Summary
holding that the failure to exhaust administrative remedies may be a defense only if there is an effective remedy to afford the relief sought
Summary of this case from State ex rel. 506 Phelps Holdings, LLC v. Cincinnati Union BethelOpinion
No. 70-221
Decided June 23, 1971.
Zoning — Municipal board of zoning appeals — Powers and duties — May not permit zoning regulations exceptions and variations, when — R.C. 713.11 — Declaratory judgment — Available remedy, when — No effectual administrative remedy available.
1. The doctrine of "failure to exhaust administrative remedies available" may be a defense to an original action to review an action of an administrative officer only if interposed and if there is remedy which is effectual to afford the relief sought.
2. Where an ordinance grants the power to interpret zoning regulations to a municipal board of zoning appeals, such power does not include the power to permit exceptions to and variations from the regulations, which power is authorized to be delegated to such a board by R.C. 713.11.
APPEAL from the Court of Appeals for Cuyahoga County pursuant to the allowance of a motion to certify the record.
Elliott M. Kaufman purchased a vacant parcel of land located at the northwest corner of Harvard Avenue and East 49th Street in Newburgh Heights, a nonchartered municipal corporation. Kaufman's application for a permit to build a gasoline service station thereon was rejected by the village building commissioner for the reason that it would have violated the municipal zoning code.
Although the Harvard Avenue frontage is zoned for retail business which would permit the service station, this zone extends less than one-third of the property depth along the East 49th Street curb line and as little as 15 feet at the west boundary. Thus, the entire parcel is, for all practical purposes, restricted to residential uses.
Harvard Avenue, within the village of Newburgh Heights, is a heavily travelled four-lane highway and, excluding a municipally-owned park area, both sides of the right of way are zoned for retail or commercial uses to a depth of at least 100 feet except the corner parcel belonging to Kaufman. The other three corners of the Harvard Avenue and East 49th Street intersection are occupied by the village hall, including the police and fire departments with appropriate parking facilities, the city of Cleveland automotive repair yards, and a retail gasoline service station.
An intersection traffic count prepared by the Cuyahoga County Engineer's office shows that over 20,000 vehicles have used the Harvard Avenue-East 49th Street intersection during a given 12-hour period.
The adjacent property to the north of the intersection is residential and so zoned on the west side of East 49th Street. On the opposite side is a publicly owned park including the village hall. The street is a four-lane thoroughfare carrying southbound truck, bus and auto traffic from Willow Freeway to Harvard Avenue.
Before the building permit was requested, Kaufman's application to the village council for a change of the residential portion of the property to retail zoning had been unanimously rejected.
After the refusal of his building permit and without appealing to the Newburgh Heights Board of Zoning Appeals, Kaufman filed this declaratory judgment action in the Court of Common Pleas, alleging unconstitutionality of the zoning ordinance as applied to his corner location, and sought a mandatory injunction against the building commissioner. The Common Pleas Court held for the village, finding the zoning ordinance reasonable, valid and constitutional.
The Court of Appeals reversed, holding that the zoning ordinance was unconstitutional as applied to the property in question, and that an exhaustion of administrative remedies was not a prerequisite to the declaratory judgment action in this case.
Mr. Charles E. Merchant, for appellee.
Mr. Arthur P. Lambros, for appellants.
Newburgh Heights does not here contend that its zoning ordinance is constitutional with respect to the Kaufman parcel, but that Kaufman had no right to attack that constitutionality without first appealing to the board of zoning appeals. We disagree, and, therefore, affirm.
It is axiomatic that the doctrine of "failure to exhaust administrative remedies available" may be a defense to an action in mandamus ( State, ex rel. Schindel, v. Rowe, 25 Ohio St.2d 47; State, ex rel. Foreman, v. City Council, 1 Ohio St.2d 132; State, ex rel. Lieux, v. Westlake, 154 Ohio St. 412) ; to an action for a declaratory judgment (cf. Burt Realty Corp. v. Columbus, 21 Ohio St.2d 265); or to an action for damages ( Ladd v. New York Central Rd. Co., 170 Ohio St. 491) only if interposed (cf. Curtiss v. Cleveland, 166 Ohio St. 509, [1959], 170 Ohio St. 127), and if a remedy exists which is effectual to afford the relief sought.
Pursuant to R.C. 713.11, Newburgh Heights created an administrative board, entitled "Board of Zoning Appeals," to administer the details of its zoning regulations. That statute authorizes a delegation to such a board of the power to (1) hear and determine appeals; (2) "permit exceptions to and variations from" the zoning regulations as "specified"; and (3) "administer the regulations as specified therein."
However, Newburgh Heights chose to delegate to its board of zoning appeals only the power to "adopt such rules and regulations as it may deem necessary to carry into effect the provisions" of its zoning ordinance and "where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of [the zoning ordinance] . . . in a specific case, to interpret any such provision in harmony with the general purpose and intent of . . . [the zoning ordinance] so that its public health, safety, and general welfare may be secured and so that substantial justice may be done."
We cannot infer from that language an intent on the part of the legislative authority of the village that the board of zoning appeals should have power to permit exceptions to, and variations from, the regulations. (Cf. L. M. Investment Co. v. Cutler, 125 Ohio St. 12.) Rather, it connotes only the power to review and correct an interpretation of the zoning regulations by the administrative officers charged with their enforcement. In this case, it is agreed that most of appellee's property was in a residence district. Consequently, the building commissioner had no choice but to reject the building permit. Upon appeal, the board of zoning appeals equally would have had no jurisdiction to consider the matter.
Therefore, no effectual or adequate administrative remedy being available to appellee, he was entitled to seek a declaratory judgment in an original action.
Judgment affirmed.
O'NEILL, C.J., HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.