[Cite as Harson Investments, Ltd. v. Troy, 2018-Ohio-2748.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                       MIAMI COUNTY

 STATE EX REL. HARSON                                  :
 INVESTMENTS, LTD., et al.                             :
                                                       :      Appellate Case No. 2017-CA-22
         Plaintiffs-Appellants                         :
                                                       :      Trial Court Case No. 2016-CV-546
 v.                                                    :
                                                       :      (Civil Appeal from
 CITY OF TROY, OHIO, et al.                            :      Common Pleas Court)
                                                       :
         Defendants-Appellees                          :


                                               ...........

                                              OPINION

                              Rendered on the 13th day of July, 2018.

                                               ...........

MICHAEL P. MCNAMEE, Atty. Reg. No. 0043861, GREGORY B. O’CONNOR, Atty. Reg.
No. 0077901, 2625 Commons Boulevard, Beavercreek, Ohio 45431
      Attorneys for Plaintiffs-Appellants

GRANT D. KERBER, Atty. Reg. No. 0068474, 215 West Water Street, Troy, Ohio 45373
    Attorney for Defendants-Appellees

                                             .............




WELBAUM, P.J.
                                                                                              -2-




       {¶ 1} In this action, Plaintiffs-Appellants, Harson Investments, Ltd., and AMK Co.,

LLC (collectively “Harson”), appeal from trial court judgments dismissing Harson’s petition

for a writ of mandamus and complaint for declaratory judgment.               The Defendants-

Appellees are the City of Troy; the Troy City Council; and Shannon Brandon, the Troy

Zoning Inspector, (collectively, “Troy”).

       {¶ 2} Harson contends that the trial court erred in finding that Harson failed to

exhaust administrative remedies, and, therefore, failed to state a claim for mandamus

relief. According to Harson, exhaustion was not required because the City of Troy Board

of Zoning Appeals (“BZA”) lacked jurisdiction to grant or deny a signage application.

       {¶ 3} Harson also contends that the trial court incorrectly granted judgment on the

pleadings with respect to Harson’s complaint for declaratory judgment. In this regard,

Harson maintains that the trial court’s decision renders Section 749.11(o) of the Codified

Ordinances of the City of Troy (“T.C.O.”) a nullity. Alternatively, Harson argues that

Section 749.11(o) is ambiguous.

       {¶ 4} We conclude that the trial court did not err in dismissing Harson’s petition for

a writ of mandamus, as Harson failed to exhaust administrative remedies following the

denial of its application for a sign permit. In addition, the trial court did not err in granting

Troy’s motion for judgment on the pleadings with respect to Harson’s request for a

declaratory judgment. The ordinance outlining permissible limits for signage was not

ambiguous and restricted total signage to the amounts listed in T.C.O. 749.11(o)(1),

regardless of the number of tenants who occupied a commercial property. Accordingly,

the judgment of the trial court will be affirmed.
                                                                                       -3-




                             I. Facts and Course of Proceedings

       {¶ 5} Harson is the owner of commercial real estate located at 1800-1808 West

Main Street in Troy, Ohio. The property is zoned B-2, General Business District, and

consists of a single-story retail strip center with four units: 1800, 1802, 1806, and 1808

West Main Street. The building has a 50 foot setback and has 100 feet of frontage.

       {¶ 6} Prior to 2015, all four units had signage that had been approved by the

Zoning Administrator.   However, unit 1802 has been vacant since March 2015; the

remaining units continued to be occupied and had a total of 106.38 square feet of signage

for the three units.

       {¶ 7} On December 8, 2016, Harson submitted an application to the Troy Zoning

Administrator, seeking a sign permit for unit 1802. The application requested a sign that

was 12.5 feet long and 3 feet high, for a total of 37.5 square feet. On December 13,

2016, Shannon Brandon, the Troy Zoning Inspector, sent a letter to Harson denying the

application for the sign pursuant to T.C.O. 749.11(o)(1) and (2), which are part of the

T.C.O. Business Regulation Code. Brandon’s letter stated that:

              Section 749.11(o)(1) and (2) refers to the table outlining the

       maximum square footage allowed for signs. Based on the building setback

       and the amount of building frontage, the building is allowed a maximum of

       100 square feet of signage. The existing tenants have a combined total of

       signage of 106.38 square feet currently on the building. Therefore, your

       request of a new sign in the amount of 37.5 square feet is not permitted.

              749.19 APPEALS AND VARIANCES
                                                                                         -4-


              (b) The BZA shall not have the authority to approve any sign with a

        message area exceeding that permitted by this chapter, or to permit the

        total message area to exceed the allowable message area permitted by this

        chapter. Only changes to the placement or location of a sign shall be

        granted by the BZA.

Petition for Writ of Mandamus and Complaint for Declaratory Judgment, Doc. #1, Ex. B,

p. 1.

        {¶ 8} Harson did not pursue an administrative appeal of the Zoning Inspector’s

decision. Instead, on December 19, 2016, Harson filed a petition for writ of mandamus

and complaint for declaratory judgment against Troy in the Miami County Common Pleas

Court. The complaint asserted the above facts, and contained three grounds for relief:

one claim for a declaratory judgment and two claims for mandamus relief. The complaint

also included these exhibits: (1) the application submitted to the Zoning Inspector (Ex. A);

(2) Brandon’s letter (Ex. B); and (3) the affidavit of Alex Kolodesh (Ex. C). Kolodesh was

the Vice President of Dayton Co., which was the sole General Partner of Harson

Investments, Ltd. At the time of the application, Harson Investments, Ltd. owned the

property at 1800-1808 West Main Street.

