Driscoll v. Austintown Associates
| Citation | 71 O.O.2d 247,42 Ohio St.2d 263,328 N.E.2d 395 |
| Decision Date | 14 May 1975 |
| Docket Number | No. 74-204,74-204 |
| Parties | , 71 O.O.2d 247 DRISCOLL et al., Appellees and Cross-Appellants, v. AUSTINTOWN ASSOCIATES, a partnership, et al., Appellants and Cross-Appellees. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court
1. The constitutionality of a zoning ordinance, as it applies to a specific parcel of property to proscribe the owner's proposed use of the property, can be determined in a declaratory judgment action.
2. The availability of a R.C. Chapter 2506 action to review the denial of a variance sought by the owner of a specific tract of land does not preclude a declaratory judgment action which challenges the constitutionality of the zoning restrictions on that land.
3. The surrounding property owners are not necessary parties to a declaratory judgment action challenging the constitutionality of a township zoning ordinance as it applies to a specific parcel of property.
4. If a landowner has available to him an administrative remedy which can provide him with appropriate relief from a zoning restriction, and the administrative remedy is neither onerous nor unusually expensive, the landowner must exhaust that administrative remedy prior to instituting a declaratory judgment action challenging the constitutionality of the zoning restriction.
5. The doctrine of 'failure to exhaust available administrative remedies' is an affirmative defense to a declaratory judgment action challenging the constitutionality of a zoning restriction, and if this defense is not timely asserted in that action, it is waived.
Appellants are the owners of a tract of realty in Austintown Township, Mahoning County. The entire tract contains approximately 20.588 acres, but only a 13-acre section is involved in this appeal.
On November 18, 1968, appellants' predecessor in title, Willowcrest Land Co., Inc., filed an application with the Austintown Township Zoning Commission for a rezoning of the 13-acre section from Residence R-2 to Residence R-3. The building of multi-family dwellings is an impermissible use under Residence R-2 zoning, but a permissible use under Residence R-3 zoning.
The procedure for disposing of applications for rezoning is set forth in R.C. 519.12, and this procedure was followed in this case. First, Willowcrest's application was reviewed by the Mahoning County Planning Commission, which recommended its approval. The Austintown Township Zoning Commission then considered the application at a public hearing; the zoning commission recommended that the application be disapproved. Finally, the Austintown Township Board of Trustees conducted a public hearing on the proposed rezoning. At the conclusion of this hearing, the board voted to accept the zoning commission's recommendation that the application be denied.
On March 17, 1969, the corporation filed a declaratory judgment petition in the Common Pleas Court of Mahoning County, alleging that no economically feasible use of the land could be made under Residence R-2 zoning and that, therefore, the refusal of the township trustees to rezone the property amounted to a taking of property without due process of law. The petition sought an order that the 'action of the (defendant) board of trustees in refusing to grant the requested zoning change be declared unconstitutional, illegal and void; that the defendant zoning inspector be ordered to issue the necessary permits to plaintiff (Willowcrest) to erect apartment buildings * * * as permitted in a Residence R-3 zone * * *.'
On June 2, 1971, the Court of Common Pleas filed a judgment entry which gave Willowcrest the relief it sought. This judgment was not appealed.
By mid-1973, appellants had secured the necessary building permits and had commenced clearing and grading operations preparatory to the construction of apartment buildings. On June 5, 1973, appellees instituted the present litigation by filing a complaint for injunction. Appellees consisted of the township trustees and other individuals described in the complaint as 'owners and occupiers of land adjacent to and neighboring the lands hereinafter described (the 13-acre tract) * * *.' The complaint alleged that use of the property was restricted by a Residence R-2 zoning classification, that the 1971 declaratory judgment action was void and of no force and effect, and that use of the land for multi-family dwellings therefore violated the township zoning ordinance. Additionally, several of the appellees alleged that they were the owners of land for the benefit of which there existed certain restrictive covenants pertaining to a portion of appellants' property, and that the covenants would be violated if appellants were allowed to erect apartment buildings. The complaint demanded preliminary and permanent injunctions prohibiting appellants from violating the zoning ordinance and the restrictive covenants.
