantial rights of the parties. See
{¶ 13} Assignment of Error No. 2:
{¶ 14} THE COURT ERRED IN FINDING THAT REASONABLE RELIANCE ON THE WEBSITE OF THE CLERMONT COUNTY BUILDING DEPARTMENT RENDERED THE ADJUDICATION ORDER AND OHIO BOARD OF BUILDING APPEALS ORDER UNREASONABLE.
{¶ 15} The building department argues that the common pleas court erred in relying on its website to determine that the BBA‘s order was unreasonable. Specifically, the building department asserts that the common pleas court improperly utilized equitable estoppel to find the orders unreasonable. Furthermore, the building department argues that it set forth ample evidence that CIC‘s conduct required a permit. As such, the common pleas court should have found that the reasonableness and lawfulness of the BBA‘s order was supported by the preponderance of the evidence.
{¶ 16} The plain language of
I. Equitable Estoppel
{¶ 17} At the crux of the building department‘s argument is that the common pleas court improperly utilized equitable estoppel to find the BBA‘s order unreasonable. The building department argues that CIC cannot rely upon equitable estoppel because the doctrine does not apply when an agent of the state is exercising a governmental function. While CIC states that it was reasonable to rely on the information contained on the building department‘s website, it contends that this case does not involve equitable estoppel. Rather, CIC asserts that the information contained on the website aids with interpreting the Ohio Building Code.
{¶ 18} “Equitable estoppel precludes a party from asserting certain facts where the party, by his conduct, has induced another to change his position in good faith reliance upon that conduct.” State ex rel. Cities Serv. Oil Co. v. Orteca, 63 Ohio St.2d 295, 299 (1980). However, the doctrine of equitable estoppel does not apply against a state or its agencies in the exercise of a governmental function. State ex rel. Chevalier v. Brown, 17 Ohio St.3d 61, 63 (1985). “[P]rotection from crime, or fires, or contagion, or preserving the peace and health of citizens and protecting their property,” are all governmental functions. Gerrity at ¶ 28, citing City of Wooster v. Arbenz, 116 Ohio St.281, 284 (1927). The doctrine of estoppel also does not apply if an officer or agent of the government enters an agreement or arrangement that violates the law. Id. at ¶ 29. Furthermore, “it is well settled that a mistake does not provide a basis for the application of the doctrine of equitable estoppel.” Id. Rather, a person who seeks information from the government must assume the risk that the advice of public advisor might be incorrect. Id., citing Richfield v. Nagy, 9th Dist. Summit No. 12300, 1986 WL 2914 (Mar. 5, 1986).
{¶ 19} The board of building standards has the authority to make “rules governing the erection, construction, repair, alteration, and maintenance of all buildings * * *.”
{¶ 20} At the time work was being done on CIC‘s roof, the building department‘s website stated that a permit was required for “new roofs, not shingles only.” At the hearing before the BBA, Lamping conceded that the website contained this information, but that the information was incorrect and a mistake. Lamping testified that, in fact, the Ohio Building Code requires a permit to replace shingles on a roof. In vacating the orders, the common pleas court stated:
Based upon Lamping‘s testimony, it is reasonable for a person or entity to rely on the Building Department‘s website to determine whether a permit is necessary. In this case, [CIC] sought that information on the website and found that a permit was not required to replace shingles on a roof. Therefore, for the County then to require [CIC] to obtain a permit was not governed by reason and was, thus, irrational.
The common pleas court‘s finding places the issue at bar within the context of equitable estoppel as it clearly found that CIC consulted the website and relied upon the information contained therein to determine that a permit was not needed.
{¶ 21} It is undisputed that the building department‘s website stated that a permit was required for “new roofs, not shingles only.” If CIC visited the website when it considered whether a permit was required for its roof work and relied upon this statement, it did so at its own risk. Lamping testified at the BBA hearing that the information on the building
II. Abuse of Discretion
{¶ 22} We now turn to the building department‘s overarching argument that it set forth ample evidence to show CIC‘s conduct required a permit. The factual background of this matter is undisputed. Simply put, CIC removed felt and shingles from a portion of the roof on its building and installed new shingles without obtaining a permit. When a local zoning ordinance is applied to undisputed facts contained in the record, such an application is a question of law and is appropriate to be considered by an appellate court engaging in review of an administrative appeal. Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 148 (2000). The matter before us requires nothing more than an application of the law (i.e., the regulations) to those facts.
