Garcia v. Siffrin Residential Ass'n

Paul W. Brown, J.,

dissenting. For the reasons more fully delineated in my dissent in Carroll v. Washington Twp. (1980), 63 Ohio St. 2d 249,1 must disagree with the majority’s resolution of this cause. The majority in the instant cause has again unnecessarily intruded into internal family relations in concluding that a “family home” as defined by R. C. 5123.18(A)(3) is not a family use under the applicable zoning ordinance. Canton zoning ordinance section 1123.30 provides:

“ ‘Family’ means one or more persons occupying a dwelling unit and living as a single housekeeping unit, whether or not related to each other by birth or marriage, as distinguished from a group occupying a boarding house, lodging house, motel, hotel, fraternity or sorority house.”

Under this broad definition I cannot conclude that the planned home for these developmentally disabled adults would not constitute a family. The majority seems to base its findings upon the premise that under the zoning ordinances the primary purpose for living as a single housekeeping unit must be to share the rooming, dining and other facilities within the dwelling. This requirement, however, appears nowhere within the zoning scheme. So long as the group functions as a single housekeeping unit, their primary purpose in doing so is irrelevant.

The requirement also makes little sense as a judicially created doctrine. Other courts have wisely not seen fit to intrude into the motivations behind the free choice of individuals who seek to live together as a single housekeeping unit and create such artificial distinctions, with their attendant possibilities of discriminatory application. E.g., Des Plaines v. Trottner (1966), 34 Ill. 2d 432, 216 N.E. 2d 116; White Plains *277v. Ferraioli (1974), 34 N.Y. 2d 300, 313 N.E. 2d 756. More specifically the courts that have addressed the issue presented here, group homes for retarded adults, have concluded that the homes are single housekeeping units. Freeport v. Association for the Help of Retarded Children (1977), 94 Misc. 2d 1048, 406 N.Y. Supp. 2d 221; Oliver v. Zoning Commission (1974), 31 Conn. Supp. 197, 326 A. 2d 841 (where a group home for nine retarded adults was held to constitute a single housekeeping unit, under an almost identical definition of family as that appearing in the Canton ordinances).

Moreover it does not seem so obvious that the individuals who seek to live together here do so primarily to obtain “training and education in life skills.” Such training is just as available in institutions whose environment the individuals in this cause have purposely avoided. The primary purpose of these individuals is more likely the avoidance of institutionalization, thus seeking to live in a shared dwelling in a residential neighborhood, in the midst of surroundings as normal as possible.

In Carroll v. Washington Twp., supra, a case announced this date, it was held that the Ohio Youth Commission’s foster home was not a “one family residential dwelling unit.” In that case the court stressed the fact that there was no definition of the term “family” contained within the zoning provisions. The court indicated that if the legislative definition could be met it would uphold such a residential use. Yet, in this case, the majority has concluded that the zoning definition focusing upon a single housekeeping unit will not permit the family home sought to be created under R. C. Chapter 5123. Thus, the line to be drawn has conveniently moved in a manner to exclude the family homes, which have been deemed to be so desperately needed. If such a trend should continue the only place for such homes may be factory districts and other non-residential areas. Thus, I conclude as the Court of Apeáis did in this cause that the Siffrin home is a permitted use within this R-2 district.

I also do not agree with the majority’s home-rule analysis concerning general laws. That opinion concedes the merit inherent in this legislation, but finds itself unable to uphold the constitutionality of R. C. 5123.18(D) and (E). A review of this court’s prior case law dealing with this subject, however, leads *278me to the contradictory conclusion that these provisions are part of a comprehensive licensing scheme and as such constitute portions of a general law.

In Village of West Jefferson v. Robinson (1965), 1 Ohio St. 2d 113, this court established the definition of “general laws” stating in paragraph three of the syllabus that:

“The words ‘general laws’ as set forth in Section 3 of Article XVIII of the Ohio Constitution means statutes setting forth police, sanitary or similar regulations and not statutes which purport only to grant or to limit the legislative powers of a municipal corporation to adopt or enforce police, sanitary or other similar regulations.” (Emphasis added.) See, also, Youngstown v. Evans (1929), 121 Ohio St. 342, 345.

If the provisions at issue can be fairly characterized as being designed only to prescribe the mode and manner in which municipalities must conduct their zoning, they must be struck down as depriving those local governmental bodies of their constitutionally granted authority. R. C. 5123.18(D) and (E), however, do riot merely place limits on municipalities, but in a much greater sense are regulatory of this state’s citizenry in a licensing context.

Subsections (A) through (C) of R. C. 5123.18 set up a definitional and procedural framework under which a residential facility may be licensed. Subsections (D) and (E) govern the conduct of individuals. Both of these latter provisions begin with the statement that “[a]ny person may operate a [state] licensed* **home,” and, in fact, the focus of the entire statutory section is upon individuals who seek to establish the group homes at issue.

The majority relies heavily upon the case of Village of West Jefferson v. Robinson, supra, in reaching its conclusion that the provisions at issue are not general laws. That case, involving a village that imposed a greater fine for unauthorized peddling than was permitted in the Revised Code, however, is not germane to the instant cause. No state licensure scheme was directly involved there.

