[Cite as Soplata v. Endres, 2013-Ohio-4424.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


LOUIS SOPLATA, TRUSTEE,                         :      OPINION

                 Plaintiff-Appellant,           :
                                                       CASE NO. 2012-G-3116
        - vs -                                  :

KAREN ENDRES, ZONING                            :
INSPECTOR, et al.,
                                                :
                 Defendants-Appellees.


Civil Appeal from the Geauga County Court of Common Pleas, Case No. 11M000898.

Judgment: Affirmed.


Paul A. Newman, Newman & Brice, L.P.A., 214 East Park Street, Chardon, OH 44024
(For Plaintiff-Appellant).

James R. Flaiz, Geauga County Prosecutor, and Susan T. Wieland, Assistant
Prosecutor, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024, and
Abraham Cantor, Johnnycake Commons, 9930 Johnnycake Ridge Road, Suite 4-F,
Concord, OH 44060 (For Defendants-Appellees).



THOMAS R. WRIGHT, J.

        {¶1}     This accelerated-calendar appeal is from a final judgment of the Geauga

County Court of Common Pleas. The trial court ruled in favor of appellees, Newbury

Township, the Newbury Zoning Commission, and Karen Endres, Newbury Zoning

Inspector, on all pending claims in the action and enjoined appellant, Louis Soplata,

from occupying a dwelling on real property. Appellant contends that the issuance of the
injunction cannot stand because the provisions of the Newbury Township Zoning

Resolution were not applicable to the disputed property.

       {¶2}   The trial court’s final judgment was solely based upon stipulations of facts

and exhibits submitted by the parties.

       {¶3}   Appellant presently owns two parcels of land at 14840 Highview Avenue in

Newbury Township. These parcels are located in the Restful Lake Subdivision. In turn,

the subdivision is owned by the Restful Lake Association, a private corporation,

currently in good standing with the state of Ohio.

       {¶4}   Appellant’s parcels are also located in an unincorporated area of Newbury

Township. Under the provisions of the township zoning resolution, the two parcels are

zoned for residential use. When appellant purchased the land in September 2010, the

parcels contained a dwelling which was built prior to the original enactment of the

township zoning resolution. However, because the dwelling has not been inhabited

since 1991, it is not considered a nonconforming use under the governing law.

       {¶5}   Appellant bought the property with the purpose of rebuilding the dwelling.

Within one month of the purchase, he filed an application with Newbury Township for a

zoning permit to go forward with the project. In November 2010, though, the township

zoning inspector, Karen Endres, denied his application. Appellant never filed an appeal

of the inspector’s decision with the Newbury Township Board of Zoning Appeals.

       {¶6}   Despite the lack of a zoning permit and the necessary permits from certain

Geauga County agencies, appellant proceeded to reconstruct the existing dwelling. In

doing so, he increased the structure’s value more than 60 percent of its replacement

worth, thereby violating another provision of the township zoning resolution.




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       {¶7}   In August 2011, appellant filed the underlying action against the township,

its zoning commission, and Inspector Endres. For his relief under his single claim, he

sought a declaratory judgment that the township officials lacked the authority to enforce

any zoning laws on his two parcels. In addition to alleging that Inspector Endres’ denial

of his zoning application was improper, appellant asserted that he had not been legally

obligated to submit such an application.

       {¶8}   In conjunction with their answer, the three township defendants brought a

counterclaim against appellant, seeking an injunction to prohibit him from keeping the

modified dwelling on the two parcels. Besides alleging that the structure did not comply

with specific requirements of the township zoning resolution, the counterclaim asserted

that appellant was collaterally estopped from challenging the merits of Inspector Endres’

decision.

       {¶9}   After engaging in limited discovery, the parties stipulated all relevant facts

for both pending claims. In light of this, the case was submitted to the trial court for final

determination based upon the stipulations and the parties’ respective trial briefs.

       {¶10} In its final judgment in favor of the township defendants, the trial court first

rejected appellant’s contention that the zoning resolution was inapplicable to his parcels

because his land was located in a subdivision owned by a private corporation. Second,

the court found that appellant violated the zoning ordinance by going forward with the

reconstruction of the dwelling without a zoning permit. Third, the court concluded that

appellant was precluded from challenging Inspector Endres’ decision in a declaratory

judgment action because he had failed to exhaust his administrative remedies.

Accordingly, the court held against appellant on both his declaratory judgment claim and




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the township’s counterclaim for injunctive relief. Concerning the counterclaim, the trial

court ordered appellant to remove the entire existing structure from his property within

six months.

       {¶11} In appealing the foregoing decision, appellant asserts two assignments of

error for review:

       {¶12} “[1.] The trial court erred by denying plaintiff/appellant’s complaint for

declaratory judgment that the zoning was not in effect in the portion of Newbury

Township where the land was incorporated territory in 1932, prior to the zoning in 1953.

