[Cite as State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 2017-Ohio-2645.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO, EX REL                               :            JUDGES:
STEVEN A. ARMATAS                                   :
                                                    :            Hon. Patricia A. Delaney, PJ.
        Relator                                     :            Hon. W. Scott Gwin, J.
                                                    :            Hon. William B. Hoffman, J.
-vs-                                                :
                                                    :
PLAIN TOWNSHIP BOARD OF                             :            Case No. 2016CA00188
TRUSTEES, et al.                                    :
                                                    :
        Respondents                                 :            OPINION



CHARACTER OF PROCEEDING:                                         Writ of Mandamus


JUDGMENT:                                                        Dismissed


DATE OF JUDGMENT:                                                May 1, 2017



APPEARANCES:

For Relator:                                                     For Respondent:

Steven A. Armatas, Esq.                                          James F. Mathews
7690 Bucknell Circle N.W.                                        Andrea K. Ziarko
North Canton, Ohio 44720                                         BAKER, DUBLIKAR, BECK,
                                                                 WILEY & MATHEWS
                                                                 400 South Main Street
                                                                 North Canton, Ohio 44720
Stark County, Case No. 16-188                                                              2



Delaney, P.J.

       {¶1}     Relator, Stephen A. Armatas, has filed a complaint for writ of mandamus

requesting Respondents be ordered to enforce a zoning regulation. Respondents have

filed a motion to dismiss for failure to state a claim upon which relief may be granted.

       {¶2}     Relator resides in Plain Township, Ohio. Plain Township has a zoning

regulation which provides in relevant part:

       FENCES, WALLS, AND HEDGES
       Fences, walls and hedges shall be permitted in any required yard or along the
       edge of any yard . . . except that a fence, wall or hedge located in or along the
       sides or front of a front yard shall not exceed three (3) feet in height. The
       maximum height of a fence, wall or hedge in any Residential District shall be
       eight (8) feet.

       Plain Township Zoning Resolution (“PTZR”) Section 602.10.

       {¶3}     A house in the rear of Relator’s house has a row of evergreen trees which

are above eight feet in height. Relator argues his neighbor’s trees violate PTZR Section

602.10 because he believes the row of trees fall under the definition of hedge. He asks

this Court to order Respondents to enforce PTZR Section 602.10.

       {¶4}     To be entitled to a writ of mandamus, appellant must demonstrate that: (1)

he has a clear legal right to the requested relief; (2) the respondents have a clear legal

duty to perform the requested act; and (3) he has no plain and adequate remedy in the

ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 451

N.E.2d 225 (1983), certiorari denied, 464 U.S. 1017, 104 S.Ct. 548, 78 L.Ed.2d 723

(1983).

       {¶5}     Relator avers in his complaint that the zoning inspector informed Relator,

“I’m not going to do anything about this.” The complaint goes on to state, “When asked
Stark County, Case No. 16-188                                                               3


‘why?’ by Relator, [the zoning inspector] indicated he felt ‘trees and hedges’ to be different

things.”

       {¶6}   Relator has provided this Court with a copy of Respondent’s appeal form

which reads in pertinent part, “Appeal from Order, Requirement, Decision or

Determination of Zoning Director.”

       {¶7}   The zoning director made a decision or determination by stating he was not

going to do anything about Relator’s complaint. Relator has or had an adequate remedy

at law by way of utilizing the township’s appellate process. Relator is in possession of

the appeals form as is evidenced by the fact that he attached it to his complaint.

       {¶8}   We note Relator has averred that the zoning director informed him neither

the Board of Zoning Appeals nor the Plain Township Zoning Commission would have

jurisdiction over the matter because a variance or permit was not being sought. However,

the appeals form provides otherwise. The form does not limit the appellate process to

denial of variances or permits.
Stark County, Case No. 16-188                                                           4


      {¶9}     Relator has failed to demonstrate the elements required for the issuance of

a writ of mandamus, therefore, the motion to dismiss is granted. A writ of mandamus will

not issue.



By, Delaney, P.J.

Gwin, J. and

Hoffman, J. concur.
[Cite as State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 2017-Ohio-2645.]