{¶ 23} The evidence presented by both parties relates to interpreting terms in the Ohio Building Code such as “reroofing” and “repair.” Consequently, to evaluate whether the common pleas court abused its discretion in vacating the BBA‘s order, we must interpret the Ohio Administrative Code and look to the definitions therein to determine whether the reasonableness and lawfulness of the BBA‘s order was supported by sufficient evidence.
{¶ 24} “No clear standard has evolved to determine the level of lucidity necessary for a writing to be unambiguous. * * * When confronted with allegations of ambiguity, a court is to objectively and thoroughly examine the writing to attempt to ascertain its meaning.” Meadowwood Manor, Inc. v. Ohio Dept. of Health, 12th Dist. Brown No. CA2006-08-010, 2007-Ohio-2067, ¶ 19, citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, ¶ 11. “Only when a definitive meaning proves elusive should rules for construing ambiguous language be employed.” Id. The fact that language may be susceptible to more than one interpretation does not necessarily render a provision ambiguous. Id. However, words in a statute do not exist in a vacuum. D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, ¶ 19. A court must give effect to all parts of a statute and consider, in context, all of the words used, giving effect to the overall statutory scheme. Meadowwood at ¶ 19. These maxims apply equally to administrative regulations. State ex rel. Brilliant Elec. Sign Co. v. Indus. Comm., 57 Ohio St.2d 51, 54 (1979).
{¶ 25} Furthermore, as a reviewing court, we must afford due deference to the interpretation of the building department and the board of building standards that the regulations require a permit for reroofing, so long as that construction proves reasonable. Meadowwood at ¶ 21, citing Northwestern Ohio Bldg. & Construction Trades Council v. Conrad, 92 Ohio St.3d 282 (2001). “An administrative agency‘s reasonable interpretation of local zoning codes is recognized as an area of administrative expertise and is to be presumed valid.” Glass City Academy, Inc. v. Toledo, 179 Ohio App.3d 796, 2008-Ohio-6391, ¶ 18 (6th Dist.), citing Lamar Outdoor Advertising, Inc. v. Dayton Bd. of Zoning Appeals, 2d Dist. Montgomery No. 20158, 2004-Ohio-4796, ¶ 6.2
{¶ 26} “Reroofing” and related terms are set forth and defined in
{¶ 27} “Repairs” and “minor repairs” are set forth and defined in
{¶ 28} When looking at the plain meaning of the words defined in the Ohio Administrative Code, “reshingling” is included within the definition of “reroofing.” The Union Township Administrator testified that the work done on CIC‘s roof involved taking old shingles off of the roof and putting new shingles on the roof. This removal of old shingles and installation of new shingles constituted the replacement of an existing roof covering as shingles are applied to the roof deck for both weather resistance and appearance. The
{¶ 29} Based on the plain reading of the code, it is difficult to discern whether “reroofing” is classified as a “repair” or “minor repair.” Both definitions provide for the reconstruction or renewal of a part of a building in order to maintain it, and there is no dispute that “reroofing” falls within this definition. It is unclear, however, whether “reroofing” fits into the additional requirement to constitute a “minor repair” by having limited impact on access, safety, or health. The building department and the board of building standards interpret “reroofing” as requiring a permit as evidenced by Lamping‘s testimony and indicated in a memorandum issued by the board of building standards on May 16, 2013.3 Consequently, both administrative agencies interpret “reroofing” as a “repair.” This interpretation is reasonable given the definition of “repair.”
{¶ 30} By looking to the plain meaning of terms in the Ohio Administrative Code and giving deference to the reasonable interpretation of the administrative agencies with jurisdiction, the reasonableness and lawfulness of the BBA‘s order was supported by the preponderance of the evidence as a matter of law. Reshingling is included in the definition of “reroofing,” and reroofing requires a permit as a matter of law. As such, CIC was required to obtain a permit to complete its roof work. The common pleas court abused its discretion in finding otherwise. The building department‘s second assignment of error is sustained.
{¶ 31} Judgment reversed, and the BBA‘s order is reinstated.
HENDRICKSON, J., concurs.
PIPER, P.J., dissenting.
{¶ 32} It is easy to concur with much of the majority opinion and even with the majority‘s conclusion that this case should be reversed. Yet I firmly dissent from the majority‘s decision not to remand this matter for the common pleas court to apply the correct law “to the particular set of facts or circumstances involved in the appeal.”