On at least five previous occasions this court has held state licensing measures to be general laws. In Neil House Hotel v. Columbus (1944), 144 Ohio St. 248, regulations of the state Board of Liquor Control governing hours of operation *279were upheld over a Columbus ordinance. State laws authorizing licensing of watercraft and creating a fee schedule were upheld over a local ordinance in State, ex rel, McElroy, v. Akron (1962), 173 Ohio St. 189. In Anderson v. Brown (1968), 13 Ohio St. 2d 53, this court ruled that a municipality could not require an additional license for trailer parks where a state statute governed such licenses and provided that they “shall be in lieu of all license and inspection fees* * *.” State laws authorizing the licensing and regulation of bingo operations were upheld over a conflicting municipal ordinance in Lorain v. Tomasic (1979), 59 Ohio St. 2d 1. See, also, Stary v. Brooklyn (1954), 162 Ohio St. 120.

The case, however, which is most analogous to this cause is Auxter v. Toledo (1962), 173 Ohio St. 444. There, the state liquor control licensing statute, R. C. 4303.27, providing that, “[e]ach permit issued***shall authorize the person named to carry on the business specified at the place * * * described* * *,” was upheld over a Toledo ordinance prohibiting the sale of beer without a city license. It involved the same type of legislative grant at issue here, the affirmative right of a state agency to solely govern the carrying out of a particular use at a specific location. The statute at issue in Auxter was held to be a general law. Surely this is the proper conclusion, because the General Assembly may in the licensing context do more than grant the license holder a promise of no future interference from the state. Further interference by a municipality may be safeguarded against, under a specific legislative grant permitting a particular use at a specific location governed by a state agency. To hold otherwise, as the majority has done, is to in effect handcuff the General Assembly so that it may not create areas of statewide licensing which are exempt from local municipal control.

In R. C. 5123.67, the General Assembly specifically set forth the purposes for the enactment of the statutory provisions at issue. That statute provides:

“Chapter 5123 of the Revised Code shall be liberally interpreted to accomplish the following purposes:

“(A) To promote the human dignity and to protect the constitutional rights of mentally retarded persons in the state;

*280“(B) To encourage the development of the ability and potential of each mentally retarded person in the state to the fullest possible extent, no matter how severe his degree of disability;

“(C) To promote the economic security, standard of living, and meaningful employment of the mentally retarded;

“(D) To maximize the assimilation of mentally retarded persons into the ordinary life of the communities in which they live;

“(E) To recognize the need of mentally retarded persons whenever care in a residential facility is absolutely necessary, to live in surroundings and circumstances as close to normal as possible.”

R. C. 5123.18(D) and (E) are integral parts of the legislative goal of deinstitutionalization, which may be carried out effectively only through the use of group homes.

The majority has thwarted this goal by reading subsections (D) and (E) in a vacuum without reference to the remainder of R. C. 5123.18, governing licensing,' or the remainder of this statutory chapter. Through such a chosen pattern of interpretation, the majority has impliedly found some rationale to distinguish the instant situation from this court’s prior line of cases concerning licensing. Perhaps some hidden policy reason requires the exemption of state liquor licenses from local municipal control but not the family home sought to be established here. Because I cannot also conceive of this policy consideration, I must dissent from the majority’s determination that R. C. 5123.18(D) and (E) are not general laws.

Due to my conclusion that the contested provisions are general laws, I would find them to allow the operation of the Siffrin home. This court stated in Canton v. Whitman (1975), 44. Ohio St. 2d 62, at page 66, that:

“The city may exercise the police power within its borders, but the general'laws of the state are supreme in the exercise of the police power, regardless of whether the matter is one which might also properly be a subject of municipal legislation. Where there is direct conflict the state regulation prevails.” Accord Columbus v. Teater (1978), 53 Ohio St. 2d 253.

*281The majority’s holding that subsections (D) and (E) of R. C. 5123.18, as limited by subsection (G) of that statutory section, constitute “special laws” is also unjustified. The conclusion reached that these provisions do not have uniform application flies in the face of the substance of the statute. No single area or type of municipality is singled out, as the statute’s mandate is statewide. In State, ex rel. Stanton, v. Powell (1924), 109 Ohio St. 383, at page 385, this court recognized that:

“*** Section 26, Art. II of the Constitution, was not intended to render invalid every law which does not operate upon all***political subdivisions within the state.***[T]he law is equally valid if it contains provisions which permit it to operate upon every locality where certain specified conditions prevail. ” (Emphasis added.)

R. C. 5123.18(G) merely creates a grandfather clause whereby those municipalities that had pre-existing zoning codes on June 15, 1977, which would specifically allow this type of family home are unaffected by this statute. Grandfather clauses of this type have undisputedly been held valid in other contexts. How R. C. 5123.18(G), which provides that subsections (D) and (E) are redundant and inapplicable where such facilities are already licensed and regulated by local ordinance, adversely affects any municipality is not demonstrated. Simply because some municipalities fall on one side or the other of a valid legislative cut-off does not mean that the cut-off is unreasonable, or that the statute is a “special law” within the meaning of Section 26, Article II of the Ohio Constitution. In State, ex rel. Lourin, v. Indus. Comm. (1941), 138 Ohio St. 618, at page 623, it was stated:

“***[T]he law abounds with situations where a difference of a minute may work a great change in rights and liabilities. Any statute of limitations illustrates this. In the interest of administrative workability, or to effect gradations in legislative policy, certain definite markers must be established,***. It is, of course, for the Legislature to determine just where such boundaries shall be set.” (Emphasis added.)

Certainly, the allowance of procedural alternatives effec*282tuating the purposes of R. C. 5123.18 does not prevent the statute from having uniform operation throughout the state.

For the foregoing reasons, I would affirm the Court of Appeals in all respects.