State ex rel. Harson Invs., Ltd. v. City of Troy
| Decision Date | 13 July 2018 |
| Docket Number | Appellate Case No. 2017-CA-22 |
| Citation | 2018 Ohio 2748 |
| Parties | STATE EX REL. HARSON INVESTMENTS, LTD., et al. Plaintiffs-Appellants v. CITY OF TROY, OHIO, et al. Defendants-Appellees |
| Court | Ohio Court of Appeals |
(Civil Appeal from Common Pleas Court)
OPINIONMICHAEL P. MCNAMEE, Atty. Reg. No. 0043861, GREGORY B. O'CONNOR, Atty. Reg. No. 0077901, 2625 Commons Boulevard, Beavercreek, Ohio 45431 Attorneys for Plaintiffs-Appellants
GRANT D. KERBER, Atty. Reg. No. 0068474, 215 West Water Street, Troy, Ohio 45373 Attorney for Defendants-Appellees
{¶ 1} In this action, Plaintiffs-Appellants, Harson Investments, Ltd., and AMK Co., LLC (collectively "Harson"), appeal from trial court judgments dismissing Harson's petition for a writ of mandamus and complaint for declaratory judgment. The Defendants-Appellees are the City of Troy; the Troy City Council; and Shannon Brandon, the Troy Zoning Inspector, (collectively, "Troy").
{¶ 2} Harson contends that the trial court erred in finding that Harson failed to exhaust administrative remedies, and, therefore, failed to state a claim for mandamus relief. According to Harson, exhaustion was not required because the City of Troy Board of Zoning Appeals ("BZA") lacked jurisdiction to grant or deny a signage application.
{¶ 3} Harson also contends that the trial court incorrectly granted judgment on the pleadings with respect to Harson's complaint for declaratory judgment. In this regard, Harson maintains that the trial court's decision renders Section 749.11(o) of the Codified Ordinances of the City of Troy ("T.C.O.") a nullity. Alternatively, Harson argues that Section 749.11(o) is ambiguous.
{¶ 4} We conclude that the trial court did not err in dismissing Harson's petition for a writ of mandamus, as Harson failed to exhaust administrative remedies following the denial of its application for a sign permit. In addition, the trial court did not err in granting Troy's motion for judgment on the pleadings with respect to Harson's request for a declaratory judgment. The ordinance outlining permissible limits for signage was not ambiguous and restricted total signage to the amounts listed in T.C.O. 749.11(o)(1), regardless of the number of tenants who occupied a commercial property. Accordingly, the judgment of the trial court will be affirmed.
{¶ 5} Harson is the owner of commercial real estate located at 1800-1808 West Main Street in Troy, Ohio. The property is zoned B-2, General Business District, and consists of a single-story retail strip center with four units: 1800, 1802, 1806, and 1808 West Main Street. The building has a 50 foot setback and has 100 feet of frontage.
{¶ 6} Prior to 2015, all four units had signage that had been approved by the Zoning Administrator. However, unit 1802 has been vacant since March 2015; the remaining units continued to be occupied and had a total of 106.38 square feet of signage for the three units.
{¶ 7} On December 8, 2016, Harson submitted an application to the Troy Zoning Administrator, seeking a sign permit for unit 1802. The application requested a sign that was 12.5 feet long and 3 feet high, for a total of 37.5 square feet. On December 13, 2016, Shannon Brandon, the Troy Zoning Inspector, sent a letter to Harson denying the application for the sign pursuant to T.C.O. 749.11(o)(1) and (2), which are part of the T.C.O. Business Regulation Code. Brandon's letter stated that:
Petition for Writ of Mandamus and Complaint for Declaratory Judgment, Doc. #1, Ex. B, p. 1.