       {¶13} “[2.] The trial court erred when it decided that plaintiff/appellant is

precluded from challenging the denial of a zoning certificate because he failed to appeal

this denial to the Board of Zoning Appeals.”

       {¶14} Under his first assignment, appellant challenges the trial court’s ruling that

he had to comply with the township zoning resolution and obtain a zoning permit prior to

going forward with the modifications to the dwelling. He contends the court should have

held that the zoning resolution was inapplicable in this instance because his property is

located in a subdivision owned by a corporate entity. In support, appellant cites the

following language from R.C. 519.02(A), delineating the extent of a township’s authority

to enact and enforce zoning regulations:

       {¶15} “(A) Except as otherwise provided in this section, in the interest of the

public health and safety, the board of township trustees may regulate by resolution, in

accordance with a comprehensive plan, the location, height, bulk, number of stories,

and size of buildings and other structures, including tents, cabins, and trailer coaches,

percentages of lot areas that may be occupied, set back building lines, sizes of yards,




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courts, and other open spaces, the density of population, the size of buildings and other

structures, including tents, cabins, and trailer coaches, and the uses of land for trade,

industry, residence, recreation, or other purposes in the unincorporated territory of the

township.” (Emphasis sic.)

       {¶16} Referencing the italicized wording, appellant submits that the only logical

interpretation of R.C. 519.02(A) is that a township’s zoning power does not encompass

any land which belongs to a corporation. While acknowledging that a city or village is

deemed a public corporate entity under the law, he asserts that “incorporated” territory

must be construed to include land owned by a private corporation.

       {¶17} Viewed as a whole, R.C. Chapter 5 delineates provisions that govern the

“township” form of local government in Ohio. Multiple statutes throughout the chapter

contain language similar to the “unincorporated territory” phrase in R.C. 519.02(A). For

example, R.C. 505.48 grants township trustees the authority to create a township police

district from all or part of the “unincorporated territory” of the township. Similarly, R.C.

519.11 provides that the proposed zoning resolution for a township must be submitted

to the electors who reside in the “unincorporated area” of the township.

       {¶18} The “unincorporated territory” phrase and other similar phrases are also

employed in R.C. Chapter 7, which governs the “municipal corporation” form of local

government. For example, in providing for the “merger” of territory into a municipality,

R.C. 709.44 states that the “unincorporated area” of a township can be merged into one

or more municipal corporations.

       {¶19} Given the number of times the General Assembly has used the disputed

phrases throughout the statutory chapters dealing with local governments, the Second




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Appellate District has concluded that such phrases are not intended to refer to a specific

geographical location. City of Englewood v. Village of Clayton, 2nd Dist. Montgomery

No. 16219, 1997 Ohio App. LEXIS 578, *41. Instead, the phrases “unincorporated

territory” and “unincorporated area” are intended to designate the regions within an Ohio

county that constitute a separate political subdivision known as a “township.” Id.

       {¶20} Although not expressly stated in Englewood, its holding was clearly based

upon the fact that the term “township” has two common meanings in the context of R.C.

Chapters 5 and 7: (1) the term refers to a geographical area of land which lies within the

territorial limits of a county of our state; and (2) the term refers to one of the three forms

of local government recognized under the Revised Code. Furthermore, given that the

territorial limits of many municipal corporations often lie within the geographical limits of

a township, there is a need to distinguish between those regions with the “township” that

are governed by a municipal form of government and those regions that are governed

by a township form of government. In using the phrases “unincorporated territory” and

“unincorporated area,” the Ohio General Assembly is providing a different designation

for those regions inside the geographical area which are governed under a “township”

administration; i.e., those regions which do not also lie within the confines of a municipal

corporation.

       {¶21} The subject matter of R.C. Chapters 5 and 7 are expressly limited to the

creation and functioning of township governments and municipal governments. To the

extent that the chapters contain any reference to matters pertaining to corporate law, it

relates exclusively to the existence of both villages and cities as municipal corporations.

See, e.g., R.C. 707.01 and 707.29, which set forth the procedure for the incorporation of




                                              6
villages and cities. Moreover, neither chapter has any provision stating that real estate

held by a private corporation is exempt from township zoning or municipal zoning.

       {¶22} In construing the meaning of a statutory provision, Ohio courts are

required to read all words and phrases in context. Bergman v. Monarch Construction

Co., 124 Ohio St.3d 534, 2010-Ohio-622, ¶16, quoting R.C. 1.42. In addition, courts

have a duty to construe statutes in such a manner as to avoid ridiculous or absurd

results. State v. Phillips, 11th Dist. Trumbull No. 2008-T-0036, 2008-Ohio-6562, ¶13.

