Opinion
Case No. 3:02CV7359
April 9, 2003
ORDER
Plaintiffs James L. Wise and Sandra K. Wise bring this suit against defendants Milan Township, Colleen J. Arthur, in her official capacity as the Milan Township Zoning Inspector, and Robert Doerner, in his official capacity as the former Milan Township Zoning Inspector. Plaintiffs claim defendants violated their constitutional rights by denying their zoning application. This court has jurisdiction pursuant to 29 U.S.C. § 1331. Pending is defendants' motion to dismiss plaintiffs' constitutional claim, or, in the alternative, defendants' motion for summary judgement. For the following reasons, defendants' motion to dismiss shall be granted.
BACKGROUND
In 1996, Milan Township issued a zoning permit allowing plaintiffs to construct their residence on the property located at 13901 Shawmill Road, Milan, Ohio.
In February, 1999, plaintiffs planned to construct a "storage facility" on the lot owned by them at 13903 Shawmill Road — which is the property immediately adjacent to plaintiff's home and which was originally part of lot 13901 Shawmill Road. Complt. ¶ 6.
On February 16, 1999, Robert Doerner, the Milan Township Zoning Inspector, rejected plaintiff's application for zoning certification of the "proposed construction of a barn" because the "property appear[ed] to be in a flood plain." Id. at Ex. B.
Plaintiffs claim that they thereafter informed Doerner of their intended use of the barn as a "storage business."Id. at ¶ 7.
On March 8, 1999, Doerner informed plaintiffs that "[i]f the building is out of the one hundred year flood plain, I will approve the construction and issue a permit." Id. at Ex. C.
On April 2, 1999, Doerner informed plaintiff that their application for zoning certification was approved "contingent upon [plaintiffs'] signing a release of liability in that [they] would not hold Milan Township liable for damages in the event of a flood." Id. at Ex. D. Doerner prepared a release statement, which stated:
We, James J. and Sandra K. Wise, understand that we will be erecting a structure (barn) near the Flood Plain area as designated in the Milan Township Zoning Resolution and by the Erie County Regional Planning Commission; said nearby flood plan being that area which has been covered by water within the last one hundred (100) years.
In recognizing the above, we, our heirs, and assigns, accept total responsibility for the erection of this structure on our property located east of our home at 13901 Shawmill Road and east of the strip of land owned by the City of Norwalk in Milan Township, Erie County, Ohio. We will indemnify, hold harmless and defend the Milan Township Board of Trustees and its agents and employees from and against any and all claims, liability, damage or loss to person or property which may arise or grow out of the granting of permission to erect the structure on property east of 13901 Shawmill Road and east of the strip of land owned by the City of Norwalk near the flood plain in Milan Township, Erie County, Ohio.
Id. at Ex. D.
Plaintiffs claim that because Doerner's statement "identified the specific property as being `near the flood plain,'" they "expended several thousands of dollars" constructing the barn and installing a driveway to the barn under the assumption that the property was not in the flood plain. Id. at ¶ 8.
In August, 2000, plaintiffs applied for a permit to allow a conditional use of the storage barn as a retail gift shop. Id. at Ex. E.
On September 1, 2000, Colleen J. Arthur, Doerner's predecessor as Milan Township Zoning Inspector, rejected plaintiff's application, stating that a retail business is not a "principally permitted use in the flood plain." Id. at Ex. E. Arthur explained: "Property is located within 100 year flood plain. A conditional use permit is required." Id. Plaintiffs thereafter appealed Arthur's denial to the Milan Township Board of Zoning Appeals (the "Board").
On September 26, 2000, the Board rejected plaintiffs' request to permit a retail business and a storage barn on the property located at 13903 Shawmill Road, stating that "the property is located in a Flood Plain District." Id. at Ex. F.
The written notice also stated:
"Any person adversely affected by a decision of the Township Board of Zoning Appeals may appeal to the Court of Common Pleas of Erie County on the ground that such decision was unreasonable or unlawful. The court may affirm, reverse, vacate or modify the decision complained of in the appeal."
The above is a portion of ARTICLE 100-21 BOARD OF ZONING APPEALS which has been enclosed with this letter.
Id. at Ex. F.
On July 16, 2002, plaintiffs filed this suit arguing that defendants' actions were "arbitrary and capricious and resulted in a direct violation of the constitutional right to utilize their property pursuant to the Fourth Amendment to the U.S. Constitution." Id. at ¶ 12. Plaintiffs also alleged that they "detrimentally relied on representatives as the individual agents of Milan Township and incurred substantial expenses for the construction and improvement of the above described structure which has become virtually useless, based upon its location in the flood plain as opposed to its location near to the flood plain." Id. at ¶ 13. Plaintiffs further allege that Milan Township's zoning provisions are "improperly adopted by the representatives of Milan Township and are unconstitutional and that the actions of the township and its agents were arbitrary and capricious based upon their vagueness and failure to properly identify the area of zoning." Id. at 14.
