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Date: 04-03-2021
Case Style:
Gregory D. Johnson v. Danbury Township, et al.
Case Number: OT-20-008
Judge: Mark L. Pietrykowski
Court: IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
Plaintiff's Attorney:
Defendant's Attorney: James J. VanEerten, Ottawa County Prosecuting Attorney, and
Blake W. Skilliter, Assistant Prosecuting Attorney, for appellees
Danbury Township BZA, et al.
Frank H. Scialdone and David M. Smith, for appellees Ottawa
County Health Department, et al.
Description:
Toledo, OH - Pro se appellant, Gregory D. Johnson appeals the April 3, 2020 judgment of the Ottawa County Court of Common Pleas dismissing his appeal of claims relating to the appellees’ lack of ordinances, rules or regulations regarding the keeping of fowl in a residential district.
The relevant facts of this case are as follows. Appellant resides in
Marblehead, Ottawa County, Ohio. Appellant had an ongoing dispute with some
neighbors regarding the keeping of chickens and roosters on their properties. On
November 15, 2019, appellant filed a nuisance report with the Danbury Zoning
Commission.
{¶ 3} On November 20, 2019, the administrator sent a “Complaint Follow-up”
letter to appellant detailing her findings and conclusions. The administrator noted that
appellant’s concerns were supported by neighbors. She then stated:
[T]here is no statute either locally or statewide that I can cite any of
these property owners on should the fowl roam onto neighboring properties
other than their own. All I can do, is send a letter to these property owners
asking them to be more cognizant of keeping the fowl on their own
properties. Copies of the letter sent are enclosed.
Enclosed you will also find a complaint form that can be submitted
to the Ottawa County Health District regarding your sanitation concerns
with fowl droppings. As far as your concerns about these animals causing
damage to your property, the only recourse I am aware of that would be
available is to file some sort of claim or complaint against the neighbor(s) 3.
in Civil or Municipal Court. Speaking with an attorney would provide you
the best guidance. An alternative may be to request mediation.
Information about this is also enclosed.
{¶ 4} The above-referenced letters, captioned “1st Warning” informed the owners
of concerns that had been raised about the fowl kept on their property. The letter stated
that “[f]ailure to contain the fowl on your property could be viewed as a nuisance by
neighbors” and requested that the neighbors make “a good faith attempt to be neighborly
and address the concerns.”
{¶ 5} On December 20, 2019, appellant commenced this action as an
“administrative appeal” from the November 20, 2019 letter. Appellant filed
supplemental appeals on January 17 and February 3, 2020. Appellant claimed that
various local administrative agencies were negligent in failing to instate and enforce
regulations relating to the keeping of fowl. He requested that the court award him $18
million for property damage, psychological distress, and punitive damages.
{¶ 6} On March 11, 2020, appellees Danbury Township BZA, Ottawa County
Commissioners, Ottawa County Department of Building Inspections, and Danbury Police
Department filed a motion to dismiss pursuant to Civ.R. 12(B)(1) and (6). Appellees
argued that the trial court lacked subject-matter jurisdiction to hear the appeal because it
was not an appeal from a quasi-judicial decision of an administrative agency. Appellees
argued that in issuing the letter, the administrator did not use discretion or independent
judgment. She simply indicated that the county had no rules or regulations regarding the 4.
keeping of fowl and suggested various avenues for possible relief. Appellees further
argued under Civ.R. 12(B)(6), that there was no justiciable controversy in that there was
no recourse for a rule or statute that appellees had failed to enact.
{¶ 7} Similarly, on March 12, 2020, appellees Ottawa County Health Department
and related parties filed a motion to dismiss under Civ.R. 12(B)(1) and (6) arguing that
appellees never issued an administrative order relating to appellant’s claims and that
appellant failed to set forth any claims against appellees.
{¶ 8} On April 3, 2020, the court granted appellees’ motions to dismiss finding
that the BZA administrator’s letter was not a final order rendered in a quasi-judicial
proceeding and thus, it was not a final and appealable order as contemplated under R.C.
Chapter 2506. The court further found that even if the matter could be considered a
quasi-judicial proceeding, the only proper party would be the BZA.
{¶ 9} This appeal followed with appellant raising the following assignment of
error:
The error lies in the narrow interpretation of ORC 2506 as applying
only to quasi-judicial proceedings and in the interpretation of what
constitutes a quasi-judicial proceeding. An additional error lies in the
narrow determination that only the political or governmental division and
its agent directly responsible for the final decision in a complaint can be
included as Appellee in a case. 5.
{¶ 10} We first note that a motion to dismiss an administrative appeal for lack of
subject-matter jurisdiction involves a question of law, which this court reviews de novo.
In re Appeal in the Cty. Ditch Known as Spallinger Ditch, 2020-Ohio-2671, 154 N.E.3d
321, ¶ 6 (3d Dist.), citing Courtyard Lounge v. Bur. of Environmental Health, 190 Ohio
App.3d 25, 2010-Ohio-4442, 940 N.E.2d 626, ¶ 5 (10th Dist.).
{¶ 11} R.C. 2506.01 provides, in part:
(A) * * * 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 as provided in Chapter 2505. of the Revised
Code.
* * *
(C) As used in this chapter, “final order, adjudication, or decision”
means an order, adjudication, or decision that determines rights, duties,
privileges, benefits, or legal relationships of a person, * * * .
{¶ 12} Interpreting R.C. 2506.01, Ohio courts have agreed that the trial court has
authority to hear an appeal of an administrative action only if the action was quasijudicial. Thomas v. Beavercreek, 105 Ohio App.3d 350, 354, 663 N.E.2d 1333 (2d
Dist.1995). “To be considered a quasi-judicial proceeding, the proceeding must resemble
a court proceeding in that an exercise of discretion is employed in adjudicating the rights 6.
and duties of parties with conflicting interests.” Id., citing Talbut v. Perrysburg, 72 Ohio
App.3d 475, 478, 594 N.E.2d 1046 (6th Dist.1991). “Moreover, the Ohio Supreme Court
has previously determined that ‘proceedings of administrative officers and agencies are
not quasi-judicial where there is no requirement for notice, hearing and the opportunity
for the introduction of evidence.’” Id., quoting State ex rel. McArthur v. DeSouza, 65
Ohio St.3d 25, 27, 599 N.E.2d 268 (1992).
{¶ 13} Reviewing the November 20, 2019 letter it is clear that the BZA
administrator did not exercise discretion by explaining to appellant that the relevant local
and state laws do not provide how and whether fowl must be contained on property zoned
as rural residential. Further, the letter in no way triggered the requirement for notice and
a hearing. Thus, we agree with the lower court that there was no quasi-judicial
proceeding from which to appeal. Accordingly, the trial court did not err in granting
appellees’ motions to dismiss. Appellant’s assignment of error is not well-taken.
Outcome: On consideration whereof, we find that the April 3, 2020 judgment of the
Ottawa County Court of Common Pleas is affirmed. Pursuant to App.R. 24, appellant is
ordered to pay the costs of this appeal.
Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: