Women of the Old W. End, Inc. v. Toledo City Council

Decision Date17 September 2021
Docket NumberNo. L-20-1181,L-20-1181
Citation178 N.E.3d 133
Parties WOMEN OF THE OLD WEST END, INC., Appellant v. TOLEDO CITY COUNCIL, et al., Appellees
CourtOhio Court of Appeals

Terry J. Lodge, Toledo, for appellant.

Dale R. Emch, Director of Law, Jeffrey B. Charles, Chief of Litigation, and Karlene D. Henderson, Senior Attorney, for appellees.



{¶ 1} This is an appeal from a judgment of the Lucas County Common Pleas Court dismissing the R.C. 2506 appeal filed by appellant, the Women of the Old West End, Inc., also known in the record as WOWE. For the reasons set forth below, this court affirms, in part, and reverses, in part, the judgment of the lower court.

{¶ 2} Appellant sets forth two assignments of error:

I. WOWE was improperly denied a quasi-judicial hearing before the Toledo City Council Zoning and Planning Committee, which was obligated to give notice and an opportunity for hearing to appellant.
II. The Common Pleas Court incorrectly and unlawfully held that the Commissioner's opinion on standing is an administrative procedure requiring exhaustion.
I. Background

{¶ 3} The following facts are relevant to this appeal. On January 21, 2020, appellant concurrently filed written notices of appeal with appellees Toledo City Council and Toledo City Plan Commission pursuant to Toledo Municipal Code 1111.0811(A) to oppose on substantive and procedural grounds the approved Warren Commons major site plan review application SPR-55-19. On January 9, 2020, appellee Toledo City Plan Commission approved the Warren Commons major site plan review application by the developer, TASC of Northwest Ohio, Inc. Warren Commons is a new 46-unit apartment building in the city of Toledo to address homelessness, and which appellant described as "permanent supportive housing for people coming out of the criminal justice system."

{¶ 4} Appellant refers to itself in the record in various ways: as a "nonprofit corporation," as a "nonprofit association," and as an "unincorporated association." Appellant, however, consistently claims to represent its members as "an organization dedicated to preserving the integrity of the Old West End neighborhood and environs."

Toledo Municipal Code 1111.0811(A) authorizes "[a]ny person aggrieved by a final decision on a site plan application may make an appeal." Appellant claimed to be an "aggrieved person" because some of its members "live, work or otherwise conduct business within a few hundred feet of the location of the proposed Warren Commons project," adding, "[w]e will provide full information in support of standing at the appeal hearing."

{¶ 5} The major site plan review appeal hearing did not occur. Prior to granting an appeal hearing, appellee Toledo City Plan Commission required appellant to first establish standing as an "aggrieved person." In response, appellant submitted two affidavits from WOWE members while also concurrently objecting that appellee's requirement was an extra burden on appellant not found in the Toledo Municipal Code, city of Toledo ordinances, or state statutes. On April 6, 2020, pursuant to Toledo Municipal Code 1111.1900, appellee Toledo City Plan Commission denied appellant a major site plan review appeal hearing after determining appellant is "not a ‘person aggrieved’ [and] has not demonstrated unique harm and, therefore, does not have standing to appeal the above referenced site plan review decision of the Plan Commission." Appellee's determination relied on an advisory interpretation provided by the city of Toledo's Department of Economic Development, Division of Building Inspection, which, in turn, relied on this court's decision in Neuendorff v. Gibbons , 6th Dist. Lucas No. L-17-1238, 2018-Ohio-2980, 2018 WL 3602998.

{¶ 6} Then on May 6, 2020, appellant filed a notice of appeal in the Lucas County Common Pleas Court pursuant to R.C. 2505 and 2506 seeking a remand to appellee Toledo City Council to address the merits of appellant's Warren Commons major site plan review appeal. That case was assigned case No. CI2020-2106.

{¶ 7} Concurrently, appellant filed a complaint, as amended, for declaratory judgment pursuant to R.C. 2721.04 against the city of Toledo in the Lucas County Common Pleas Court requesting an interpretation of the legal meaning and effect of Toledo Municipal Code 1111.0811. That case was assigned case No. CI2020-2107. Appellant voluntarily dismissed that cause of action without prejudice on March 1, 2021.

{¶ 8} On May 29, 2020, appellees filed a motion to dismiss case No. CI2020-2106 pursuant to Civ.R. 12(B)(1) and (B)(6). Appellees argued the Lucas County Common Pleas Court lacked subject-matter jurisdiction over appellant's R.C. 2506 appeal because there was no final, appealable order. In response, appellant argued appellee's decision that appellant lacked standing was the final order because appellant was denied the right to prosecute the quasi-judicial zoning appeal to appellee Toledo City Council by an erroneous, and unrequested, interpretation of the zoning code.

