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Kaim Properties, LLC v. City of Mentor

Court of Appeals of Ohio, Eleventh District

September 30, 2013

KAIM PROPERTIES, LLC, Plaintiff-Appellant,
v.
CITY OF MENTOR, et al., Defendants-Appellees.

Civil Appeal from the Lake County Court of Common Pleas, Case No. 11CV000352.

Joseph R. Klammer, The Klammer Law Office, Ltd., Lindsay II Professional Center, 6990 Lindsay Drive, #7, Mentor, OH 44060 (For Plaintiff-Appellant).

Stephen S. Zashin and Ami J. Patel, Zashin and Rich Co., LPA, 55 Public Square, 4th Floor, Cleveland, OH 44113 (For Defendants-Appellees).

OPINION

CYNTHIA WESTCOTT RICE, J.

(¶1} Appellant, Kaim Properties, LLC, appeals the summary judgment of the Lake County Court of Common Pleas in favor of Appellees, City of Mentor; City of Mentor City Council; and John Alesci, Code Enforcement Officer, on Kaim's complaint challenging the constitutionality of Mentor's Rental Housing Maintenance Code. We are asked to decide whether Mentor's Rental Code violates procedural due process; whether Mentor's failure to provide exceptions for pre-existing uses in its Rental Code constitutes a taking; and whether an administrative warrant can lawfully issue for the inspection of rental properties in the absence of the owner's consent. For the reasons that follow, we affirm.

(¶2} In February 2011, Kaim filed a complaint against appellees, alleging it owns residential rental properties in the city of Mentor. Kaim alleged that the city enacted certain ordinances requiring owners of residential rental properties to obtain a certificate in order to lawfully continue renting such properties. Kaim alleged that these ordinances are unconstitutional; that they violate both substantive and procedural due process; that they are unconstitutionally vague; and that they are unconstitutional on their face and as applied. Kaim sought declaratory and injunctive relief. Appellees filed an answer denying the material allegations of the complaint.

(¶3}Appellees subsequently filed a motion for summary judgment. Kaim filed a brief in opposition and its own summary-judgment motion. In support of appellees' motion, they attached the affidavit of Mentor City Councilman, Edward R. Walsh, who attested:

(¶4} In the early 1990s, Mentor City Council passed by ordinance a program which required owners and operators of multi-family dwelling units (i.e. apartment complexes) to apply for certificates of occupancy. Prior to obtaining a certificate of occupancy, Mentor inspected these multi-family dwellings for compliance with a variety of health, safety and welfare standards, such as proper ventilation, fire safety, electrical and plumbing. * * *

(¶5} Because council desired to see safe, proper and reasonably maintained rental housing in Mentor, City Council considered expanding Mentor's multi-family dwelling code to include all single-family, duplex and three-family rental housing units in Mentor. Time and experience have suggested that individuals are less likely to maintain rental housing as opposed to their own residences. Consequently, to avoid the potential of neighborhood blight and to promote safe interior conditions, council took action. On October 16, 2007, Mentor City Council amended the existing Multi-Family Dwellings Code to include all single-family, duplex and three-family rental housing. Council passed * * * the Rental Housing Maintenance Code * * *

(¶6} Further, John Alesci, Mentor's Code Enforcement Officer, stated in his affidavit that in July 2008, he notified Kaim of the adoption of the Rental Housing Maintenance Code and of the necessity of having its properties inspected in order to obtain Rental Dwelling Unit Certificates. Kaim did not respond to the notice. Alesci sent additional notices to Kaim.

(¶7} In July 2009, Alesci issued violation notices to Kaim for its failure to obtain Rental Dwelling Unit Certificates for its seven properties located in Mentor, as required by Mentor Codified Ordinances 1375.03.

(¶8} Kaim did not respond to these violation notices.

(¶9} In November 2010, Alesci again issued violation notices to Kaim for its failure to obtain certificates for these properties. Again, Kaim did not respond.

(¶10} The trial court granted summary judgment in favor of appellees; denied Kaim's motion for summary judgment; and dismissed Kaim's complaint. The trial court found that Mentor City Council was an improper party in that it is not an entity capable of being sued. The court further found that Kaim failed to present any evidence in support of its claims against Alesci. Accordingly, the court dismissed these defendants from the action. With respect to the remaining claims against the city of Mentor, the trial court found that Kaim did not have standing to challenge the constitutionality of the Rental Code.

(¶11} Kaim appealed the trial court's judgment, asserting the following for its sole assignment of error:

(¶12} "The trial court erred in award[ing] summary judgment in favor of defendants."

(¶13} Summary judgment is proper when: (1) there is no genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and that conclusion is adverse to the nonmoving party, that party being entitled to have the evidence construed most strongly in his favor. Civ.R. 56(C); Frano v. Red Robin International, Inc., 181 Ohio App.3d 13, 2009-Ohio-685, ¶12 (11th Dist.). Since a trial court's judgment ruling on a motion for summary judgment involves only questions of law, we conduct a de novo review of the judgment. DiSanto v. Safeco Ins. of Am., 168 Ohio App.3d 649, 2006-Ohio-4940, ¶41 (11th Dist.).

(¶14} Under its assignment of error, Kaim asserts three arguments as to why it believes Mentor's Rental Housing Maintenance Code is unconstitutional: 1) the Code violates procedural due process by not providing for a pre-deprivation hearing; 2) the Code effects a taking; and 3) the Code attempts to coerce consent for the ...


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