[Cite as Omnireal, Inc. v. Meyers Lake, 2012-Ohio-5092.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



OMNIREAL, INC.                                             JUDGES:
                                                           Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellant                                Hon. John W. Wise, J.
                                                           Hon. Julie A. Edwards, J.
-vs-
                                                           Case No. 2012 CA 00043
VILLAGE OF MEYERS LAKE, et al.

        Defendants-Appellees                               OPINION




CHARACTER OF PROCEEDING:                              Civil Appeal from the Court of Common
                                                      Pleas, Case No. 2011 CV 03655


JUDGMENT:                                             Affirmed



DATE OF JUDGMENT ENTRY:                               October 29, 2012



APPEARANCES:

For Plaintiff-Appellant                               For Defendants-Appellees

CRAIG T. CONLEY                                       PAUL J. PUSATERI
604 Huntington Plaza                                  THOMAS R. HIMMELSPACH
220 Market Avenue South                               4684 Douglas Circle NW
Canton, Ohio 44702                                    Canton, Ohio 44718
Stark County, Case No. 2012 CA 00043                                                     2

Wise, J.

      {¶1}     Plaintiff-Appellant Omnireal, Inc. appeals the decision of the Stark County

Court of Common Pleas, which granted Defendant-Appellee Village of Meyers Lake’s

motion to dismiss appellant’s complaint for declaratory judgment regarding a zoning

ordinance. The relevant facts leading to this appeal are as follows.

      {¶2}     Appellant owns certain real property in the Village of Meyers Lake in Stark

County. At all times relevant, appellant’s property was used as a facility to sell

automobiles.

      {¶3}     In July 2011, the Meyers Lake Village Zoning Inspector issued a violation

notice and stop order to appellant, stating that appellant’s use of the property was in

violation of the village’s zoning ordinances.

      {¶4}     On November 14, 2011, appellant filed a civil complaint in the Stark

County Court of Common Pleas against the village and the village’s zoning inspector,

seeking injunctive relief and a declaratory judgment as to the constitutionality of the

Meyers Lake zoning prohibition against automobile sales operations within the village.

      {¶5}     On January 20, 2012, appellee filed a motion to dismiss appellant’s action.

On January 13, 2012, following a non-oral hearing, the trial court issued a final

judgment entry dismissing said declaratory judgment action on the grounds that the

need for a decision on the constitutional issues had not yet arisen, particularly noting

that appellant had “also pursued administrative remedies through an appeal to the
Stark County, Case No. 2012 CA 00043                                                    3


Board of Zoning Appeals” and “by appealing the Board’s decision to Council.” Judgment

Entry, January 31, 2012, at 1, 2.1

      {¶6}    Appellant filed a notice of appeal on February 29, 2012. It herein raises

the following sole Assignment of Error:

      {¶7}    “I.    THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF’S/

APPELLANT’S DECLARATORY JUDGMENT ACTION.”

                                                   I.

      {¶8}    In its sole Assignment of Error, appellant contends the trial court erred in

dismissing its declaratory judgment action concerning the constitutionality of the village

zoning ordinance at issue. We disagree.

      {¶9}    R.C. 2721.02(A) states in pertinent part: “Subject to division (B) of this

section, courts of record may declare rights, status, and other legal relations whether or

not further relief is or could be claimed. ***.”

      {¶10} The granting of declaratory judgment relief is a matter of judicial

discretion. Stark-Tuscarawas-Wayne Joint Solid Waste Management Dist. v. Republic

Services of Ohio II, LLC, Stark App. No. 2004-CA-00099, 2004 WL 2406553, citing

Control Data Corp. v. Controlling Bd. of Ohio (1983), 16 Ohio App.3d 30, 35, 16 OBR

32, 36-38, 474 N.E.2d 336, 342. A trial court's declaratory judgment cannot be disturbed

on appeal absent a showing that the trial court abused its discretion. Id. See, also,

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d

1140, 1141-1142. The term abuse of discretion connotes more than an error of law or

