Schomaeker v. First Nat. Bank of Ottawa

• Decision Date: 03 June 1981
• Docket Number: No. 80-885,80-885
• Citation: 20 O.O.3d 285,66 Ohio St.2d 304,421 N.E.2d 530
• Parties: , 20 O.O.3d 285 SCHOMAEKER, Appellee, v. FIRST NATIONAL BANK OF OTTAWA et al., Appellants.
• Court: Ohio Supreme Court

Page 304

66 Ohio St.2d 304

421 N.E.2d 530, 20 O.O.3d 285

SCHOMAEKER, Appellee, v. FIRST NATIONAL BANK OF OTTAWA et al., Appellants.

No. 80-885.

Supreme Court of Ohio.

June 3, 1981.

Syllabus by the Court

1. R.C. 713.01 et seq. authorizes the creation by a village legislative authority of a planning commission empowered to frame zones or districts for that village. The village legislative authority may also grant such commission the power to administer and permit variances to the zoning regulations.

2. The order of a village planning commission granting a use variance is appealable pursuant to R.C. Chapter 2506. A person owning property contiguous to the proposed use who has previously indicated an interest in the matter by a prior court action challenging the use, and who attends a hearing on the variance together with counsel, is within that class of persons directly affected by the administrative decision and is entitled to appeal under R.C. Chapter 2506.

3. A person entitled under R.C. Chapter 2506 to appeal the order of a planning commission granting a variance pursuant to a village ordinance is not entitled to a declaratory judgment where failure to exhaust administrative remedies is asserted and maintained.

Defendant-appellant, First National Bank of Ottawa, operates a bank in the village of Ottawa, Ohio, on property zoned B-2, central business district, designated pursuant to Ottawa Zoning Ordinance No. 944.

In order to provide expanded employee and customer parking, the bank negotiated an option to purchase Inlot No. 19, a parcel separated from the bank's property only by an alley. Inlot No. 19 is located in an area zoned R-1, residential.

The bank applied for a variance to permit use of Inlot No. 19 as a parking lot. The village clerk authorized the use by issuing a certificate of occupancy. The bank thereupon bought and acquired title to Inlot No. 19.

Thereafter, plaintiff-appellee, Eileen D. Schomaeker, a contiguous property owner in the R-1 residential area, filed an injunction against the bank in case No. 77-104, in the Court of Common Pleas of Putnam County challenging the certificate of occupancy granted the bank for Inlot No. 19. The court enjoined the bank from developing a parking lot on Inlot No. 19 until it could obtain a valid variance from the village of Ottawa Planning Commission. Pursuant to this court order, the bank applied to the planning commission for a use variance. After a public hearing attended by a number of interested citizens including plaintiff, the planning commission granted the use variance sought by the bank, making it subject to specific conditions involving landscaping, lighting and fencing.

Plaintiff then instituted the present action in the Court of Common Pleas, seeking a declaratory judgment holding the use variance granted by the planning commission void. The court declared that the planning commission fully complied with the applicable zoning provisions in granting the use variance in question.

Plaintiff then appealed this judgment to the Court of Appeals which, by a split decision, reversed the trial court. It held that the grant of a use variance, in effect, constituted rezoning as a matter of law. Such legislative action, the court decided, exceeded the authority of the planning commission to grant variances as provided by Section 402.3 of the zoning ordinance. To authorize a use not permitted by the zoning ordinance would require legislative action by the village council.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

Recker, Cunningham & Cunningham and Paul H. Cunningham, Ottawa, for appellee.

Vorys, Sater, Seymour & Pease, James B. Cushman and Robert E. Leach, Columbus, Unverferth & Unverferth and Thomas A. Unverferth, Ottawa, for appellant First National Bank of Ottawa.

Schroeder, Schroeder & O'Malley Co., L. P. A., and George E. Schroeder, Ottawa, for appellant village of Ottawa.

CLIFFORD F. BROWN, Justice.

In order to determine whether the Court of Appeals ruled correctly when it held the order of the planning commission invalid, we consider, seriatim, the power of villages to enact zoning ordinances, the authority granted by the Ottawa Zoning Ordinance, and the effect of the action by the planning commission.

