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:-iN'THE COURT OF COMMON PLEAS

LAKECOUNl:
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KAIM PROPERTIES;Li.c.
7395 CENTER STREET MENTOR, OHIO 44Q60

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llCV000352 JOSEPH GIBSON

Plaintiff

-vsCITY OF MENTOR

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COMPLAINT

8500 CIVIC CENTER BLVD. MENTOR, OHIO 44060

and CITY OF MENTOR CITY COUNCIL

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8500 CNIC CENTER BLVD.

MENTOR, OHIO 44060 and

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CITY OF MENTOR
JOHN ALESCI, CODE ENFORCEMENT OFFICER (IN HIS OFFICIAL CAPACITY)

8500 CIVIC CENTER BLVD. MENTOR, OHIO 44060

Defendants Clerk please also serve:

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MIKEDEWINE OHIO ATIORNEY GENERAL 30 East Broad Street, 17th Floor Columbus, Ohio 43215-3428

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Now comes Plaintiff, by and through undersigned counsel, and for its Complaint against Defendants, does aver and state as follows: 1. This action arises from the unconstitutional ordinance, both on its face and as applied, and from the unconstitutional application of city ordinances by the Defendants. The ordinances are generally described as "Part Thirteen-Building Code: Title Nine-Rental Housing Maintenance Code;" Chapters 1375 through 1391 of the Codified Ordinances of the City of Mentor; and Sections 1375.01 through 1375.08 of the Codified Ordinances of the City of Mentor, hereafter referenced to as "the Ordinances." The Ordinance was effective October 6, 2007 and amended April 6, 2010. (Exhibit A.) 2. Plaintiff is an Ohio Limited Liability Company duly registered by and valid in the state of Ohio. 3. Plaintiff owns certam residential real properties that from time to time may be occupied by residential rental tenants under either an oral or written rental agreement. From time to time these properties may also be available for sale to investors or owner occupied purchasers. Plaintiff owns two properties, hereafter "the Properties," in the city of

Mentor, 8238 Rushton Drive, Mentor, Ohio 44060 and 4790 Glen Lodge, Mentor, Ohio 44060, against which Defendants have sought to administer and enforce the Ordinances. (Exhibit B.) 4. Defendant City of Mentor is an Ohio Political Subdivision which operates in a Council-Manager form of government per Article II, Section 2.01 of the Mentor City Charter; Defendant Mentor CIty Council is the legislative body of the City of Mentor and responsibility of all legislative acts within the City of Mentor per Article II, Section 2.0, 2.02, and Article III, Section 3.06 of the Mentor City Charter; Defendant Alesci as the Code Enforcement Officer with duties as determined per Mentor City Ordinances including in Chapter 131 therein. Defendants enacted, administered and have enforced the unconstitutional ordinance and Defendant Alesci is acting outside the scope of any authority in the ordinance and has failed to comply with the city ordinances. 5. The Ordmances are unconstitutional, they violate both substantive and procedural due process, they are unconstitutional vague, and they are unconstitutional on their face and as applied to Plaintiff.

6.

This action for declaratory relief IS brought under Ohio Revised Code Chapter 2721 , et

seq., Civ.R. 57, and any other provision justifying relief.

7. A copy of this complamt was sent to Attorney General, Mike DeWine, at 30 East Broad Street, 17th Floor, Columbus, Ohio 43215-3428, for notification purposes pursuant to Ohio Revised Code 2721.12.

FACTUAL BACKGROUND
8. Plaintiff owns certain residential properties, the Properties, that from time to time may be occupied by residential rental tenants under either an oral or written rental agreement. From time to time the Properties may also be available for sale to investors or owner occupied purchasers. Properties. Plaintiff has a legitimate investment based expectation
10 the

The Properties were constructed prior to enactment of the Ordinances and Plaintiff has owned the Properties

the use ofthe Properties has been and remains lawful. since prior to the enactment of the Ordinances. a pre-existing use and condition. 9.

The use, structure and the construction is

The Ordinances cannot be apphed to Plaintiff.

Defendants have enacted and now administer and enforce the Ordinances subsequent to the construction and use and Plaintiffs ownership and use of the Properties, From time

to time, Defendants have communicated to Plaintiff that it is obligated to comply with the Ordinances, including acquinng a "Rental Dwelling Unit Certificate" per the Ordinances, including Section 1391.01. 10. Defendants have not made a finding that enforcement of the Ordinances against Plaintiff's Properties is an attempt to eliminate a present nuisance nor have Defendants made a finding that enforcement of the Ordinances against Plaintiffs Properties necessary as the condition of the Properties endanger the public health or safety.
IS

COUNT ONE
11. Plaintiff hereby incorporate each and every allegation contained in paragraphs one (1) through sixteen (10) as if fully rewritten herein. 12. In the absence of the determination that the continued use of the improved real property owned by Plaintiff, the Properties, without conforming the requirements of the Ordinances which were adopted subsequent to the construction and ownership, inspection, improvement or regulation ofthe properties may not be constitutionally compelled by Defendants. The Ordinances do not bear a rational relationship to a legitimate governmental interest and are arbitrary, capricious, and unreasonable.

13.

As the Ordinances purport to restrict the use, control or management of private property, they must be strictly construed in favor of the property rights of Plaintiff and any ambiguity in the Ordinances must be construed against enforcement, validity and legality of the Ordinances.

14.