        {¶ 9} On January 12, 2017, Troy filed an answer to the petition and complaint, and

asserted various affirmative defenses, including failure to exhaust administrative

remedies. Subsequently, on March 9, 2017, Troy filed a notice with the trial court that it

had issued a sign permit to Harson on March 3, 2017. Troy attached the permit, which

approved a sign of up to 25 square feet. On March 9, 2017, Troy also filed a motion to

dismiss Harson’s mandamus claims, contending that they failed to state a claim under
                                                                                        -5-


Civ.R. 12(B)(6). After additional memoranda were filed, the trial court granted the motion

to dismiss on June 9, 2017, based on Harson’s failure to exhaust administrative remedies.

Thus, the request for declaratory judgment was the only claim that remained.

      {¶ 10} On July 5, 2017, Troy filed a motion for judgment on the pleadings with

respect to the claim for declaratory judgment. In moving for judgment on the pleadings,

Troy did not assert that Harson had failed to exhaust administrative remedies. After

Harson responded to the motion and filed its own motion for judgment on the pleadings,

the trial court filed a decision on August 31, 2017, concluding that T.C.O. 749.11(o) was

unambiguous and capped permissible signage at 100 feet for both single occupancy

buildings and buildings containing multiple units. Harson timely appealed from both

judgments.



               II. Was Harson Required to Exhaust Administrative Remedies?

      {¶ 11} Harson’s First Assignment of Error states that:

             The Trial Court Erred in Granting Troy’s Motion to Dismiss.

      {¶ 12} Under this assignment of error, Harson presents two issues for review.

The first issue concerns whether Troy’s code gives the BZA jurisdiction to hear appeals

from a zoning administrator’s decision that a particular sign would exceed the permissible

message area that the code of ordinances establishes. According to Harson, T.C.O.

749.19(b) deprives the BZA of jurisdiction.

      {¶ 13} As was noted, the trial court dismissed the second and third claims for relief

because Harson failed to exhaust administrative remedies.           The court, therefore,

concluded that the requests for a writ of mandamus failed to state a claim under Civ.R.
                                                                                           -6-


12(B)(6). The first mandamus claim involved Harson’s assertion that it had a clear legal

right to have its signage approved, and that it lacked an adequate remedy at law. In the

second mandamus claim, Harson alleged that it had a constitutionally protected interest

in economically viable use of its property, and that the application of T.C.O. 749.11(o)

resulted in an unconstitutional taking of the property.

       {¶ 14} Dismissal of claims under Civ.R. 12(B)(6) is appropriate where “ ‘it appears

beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would

entitle him to relief.’ ” Carter v. Trotwood-Madison City Bd. of Edn., 181 Ohio App.3d

764, 2009-Ohio-1769, 910 N.E.2d 1088, ¶ 27 (2d Dist.), quoting Crestmont Cleveland

Partnership v. Ohio Dept. of Health, 139 Ohio App.3d 928, 936, 746 N.E.2d 222 (10th

Dist.2000). See also State ex rel. Hilltop Resources v. Cincinnati, 166 Ohio App.3d 171,

2005-Ohio-6817, 849 N.E.2d 1064, ¶ 10 (1st Dist.) (applying Civ.R. 12(B)(6) standards to

dismissal of a relator's verified petition for a writ of mandamus). We review judgments

dismissing claims under Civ.R. 12(B)(6) on a de novo basis, which means “ ‘that we apply

the same standards as the trial court.’ ” Carter at ¶ 26, quoting GNFH, Inc. v. W. Am.

Ins. Co.,172 Ohio App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).

       {¶ 15} Typically, parties must exhaust administrative remedies before seeking

mandamus relief. State ex rel. Lieux v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d

414 (1951), paragraph two of the syllabus. See also State ex rel. Dynamic Industries,

Inc. v. Cincinnati, 147 Ohio St.3d 422, 2016-Ohio-7663, 66 N.E.3d 734, ¶ 12 (failure to

exhaust administrative remedies precluded mandamus action because lack of final

decision on application for permit indicated city had no clear legal duty to grant requested

relief, and applicant did not have clear legal right to relief).
                                                                                         -7-


       {¶ 16} “ ‘Exhaustion is generally required as a matter of preventing premature

interference with agency processes, so that the agency may function efficiently and so

that it may have an opportunity to correct its own errors, to afford the parties and the

courts the benefit of its experience and expertise, and to compile a record which is

adequate for judicial review.’ ” State ex rel. Teamsters Local Union 436 v. Cuyahoga

Cty. Bd. of Commrs., 132 Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, ¶ 19, quoting

Weinberger v. Salfi, 422 U.S. 749, 765, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975).

       {¶ 17} Exceptions to exhaustion have been found in two situations: (1) where no

administrative remedy is available that can provide the requested relief or resorting to the

remedy would be “wholly futile”; and (2) “when the available remedy is onerous or

unusually expensive.” (Citations omitted.) Karches v. City of Cincinnati, 38 Ohio St.3d

12, 17, 526 N.E.2d 1350 (1988).

