Ohio Mall Contractors, Inc. v. Dickinson

• Decision Date: 02 January 1990
• Docket Number: No. 88-P-2025,88-P-2025
• Parties: OHIO MALL CONTRACTORS, INC., v. DICKINSON, Judge, et al.
• Court: Ohio Court of Appeals

Page 806

65 Ohio App.3d 806

585 N.E.2d 506

OHIO MALL CONTRACTORS, INC., v. DICKINSON, Judge, et al.

No. 88-P-2025.

Court of Appeals of Ohio, Eleventh District, Portage County.

Decided Jan. 2, 1990.

John Lutseck, Bedford, for relator.

James Silver, Aurora, for respondents.

PER CURIAM.

Relator, Ohio Mall Contractors, Inc., applied to the city of Aurora for a conditional zoning permit for the purpose of building a condominium development in a district which had been zoned R-4. Under the terms of the Aurora Zoning Code, condominiums are a conditionally permitted use in R-4 districts.

Relator's application was approved by the Aurora City Council on September 27, 1983 (effective October 27, 1983) in Resolution No. 1983-112. This resolution contained the following language:

"No development or construction shall be commenced until preliminary and final plats have been approved by the City Planning Commission and any necessary variances obtained."

Aurora Resolution No. 1983-112 does not contain any provision detailing the penalties, if any, associated with noncompliance of the resolution's requirements.

Although not contained in the body of the resolution, respondents claim that the city of Aurora affixed several conditions upon the final granting of approval to relator. Among these conditions were requirements that relator place two coats of blacktop on Cherry Park Drive (one of the roads in the condominium development). A second requirement mandated that the relator properly grade and drain some of the land in the condominium complex.

Relator constructed the condominiums allowed under Aurora Resolution No. 1983-112 and has apparently sold a number of the units. However, neither of the related conditions was performed by relator. Consequently, the city of Aurora attempted to prosecute relator for its alleged failure to comply with the terms of the conditional zoning permit, using the criminal sanctions found in Aurora Codified Ordinances Section 1115.99, which is the subdivision penalty provision of the Aurora Zoning Code. This section provides:

"The owner or owners of any building or premises or part thereof where anything in violation of these Subdivision Regulations is placed or exists, and any tenant or occupant of such building or premises, and any architect, builder or contractor who assists in the commission of such violation, and any person who violates any of the provisions of these regulations or fails to comply therewith shall be fined not less than twenty-five dollars ($25.00) nor more than ($50.00). Each day such violation or failure to comply exists shall constitute a separate offense." (Emphasis added.) Id.

The city filed its complaint in the Portage County Municipal Court (respondents) where it was assigned to Judge Perry Dickinson on May 19, 1988, alleging violations of Aurora Codified Ordinances Sections 1107 and 1108. On July 19, 1988, relator filed a motion to dismiss for lack of jurisdiction on the ground that the city of Aurora had no jurisdiction to enforce its subdivision regulations upon a condominium developer. This motion was denied on October 13, 1988.

Consequently, relator filed a petition with this court asking for a writ of prohibition to prevent the judge and Portage County Municipal Court from exercising jurisdiction over the criminal prosecution of relator. Relator's argument states that condominium property is not subject to subdivision regulations, that the city of Aurora's criminal charges have no statutory basis, and that the respondents cannot rewrite the Aurora Municipal Code so that a new codified source for penalizing relator would exist.

Relator's first argument is premised on R.C. 5311.02, which states:

"Chapter 5311. [the Ohio condominium property laws] of the Revised Code applies only to property that is specifically submitted to its provisions by the execution and filing for record of a declaration by the owner, as provided in this chapter. * * * Neither the submission of property to the provisions of this chapter, nor the conveyance or transfer of a condominium ownership interest constitutes a subdivision within the meaning of, or is subject to, Chapter 711. of the Revised Code."

Relator also relies on two Ohio Attorney General Opinions, 1986 Ohio Atty.Gen.Ops. Nos. 86-039 and 86-074, for the principle that condominiums are specifically exempted from the provisions of the Ohio Revised Code governing subdivisions. Moreover, relator correctly denotes that a city generally cannot, by means of local ordinance, enact legislation which is in conflict with a state statute. Fondessy Enterprises, Inc. v. Oregon (1986), 23 Ohio St.3d 213, 23 OBR 372, 492 N.E.2d 797; Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N.E. 519. (All parties have stipulated to the fact that relator's property is indeed condominium property.)

Respondents contend that relator's position is inapposite to that traditionally described by the statutes since relator was granted permission to build its condominiums under a conditional zoning permit. Under the rule announced in Nunamaker v. Bd. of Zoning Appeals (1982), 2 Ohio St.3d 115, 118, 2 OBR 664, 667, 443 N.E.2d 172, 175:

"[T]he special permit results in the establishment or maintenance of a use in the location and under the circumstances mandated by the zoning ordinance or resolution, and such permit may be granted upon whatever terms are imposed by the zoning ordinance or resolution." Id. at 118 [2 OBR at 667, 443 N.E.2d at 175], citing Boston v. Montville Twp. Zoning Bd. of Appeals (1972), 32 Ohio Misc. 118, 120-121, 61 O.O.2d 184, 186, 289 N.E.2d 184, 186.

Therefore, respondents contend, since relator applied for the conditional zoning permit, it was responsible for following any terms set forth in the ordinance.

Respondents are correct in their reading of Nunamaker and Boston, supra. Relator, in the case sub judice, applied for a conditional zoning permit in an area of the city of Aurora zoned R-4. The city granted relator's application, in Resolution No. 1983-112, subject to the fulfillment of several conditions. Had the city of Aurora so chosen, it could have stated in the resolution that failure to comply with the stated conditions would subject relator to the penalties delineated in Aurora Codified Ordinances Section 1115.99 and the penalties would be valid and enforceable, notwithstanding the fact that the penalty provision was originally drafted to pertain to subdivision property, rather than condominiums.

However, the city of Aurora did not choose to expressly incorporate the penalty provisions of Aurora Codified Ordinances Section 1115.99 into Resolution No. 1983-112, nor was any...