I respectfully dissent from the majority's disposition of appellant's assignments of error. I would find that the appellant did not adequately demonstrate the existence of genuine issues of material fact concerning the zoning of appellant's property. Consequently, I would affirm the decision of the trial court granting summary judgment in favor of appellee.
Subsequent to initiating a declaratory judgment action to determine the validity of a zoning ordinance as pertaining to a certain piece of property, a party usually must exhaust administrative remedies. Driscoll v. Austintown Assoc. (1975),42 Ohio St.2d 263, 71 O.O.2d 247, 328 N.E.2d 395, paragraph four of the syllabus. There are two exceptions when exhaustion of administrative remedies *Page 147 is unnecessary. First, if there is no administrative remedy available which can provide the relief sought, or if resort to administrative remedies would be wholly futile, exhaustion is not required. Karches v. Cincinnati (1988), 38 Ohio St.3d 12,17, 526 N.E.2d 1350, 1355. Second, when the available remedy is onerous or unusually expensive, exhaustion of remedies is unnecessary. Id.
In the instant case, appellant claims that the exhaustion of administrative remedies is not required because it would be futile and the administrative challenge would be onerous and unusually expensive. The trial court found that appellant was required to exhaust administrative remedies prior to seeking a declaratory judgment action. The record substantiates this finding.
From August through December 1991, appellant submitted several preliminary subdivision plans for the use of its property to appellee's planning commission. The first plan submitted was for the construction of single-family dwellings. The second plan proposed single-family cluster homes, and the third plan was for single-family detached homes. Appellant also submitted eight different proposals which incorporated the above three plans.
Appellant agreed to meet with appellee to discuss the eight proposals at a special workshop meeting. However, appellant made no further communication with appellee. Instead, without any notice or withdrawal of the plans, appellant filed a complaint for declaratory judgment, alleging that the appellee's zoning for the property is contrary to law.
It is undisputed that the first and third plans did not require rezoning. However, the second plan, which proposed the construction of single-family cluster homes, did require rezoning. Pursuant to the city charter, in order to rezone property, appellee's city council must first approve the plan, and then it must be approved by the electorate by referendum.
Appellant claims that since a change in the zoning code requires a majority vote of the electorate, there is not an administrative remedy available to appellant. This reasoning is unfounded, and appellant should be required to present its plan to city council for its approval, and then, if approved by city council, to the electorate as appellant did in 1988. If the majority of the electorate votes against the rezoning, then appellant may proceed by filing a declaratory judgment action in the court of common pleas.
Appellant also submits that it is not required to exhaust administrative remedies because to do so would be onerous or unusually expensive. This claim is also without merit because appellant has already prepared eight different proposals and presented them to appellee. Moreover, appellee stated that, with minor changes, two of the proposals would have been approved. *Page 148
Furthermore, a prerequisite for a trial court to have jurisdiction over a declaratory judgment action is that an actual controversy exists, that a final decision concerning the application of the zoning regulation has been made. Karches,supra, 38 Ohio St.3d at 16, 526 N.E.2d at 1355.
In the present case, there has not been a final decision with respect to the application of the zoning regulation. Appellant unilaterally stopped attending the scheduled zoning meetings with the appellee and filed suit. None of appellant's plans has been either accepted or rejected by appellee. Therefore, a final decision concerning the application of the zoning regulation of the property has not been made, and appellant has failed to show the existence of a justiciable controversy.
Appellant additionally maintains that its prior knowledge of zoning restrictions is not a bar to its complaint for declaratory judgment. This court held in Mintz v. Pepper Pike (1978), 57 Ohio App.2d 185, 11 O.O.3d 180, 386 N.E.2d 849, syllabus, that:
"A purchaser who acquires real property for a purpose not permissible under current zoning restrictions cannot argue persuasively against the constitutionality of the ordinance based on his loss of profit due to his failure to obtain a change in zoning."
The majority distinguishes Mintz from the present case by relying on appellant's argument that there is no viable, profitable use for the property as currently zoned, whereas, inMintz, the plaintiffs sought to change the zoning classifications to a more profitable classification. The court stated in Mintz that there was no evidence presented that the parcel of land was useless as zoned. Nor was there evidence that the parcel could not be used as zoned for single-family dwellings. The plaintiff's evidence that an office building would be the highest and best use of their parcel, in planning and development terms, was relevant but not controlling. Mintz,supra, 57 Ohio App.2d at 194, 11 O.O.3d at 184-185,386 N.E.2d at 854-855.
Mintz controls the present case. Appellant was aware of the zoning classification and what the market would bear when it purchased the property zoned for detached single-family units. Appellant is a seasoned developmental planner well versed in land purchases and cannot now claim that the land is not viable when it has already submitted several plans that clearly show its viability. Therefore, appellant's argument that its land is not viable under the current zoning ordinance is unpersuasive.
I would conclude that the law is clear that appellant should have exhausted its administrative remedies before challenging the constitutionality of the zoning ordinance by way of a declaratory judgment action in the court of common pleas. *Page 149 I would thus affirm the trial court's decision to grant summary judgment in favor of appellee.