       {¶ 18} In arguing that the BZA lacked jurisdiction to review the decision of the

Zoning Inspector, Harson appears to be relying on the first exception to exhaustion.

Harson’s argument is based on the wording of T.C.O. 749.19(b), which was quoted in

Brandon’s letter. This section states that:

              The BZA shall not have the authority to approve any sign with a

       message area exceeding that permitted by this chapter, or to permit the

       total message area to exceed the allowable message area permitted by this

       chapter. Only changes to the placement or location of a sign shall be

       granted by the BZA.

       {¶ 19} Basically, Harson argues that the BZA was forbidden to allow signs that

exceeded the amount of square footage permitted by T.C.O. 749.11(o), and, therefore,
                                                                                        -8-


lacked jurisdiction to hear Harson’s appeal. The trial court disagreed, and held that

T.C.O. 749.19 provided a remedy that could have been pursued.

      {¶ 20} In particular, the trial court noted that Harson’s assertions in the complaint

were inconsistent with its position on the BZA’s lack of authority. Specifically, Harson

did not contend at any point that it should be permitted to have signs that exceed what is

permitted by T.C.O. 749.11(o).      Instead, Harson’s argument was that the Zoning

Inspector incorrectly interpreted the meaning of this code section and that Harson’s sign

was within the permissible limits. This is an argument that we will address later during

our discussion of the motion for judgment on the pleadings. However, we agree with the

trial court that the dispute over the meaning of T.C.O. 749.11(o) was appropriate for

appeal to the BZA.

      {¶ 21} T.C.O. 749.19 provides, in pertinent part, as follows:

             The Board of Zoning Appeals shall have authority to hear appeals

      and consider variance applications as provided under Chapter 1137 of the

      Zoning Code. The affirmative vote of four (4) members shall be required

      to sustain an appeal. The affirmative vote of four (4) members shall be

      required to approve a variance.

             ***

             (b) The BZA shall not have the authority to approve any sign with a

      message area exceeding that permitted by this chapter, or to permit the

      total message area to exceed the allowable message area permitted by this

      chapter. Only changes to the placement or location of a sign shall be

      granted by the BZA.
                                                                                         -9-


       {¶ 22} Chapter 1137 of the Zoning Code outlines the jurisdiction of the BZA and

procedures for appeals from decisions of the Zoning Administrator. T.C.O. 1137.02

gives the BZA jurisdiction and authority, in relevant part, as follows:

               (a) To hear and decide appeals where it is alleged there is error in

       any order, requirement, decision, or determination (all hereinafter referred

       to collectively as “decision”) made under this Zoning Code by the Zoning

       Administrator, subject to the procedure and standards set out in this Zoning

       Code.

               ***

               (f) To hear and decide all matters related to appeals and variances

       from Section 749.19 of the Codified Ordinances related to signs.

       {¶ 23} Thus, T.C.O. 1137.02 specifically gives the BZA jurisdiction to hear appeals

related to signs, which would include errors in decisions on signs. Disagreements over

interpretation of an ordinance as it applies to a party’s application for a sign permit fall

within the category of an alleged error in a decision.

       {¶ 24} As support for its position, Harson also relies on Hilltop Resources,166 Ohio

App.3d 171, 2005-Ohio-6817, 849 N.E.2d 1064, and our decision in Englewood v. Turner,

168 Ohio App.3d 41, 2006-Ohio-2667, 858 N.E.2d 431 (2d Dist.). Both these decisions

concluded that exhaustion of administrative remedies was not required because the

particular city’s municipal code did not contain a procedure for appeals of the issue being

considered. Hilltop Resources involved a city’s denial of a curb-cut/driveway permit that

was not administratively appealed. Id. at ¶ 9-11. The First District Court of Appeals

rejected the city’s argument because the municipal code did not authorize appeals from
                                                                                       -10-


denial of a curb-cut/driveway permit.     Instead, the code only allowed protests from

owners who objected to having to replace sidewalks or curbs or from owners who were

dissatisfied with modifications authorized by the city engineer. Id. at ¶ 12-13.

      {¶ 25} Similarly, in Turner, the city’s property maintenance code did not contain a

procedure for appeals to the city council. Instead, the code provided only for appeals to

the common pleas court and some sort of suggested appeal from the decision of a

housing officer; however, the code provided no procedures for such an appeal. Turner

at ¶ 14-15 (housing officer sent a notice of a housing violation to the property owner and

gave her a period of time to abate nuisances or work with the city on a schedule to do so;

the city also adopted a resolution restating the nuisance conditions and gave the property

owner additional time to abate). See also Turner v. Englewood, 191 Ohio App.3d 1,

2010-Ohio-5881, 944 N.E.2d 731, ¶ 5 (2d Dist.) (discussing our prior decision in Turner

and noting landowner’s lack of remedies). Furthermore, the landowner had no ability to

appeal to the common pleas court from the city council’s resolution, because the

resolution was not a quasi-judicial order. Turner, 168 Ohio App.3d 41, 2006-Ohio-2667,

858 N.E.2d 431, at ¶ 16-18.

      {¶ 26} In contrast to Hilltop and Turner, the Troy ordinances do contain an avenue

for administrative appeals and hearings. Procedures for appeals are detailed in T.C.O.

