Gates Mills Inv. Co. v. Village of Pepper Pike

• Decision Date: 10 August 1978
• Parties: , 13 O.O.3d 191 GATES MILLS INVESTMENT COMPANY, Appellant, v. VILLAGE OF PEPPER PIKE, Appellee.
• Court: Ohio Court of Appeals

Page 155

59 Ohio App.2d 155

392 N.E.2d 1316, 13 O.O.3d 191

GATES MILLS INVESTMENT COMPANY, Appellant, v. VILLAGE OF PEPPER PIKE, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Aug. 10, 1978.

Syllabus by the Court

1. Civ.R. 56(C) does not require an oral hearing on every motion for summary judgment. When a party files an application for an oral hearing on a motion for summary judgment, it is discretionary with the trial court whether the application will be granted. If a trial court does grant an oral hearing on a motion for summary judgment, the motion shall be served on the opposing party at least fourteen days before the time fixed for the hearing. The adverse party may then serve and file opposing affidavits prior to the day of hearing.

2. If a party opposing a motion for summary judgment cannot present by affidavit facts which are sufficient to justify his opposition he may seek a continuance or deferral of the court's action on the motion by filing affidavits which must state sufficient reasons why he cannot then present by affidavit facts essential to justify his opposition to the motion and why or how the continuance, deferral of action, or discovery would permit him to obtain such facts. Civ.R. 56(F).

3. When a party files an action in declaratory judgment under R.C. Chapter 2721 seeking a declaration that a zoning ordinance is unconstitutional and the defendant municipality raises the affirmative defense of failure to exhaust administrative remedies and the plaintiff counters by contending that seeking such administrative relief would be an onerous or vain act, these preliminary issues must be resolved before the case is tried on its merits.

4. In a declaratory judgment action brought under R.C. Chapter 2721 attacking constitutionality of a zoning ordinance in which defendant municipality raises the affirmative defense of failure to exhaust administrative remedies and the plaintiff counters by contending that an attempt to pursue the administrative remedy would be an onerous or vain act, the trial court properly granted defendant's motion for summary judgment where there is no genuine issue as to the material facts that plaintiff has available to it an administrative remedy which can provide it with appropriate relief from a zoning restriction and that the seeking of such an administrative remedy would be neither onerous nor a vain act. Under these circumstances the complaint for declaratory judgment should be dismissed.

5. Seeking an administrative remedy would be a vain act where the administrative agency does not have authority to grant the relief requested. A vain act is defined in the context of lack of authority to grant administrative relief and not in the sense of lack of probability that the application for administrative relief will be granted. Unnecessary or unreasonable delays by an administrative agency in acting on an application will not be considered a basis for concluding that seeking administrative relief would be a vain act and thus permit an applicant to forego administrative procedures and maintain a declaratory judgment action. An administrative remedy would be considered onerous if it were burdensome or oppressive. This would be the case where a municipality's administrative procedure requires complicated proceedings in regard to an application for simple relief.

6. There is a distinction between maintaining a mandamus action to make an administrative agency take some required action and a mandamus action which attempts to force an administrative agency to grant or allow the relief sought. When a party files an application for a variance or for other administrative relief by an administrative agency and that agency does not act within the time requirements of the ordinance, or if there are no time requirements, does not act within a reasonable time, the applicant may maintain a mandamus action against the administrative agency forcing it to take some action on his application when there is a clear legal duty to act and there is no adequate remedy at law. However, a mandamus action may not be maintained to force an administrative agency to grant the relief sought where the applicant has an adequate administrative remedy.

Rini, Cosiano & Pedley, Donald L. Goldman and Emanuel H. Hecht, Cleveland, for appellant.

Baker, Hostetler & Patterson, Richard R. Hollington, Jr., Oakley V. Andrews, Thomas M. Seger, Walter, Haverfield, Buescher & Chockley and Robert L. Musser, Cleveland, for appellee.

KRENZLER, Judge.

The procedural issues in the present case have been through the Ohio court systems for the past 13 years, including two appeals to the Ohio Supreme Court. See Gates Mills Investment Co. v. Pepper Pike (1975), 44 Ohio St.2d 73, 337 N.E.2d 777; Gates Mills Investment Co. v. Parks (1971), 25 Ohio St.2d 16, 266 N.E.2d 552. This appeal also involves a procedural issue.