Plaintiff seeks injunctive relief enjoining defendants from enforcing certain zoning provisions, actual damages, and attorneys fees under 42 U.S.C. § 1988.
Pending is defendants' motion to dismiss which argues that this court lacks jurisdiction due to plaintiffs' failure to timely exhaust remedies available under the Ohio Revised Code. In the alternative, defendants also argue that plaintiffs' reliance on Doerner's statements was not reasonable.
STANDARD OF REVIEW
No complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiff's claim that, construed in plaintiff's favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D.Ohio. 1996). The court must accept all the allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in the light most favorable to the plaintiff. Sheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
DISCUSSION I. Exhaustion of Administrative Remedies/Res Judicata
Defendants argue this court lacks jurisdiction because plaintiffs failed timely to exhaust remedies available under the Ohio Revised Code and, therefore, the doctrine of res judicata applies to the Board's decision.
The Ohio Revised Code provides:
Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department, or other division of any political subdivision of the state may be reviewed by the court of common pleas of the county in which the principal office of the political subdivision is located. . . .
The appeal provided in this chapter is in addition to any other remedy of appeal provided by law.
Concerning the time for perfecting an appeal, the Revised Code states:
After the entry of a final order of an administrative officer, agency, board, department, tribunal, commission, or other instrumentality, the period of time within which the appeal shall be perfected, unless otherwise provided by law, is thirty days.
Because plaintiffs did not appeal the Board's decision to the Court of Common Pleas within thirty days as required under § 2506.01 and § 2505.07, defendants argue plaintiffs have failed to exhaust administrative remedies. See The Chapel v. Solon, 40 Ohio St.3d 3, 4 (1988) ("The proper procedure to test an official's refusal to issue a building permit is by way of appeal to the court of common pleas after all administrative remedies of appeal, if any, are exhausted.").
Defendants also argue that if plaintiffs' complaint is construed as a declaratory judgment action, plaintiffs are still required to exhaust administrative remedies. See Karches v. Cincinnati, 38 Ohio St.3d 12 (1988) (syllabus ¶ 1) ("The constitutionality of a zoning ordinance may be attacked in two ways. An appeal from an administrative zoning decision can be taken pursuant to R.C. Chapter 2506. In addition, or in the alternative, a declaratory judgment action pursuant to R.C. Chapter 2721 can be pursued."). The court in Karches stated that prior to instituting a declaratory judgment action, "a party ordinarily must exhaust administrative remedies." Id. at 17.
Because plaintiffs did not appeal the Board's decision to the Court of Common Pleas, defendants also argue that the doctrine of res judicata prevents the Board's decision from being attacked collaterally. Defendants contend that an administrative body's decision, such as the Board's, is clothed with a presumption of validity and accorded full force and effect on expiration of the applicable appeal time. See Holiday Homes, Inc. v. Butler County Bd. of Zoning Appeals, 35 Ohio App.3d 161 (1987) (syllabus ¶ 4, 5).
An appeal to the Court of Common Pleas, however, is not an administrative remedy. An appeal under § 2506.01 is a "judicial review of a final administrative decision denying a variance to a property owner." Karches, 38 Ohio St.3d at 16. As explained in Alexander v. Oakwood,
The exhaustion argument fails because the record reveals that [plaintiff] did exhaust his administrative remedies by applying for a special use permit. Defendants point to a remedy, an appeal to common pleas court under Ohio R.C. § 2506.01, that is judicial. This remedy is judicial, not administrative, and, thus, cannot support a motion for summary judgment on a claim of failure to exhaust administrative remedies.
1993 U.S. Dist. LEXIS 21290, *36 (Jan. 27, 1993, S.D. Ohio).
See also Pearson v. Grand Blanc, 961 F.2d 1211(6th Cir. 1992). In Pearson, the Sixth Circuit noted that some circuits impose ripeness requirements in federal zoning cases. For example, in cases where a plaintiff claims that the zoning is so stringent as to constitute a taking without just compensation, the Supreme Court requires what amounts to exhaustion of state judicial remedies, including the bringing of an inverse condemnation action before the case is ripe for federal court review. In the Sixth Circuit, however, a substantive due process claim is ripe for federal adjudication at the mere existence of an allegedly unlawful zoning action, without anything more. Id. at 1214-15.