{¶ 9} On September 21, 2020, the Lucas County Common Pleas Court granted appelleesmotion to dismiss for appellant's failure to exhaust all administrative remedies before the zoning board of appeals. The lower court found that sections 1111.1901, 1111.1902, 1111.1906, and 1111.2001 of the Toledo Municipal Code were clear and unambiguous in identifying the administrative remedies appellant was required to follow prior to filing its R.C. 2506 administrative appeal in common pleas court. The lower court concluded that appellant's failure to obtain a final, appealable order from those mandatory administrative remedies not only deprived the common pleas court of subject-matter jurisdiction on appeal, but also failed to state a claim upon which relief could be granted.

{¶ 10} This appeal ensued.

II. Standard of Review

{¶ 11} "The standard of review for a dismissal pursuant to Civ.R. 12(B)(1) is whether any cause of action cognizable by the forum has been raised in the complaint." State ex rel. Bush v. Spurlock , 42 Ohio St.3d 77, 80, 537 N.E.2d 641 (1989). We review the lower court's Civ.R. 12(B)(1) decision on the lack of subject-matter jurisdiction de novo. Mt. Pilgrim Baptist Church, Inc. v. Bishop , 2015-Ohio-5161, 56 N.E.3d 245, ¶ 34 (6th Dist).

{¶ 12} In addition, we review de novo the lower court's decision granting a motion to dismiss pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted by accepting as true all factual allegations in the complaint. Alford v. Collins-McGregor Operating Co. , 152 Ohio St.3d 303, 2018-Ohio-8, 95 N.E.3d 382, ¶ 10. " [T]hose allegations and any reasonable inferences drawn from them must be construed in the nonmoving party's favor.’ To grant the motion, ‘it must appear beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to the relief sought.’ " (Citations omitted.) Id.

{¶ 13} We also review de novo appellant's assertion of standing in this matter as a question of law. Image Group of Toledo, Inc. v. Holland-Springfield Twp. Joint Economic Dev. Zone , 6th Dist., 2017-Ohio-4470, 93 N.E.3d 343, ¶ 9.

III. Motion to Dismiss

{¶ 14} We will address the assignments of error out of order.

A. R.C. 2506 Standing

{¶ 15} In its second assignment of error, appellant argues the lower court erred when it dismissed the R.C. 2506 appeal for lack of subject-matter jurisdiction. In response, appellees argue Toledo Municipal Code 1111.2001 controls, which authorizes the board of zoning appeals to hear and decide appeals that claim error "in any order, requirement, decision or determination * * * in the administration or enforcement of the provisions of the Zoning Code." Appellees argue appellant deprived the lower court with subject-matter jurisdiction when it failed to appeal to the board of zoning appeals.

{¶ 16} We find neither argument is persuasive. This is not a case of first impression. This court has previously held that appellant, as a nonprofit corporation or unincorporated association, does not have standing to bring an administrative appeal under R.C. 2506 on behalf of its members who have standing to sue individually. Women of Old W. End, Inc. v. Toledo , 6th Dist. Lucas No. L-97-1204, 1998 WL 334188, *4 (June 5, 1998), citing Northern Woods Civic Ass'n v. City of Columbus Graphics Com'n , 31 Ohio App.3d 46, 508 N.E.2d 676 (10th Dist.1986), syllabus. In that case, there were two distinct plaintiffs-appellants: WOWE, alleging standing through its members’ properties to appeal the grant of a special use permit to a group home, and David Neuendorff, alleging standing through his own property. Mr. Neuendorff was not identified in our decision as a WOWE member, and we cannot now assume he was.

{¶ 17} In our prior opinion Mr. Neuendorff was identified as a "property owner who appeared either in person or in writing during the administrative process and whose rights as a property owner were affected by the passage of Ordinance No. 753-95." We determined the foregoing facts supported our finding that Mr. Neuendorff had individual R.C. 2506 standing and that, although appellant had standing as a nonprofit corporation or unincorporated association to file an action for declaratory judgment or injunctive relief on behalf of its members in the voluntary association who have standing to sue individually, there was nothing in R.C. 2506 to suggest that an administrative appeal may be brought by appellant on behalf of its members. Id.

{¶ 18} In contrast, Mr. Neuendorff is not a party in this matter, did not submit an affidavit he is a WOWE member, and, in a reversal of roles, is identified by appellant as somehow representing it. Appellant asserts in the record that, "On December 6, 2019, Mr. Neuendorff, on behalf of WOWE , requested in an email to Ryne Sunvold of the Plan Commission staff that WOWE and other neighborhood organizations be...

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