The plaintiff-appellant, hereinafter referred to as appellant, is the owner of a parcel of land consisting of a portion of the hundred foot wide median strip of Gates Mills Boulevard which is a divided highway in the City of Pepper Pike. ¹ The zoning for this property is U-1 and permits single family dwellings and other uses.

On February 6, 1965, appellant submitted a subdivision plat of its land comprising 13 residential lots to defendant-appellee's Planning Commission. Defendant City of Pepper Pike will hereinafter be referred to as appellee. The Planning Commission declined to accept the plat for recording because of various stated defects. Appellee's council affirmed the action of the Planning Commission and appellant commenced an action in the Common Pleas Court of Cuyahoga County under R.C. Chapter 711 seeking an order requiring recording of the plat.

The Common Pleas Court concluded that the appellee's ordinances were inapplicable to the appellant's land and constituted a deprivation of appellant's constitutional rights and that the ordinances were unreasonable and confiscatory in their application. Appellee appealed to the Eighth District Court of Appeals which affirmed the judgment of the trial court. Appellee then appealed to the Ohio Supreme Court which held that the appellant was entitled to have the plat recorded. Gates Mills Investment Co. v. Parks, supra. The Supreme Court in ordering the plat recorded reserved for adjudication in a proper action all questions concerning the application of appellee's zoning provisions to appellant's property. The plat was then recorded in Vol. 207, Pages 44 through 47 of the Cuyahoga County Map Records.

On July 22, 1971, appellant filed a declaratory judgment action in the Common Pleas Court and on January 5, 1972 filed an amended complaint in which it alleged that Ordinance 1970-7 of the City of Pepper Pike is inapplicable to its property and unconstitutional in general and/or unconstitutional in specific application to its property. It sought a court determination that it had a right to construct single family residences on its sublots.

The appellee filed a motion to dismiss on the basis of lack of jurisdiction of the trial court to consider constitutionality of the zoning ordinance and also because of the failure of the appellant to first seek administrative relief from the city. The Court of Common Pleas dismissed the action and this was affirmed by the Eighth District Court of Appeals in a split decision. The basis of that decision was that appellant's failure to exhaust administrative remedies deprived the trial court of subject matter jurisdiction.

Further appeal was taken to the Ohio Supreme Court which reversed the Court of Appeals on the basis of Driscoll v. Austintown Associates (1975),42 Ohio St.2d 263, 328 N.E.2d 395. The Ohio Supreme Court held in Gates Mills Investment Co. v. Pepper Pike, supra, that the Common Pleas Court did have jurisdiction to entertain the declaratory judgment action and that it was error to dismiss it for lack of jurisdiction of the subject matter. The Supreme Court of Ohio held that the availability of an administrative appeal under R.C. Chapter 2506 does not preclude a declaratory judgment action which challenges constitutionality of zoning ordinances. The declaratory judgment action is only available in lieu of the administrative procedure if the administrative procedure is onerous, unusually expensive, a vain act or the administrative agency does not have the authority to grant the relief requested. The Supreme Court further noted that the doctrine of failure to exhaust available administrative remedies is an affirmative defense in a declaratory judgment action which challenges the constitutionality of a zoning ordinance and this defense must be timely asserted or it is waived. The case was then reversed and remanded to the Common Pleas Court for further proceedings.

When the case was remanded to the Common Pleas Court, appellee filed its answer which was in the form of a general denial and also set forth the affirmative defense of failure to exhaust administrative remedies.

On March 8, 1978, appellee filed answers to appellant's interrogatories in which it stated that appellant's sublots did not comply with the literal terms of the Zoning Code, but that variances could be obtained from the Planning Commission in regard to those instances in which they did not so comply. In other words, the substance of the answers to the interrogatories is that the Planning Commission of the City of Pepper Pike has the authority to grant variances to appellant so that it could use its land for single family purposes.

On March 18, 1976, appellee City of Pepper Pike filed a motion for summary judgment pursuant to Civ.R. 56, to which it attached an affidavit of its Law Director, Robert Musser, dated February 25, 1976.

The affidavit of Robert L. Musser stated that he is thoroughly familiar with the codified ordinances of the City of Pepper Pike and with the appellee's Planning and Zoning Code. H...