The Court of Common Pleas dismissed the complaint, ruling that the restrictive covenants were not being violated and that the doctrines of res judicata and estoppel by judgment prevented appellees from attacking the validity of the 1971 declaratory judgment order.
The Court of Appeals affirmed that portion of the trial court's judgment relating to the restrictive covenants, but reversed that portion pertaining to the validity of an appellees' right to contest the declaratory judgment order. The Court of Appeals, claiming that it was rendering 'the judgment which the Common Pleas Court should have rendered,' enjoined appellants from using their property in any manner not permitted by Residence R-2 zoning.
Both sides have appealed to this court, and a motion to certify the record was granted.
James L. Messenger and Joseph R. Bryan, Youngstown, for appellees and cross-appellants.
Burdman, Stevens & Gilliland and Paul E. Stevens, Youngstown, for appellants and cross-appellees.
This case presents two issues for determination: The effect of the unappealed 1971 declaratory judgment order on the 1973 injunction suit, and the effect of the restrictive covenants on appellants' proposed use of their property.
The major contention of Willowcrest's declaratory judgment action was that the existing zoning ordinance, as it applied to the 13-acre tract of land to prohibit its use for multi-family dwelling units, was unconstitutional. The 1971 declaratory judgment order agreed with this contention and ordered the township zoning inspector to issue permits for the construction of apartment buildings. Although that judgment was not appealed, appellees have advanced, before both this court and the Court of Appeals, four reasons to support their argument that the order was void and, therefore, subject to collateral attack in the injunction action. The Court of Appeals accepted two of the reasons. This court rejects all four reasons, and holds that the 1971 declaratory judgment order is a valid and final decree entitling appellants to use the property in question as the site for multi-family dwellings.
The weakest reason asserted by appellees, and one that was correctly rejected by the Court of Appeals, is that the Declaratory Judgment Act (R.C. Chapter 2721) does not permit declaratory relief with regard to township ordinances. Appellees argue that their conclusion flows from the absence of reference to township ordinances in R.C. 2721.03. That statute provides, in part, that:
'Any person * * * whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in Section 119.01 of the Revised Code, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under such * * * constitutional provision, statute, rule, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.'
R.C. 2721.03, in conjunction with R.C. 2721.04 and 2721.05, specify certain categories of controversies which are cognizable in declaratory judgment actions. However, R.C. 2721.06 expressly provides that these categories are not exclusive:
'Sections 2721.03 to 2721.05, inclusive, of the Revised Code do not limit or restrict the exercise of the general powers conferred in Section 2721.02 of the Revised Code in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.'
The 'general powers conferred in Section 2721.02' to render declaratory judgments are contained in the first sentence of that statute: 'Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed.' This general grant of power is certainly broad enough to encompass actions contesting the constitutionality of township zoning ordinances.
Another reason asserted by appellees to support their collateral attack is that a property owner who has failed in an attempt to have the applicable zoning restriction legislatively changed may not utilize declaratory judgment to contest the constitutionality of that restriction. Appellees refine this assertion by contending that the sole method available to such a property owner for obtaining relief from the zoning ordinance is to seek an administrative change of zoning and to appeal, pursuant to R.C. Chapter 2506, the final denial thereof. In rejecting this argument, the Court of Appeals stated:
'* * * We agree with the contention of appellee (appellants before this court) that the Supreme Court may be headed in the direction of deciding that the constitutionality of zoning law can only be tested by a proceeding under Chapter 2506, Revised Code, but it has not yet done so.'
This court concurs in the Court of Appeals' rejection of appellees' argument, and holds that the availability of a R.C. Chapter 2506 action to review the denial of a variance sought by the owner of a specific tract of land does not preclude...
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