1137.07, which states in subsection (a) that “[a]n appeal from a decision of the Zoning

Administrator with respect to the interpretation or application of this Zoning Code may be

taken to the Appeals Board by any person aggrieved, or by any officer, department, board,

or any governmental agency or body affected by the decision of the Zoning

Administrator.”   Appeals must be filed within 30 days of the Zoning Administrator’s
                                                                                          -11-


decision, and are accomplished by filing a written notice of appeal with the secretary of

the BZA. T.C.O. 1137.07(b).

        {¶ 27} After receiving a notice of appeal, the BZA is to select a reasonable time

and place for a hearing, and must allow any party in interest to appear at the hearing by

an attorney or agent. T.C.O. 1137.07(d). Following the hearing, the BZA “may affirm,

reverse, or modify, in whole or in part, the decision appealed from, and to that end the

Appeals Board shall have all the powers of the Zoning Administrator with respect to such

decision. The concurring vote of a majority of the members of the Appeals Board shall be

necessary to reverse or modify any decision of the Zoning Administrator under this Zoning

Code.    The Appeals Board shall render a written decision on the appeal without

unreasonable delay after the close of a hearing, and in all cases, within thirty (30) days

after the close of the hearing.” T.C.O. 1137.07(e).

        {¶ 28} Furthermore, T.C.O. 1137.05(c) states that all BZA decisions and findings

“on an appeal * * * after a hearing, shall be final but in all instances shall be subject to

judicial review in the manner provided in O.R.C. Chapter 2506.”

        {¶ 29} Again, the dispute here was not over whether Harson could place a sign on

its building that exceeded the footage allowed by the ordinances. Instead, the dispute

involved whether the Zoning Inspector had correctly interpreted the ordinance. Under

these circumstances, Harson had the right to appeal the decision to the BZA, and the

BZA had the ability to consider the issue.       Since Harson did not avail itself of that

opportunity, the trial court correctly concluded that Harson failed to exhaust administrative

remedies and was not entitled to pursue mandamus relief.

        {¶ 30} Harson’s second argument under this assignment of error concerns the
                                                                                          -12-


letter sent by the Zoning Inspector. According to Harson, even if the BZA had jurisdiction

to hear the matter, the Zoning Inspector failed to give Harson reasonable notice that an

administrative appeal was either available or required. As support for this assertion,

Harson relies on the fact that the Zoning Inspector quoted T.C.O. 749.19(b) in the

December 13, 2016 letter denying Harson’s application.

       {¶ 31} As was noted, this section of T.C.O.749.19 states that ”[t]he BZA shall not

have the authority to approve any sign with a message area exceeding that permitted by

this chapter, or to permit the total message area to exceed the allowable message area

permitted by this chapter. Only changes to the placement or location of a sign shall be

granted by the BZA.”      Harson’s position is that the statement in this letter actively

misrepresented the right to appeal by informing Harson that it had no ability to appeal.

       {¶ 32} In ruling on the motion to dismiss, the trial court acknowledged the

statement in the letter. However, the court noted that the letter did not say that the BZA

lacked jurisdiction over appeals alleging that the administrator had applied the wrong

code section. In addition, the court stressed that Harson was required to rely on the

provisions of the T.C.O. concerning appeal, not on the Zoning Administrator’s statements.

Doc. #19, Decision Granting Defendants’ Motion to Dismiss Count Two and Three of

Complaint, p. 5.

       {¶ 33} In support of its position, Harson relies on our decision in Schulte v. City of

Beavercreek, 2d Dist. Greene No. 99-CA-6, 1999 WL 812395 (Sept. 24, 1999), which

involved a landowner’s alleged failure to exhaust administrative remedies of appealing to

the BZA and from there to the city council.        Id. at *2.   Rather than pursuing this

administrative process, the landowner appealed the denial of spilt lot applications directly
                                                                                         -13-


to the common pleas court. In this regard, the landowner relied on Section 907 of the

city’s subdivision regulations, which allowed a direct appeal to the common pleas court.

Id.

         {¶ 34} We concluded that “[t]he appeal procedure set forth in the subdivision

regulations is clear and unqualified: an appeal from the actions of the planning

commission may be taken to the court of common pleas.” Id. at *4. We also rejected

the city’s contention that the landowner should be imputed with knowledge of the

administrative appeals set forth in the zoning code and city charter, and that “even though

the subdivision regulations provide for a particular procedure, that procedure must be

‘tempered and viewed through the prism’ of the charter and the zoning regulations.” Id.

at *5.

         {¶ 35} In response to the city’s argument, we commented that:

         The lot split that Schulte sought to accomplish was controlled by the

         subdivision regulations, and the subdivision regulations set forth an appeal

         procedure unequivocally. That procedure provided for an appeal to the

         court of common pleas. The fact that the subdivision regulations expressly

         provided for an appeal to the court of common pleas certainly implied that

         the proper avenue of appeal did not lie somewhere else. Thus, the city's

         basic tenet that a landowner cannot rely on the plain language of the

         subdivision regulations and, instead, has some duty to forage through all of

         the city ordinances and its charter to determine if any other provision might

         apply strikes us as disingenuous, unreasonable, and unfair. Such a

         requirement would indeed violate the due process rights of landowners, who
                                                                                       -14-


      should be able to determine what is required of them in a more expeditious

      and more reasonable manner. The city's argument is further weakened by

      its continued assertion that the appeal procedure set forth in the subdivision

      regulations applied in some situations but did not apply to Schulte. At the

      hearing before the trial court, the city's attorney was unable to identify a

      situation in which the appeal procedure of the subdivision regulations would

      apply under the city's interpretation of the ordinance, and the alleged

      distinction between Schulte's case and others to which Section 907 would

      apply is certainly not apparent from the language of the subdivision

      regulations.