1
  According to a “motion for remand” filed with this Court by appellant shortly before the
oral arguments in this appeal, the BZA appeal subsequently became an appeal to the
Stark County Court of Common Pleas under case number 2012 CV 01077. The
specifics of that case are dehors the present appellate record.
Stark County, Case No. 2012 CA 00043                                                    4


judgment, it implies that the court's attitude was unreasonable, arbitrary or

unconscionable. Id. The Ohio Supreme Court has concluded: “[A] determination as to

the granting or denying of declaratory relief is one of degree. Although this court might

agree or disagree with that determination, our decision must be whether such a

determination is reasonable.” Bilyeu v. Motorists Mut. Ins. Co. (1973), 36 Ohio St.2d 35,

37, 303 N.E.2d 871. In the realm of zoning law, “*** a successful declaratory judgment

challenge must demonstrate, beyond fair debate, that the zoning classification is

unconstitutional, unreasonable and not substantially related to the public health, safety,

morals or general welfare.” Mayfield–Dorsh, Inc. v. S. Euclid (1981), 68 Ohio St.2d 156,

161, 429 N.E.2d 159.

      {¶11} The trial court in the case sub judice recited language from Fairview

General Hospital v. Fletcher (1992), 63 Ohio St. 3d 146, 149, that "it [is] preferable for

[a] plaintiff to have exhausted its administrative remedies prior to seeking declaratory

relief in the common pleas court in order to avoid unnecessarily deciding the

constitutional issue."2

      {¶12} Appellant nonetheless directs us to State ex rel. Columbus S. Power Co.

v. Sheward (1992), 63 Ohio St.3d 78, 81, wherein the Ohio Supreme Court determined

that an administrative agency is without jurisdiction to determine the constitutional

validity of a statute. Appellant additionally recites Jones v. Village of Chagrin Falls

(1997), 77 Ohio St. 3d 456, 460-461, wherein the Ohio Supreme Court held: “Because



2
  A review of Fairview General reveals that the Ohio Supreme Court affirmed and
adopted the decision of the Tenth District Court of Appeals and attached the appellate
decision to the Supreme Court’s decision as an appendix. The adopted decision, at the
point of the above quote, references Arbor Health Care Co. v. Jackson (1987), 39 Ohio
App.3d 183, 530 N.E.2d 928.
Stark County, Case No. 2012 CA 00043                                                       5


administrative bodies have no authority to interpret the Constitution, requiring litigants to

assert constitutional arguments administratively would be a waste of time and effort for

all involved.” Based on this precedential guidance, appellant essentially maintains that it

had no administrative remedy as to its facial constitutional challenge to the village’s

zoning ban on the sale of automobiles, and therefore its declaratory judgment action in

the case sub judice should have been addressed by the trial court. Appellant’s Brief at

4.

      {¶13} However, under the circumstances of the case sub judice, the trial court

could have properly determined that appellant’s then-pending BZA administrative

appeal (which later became case number 2012 CV 01077) might result in a favorable

decision for appellant, simply on the merits and absent any constitutional claims.

Moreover, contrary to appellant’s present contention that an administrative constitutional

remedy would be futile in the other case, “[t]he Supreme Court of Ohio has held that an

appellant may raise a facial constitutional challenge in an administrative appeal even

where the appellant did not raise that challenge before the commission or agency.”

State ex rel. Kingsley v. State Emp. Relations Bd., Franklin App.No. 09AP–1085, 2011–

Ohio–428, ¶ 18, citing Reading v. Pub. Util. Comm., 109 Ohio St.3d 193, 195-96, 846

N.E.2d 840, 2006-Ohio-2181. Accordingly, while we must recognize the Ohio Supreme

Court’s determination that failure to exhaust administrative remedies is not a necessary

prerequisite to an action challenging the constitutionality of an ordinance (Jones, supra,

at 460), in this instance, where a separate BZA appeal had already been commenced

by appellant by the time of the dismissal decision at issue, we are unpersuaded the trial

court erred or abused its discretion in concluding that the necessity for a constitutional
Stark County, Case No. 2012 CA 00043                                                  6


review of the zoning ordinance at issue had not arisen in the context of the declaratory

judgment action, and thereby dismissing same.

     {¶14} Appellant’s sole Assignment of Error is therefore overruled.

     {¶15} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.


By: Wise, J.

Delaney, P. J., and

Edwards, J., concur.



                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
JWW/d 0925
Stark County, Case No. 2012 CA 00043                                         7


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




OMNIREAL, INC.                            :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
VILLAGE OF MEYERS LAKE, et al.            :
                                          :
       Defendants-Appellees               :         Case No. 2012 CA 00043




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




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                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
