Opinion
No. 75-55
Decided November 26, 1975.
Zoning — Constitutionality of zoning ordinance — Declaratory judgment action available, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Plaintiff is the owner of property, approximately one mile long and 100 feet wide, which is the median strip of Gates Mills Boulevard between Brainard and Lander Circles in the village of Pepper Pike. The background to the present controversy is set forth in detail in Gates Mills Investment Co. v. Parks (1971), 25 Ohio St.2d 16, wherein plaintiff sought an order requiring the recording of a plat of a proposed subdivision of such property, on which it plans to construct single-family dwellings. This court held that the plat was entitled to recordation.
Thereafter, plaintiff brought the present declaratory judgment action, in the Court of Common Pleas of Cuyahoga County, contending that zoning Ordinance No. 1970-7 of defendant village, which required, among other things, minimum lot widths of 125 feet and a setback of 75 feet, "is inapplicable to plaintiff's property, and/or is unconstitutional in general, and/or is unconstitutional in its specific application to plaintiff's property." Plaintiff asked that "the court determine all questions of the construction and validity of Ordinance No. 1970-7 and determine that plaintiff has the right to construct single-family residences upon the sublots of its division * * *."
Pepper Pike Ordinance No. 1970-7, as applicable here:
"Section 7. Classification of Areas.
"* * *
" A-1 Areas. * * * no building shall be erected, altered or used to accommodate or make provision for one family upon an area * * * having a width at the line of the building nearest the street of less than 125 feet, * * *.
"* * *
"Section 8. Width of Lots in Use District.
"In a class U-1 or U-2 District, no single-family dwelling shall be erected on a lot having an average width of less than 125 feet * * *.
"* * *
"Section 11. Front Yards, Building and Set-Back Lines.
"(A) Building and set-back lines are established as follows:
"* * *
"(a) * * * for properties fronting upon * * * Brainard Road, Lander Road, S.O.M. Center Road, or Gates Mills Boulevard, the building line shall be parallel to the street line and distant 75 feet therefrom."
Defendant village moved for dismissal of "the within action on the ground that the court lacks subject matter jurisdiction of the matters with respect to which relief is sought in plaintiff's amended complaint."
Plaintiff subsequently filed discovery motions and sought an order compelling discovery.
By interrogatories, plaintiff sought to discover, inter alia, "whether there is anything inherent in the size, shape, dimensions * * * of any of the sublots * * * which would require your inspector of buildings to refuse to issue a permit for construction of a single-family dwelling upon any of them," and a detailed description of "all actions under your ordinances which could be taken by plaintiff to obtain the issuance of such building permits." Plaintiff also sought answer to the question "whether * * * [the] zoning commission may issue a variance to permit the construction of a single-family dwelling upon each of plaintiff's sublots."
The Court of Common Pleas granted the village's motion to dismiss, but did not grant plaintiff's discovery motions.
The Court of Appeals held that "since the court had no jurisdiction over the subject matter, it was without authority to rule upon procedural matters arising out of the cause of action."
The Court of Appeals, with one judge dissenting, affirmed, and the cause is now before this court pursuant to our allowance of a motion to certify the record.
Mr. Donald L. Goldman, Messrs. Rini Hecht and Mr. Martin A. Rini, for appellant.
Messrs. Baker, Hostetler Patterson, Mr. Richard R. Hollington, Jr., Mr. Oakley V. Andrews, Mr. Thomas M. Seger, Messrs. Walter, Haverfield, Buerscher Chockley and Mr. Robert L. Musser, for appellee.
R.C. 2721.03 provides that "any person * * * whose rights, status, or other legal relations are affected by a * * * municipal ordinance * * * may have determined any question of construction or validity arising under such * * * ordinance * * * and obtain a declaration of rights, status, or other legal relations thereunder."
Defendant village characterizes the question at issue to be whether the complaint states a cause of action for declaratory judgment. It admits that, because of the peculiar size and shape of the lots involved, a variance is necessary to enable plaintiff to build single-family dwellings thereon. But, argues the village, in the absence of a request for a variance, there is no justiciable controversy, and the existence of a justiciable controversy is necessary to support the maintenance of an action for declaratory judgment.
Plaintiff contends that the procedure for getting a variance under the village's ordinance is "onerous and unduly expensive" and that, in this case, it was not necessary, as a prerequisite to this declaratory judgment action, that plaintiff attempt to obtain a variance.
For instance, in the amended answer of the planning commission in the subdivision plat case (see Gates Mills Investment Co. v. Parks, 25 Ohio St.2d 16, at page 18), a reason given for denying the proposed plat was that it failed to meet the 125-foot width and the 75-foot setback requirements of the village's zoning ordinance.
A majority of the Court of Appeals held that the Court of Common Pleas was without jurisdiction "to decide questions regarding the applicability of a zoning ordinance to a particular parcel of land when the appellant has not so much as applied for a building permit or a variance." The majority of the court also said that the Court of Common Pleas was "warranted in refusing to entertain the action for declaratory judgment regarding the question of the constitutionality of the ordinance in general because such a judgment would not necessarily terminate the uncertainty or controversy giving rise to the proceeding." It was, the court said, not intended "that the Common Pleas Court infringe upon the municipality's authority [as to the application of zoning ordinances] by exercising original jurisdiction in zoning matters by means of a declaratory judgment action." (All emphasis added.)
However, in the recent case of Driscoll v. Austintown Associates (1975), 42 Ohio St.2d 263, this court held that:
"1. The constitutionality of a zoning ordinance, as it applies to a specific parcel of property to proscribe the owner's proposed use of the property, can be determined in a declaratory judgment action.
"2. The availability of a R.C. Chapter 2506 action to review the denial of a variance sought by the owner of a specific tract of land does not preclude a declaratory judgment action which challenges the constitutionality of the zoning restrictions on that land.
"* * *
"4. If a landowner has available to him an administrative remedy which can provide him with appropriate relief from a zoning restriction, and the administrative remedy is neither onerous nor unusually expensive, the landowner must exhaust that administrative remedy prior to instituting a declaratory judgment action challenging the constitutionality of the zoning restriction.
"5. The doctrine of `failure to exhaust available administrative remedies' is an affirmative defense to a declaratory judgment action challenging the constitutionality of a zoning restriction, and if this defense is not timely asserted in that action, it is waived."
Therefore, under Driscoll v. Austintown, the Common Pleas Court had jurisdiction of the subject matter of plaintiff's complaint, and, for the reasons stated in Driscoll, it was error for the court to dismiss plaintiff's complaint for declaratory judgment on a motion seeking dismissal for lack of jurisdiction over the subject matter.
See, also, Civ. R. 57.
Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings conforming to this court's opinion in Driscoll.
Judgment reversed.
O'NEILL, C.J., PUTMAN, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
PUTMAN, J., of the Fifth Appellate District, sitting for HERBERT, J.,