Schulte, 2d Dist. Greene No. 99-CA-6, 1999 WL 812395, at *5.

      {¶ 36} Our comments were apt in that situation, but they do not apply here.

Harson does not contend that Troy’s ordinances provide more than one avenue of appeal,

and that he was led to believe that a direct appeal to the common pleas court applied.

Unlike the landowner in Schulte, Harson was specifically referred to T.C.O. 749.19, which

provides that “[t]he Board of Zoning Appeals shall have authority to hear appeals and

consider variance applications as provided under Chapter 1137 of the Zoning Code.”

T.C.O. 749.19(a). As was noted above, Chapter 1137 of the Zoning Code outlines the

administrative appeal process in detail and includes a right to a hearing.

      {¶ 37} It is true that the Zoning Inspector’s letter referred to T.C.O. 749.19(b),

which indicates that the BZA does not have authority to allow signage that exceeds the

Code’s requirements. This is part of the same code section as T.C.O. 749.19(a) and it

would be impossible to review subsection (b) without also discovering subsection (a).
                                                                                          -15-


Furthermore, we interpret the reference to subsection (b) simply as the Zoning Inspector’s

interpretation that the requested amount of signage could not be granted because it

exceeded what was allowed under T.C.O. 749.11(o). Whether this interpretation was

correct is the subject of further discussion below. However, Harson did not have to

“forage through” the city’s ordinances to find out what appeal procedures applied; the

procedures were apparent.

       {¶ 38} In connection with this argument, Harson also relies again on our decision

in Turner, 168 Ohio App.3d 41, 2006-Ohio-2667, 858 N.E.2d 431. Specifically, Harson

notes our comment in Turner that the landowner had not been given notice of a right to a

hearing. Our complete statement, however, was that the landowner “was provided with

no notice of any right to a hearing or to present evidence, and Englewood's Property

Maintenance Code did not provide for a procedure to ensure these rights.” (Emphasis

added.)      Id. at ¶ 20.   Unlike the code provision involved in Turner, T.C.O. 749.19

expressly provides for appeals to be conducted in accordance with T.C.O. Chap. 1137,

and a right to a hearing is provided.

       {¶ 39} There is no reason why Harson could not have appealed to the BZA,

particularly since its position was that the Zoning Inspector erred in interpreting the code.

If Harson had prevailed on its contrary interpretation in proceedings before the BZA, the

resulting signage would not have exceeded the allowable area, and the application would

have been successful. Accordingly, Harson should have pursued the administrative

process and cannot proceed with requests for mandamus relief.

       {¶ 40} Based on the preceding discussion, the First Assignment of Error is

overruled.
                                                                                         -16-




                             III. Did the Trial Court Err in Granting

                           the Motion for Judgment on the Pleadings?

       {¶ 41} Harson’s Second Assignment of Error states that:

              The Trial Court Erred in Granting Troy’s Motion for Judgment on the

       Pleadings and Denying Harson’s Motion for Judgment on the Pleadings.

       {¶ 42} As was noted, after the trial court dismissed Harson’s mandamus claims,

the court granted Troy’s motion for judgment on the pleadings with respect to Harson’s

request for a declaratory judgment.

       {¶ 43} Concerning this assignment of error, Harson’s contention, reduced to its

essence, is that T.C.O. 749.11(o) unambiguously allows the maximum allowable square

footage of signage for single-tenant buildings to be separately applied to each tenant in

a multi-unit building. In other words, if the maximum signage allowed is 100 square feet

for single-tenant buildings with less than 250 feet of frontage, each tenant in a multi-unit

building with less than 250 feet of frontage would individually be entitled to a maximum

signage of 100 square feet. From this perspective, Harson’s request for 37.5 square feet

of signage would have been well within the 100 feet permitted to each tenant.

Alternatively, Harson argues that T.C.O. 749.11(o) is ambiguous and that the trial court

should have considered extrinsic evidence, including Troy’s historical administration of

this code section.

       {¶ 44} The trial court concluded that T.C.O. 749.11(o) was unambiguous and

permitted a maximum of only 100 square feet of signage in situations like the present,

where a building has 250 feet or less of frontage.
                                                                                            -17-


       {¶ 45} A motion for judgment on the pleadings is brought pursuant to Civ.R. 12(C).

While Civ.R. 12(C) and Civ.R. 12(B)(6) use similar standards, Civ.R. 12(C) is used

specifically to resolve questions of law. State ex rel. Midwest Pride IV, Inc. v. Pontious,

75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). “Under Civ.R. 12(C), dismissal is

appropriate where a court (1) construes the material allegations in the complaint, with all

reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true,

and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his

claim that would entitle him to relief. * * * Thus, Civ.R. 12(C) requires a determination that

no material factual issues exist and that the movant is entitled to judgment as a matter of

law.” (Citations omitted.) Id.       Since the review is of questions of law, we review a trial

court’s decision de novo. (Citation omitted.) White v. King, 147 Ohio St.3d 74, 2016-

Ohio-2770, 60 N.E.3d 1234, ¶ 13. Again, de novo review means “ ‘that we apply the

same standards as the trial court.’ ” Carter, 181 Ohio App.3d 764, 2009-Ohio-1769, 910

N.E.2d 1088, at ¶ 27, quoting GNFH, Inc.,172 Ohio App.3d 127, 2007-Ohio-2722, 873

N.E.2d 345, at ¶ 16.

