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Hiznay v. Boardman Township

Court of Appeals of Ohio, Seventh District, Mahoning

March 29, 2017


         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2014 CV 02949

          For Plaintiff-Appellant Attorney Joshua Hiznay

          For Defendant-Appellee Attorney Matthew Vansuch

          JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Cheryl L. Waite


          DeGENARO, J.

         {¶1} Plaintiff-Appellant, William Hiznay, appeals the trial court's judgment upholding Boardman Township's rental property registration program as imposing a lawful fee rather than imposing a tax. As the Township's Resolution was proper, the judgment of the trial court is affirmed.

         Facts and Procedural History

         {¶2} Hiznay is the owner of a two-family residential rental unit in Boardman Township. On November 10, 2014, the Board of Trustees adopted Resolution 14-01 titled "Enacting a codified home rule resolution for Boardman Township regarding landlord registration and rental unit standards." Hiznay filed a complaint for declaratory judgment asking that the Resolution be declared illegal.

         {¶3} Two months after Hiznay filed his complaint, the Trustees adopted Resolution 15-01 titled "Amending Home Rule Resolution 14-01 for Boardman Township regarding landlord registration and rental unit maintenance standards." This Resolution amended parts of 14-01, but still required owners of rental units in the Township to register their units and pay an annual fee. The Resolution also authorized inspections and required that rental units conform to certain building standards. The following evidence was adduced at a bench trial, as recounted in the trial court's findings of facts:

         {¶4} Boardman is the twelfth largest township in Ohio with a population over 40, 000. It is nearly fully developed, with a mix of residential and commercial areas. More than two-thirds of the residential properties were built between 1940 and 1980. Of the 19, 000 dwelling units in the Township, between 4, 000 and 5, 000 are not owner-occupied. Of those units nearly 40% are owned by entities or individuals living outside Boardman.

         {¶5} In some neighborhoods in the northern section of the Township, 95% of the residences were built before 1980. Several of these neighborhoods have seen single-family, owner occupied residences being converted to duplexes and multi-family units. Further, in the course of enforcing its exterior maintenance code, building inspectors have discerned a pattern that problem properties are those where the owner cannot be found or is out of state with no local contact. Moreover, every house the Township had recently demolished for being a nuisance and unfit for human habitation was the result of interior conditions-mold, deterioration from extensive water damage and excessive accumulation of trash-that caused the houses to be condemned. Accordingly, the Township began tracking complaints and discovered that most issues were from neighborhoods with more single-family rental units than in other neighborhoods.

         {¶6} The Township also conducted a study regarding the impact of rental units on property values in specific neighborhoods and compared them to township-wide and county-wide property values. The result of the study revealed that there was a greater than 10% disparity in the decline of property values in the neighborhoods with high duplex/multi-family units compared to the decline throughout Boardman Township and Mahoning County.

         {¶7} First, the Township began rezoning thousands of residential parcels from R-2, which allows duplexes or multi-family units, to R-1, which only allows single family homes. Second, the Township adopted the Resolution to enact a landlord registration program and establish rental unit standards in order to protect the property values of the rental units, the adjacent properties and the entire neighborhood. The Township deemed this to be necessary for the general health, safety and welfare of the general public. The Township further believed staff would be successful in addressing violations by maintaining updated contact information for landlords or their property managers, which would be obtained through the application and certification process.

         {¶8} The Resolution requires the owner to obtain an annual rental unit certification. An annual fee is set based upon the number of units owned to correspond with the actual time spent on each parcel. For example, an owner of a single rental duplex would pay $40 per unit, whereas an owner of an apartment building with more than six rental units would pay $150 plus $15 for each unit. Further, the fee is set to not exceed the Township's anticipated actual costs to administer the program, coverning nearly 5, 000 rental unit owners. Anticipated costs include distribution and processing the annual applications, conducting inspections pursuant to complaints, filing abatement and enforcement actions and paying associated attorney fees. To that end, the Township will review the fees after the first three years of the program and every five years thereafter. The proceeds generated by the annual fees are to be deposited into a restricted fund established by the Township; the sole purpose of which is to pay the expenses and costs related to the program.

         {¶9} The Resolution sets minimum standards for residential units. It also imposes separate, specific obligations upon the owner-landlord and occupant-tenant so that the interior of the unit ultimately remains in a safe and sanitary condition. Both owners and occupants can be cited for violations. Regarding enforcement, the Resolution sets a fine structure. Regarding inspections, the program is complaint based and authorizes the zoning inspector to enter a unit at a reasonable time if the occupant grants permission. If permission is not or otherwise cannot be obtained, the Resolution authorizes the Township to apply for an administrative search warrant.

         {¶10} The trial court first noted that as a matter of law Ohio courts recognize the distinction between owner occupied versus rented residential property, the latter requiring greater health and safety regulation, and the governmental interest in protecting the community from unsafe housing is more critical with rental property. The trial court found Hiznay failed to demonstrate by clear and convincing evidence that the Resolution does not bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and that the Township presented evidence demonstrating the Resolution was not arbitrarily enacted. Accordingly, the trial court concluded that the Resolution was a proper exercise of the Township's police power, and entered judgment in favor of the Township. For clarity of analysis we will address Hiznay's assignments of error out of order.

         Building Standards

         {¶11} In his second of three assignments of error, Hiznay asserts:

The trial court erred as a matter of law by finding that Boardman Township did not adopt impermissible building standards.

         {¶12} "In Ohio, 'townships are creatures of the law and have only such authority as is conferred on them by law.'" Drees Co. v. Hamilton Twp, 132 Ohio St.3d 186, 2012-Ohio-2370, 970 N.E.2d 916, ¶ 13. Pursuant to Revised Code Chapter 504, Boardman Township is a limited home rule township and may

(A) (1) Exercise all powers of local self-government within the unincorporated area of the township, other than powers that are in conflict with general laws * * *
(2) Adopt and enforce within the unincorporated area of the township local police, sanitary, and other similar regulations that are not in conflict with general laws or ...

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