Summary
distinguishing in the facts between property "zoned for residential use" and property "zoned for commercial use"
Summary of this case from Symmes Township Board of Trustees v. SmythOpinion
No. 75-1081
Decided November 17, 1976.
Declaratory judgment — Constitutionality of zoning ordinance — Appropriateness of remedy — Right to relief not barred, when.
APPEAL from the Court of Appeals for Lorain County.
Appellant, G.S.T., is an Ohio partnership owning a parcel of land at the northeast corner of the intersection of Lake and Moore roads in Avon Lake. The parcel is bordered by Moore Road to the west, by Lake Road to the south, and by the Avon Lake Municipal water works to the north and east. G.S.T.'s property and the land on the southeast corner of the intersection are zoned for residential use. The properties on the northwest and southwest corners of the intersection are zoned for commercial use.
In the summer of 1973, G.S.T. petitioned the Avon Lake Planning Commission for a rezoning of its land from residential to commercial use. The petition was denied. In January 1974, G.S.T. requested city council to place the issue of rezoning its land on the May ballot. That request was also denied.
Having failed to obtain a legislative rezoning, G.S.T. then filed an action in the Court of Common Pleas for a declaratory judgment on the constitutionality of the Avon Lake zoning ordinance. G.S.T. did not seek administrative relief by requesting a building permit or a variance before it filed suit.
The Court of Common Pleas, following a hearing, declared the zoning ordinance unconstitutional. Upon appeal, the Court of Appeals reversed the trial court, raising, sua sponte, the "question of the propriety of the remedy" sought by G.S.T. In so doing, the court stated:
"Although the complaint says a controversy has arisen concerning this property, there is no testimony shown by the record before us indicating more than a difference of opinion between the owners of the land and Avon Lake as to the use to which it should be placed. No one has asked an official for a permit to construct a building on this corner lot."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Messrs. Laux Tassie, Mr. Richard T. Laux and Mr. James G. Tassie, for appellant.
Mr. Dale E. Barnard, director of law, and Mr. Robert Hart Stotter, for appellee Avon Lake.
The primary issue presented by this cause is whether the Court of Common Pleas should have entertained appellant's declaratory judgment action even though G.S.T. had not applied for a building permit.
When, as in this cause, the alternative remedies available to the landowner are administrative, two further questions must be asked: (1) whether the existence of an alternative remedy bars declaratory relief; and (2) whether the landowner must exhaust his administrative remedies before initiating a declaratory judgment action.
The contention that all administrative remedies must be exhausted "is distinct from the assertion that a declaratory judgment action does not lie where an alternative remedy is available * * *." Gannon v. Perk (1976), 46 Ohio St.2d 301, 309.
R.C. 2721.03 makes declaratory judgment actions available to persons, like the appellant, "whose rights, status, or other legal relations are affected by a * * * municipal ordinance * * *." Civ. R. 57 provides that, "[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." In addition, this court has recently ruled that declaratory relief is appropriate for a landowner challenging "the constitutionality of the zoning restrictions on * * * [his] land," even though he has available the alternative, nonexclusive remedy of an R.C. Chapter 2506 review of an administrative order. Driscoll v. Austintown Associates (1975), 42 Ohio St.2d 263, 268; Gates Mills Investment Co. v. Pepper Pike (1975), 44 Ohio St.2d 73, 77. Since appellant is affected by a municipal ordinance, and, since it is challenging that ordinance on constitutional grounds, declaratory relief is appropriate in this cause.
The second question raised by the Court of Appeals' ruling is whether appellant's failure to apply for a building permit constitutes a failure to exhaust any administrative remedy that could provide it with the relief it seeks. Driscoll v. Austintown Associates, supra, at page 273. The failure-to-exhaust-administrative-remedies doctrine is a court-made rule of judicial economy which can be asserted as an "affirmative defense" to an action by a landowner for declaratory relief. As an affirmative defense, it can be waived if it is not "timely asserted." Driscoll v. Austintown Associates, supra, at
Appellee urges, however, that its "general denial" of appellant's allegations about attempting to obtain rezoning has preserved the affirmative defense of failure to exhaust administrative remedies. That argument is without merit because rezoning is a legislative remedy. Therefore, pursuant to Driscoll, the defense of failure to exhaust administrative remedies is not available to the appellee.
Appellee asserts that the trial court abused its discretion by granting declaratory relief when the appellant "failed to present a justiciable controversy that may be resolved or terminated by a declaratory judgment." This assertion is basically a charge that the trial court abused its discretion. Since the issue was not raised at the appellate level, we decline to decide it. State v. Abrams (1974), 39 Ohio St.2d 53, 55.
Appellee's other assertions of error require this court, against our established practice, to weigh the evidence. We decline to do so. State, ex rel. Pomeroy, v. Webber (1965), 2 Ohio St.2d 84.
Since appellant's right to declaratory relief is not barred by the availability of an alternative, nonexclusive remedy or by the timely asserted affirmative defense of failure to exhaust administrative remedies, the judgment of the Court of Appeals is reversed, and the cause is remanded to that court for further proceedings.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.