       {¶23} When read in context of R.C. 519.02 and the entire statutory schemes for

township and municipal governments, the use of the phrase “unincorporated territory of

the township” is only intended to signify that a township’s authority to enforce zoning

regulations apply solely to land which does not lie within the territorial limits of a village

or city. In this regard, R.C. 519.02(A) was only meant to delineate the general scope of

the zoning power, not to set forth any exceptions. Compare R.C. 519.21(A), in which it

is indicated that a board of township trustees lacks the authority to prohibit the use of

any land for agricultural purposes.

       {¶24} Furthermore, appellant’s proposed interpretation of R.C. 519.02 would

lead to an absurd result. That is, if land owned by a private corporation were always

exempt from township zoning, a corporate business would have the ability to purchase

property in a residential district and use the land for an industrial purpose. Such a result

would obviously defeat the primary goal of zoning; i.e., segregating different uses of

land into discrete areas.

       {¶25} In light of the foregoing interpretation of R.C. 519.02(A), the fact that the

disputed parcels of land were located in a subdivision owned by a private corporation




                                              7
did not exempt them from the provisions of the Newbury Township Zoning Resolution.

For this reason, appellant’s first assignment lacks merit.

       {¶26} Under his second assignment, appellant contests the trial court’s separate

determination that a declaratory judgment action was not the appropriate proceeding for

challenging the application of the township zoning resolution to his parcels. He argues

that, even though he did not pursue any administrative remedies, he still was entitled to

maintain the separate action because it would have been impossible for him to obtain

adequate relief in an administrative proceeding. According to him, the board of zoning

appeals does not have the authority to decide if he was exempted from all zoning as a

result of the ownership of the subdivision.

       {¶27} As noted above, appellant brought the declaratory judgment case after the

township zoning inspector denied his application for a zoning permit. As a general

proposition, a township board of zoning appeals does have the jurisdiction to consider

an appeal from any ruling made by a township administrative official. R.C. 519.14(A).

In turn, R.C. 2506.01 specifically allows for a direct appeal from a decision of a township

board to the court of common pleas. Therefore, certain administrative remedies were

available to appellant.

       {¶28} On the other hand, it is well-settled under Ohio law that the availability of a

R.C. Chapter 2506 appeal does not necessarily preclude the institution of a declaratory

judgment action by a property owner. See, e.g., Driscoll v. Austintown Assoc., 42 Ohio

St.2d 263, 268-269 (1975). However, in the context of a zoning dispute, the basic

scope of the declaratory judgment action is limited to determining whether the zoning

resolution is constitutional as applied to the subject property. Fulmer v. Randolph Twp.,




                                              8
11th Dist. Portage No. 1815, 1988 Ohio App. LEXIS 3967, *7, quoting Karches v.

Cincinnati, 38 Ohio St.3d 12, 16 (1988). In light of this precedent, property owners are

precluded from asserting non-constitutional issues, such as exemption from the

township zoning resolution, in a declaratory judgment action. Waliga v. Coventry Twp.,

9th Dist. Summit No. 22015, 2004-Ohio-5683, ¶13, 17.

       {¶29} In applying R.C. 519.14(A), a board of zoning appeals has the authority to

interpret the provisions of the zoning resolution as part of an appeal from a zoning

inspector’s decision.   The Weber Co. v. Chester Twp. Bd. of Trustees, 11th Dist.

Geauga No. 959, 1981 Ohio App. LEXIS 14556, *3-4. Given that the ability to render a

quasi-judicial determination necessarily entails the authority to interpret any applicable

law, the board’s authority to interpret or construe would obviously extend to any relevant

statute, such as R.C. 519.02(A). Essentially, it is appellant’s position that, due to their

particular characteristics, his two parcels could not be subject to township zoning. This

type of issue is inherently different than a query as to the constitutionality of the zoning

resolution. Instead, the issue is more akin to a dispute regarding a nonconforming use,

a dispute which such a board clearly has the authority to resolve.

       {¶30} Moreover, once the board of zoning appeals disposed of appellant’s

“exemption” argument, he could have then appealed the matter to the trial court under

R.C. 2506.01. In this respect, appellant would have been following the same procedure

that a property owner is required to employ when he has been denied a zoning permit

or a variance. Additionally, there is nothing to indicate that any difficulties appellant may

have encountered in pursuing these administrative remedies would have been any

more onerous than the difficulties any property owner faces in seeking review of a




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zoning inspector’s ruling.

       {¶31} Given that a declaratory judgment action can only be employed to assert

specific constitutional challenges to a zoning decision, the trial court properly held that

appellant was obligated to raise his “exemption” argument in an administrative appeal

from the denial of the zoning permit. Therefore, since appellant’s declaratory judgment

claim could have been denied on that basis alone, his second assignment of error also

lacks merit.

       {¶32} Because neither of appellant’s two assignments have merit, it is the

judgment and order of this court that the judgment of the Geauga County Court of

Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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