The Ordinances fail to recognize the pre-existing use, control, condition and management real property

in the city of Mentor in general and the real property owned by Plaintiff, the
Hence, there
IS

Properties, as applied.

no explicit standard which governs and defines and

the authonty, duty, and conduct of Defendants in interpretation, administration enforcement of the Ordinances.

It is a basic principle of due process that a governmental

act is void for vagueness if its prohibitions are not clearly defined and the act is not governed by explicit standards in the Ordinances. 15. Section 1391.01 ofthe Codified Ordinances of the City of Mentor purports to require the Plaintiff apply for and acquire a Rental Dwelling Unit Certificate. To acquire the same

and Section 1391.06 requires that Plaintiff consent to an inspection to acquire or renew said certificate. 16. With regard to existing occupancies, and presumably pre-existing uses, Section 1391.03 provides: "Within 30 days of adoption of this section, the owner or agent of each

multi-family apartment structure or single, duplex, or triplex dwelling unit shall submit to the Engineering and Building Department an application for Rental Dwelling Unit Certificate for each such multi- family apartment structure or for each single, duplex, or triplex dwelling unit. Units occupied at the time of adoption of this section may

continue to be occupied until such time as an inspection has been made by the property maintenance officer, after which all units shall comply with all of the provisions of this code." "The code" is not defined in Title Nine of Chapter Thirteen of the Codified "Building Code" is defined in Section 1375.06(1) of

Ordinance of the City of Mentor.

the Codified Ordinances of the City of Mentor and reads: "Building Code- The officially adopted building codes ofthe City of Mentor, as applicable to the particular building or structure. The Ohio Residential Dwelling Code, as adopted, is applicable to all single, duplex and three family structures. The Ohio Building Code is applicable to all multi family dwelling structures with four or more dwelling units, and all mixed use buildings with residential uses." "Officially adopted building codes of the City of Mentor" is not a

defined term. ] 7. The Ordinances make no accommodation for pre-existing uses and fail to require that the

properties be inspected and that the Ordinances be applied against a standard for construction, structures, maintenance, repair and the hke which existed at the time the structure was constructed or last had improvement thereto. (Exhibit 8.) The relevant

City of Mentor "Inspection Reports" do not provide standards which govern and define the authority. duty. and conduct of Defendants in interpretation, enforcement of the Ordinances and make no accommodation uses. (Exhibit C.) administration and

or provision for pre-existing

The Ordinances must be strictly construed in this regard as they

purport to restrict the use, control or management of private property and any ambiguity

must be must be construed against enforcement, validity and legahty of the Ordinances.
Absent this accommodation or provision for standards to judge the pre-existing uses, the Ordinances are vague, and otherwise violate both substantive and procedural due process.

18.

A declaration on the unconstitutionality agency.

of zoning cannot be issued by an administrative

Further, an administrative remedy would be a wholly futile, onerous and

unusually expensive burden on Plaintiff. 19. A controversy exists as to the legahty and constitutionality of the Ordinances on their The Defendants must be in the alternative, they must

face and as applied to the real properties owned by Plaintiffs. ordered that the Ordinances are Illegal and unconstitutional, be ordered that they are illegal and unconstitutional against Plaintiff's Properties must be enjoined. COUNT TWO 20.

as applied and that enforcement

Plaintiff hereby incorporate each and every allegation contained in paragraphs one (1) through nineteen (19) as If fully rewritten herein.

21.

Plaintiff has no other remedy at law or otherwise to prevent the harm or damage it will suffer by the illegal and enforcement and administration of the illegal and unconstitutional performed in furtherance of the Ordinances. Plaintiff will suffer

irreparable harm, damage and injury unless the acts and conduct of Defendants above complaint of are enjoined. Plaintiff is entitled to a preliminary, temporary and

permanent order enjoining Defendants from taking any action to enforce or administer the Ordinances against Plaintiff

PRAYER FOR RELIEF

WHEREFORE, A. Plaintiff respectfully requests that: The Court enter a declaratory judgment pursuant to O.R.C. 2721, ct seq., declaring that the Ordinances both on their face and as applied to Plaintiffs Properties fails to bear a

rational relationship to a legitimate governmental interest, to substantially advance the health or safety of the government and that it and is, therefore, unconstitutional
IS

arbitrary, capncious and unreasonable

and that Plaintiff is entitled to continue to use the

property consistent with the pre-existing use; B. The Court enter a declaratory Judgment pursuant to O.R.C. 2721, et seq., declaring that the Ordinances unconstitutionally vague and that Plaintiff is entitled to continue to use

the property consistent with the pre-exisitng use;

C.

The Court enter a declaratory Judgment pursuant to O.R.C. 2721, et seq., declaring that the Ordinances were enacted in an unlawful manner and that Plaintiff is entitled to continue to use the property consistent with the pre-existmg use. order enjoining the Defendants from enforcing the current zoning. The Court issue an

D.
E.

The Court issue an order enjoining the Defendants from enforcing the Ordinances;
The Court award Plaintiff their costs incurred in bringing this action including, without limitation, reasonable attorney fees;

F. G.

Such other and additional relief as this Court deems equitable, just or appropriate. That the Court award damages in excess of$25,000.00, compensatory costs, attorneys fees, just.

damages, punitive damages, and any other Iremedy dete~ined Respectfully su )fl}itte'd, 7

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JOSEPRR. KLA MER, Reg. #0068831 THE/KLAMMER LAW OFFICE, LTD. 699<ii;rfdsay Drive, Ste. 7 Mentor, Oh~o 44060 Ph: (440) 91~-8484 ATfORNEY FOR PLAINTIFF