       {¶ 46} Harson’s First Claim for Relief was brought under the Declaratory Judgment

Act. While Harson did not identify a particular section number of the act, R.C. 2721.03

states, in pertinent part, that “any person whose rights, status, or other legal relations are

affected by a * * * municipal ordinance * * * may have determined any question of

construction or validity arising under the * * * ordinance * * * and obtain a declaration of

rights, status, or other legal relations under it * * *.”

       {¶ 47} In the First Claim for Relief, Harson requested the following declarations:

(1) “that the total aggregate signage limitation in Section 749.11(o) has no application to
                                                                                        -18-


the Property because the Property is a multi-tenant building”; (2) “that Section

749.11(o)(2) is the signage section that applies to the Property, and that under that

Section, no aggregate signage limitation exists, and each unit is entitled to have the

maximum signage area calculated separately based on its building frontage”; (3) “that the

Zoning Administrator’s construction of Section 749.11 in considering AMK’s application

was incorrect and unenforceable”; and (4) “that the zoning application was within the

limitations imposed by 749.11(o)(2).” Doc. #1, p. 5, ¶ 21-24.

       {¶ 48} These allegations clearly raise issues that could have been resolved in the

administrative context. The Supreme Court of Ohio has held that, before “instituting a

declaratory judgment action to determine the validity of a zoning ordinance as applied to

a specific parcel of property, a party ordinarily must exhaust administrative remedies.”

Karches, 38 Ohio St.3d at 17, 526 N.E.2d 1350. As was noted, exhaustion prevents

premature interference with agencies, permits agencies to correct their own errors, lets

agencies give courts and parties the benefit of the agencies’ experience, and allows a

record to be compiled for judicial review. State ex rel. Teamsters Local Union 436, 132

Ohio St.3d 47, 2012-Ohio-1861, 969 N.E.2d 224, at ¶ 19 (Citation omitted). “Where a

party fails to exhaust available administrative remedies, allowing declaratory relief would

serve ‘only to circumvent an adverse decision of an administrative agency and to bypass

the legislative scheme.’ ” Id., quoting Fairview Gen. Hosp. v. Fletcher, 63 Ohio St.3d

146, 152, 586 N.E.2d 80 (1992).

       {¶ 49} Ordinarily, this would mean that Harson’s declaratory judgment action

should have been dismissed for failure to exhaust administrative remedies. However,

the Supreme Court of Ohio held in Jones v. Chagrin Falls, 77 Ohio St.3d 456, 674 N.E.2d
                                                                                          -19-


1388 (1997), that “[t]he doctrine of failure to exhaust administrative remedies is not a

jurisdictional defect to a declaratory judgment action; it is an affirmative defense that may

be waived if not timely asserted and maintained.” Id. at syllabus, clarifying and following

Driscoll v. Austintown Assoc., 42 Ohio St.2d 263, 28 N.E.2d 395 (1975).

       {¶ 50} Jones involved a situation like the present, as the plaintiff there brought a

declaratory judgment action to resolve the meaning of a definition in a village council’s

zoning code.     This was a non-constitutional issue.       Prior to filing the declaratory

judgment action, the plaintiff did not seek a use variance from the village. Id. at 457.

After the action was filed, the village raised failure to exhaust administrative remedies and

lack of subject matter jurisdiction in its answer, but did not argue these defenses in

responding to the plaintiff’s motion for summary judgment or in the village’s own summary

judgment motion. Id. at 457-458.

       {¶ 51} The trial court granted summary judgment to the plaintiff, but the court of

appeals reversed, finding that the trial court lacked subject matter jurisdiction based on

the plaintiff’s failure to exhaust administrative remedies. This is an issue that the court

of appeals had raised sua sponte during oral argument; the parties then addressed the

issue in supplemental briefs. Id. at 458. On further appeal to the Supreme Court of

Ohio, the court concluded that “the doctrine of failure to exhaust administrative remedies

is not a jurisdictional defect to a declaratory judgment action; it is an affirmative defense

that may be waived if not timely asserted and maintained.” Id. at 462. With respect to

the particular case, the court held that the village had waived the defense. As a result,

the case was remanded to the court of appeals for a decision on the proper interpretation

of the zoning code. Id. at 463.
                                                                                               -20-


       {¶ 52} This is essentially what occurred in the case before us. Troy’s answer

asserted a failure to exhaust administrative remedies as a defense, but Troy did not argue

this theory to the trial court when it filed a motion for judgment on the pleadings. The

trial court also did not discuss the matter in its decision on the motion for judgment on the

pleadings. Accordingly, because Troy waived the affirmative defense, we will consider

the merits of Harson’s argument.