Furthermore, the Board's decision cannot preclude this case. There is no evidence that plaintiffs claimed a violation of their Fourth Amendment rights at the Board hearing. Nonetheless, even if plaintiffs had requested such relief at the Board hearing, plaintiffs could not have obtained damages for a constitutional violation from a Board of Zoning Appeals. Given the limited nature of that proceeding, I find that this case involves a separate cause of action. Plaintiffs are therefore not precluded from pursuing their constitutional claim in this case.
See e.g., Negin v. Mentor, 601 F. Supp. 1502 (N.D.Ohio.). In Negin, the plaintiff alleged the City of Mentor violated his constitutional rights by denying him a building permit and several zoning variances. Pursuant to O.R.C. § 2506.01, plaintiff appealed the Zoning Appeals Board decision to the Court of Common Pleas. The court affirmed the board's decision. The Ohio Court of Appeals reversed the Court of Common Pleas and found the Mentor zoning ordinance unconstitutional. Plaintiff thereafter filed a § 1983 action in federal court, and defendant city argued that the plaintiff's constitutional claim for damages was precluded. The district court responded:
Defendants contend that plaintiff is barred from seeking damages in this case because he could have sought damages when he challenged the Board's decision before Ohio's courts. This argument lacks merit because plaintiff could not have obtained damages in the prior state proceedings. Those proceedings involved an appeal of an administrative decision pursuant to Ohio Rev. Code § 2506.01. Section 2506.01 does not empower state courts to award damages for injuries suffered as a result of erroneous administrative decisions. Given the limited nature of the prior state proceedings, this Court holds that this case involves a separate cause of action and consequently plaintiff is not precluded from seeking damages in this case.
Id. at 1504-05; see also Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993) ("When a prior case has been adjudicated in a state court, federal courts are required by 42 U.S.C. § 1738 to give full faith and credit to the state judgment, and, in section 1983 cases, apply the same preclusion rules as would the courts of that state. Decisions of state administrative agencies that have been reviewed by state courts are also given preclusive effect in federal courts. However, in section 1983 cases, only state administrative factfinding is entitled to preclusive effect in the federal court when the agency ruling remains unreviewed by state courts.").
II. § 1983 Liability
Plaintiffs argue that when they applied for a zoning permit to use their property as a "storage business," defendant Doerner "stated that `the building is out of the one hundred (100) year flood plain.'" Plaintiffs' Opposition Br. at 2 (citing Complt. Ex. C). Plaintiffs also claim Doerner described the property as being "near the flood plain." Id. (citing Complt. Ex. D). Plaintiffs contend that they understood these statements as written assurances that the property was located outside the flood plain. Consequently, they expended thousands of dollars building on property that later became useless because of its actual location within the flood plain. Plaintiffs therefore seek "damages for their losses as a direct and proximate result of the actions of the State actors in this matter and based upon their detrimental reliance upon the representations made by public officials of Milan Township." Id.In their motion to dismiss, defendants argue that any reliance by plaintiffs on Doerner's statements was not justified. First, defendants claim Doerner never made an express representation that the property was not in the flood plain. Defendants argue that Doerner's representations lead only to the conclusion that the specific property was "located in or dangerously close to the flood plain." Defendants' Br. at 7. Second, defendants claim it was not reasonable for plaintiffs to invest money into a retail gift shop, when the proposed building was originally represented to defendants as a storage barn. According to defendants, approval of either a barn or a storage business would not constitute approval to operate a retail gift shop. Third, because Milan Township and its zoning inspectors do not determine flood plain classifications — flood plain maps are a matter of public record — defendants argue plaintiffs were just as able to research the flood plain designations as defendants. Defendants' Reply at 4.
Neither party, however, has addressed the most important preliminary and jurisdictional issue for this court — the basis of plaintiffs' § 1983 claim.
Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory, . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper procedure for redress.
To state a prima facie case under § 1983, a plaintiff must satisfy two threshold requirements: "(1) [that] the conduct complained of was committed by a person acting under color of state law; and (2) [that] this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part, Daniels v. Williams, 474 U.S. 327 (1984).
In their complaint, plaintiffs argue defendants are state actors and their actions "were arbitrary and capricious and resulted in a direct violation of the constitutional right to utilize their property pursuant to the Fourth Amendment to the U.S. Constitution." Complt. at ¶ 12. Plaintiffs further allege that Milan Township and its agents "were arbitrary and capricious based upon their vagueness and failure to properly identify the areas of zoning." Id. at ¶ 14.
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" and that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
In Pearson v. Grand Blanc, 961 F.2d 1211 (6th Cir. 1992), the Sixth Circuit adopted certain "categories of federal zoning cases" devised by the Eleventh Circuit to "promote a much-needed uniformity among the federal courts on this subject." Id. at 1215. These categories are:
1. Just compensation takings claim. Plaintiff claims that the zoning applied to his land constitutes a taking of his property without just compensation in contravention of the Fifth Amendment, the remedy sought being the just compensation.