{¶ 33} Estoppel is a principle based in equity and generally cannot be asserted against a government agency. Thus the common pleas court‘s decision premised upon “reliance” was a misapplication of law. The common pleas court‘s decision, however, acknowledged other legal and factual arguments advanced by counsel which were supported by testimony and evidence. Since “reliance” ended the need for further analysis, the common pleas court did not address the application of the facts or circumstances to these other issues impacting a determination of the reasonableness of the BBA‘s order. This matter should be reversed and remanded for the common pleas court to apply the correct law to the particular facts or circumstances involved. See
{¶ 34} Before the BBA‘s order can be affirmed, the evidence must support “the reasonableness and lawfulness” of the agency‘s order. The common pleas court should be permitted to make determinations as to the “reasonableness” of the particular circumstances
{¶ 35} Evidence suggests the building department in its website interpreted the code to say that if applying “shingles only,” no permit was required. CIC argues this website interpretation is what the code required at the time and thus a subsequent enforcement order to the contrary is unreasonable. The building department minimizes CIC‘s arguments by indicating the website publication was “incorrect” and “a mistake.” How the code read and how the code was interpreted at the time of this incident can only be determined by the BBA or the common pleas court as we have no record which weighs in on this issue. Whether the interpretation published on the website by the building department was always a “mistake” or was at one time considered by the BBA and the building department to be the correct code interpretation can only be determined in assigning weight to the facts or circumstances that existed at the time.
{¶ 36} Additional evidence supports CIC‘s suggestion that this website declaration was the reading of the code at the time of this incident. Evidence was presented that surrounding counties, at that time, also interpreted the code as not requiring a permit if the reroofing involved a replacement of “shingles only.” Other evidence was presented that no enforcement actions requiring a permit for “shingles only” could be documented. The majority accepts the building department‘s argument that no weight should be given these facts or circumstances encompassing the agencies’ interpretation of the code at the time of
{¶ 37} Additionally, the majority mistakenly accepts the BBA‘s factual determination that this repair was not minor as a matter of law. Whether or not a repair is minor is fact driven. The majority applies the BBA‘s recent publication as to its enforcement of the code as if that interpretation and enforcement of the code was always the BBA‘s interpretation which led to enforcement. No evidence in the record suggests such. Of necessity, weight must be assigned to the evidence in order to resolve competing arguments.
{¶ 38} Particularly, weight must be assigned to the evidence to determine whether under the facts and circumstances of this case, reshingling constitutes a repair or a minor repair. If a repair does not impact “access, safety, or health,” that repair can be exempted from the permit requirement because it is considered a “minor repair.” There is no factual evidence presented in the record that this particular repair impacted “access, safety, or health.” Therefore, the common pleas court, not an appellate court, must determine if the facts or circumstances as occurred herein consists of a “repair” (requiring a permit) or a “minor repair” (which does not require a permit). These are also questions of fact, not matters of law.
{¶ 39} The majority finds it difficult “to discern whether or not reroofing is classified as a ‘repair’ or a ‘minor repair.‘” After traversing a tortured maze of definitions, the majority‘s decision employs “due deference” to the BBA‘s order which found the nature of the repair to be reroofing, requiring a permit.6 Yet there was no evidence presented before the BBA which established factually that the nature of the repair or that the circumstances impacted “access,
{¶ 40} All this being said, I immensely respect the majority‘s effort at resolving this administrative dispute. Yet, contrary to the assertions of the majority, I perceive the code on this subject matter to be unclear, sometimes circular or overlapping, and ambiguous within the ordinary meaning of the word. This permits code enforcement at times to be perceived as selective when in reality code enforcement should be clear, certain, and uniform. Yet pragmatically, and to no particular fault, situations and circumstances do not always lend themselves to clear, certain, and uniform code enforcement. This is precisely why the statutory standard of review intentionally permits the common pleas court to consider the “particular circumstances” and not just the “facts.”7 The end goal is a determination grounded in reason, as well as law, which the common pleas court should have the opportunity to determine and apply.
Notes
The court shall not affirm the agency‘s order unless the preponderance of the evidence before it supports the reasonableness and lawfulness of the order and any rule of the board of building standards upon which the order is based in its application to the particular set of facts or circumstances involved in the appeal.
R.C. 3781.031(D) .