       {¶ 53} T.C.O. 749.11(o) provides as follows:

              (o) Building Signs. Attached building signs shall be in accordance

       with the following provisions:

              (1) The total of all attached building signs shall not exceed in the

       aggregate the following:

        Building Level   Building Setback   Frontage        Allowable            Maximum
        Ground Floor     Less than 100      Less than 250   1.5 sq. ft./linear   100 sq. ft.
                         feet               feet            foot of building
                                                            frontage
                         100-300’           Less than 250   3.0 sq. ft./linear   200 sq. ft.
                                            feet            foot of building
                                                            frontage
                         Over 300’          250-500’        3.0 sq. ft./linear   300 sq. ft.
                                                            foot of building
                                                            frontage
                         Over 300’          Over 500’       3.0 sq. ft./linear   400 sq. ft.
                                                            foot of building
                                                            frontage
        Upper Floors     Less than 100      Any             .75 sq. ft./linear   50 sq. ft.
                         feet                               foot of building
                                                            frontage
                         More than 100      Any             1.5 sq. ft./linear   100 sq. ft.
                         feet                               foot of building
                                                            frontage



              (2) In multi-tenant buildings, each individual business will have its

       maximum allowable sign area calculated separately based on the amount

       of building frontage they occupy.
                                                                                           -21-


       {¶ 54} To ascertain legislative intent, courts first look to a statute’s plain language.

If the meaning is “ ‘unambiguous and definite,’ ” the statute is applied as written.

(Citations omitted.) Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280,

943 N.E.2d 522, ¶ 18. “ ‘Where a statute is found to be subject to various interpretations,

however, a court called upon to interpret its provisions may invoke rules of statutory

construction in order to arrive at the legislative intent.’ ” Symmes Twp. Bd. of Trustees

v. Smyth, 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000), quoting Meeks v.

Papadopulos, 62 Ohio St.2d 187, 190, 404 N.E.2d 159 (1980). The standard rules of

construction are also applied to ordinances. Gesler v. Worthington Income Tax Bd. of

Appeals, 138 Ohio St.3d 76, 2013-Ohio-4986, 3 N.E.3d 1177, ¶ 12; Bosher v. Euclid

Income Tax Bd. of Rev., 99 Ohio St.3d 330, 2003-Ohio-3886, 792 N.E.2d 181, ¶ 14.

       {¶ 55} As noted in R.C. 1.49, where statutes are ambiguous, the rules of

construction include consideration of: “(A) The object sought to be attained; (B) The

circumstances under which the statute was enacted; (C) The legislative history; (D) The

common law or former statutory provisions, including laws upon the same or similar

subjects; (E) The consequences of a particular construction; (F) The administrative

construction of the statute.”

       {¶ 56} T.C.O. 101.03-101.08 adopt various rules of construction and refer to

corresponding sections of the Ohio Revised Code.           For example, T.C.O. 101.07(c),

references and contains the same language as R.C. 1.49. In addition, consistent with

R.C. 1.42, T.C.O. 101.03(a) states that “[w]ords and phrases shall be read in context and

construed according to the rules of grammar and common usage.” See also Rhodes v.

New Philadelphia, 129 Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 17 (citing
                                                                                          -22-


R.C. 1.42 and also noting that if statutes do not define terms, the “plain and ordinary”

meaning of a term controls).

        {¶ 57} After reviewing T.C.O. 749.11(o), we agree with the trial court that it is

unambiguous. T.C.O. 749.11(o)(1) clearly provides that the total of “all attached building

signs” cannot exceed the aggregate amounts listed in the table. While “aggregate” is not

defined in T.C.O. 749.11(o), it commonly means “formed by the collection of units or

particles into a body, mass, or amount: collective: such as * * * c: taking all units as a

whole.”1 Furthermore, as the trial court noted, “[a]ll means all, and plainly applies to both

single tenant and multi-tenant buildings.”     Doc. #25, Decision Granting Defendants’

Motion for Judgment on the Pleadings; Denying Plaintiffs’ Cross-Motion for Judgment on

the Pleadings, p. 4.

        {¶ 58} In the case before us, there is no dispute about the fact that Harson’s

building had 100 feet of frontage and was set back 50 feet. Harson, therefore, fell within

the first row in the table, which provides that buildings with less than 250 square feet of

frontage, and set back less than 100 feet, may have 1.5 square feet of signage per linear

foot of frontage, with a maximum aggregate or total of 100 square feet of signage. Thus,

if only one tenant occupies a building with 100 feet of frontage, that tenant may have only

total signage of 100 square feet, even though that tenant would otherwise be allowed 150

square feet (100 x 1.5 = 150). Similarly, if one tenant occupies a building with 249 feet

of frontage (the maximum amount in row one), and is set back less than 100 feet, that

tenant is still restricted to a total of 100 square feet of frontage, even though the tenant

would otherwise be entitled to 373.5 square feet (249 x 1.5 = 373.5).


1   https://www.merriam-webster.com/dictionary/aggregate, accessed on July 9, 2018.
                                                                                        -23-


       {¶ 59} T.C.O. 749.11(o)(2) adds to T.C.O. 749.11(o)(1) by providing that for

buildings with multiple tenants, each tenant’s maximum frontage will be calculated

separately, based on the amount of frontage the tenant occupies. This does not increase

the maximum aggregate (or total) amount of square feet of signage allowed; it simply

provides a way to allocate the allowed signage where more than one tenant occupies a

building.