2. Due process takings claim. Plaintiff claims that the zoning applied to his property goes too far and destroys the value of his property to such an extent that it amounts to a taking by eminent domain without due process of law. The remedy sought is invalidation of the zoning regulation.
3. Arbitrary and capricious substantive due process claim. Plaintiff claims that the zoning regulation is arbitrary and capricious in that it does not bear a substantial relation to the public health, safety, morals, or general welfare. Two further subcategories may be discerned under this heading: (a) facial and (b) as applied.
4. Equal protection. Either based on suspect class, invoking strict scrutiny, or mere economic deprivation.
5. Procedural due process. Although not discussed by the Eleventh Circuit, there is, of course, a fifth category where plaintiff claims deprivation of procedural due process.
6. First Amendment. A category may also be defined when plaintiff claims that a First Amendment right such as freedom of speech or religion is violated by the zoning ordinance.
Id. at 1215-16.
The Fourth Amendment is not a basis for any category of federal zoning cases. Plaintiffs, moreover, have failed to identify or explain how defendants' actions have violated their Fourth Amendment rights. Instead, the parties have briefed whether plaintiffs have stated a valid detrimental reliance claim. This analysis, however, is inconsequential to this court's determination whether plaintiffs have asserted a legitimate § 1983 claim for a violation of plaintiffs' Fourth Amendment rights.
At best, plaintiffs' argument can be construed as a substantive due process claim. Plaintiffs essentially argue that defendants were arbitrary and capricious in rejecting their zoning application because plaintiffs had relied on statements by the zoning inspector. In the Sixth Circuit, where a substantive due process attack is made on a state administrative action, the scope of review by the federal courts is extremely narrow. "To prevail, a plaintiff must show that the state administrative agency has been guilty of `arbitrary and capricious action' in the strict sense, meaning `that there is no rational basis for the . . . [administrative] decision." Pearson, 961 F.2d at 1221 (emphasis in original) (quoting Stevens v. Hunt, 646 F.2d 1168, 1170 (6th Cir. 1981). Thus, "the administrative action will withstand substantive due process attack unless it `is not supportable on any rational basis' or is `willful and unreasoning action, without consideration and in disregard of the facts or circumstances of the case." Id. (quoting Greenhill v. Bailey, 519 F.2d 5, 10 n. 12 (8th Cir. 1975)).
It was not arbitrary or capricious for defendants to accept plaintiffs' 1999 zoning application and then reject their 2000 application. The pleadings demonstrate that Doerner accepted plaintiffs' 1999 zoning application for a storage facility or a barn. There was no indication in 1999 that the barn would be used for a retail gift shop — which was one of the reasons the 2000 zoning application was denied. Additionally, the parties do not dispute that the building is located in the flood plain.
Most importantly, Doerner's statements in his letters to plaintiffs cannot be construed as express representations that plaintiffs' proposed building was outside the flood plain. Defendants were not, therefore, obligated to accept plaintiffs' application, and it was not arbitrary or capricious for defendants to reject the application even though Doerner made these statement.
Similarly, defendant Doerner cannot be said to have been acting arbitrarily or capriciously by failing properly to identify the areas of zoning. The exhibits attached to plaintiffs' complaint demonstrate that the purpose of those letters was to inform plaintiffs that they must sign a release of the township's liability in case of a flood. The letters were not intended to identify specifically the location of the flood plain. As defendants argue, that is a matter of public record.
Under the arbitrary and capricious standard, denial of plaintiffs' zoning application in 2000 withstands substantive due process attack. Plaintiffs' § 1983 claim shall therefore be dismissed for failure to state a claim.
In their complaint, plaintiffs also assert that the"zoning provisions of Milan Township are and were . . . improperly adopted by the representatives of Milan Township and are unconstitutional." Complt. at ¶ 14. It is unclear whether this is a separate cause of action from the § 1983 claim. If it is separate, it is dismissed for failure to state a well-pleaded cause of action. It is conclusory, and, more importantly, it fails to allege a violation of any specific constitutional provision.
It is also unclear whether plaintiffs have alleged a separate state common law detrimental reliance claim. If so, I decline to extend supplemental jurisdiction to this claim, and it is dismissed without prejudice.
Dismissal of plaintiffs' § 1983 claim also requires dismissal of their § 1988 claim. Section 1988 merely provides for attorneys' and experts' fees in civil rights cases, not a separate cause of action.
CONCLUSION
It is, therefore,
ORDERED THAT
Defendants' motion to dismiss be, and hereby is, granted.
So ordered.