{¶ 8} Harson did not pursue an administrative appeal of the Zoning Inspector's decision. Instead, on December 19, 2016, Harson filed a petition for writ of mandamus and complaint for declaratory judgment against Troy in the Miami County Common Pleas Court. The complaint asserted the above facts, and contained three grounds for relief: one claim for a declaratory judgment and two claims for mandamus relief. The complaint also included these exhibits: (1) the application submitted to the Zoning Inspector (Ex. A); (2) Brandon's letter (Ex. B); and (3) the affidavit of Alex Kolodesh (Ex. C). Kolodesh was the Vice President of Dayton Co., which was the sole General Partner of Harson Investments, Ltd. At the time of the application, Harson Investments, Ltd. owned the property at 1800-1808 West Main Street.
{¶ 9} On January 12, 2017, Troy filed an answer to the petition and complaint, and asserted various affirmative defenses, including failure to exhaust administrative remedies. Subsequently, on March 9, 2017, Troy filed a notice with the trial court that it had issued a sign permit to Harson on March 3, 2017. Troy attached the permit, which approved a sign of up to 25 square feet. On March 9, 2017, Troy also filed a motion to dismiss Harson's mandamus claims, contending that they failed to state a claim under Civ.R. 12(B)(6). After additional memoranda were filed, the trial court granted the motion to dismiss on June 9, 2017, based on Harson's failure to exhaust administrative remedies. Thus, the request for declaratory judgment was the only claim that remained.
{¶ 10} On July 5, 2017, Troy filed a motion for judgment on the pleadings with respect to the claim for declaratory judgment. In moving for judgment on the pleadings, Troy did not assert that Harson had failed to exhaust administrative remedies. After Harson responded to the motion and filed its own motion for judgment on the pleadings, the trial court filed a decision on August 31, 2017, concluding that T.C.O. 749.11(o) was unambiguous and capped permissible signage at 100 feet for both single occupancy buildings and buildings containing multiple units. Harson timely appealed from both judgments.
{¶ 11} Harson's First Assignment of Error states that:
The Trial Court Erred in Granting Troy's Motion to Dismiss.
{¶ 12} Under this assignment of error, Harson presents two issues for review. The first issue concerns whether Troy's code gives the BZA jurisdiction to hear appeals from a zoning administrator's decision that a particular sign would exceed the permissible message area that the code of ordinances establishes. According to Harson, T.C.O. 749.19(b) deprives the BZA of jurisdiction.
{¶ 13} As was noted, the trial court dismissed the second and third claims for relief because Harson failed to exhaust administrative remedies. The court, therefore, concluded that the requests for a writ of mandamus failed to state a claim under Civ.R. 12(B)(6). The first mandamus claim involved Harson's assertion that it had a clear legal right to have its signage approved, and that it lacked an adequate remedy at law. In the second mandamus claim, Harson alleged that it had a constitutionally protected interest in economically viable use of its property, and that the application of T.C.O. 749.11(o) resulted in an unconstitutional taking of the property.
{¶ 14} Dismissal of claims under Civ.R. 12(B)(6) is appropriate where " 'it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.' " Carter v. Trotwood-Madison City Bd. of Edn., 181 Ohio App.3d 764, 2009-Ohio-1769, 910 N.E.2d 1088, ¶ 27 (2d Dist.), quoting Crestmont Cleveland Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th Dist.2000). See also State ex rel. Hilltop Resources v. Cincinnati, 166 Ohio App.3d 171, 2005-Ohio-6817, 849 N.E.2d 1064, ¶ 10 (1st Dist.) (). We review judgments dismissing claims under Civ.R. 12(B)(6) on a de novo basis, which means " 'that we apply the same standards as the trial court.' " Carter at ¶ 26, quoting GNFH, Inc. v. W. Am. Ins. Co.,172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).
{¶ 15} Typically, parties must exhaust administrative remedies before seeking mandamus relief. State ex rel. Lieux v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414 (1951), paragraph two of the syllabus. See also State ex rel. Dynamic Industries, Inc. v. Cincinnati, 147 Ohio St.3d 422, 2016-Ohio-7663, 66 N.E.3d 734, ¶ 12 ().
{¶ 16} " 'Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.' " State ex rel. Teamsters Local Union 436 v. Cuyahoga Cty. Bd. of Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 19, quoting Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).
{¶ 17} Exceptions to exhaustion have been found in two situations: (1) where no administrative...
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