Howard v. City of Beavercreek, No. 3:98cv00541.

• Decision Date: 08 August 2000
• Docket Number: No. 3:98cv00541.
• Citation: 108 F.Supp.2d 866
• Parties: Joseph L. HOWARD, Plaintiff, v. CITY OF BEAVERCREEK, Defendant.
• Court: U.S. District Court — Southern District of Ohio

108 F.Supp.2d 866

Joseph L. HOWARD, Plaintiff, v. CITY OF BEAVERCREEK, Defendant.

No. 3:98cv00541.

United States District Court, S.D. Ohio, Western Division.

August 8, 2000.

COPYRIGHT MATERIAL OMITTED

Michael C. Thompson, Dayton, OH, for Plaintiff.

Robert Jerome Surdyk, Jenks, Surdyk & Cowdry Co., Dayton, OH, for Defendant.

OPINION AND ORDER

MARBLEY, District Judge.

I. INTRODUCTION

This matter is before the Court on the Defendant's Motion for Summary Judgment. The Plaintiff, Joseph L. Howard, has brought suit under the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601, ("FHAA"), and under subsections 4112.02(H)(1), (4), (18) and (19) of the Ohio Revised Code, claiming the Defendant denied his request for a variance to the city's zoning law to accommodate his handicap. For the following reasons, the Defendant's Motion for Summary Judgment is GRANTED.

II. FACTS

Howard resides with his wife and son in Beavercreek, Ohio. He has lived at this address since November, 1984. The house is a 1350 square foot single story residential home located on a lot that is 255 feet deep and 110 feet wide. Howard's lot is separated from his neighbors' lots on both sides by a split rail fence, that is less than five feet eight inches in height. There is also a chain link fence thirty feet off the rear of Howard's property which is at least four feet high.

Following conversations with his new neighbors in 1996, Howard became concerned that his neighbors on the west side of his house were spying on him. Howard suffers from post traumatic stress disorder and a heart condition. To alleviate his post traumatic stress, he decided that he wanted to build a six foot fence along his west property line. Howard believes that his stress would be reduced if his neighbors' view was blocked by the fence. Howard also contends that his heart condition would be lessened as the six foot fence would prevent leaves from blowing onto his property, and would eliminate his need to rake.

The fence Howard wishes to build would be seventy feet from the southwest corner of his house, near the street. Under the City of Beavercreek's zoning ordinance, Howard is not permitted to erect the six foot fence along the first forty feet of the boundary running from the right-of-way toward his house without first obtaining a variance from the city's zoning code. The city's zoning ordinance, however, would permit Howard to build a six foot fence along the remainder of his property line without a variance.

Article 18.06.2 of the City of Beavercreek's zoning code provides: "Height of Hedges, Fences and Walls in Required Front Yard: No fence, wall or hedge shall rise over three (3) feet in height within any required front yard." The required front yard within R1-A zoning district is 40 feet from the front property line.

Howard's request for the fence variance was denied by the Board of Zoning Appeals for the City of Beavercreek. This matter is presently before the Court on the Defendant's Motion for Summary Judgment.

III. STANDARD OF REVIEW

Summary judgment is appropriate "[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." FED. R.CIV.P. 56(c). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). In response, the nonmoving party must present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir.1993). "[S]ummary judgment will not lie if the dispute is about a material fact that is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party).

In evaluating a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The existence of a mere scintilla of evidence in support of the non-moving party's position will be insufficient; there must be evidence on which the jury could reasonably find for the nonmoving party. See Anderson, 477 U.S. at 251, 106 S.Ct. 2505; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir.1995).

IV. ANALYSIS

A. Immunity

On July 27, 1999, Magistrate Judge Merz submitted a Supplemental Report and Recommendation finding that the Plaintiff's compensatory and punitive damage claims against the City of Beavercreek should be dismissed, as barred by Ohio Revised Code § 2744.02(A)(1). This subsection provides:

For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to persons or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.

OHIO REV.CODE § 2744.02(A)(1). The Defendant, Beavercreek, is a "political subdivision," see OHIO REV.CODE 2744.01(F); and enacting a zoning regulation is a government function. See Singer v. Fairborn, 73 Ohio App.3d 809, 598 N.E.2d 806 (1991). Howard, in his Objections to the Report and Recommendation, had argued that he could bring a claim for damages under Ohio Revised Code § 2744.02(B)(5) which provides:

In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when liability is expressly imposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections 2743.02 and 5591.37 of the Revised Code. Liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political subdivision, because a general authorization in that section that a political subdivision may sue or be sued, or because that section uses the term "shall" in a provision pertaining to a political subdivision.

In his Objections, he also relied on Ohio Revised Code Section 4112.99 to support his argument that damages are available.

The Court ADOPTS Magistrate Merz's Report and Recommendation and agrees that if this Court were to accept Howard's interpretation of sections 2744.02(B)(5) and 4112.99 argument, section 2744.02(A)(1) would be meaningless.

The Court therefore DISMISSES the Plaintiff's state law claim for damages.

B. Exhaustion of State Remedies.

Beavercreek argues that Howard has failed to exhaust state procedures, and therefore this Court does not have jurisdiction. Howard responds that the FHAA provides for a private right of action.

Here, Howard has brought a claim of housing discrimination under both state and federal law. This Court will examine separately whether exhaustion is required under either or both of these statutes. Section 2506.01 of the Ohio Revised Code relied upon by Beavercreek in its exhaustion argument provides:

Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located ...

OHIO REV.CODE § 2506.01 (emphasis added). The Court finds that, contrary to Beavercreek's assertion, the plain language of the statute is permissive and not mandatory, in that Howard had the right but was not required to appeal the Board of Zoning's decision to the court of common pleas.

Furthermore, in Elek v. Huntington National Bank, 60 Ohio St.3d 135, 573 N.E.2d 1056 (1991), the Supreme Court of Ohio held: "[a]n aggrieved party may, pursuant to R.C. 4112.99, institute an independent civil action to seek redress for discrimination on the basis of physical disability." The court explained in Elek that "[a] plain reading of [4112.99] yields the unmistakable conclusion that a civil action is available to remedy any form of discrimination identified in R.C. Chapter 4112." Id. at 1057. "[A]ccordingly, R.C. 4112.99 is to be liberally construed to promote its object (elimination of discrimination) and protect those to whom it is addressed (victims of discrimination)." Id. at 1058. See also Vass v. Riester & Thesmacher Co., 79 F.Supp.2d 853, 863 (N.D.Ohio 2000) (finding that "[t]he Ohio courts have found `nothing in R.C. Chapter 4112 that would require reading an exhaustion or remedies requirement into R.C. 4112.99.'") (citation omitted); Proffitt v. Anacomp, Inc., 747 F.Supp. 421, 425 (S.D.Ohio 1990) (finding that "[t]he language of the amended provision [4112.99] is clear and unambiguous — there is no limitation on the right to a civil action.").

These cases leave no doubt that Howard can maintain a private right of action, a claim of discrimination, under Ohio Revised Code Chapter 4112. Moreover, reading Elek in conjunction with the language of section 2506.11, this Court concludes that Ohio Revised...