       {¶ 60} Harson argues that T.C.O. 749.11(o)(2) unambiguously incorporates the

entire table and calculations set forth in T.C.O. 749.11(o)(1), but transfers the object of

the calculation in multi-unit buildings from the building to the businesses. According to

Harson, this means that the 100 square feet of maximum signage transfers separately to

each tenant. In the case before us, that would mean that Harson, an occupant of one-

fourth of the building, would be entitled to 37.5 square feet of signage [1.5 (allowable

square feet of signage per linear frontage) x 25 (the percentage of linear feet of frontage

of the building that Harson occupied)].      This was the amount of signage Harson

requested, and was within the 100 feet of potential signage that Harson claims is allowed

under its interpretation of the ordinance.

       {¶ 61} We disagree with this reading of the ordinance. In the first place, it makes

no sense. In a multiple-tenant situation, no matter how few or how many tenants occupy

a building with 100 linear feet of footage, there would never be any way to reach 100 feet

of signage per tenant.     The application of this maximum amount to each tenant,

therefore, would be unnecessary and irrelevant.

       {¶ 62} For example, if only two tenants occupy the building, each tenant could

have maximum signage of 1.5 x 50 linear feet of frontage, or only 75 square feet.
                                                                                          -24-


Similarly, if five tenants occupied the building, each tenant would only be entitled to

maximum signage of 30 square feet (20 feet x 1.5 = 30 square feet). In this scenario,

there would be no reason to allow a maximum of 100 square feet for each tenant, as that

figure could never be reached by any tenant in a multiple-tenant context.

       {¶ 63} Admittedly, application of the 100 square feet maximum would allow each

tenant to have larger signage. However, if each tenant were allowed to have signage of

up to 1.5 feet times the tenant’s percentage of occupation of a building, that would allow

a four-tenant building, for example, to have a total of 150 square feet of signage on the

building (37.5 x 4 = 150). This far exceeds the allowable amount for one tenant, and,

again, makes no sense. If the city did not wish a single tenant to have signage of more

than 100 square feet, there is no reason to think the city would want multiple signs that

exceed 100 square feet when the frontage and setback in both situations is the same.

       {¶ 64} As a final matter, the ordinance itself makes no mention of “transferring” the

maximum allowance for signage to “businesses” rather than “buildings.” If that were the

intent, the city council could have said so.

       {¶ 65} It is also true that application of the ordinance provides differing amounts of

signage depending on the size of a building and its setback. For example, a building

with 249 feet of frontage and a setback of 99 feet is entitled only to a maximum amount

of 100 square feet of signage. As was noted, that is the same amount of signage allowed

to buildings with less frontage and less setback.       Furthermore, if the frontage and

setback of the same building had been increased by merely one foot each, that building

would be allowed double the amount of signage, i.e., a maximum of 200 square feet.

Nonetheless, that does not mean the ordinance is ambiguous. These were decisions
                                                                                              -25-


the city council made when it enacted the city’s code of ordinances.

       {¶ 66} The Supreme Court of Ohio has stressed that “[i]t is better to leave the

formulation and implementation of zoning policy to the city council, or other legislative

body, which has not only the expertise and staff, but also, the constitutional responsibility

to police this area effectively. * * * [A]ny city's zoning code should not be judicially

amended simply because the judges of this court, or any court, would have made a

different decision if they had been members of the city council.” Leslie v. City of Toledo,

66 Ohio St.2d 488, 492, 423 N.E.2d 123 (1981). Additionally, the court commented in

Leslie that:

               The determination of the question of whether regulations prescribed

       by a zoning ordinance have a real or substantial relation to the public health,

       safety, morals or general welfare is committed, in the first instance, to the

       judgment and discretion of the legislative body. Where such a judgment

       deals with the control of traffic, volume of traffic, burden of traffic, effect upon

       valuation of property, the municipal revenue to be produced for the city,

       expense of the improvement, land use consistent with the general welfare

       and development of the community as a whole, or, in short, where the

       judgment is concerned with what is beneficial or detrimental to good

       community planning, it is in the first instance a legislative and not a judicial

       matter. The legislative, not the judicial, authority is charged with the duty of

       determining the wisdom of zoning regulations, and the judicial judgment is

       not to be substituted for the legislative judgment in any case in which the

       issue or matter is fairly debatable.
                                                                                         -26-

Leslie at 492, quoting Willott v. Village of Beachwood, 175 Ohio St. 557, 560, 197 N.E.2d

201 (1964). Accord Valley Auto Lease of Chagrin Falls, Inc. v. Auburn Twp. Bd. of

Zoning Appeals, 38 Ohio St.3d 184, 185, 527 N.E.2d 825 (1988); Singer v. Troy, 67 Ohio

App.3d 507, 515, 587 N.E.2d 864 (2d Dist.1990).

       {¶ 67} Because we have found the pertinent provisions of the code unambiguous,

we need not address Harson’s alternative argument that T.C.O. 749.11(o) is ambiguous.

Based on the preceding discussion, the trial court did not err in granting Troy’s motion for

judgment on the pleadings. Accordingly, the Second Assignment of Error is overruled.



                                         IV. Conclusion

       {¶ 68} All of Harson’s assignments of error having been overruled, the judgment

of the trial court is affirmed.



                                     .............



FROELICH, J. and HALL, J., concur.




Copies mailed to:

Michael P. McNamee
Gregory B. O’Connor
Grant D. Kerber
Hon. Jeannine N. Pratt