We conclude that the order of the commission effectively granted a use variance, as authorized in the Ottawa Zoning Ordinance, and was not rezoning. We further hold that plaintiff was not entitled to declaratory judgment relief in the common pleas court, because such an action does not lie when a direct appeal to the common pleas court pursuant to R.C. Chapter 2506 is available. In any event, plaintiff was collaterally estopped from raising the propriety of a use variance, given a prior judgment necessarily adjudicating this issue.

To decide the validity of this use variance, we first explore the power of municipalities, such as the village of Ottawa, to enact and enforce zoning ordinances.

Section 3, Article XVIII of the Ohio Constitution confers upon municipalities "authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws." R.C. 713.01 et seq. authorize the creation by a village legislative authority of a planning commission empowered to frame zones or districts for that village. Such districts may, among other things, exclude business and trade from residential areas, pursuant to the police power. Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303. Additionally, R.C. 713.11 empowers the village legislative authority to delegate to the planning commission or other administrative board the power to administer the details of the zoning regulations, including "the power * * * to permit exceptions to and variations from the district regulations in the classes of cases or situations specified in the regulations * * *."

This broad authorization in R.C. 713.11 to grant variances encompasses both "area" and "use" variances. A use variance permits land uses for purposes other than those permitted in the district as prescribed in the relevant regulation. An example of a use variance is a commercial use in a residential district. Area variances do not involve uses, but rather structural or lot restrictions. An example of an area variance is relaxation of setback lines or height restrictions. See 82 American Jurisprudence 2d 792-793, Zoning and Planning, Section 256.

Given the broad grant of power in R.C. 713.11 to allow use and area variances, a municipal corporation is not required to delegate to its planning commission the full power authorized by statute. 10 Ohio Jurisprudence 3d 488, Building, Zoning and Land Controls, Section 280. Thus, some municipal ordinances grant the zoning board power to interpret the regulations, but not to grant variances. Kaufman v. Newburgh Heights (1971), 26 Ohio St.2d 217, 271 N.E.2d 280. Other municipal ordinances specifically prevent the zoning board from effecting changes in the uses permitted in any district. State ex rel. Davis Investment Co. v. Columbus (1963), 175 Ohio St. 337, 194 N.E.2d 859; McCloud v. Woodmansee (1956), 165 Ohio St. 271, 135 N.E.2d 316.

The zoning ordinance of the village of Ottawa does not differentiate between use and area variances. Section 402.3 of such ordinance provides in part:

"(a) The Planning Commission shall have the power, upon application, to authorize variances from the provisions and requirements of this Zoning Code which will not be contrary to the public interest or the intent and purpose of this Zoning Code, but only where, owing to special conditions pertaining to a specific piece of property, the strict application of provisions or requirements of this Zoning Code would cause undue or unnecessary hardship."

" * * *

"(c) In modifying the literal interpretation and strict application of the provisions of this Zoning Code and in authorizing a variance therefrom, the Planning Commission may impose such requirements and conditions regarding the location, character and other features of the proposed uses or structures as he may deem necessary in order to carry out the intent and purpose of this Zoning Code, and to safeguard otherwise the public health, safety, convenience and general welfare."

The ordinance in question here clearly indicates a grant of the power to allow both use and area variances. First, the term variance is used without any modifier. Second, paragraph (c) anticipates the grant of use and area variances, when, in authorizing the imposition of special conditions when granting a variance, it refers to "the proposed uses or structures." Finally, the ordinance establishes guidelines for the grant of variances, again without specifying use or area. These guidelines are considerations inherently applicable to requests either for use or area variances.

Paragraph (b) of Section 402.3 of the Ottawa Zoning Ordinance provides:

"No such variance shall be authorized by the Planning Commission unless the Planning Commission finds that all the following facts and conditions exist:

"(1) Exceptional or extraordinary circumstances or conditions applying to the subject property that do not apply generally to other properties in the same District or Vicinity.

"(2) The special circumstances or conditions do not result from actions of the property owner or any of his predecessors in title.

"(3) Such variance is necessary for the preservation and enjoyment of a substantial property right of the applicant possessed by owners of other properties in the same District or Vicinity.

"(4) The authorization of such variance will not be materially detrimental to the public welfare or injurious to property in the District or Vicinity in which the property is located."

The planning commission found all four of the conditions specified in...