United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
CHRISTOPHER A. BOYKO, United States District Judge
matter comes before the Court upon the Motion (ECF DKT #57)
of the State of Ohio to Dismiss. For the following reasons,
the Motion is granted.
REACH Counseling Services (“REACH”), is a
non-profit organization licensed by the Ohio Department of
Mental Health and Addiction Services (“OMHAS”).
REACH provides housing, supervision, counseling and
twenty-four-hour personal care services to disabled children
in a family-style setting. REACH, partnered with Education
Alternatives, another non-profit organization that assists
disabled children, applied to Bedford to operate a Type I
group home at 314 Union Street, Bedford, Ohio. REACH filed a
conditional use application. On May 12, 2015, Bedford granted
REACH a reasonable accommodation for a conditional use of the
Union Street Home in a zoning-group R-2 residential area,
with the caveat that REACH comply with the requirements of
the Building, Fire and Engineering Departments.
further advised REACH that the City would issue a Certificate
of Occupancy under the Residential Code for no more than five
lodgers or boarders. REACH sought to increase the occupancy
from five residents to seven. Bedford denied a Certificate of
Occupancy for seven residents in the Union Street Home
because it lacked the automatic sprinkler system required by
the more stringent Ohio Commercial Building Code.
appealed to the Planning Commission and requested that the
City grant a reasonable accommodation to permit seven
children to reside at the Union Street Home under the Ohio
Residential Code. On November 12, 2015, REACH's appeal
was denied. Following the denial, this lawsuit was filed on
November 17, 2015. REACH alleged that the City of Bedford
violated state and federal fair housing laws.
sought additional review from the Ohio Board of Building
Appeals in early 2016. REACH argued the significant financial
burden of complying with the Ohio Building Code, mandating
the installation of a costly fire suppression system which
would otherwise not be required of single-family homes with
seven occupants. On April 13, 2016, the Board upheld
Bedford's Building Commissioner's decision denying
the Certificate of Occupancy.
April 27, 2016, REACH's partner, Education Alternatives,
filed an administrative appeal with the Cuyahoga County
Common Pleas Court, appealing the decision of the Board of
Building Appeals. (Case No. CV-16-862467).
April 29, 2016, REACH filed its First Amended Complaint in
this action (ECF DKT #16), which superceded its original
Complaint. REACH alleged that Bedford's Zoning Ordinances
and Building Codes discriminate against disabled individuals,
preventing them and their housing providers from living where
they choose and enjoying the same use of their property
experienced by non-disabled City residents. Bedford's
application of its Building Codes is unlawfully restrictive
and operates to force REACH (and the disabled population it
serves) out of the City. REACH claimed to have suffered
irreparable injury and lost income and goodwill. REACH sought
injunctive relief, declaratory judgment and damages.
February 28, 2018, REACH filed its Second Amended Complaint
for Preliminary and Permanent Injunctive Relief, Declaratory
Judgment and Damages. REACH adds the State of Ohio as a party
but its substantive claims continue to focus on the City of
Bedford's conduct. REACH alleges violations of the
federal Fair Housing Act, violations of Ohio's Fair
Housing Act and constitutional violations under 42 U.S.C.
State of Ohio moves for dismissal on the basis of Eleventh
Amendment immunity. In opposition, REACH concedes that it has
made no substantive allegations against the State of Ohio and
does not allege that the State improperly defines
“family” or unconstitutionally discriminates
against disabled children. REACH does insist that Bedford
refused to grant REACH a reasonable accommodation because the
City will not “interpret the Ohio Residential Code in a
way that would allow seven disabled children living at the
Union Street Home to be treated just like any other family
within the City of Bedford.” (ECF DKT #59 at 5).
Bedford asserts that the Ohio Building Code sets minimum
standards which municipalities cannot vary or alter at the
risk of decertification by the state of their building
officials. The City contends that the Ohio Revised Code and
the Ohio Administrative Code do not authorize any
accommodation or variance from Ohio's Building Code. In
this context, the Court believed that the State of Ohio
should be made a part of this litigation.
LAW AND ANALYSIS
a state consents to be sued or Congress expresses its intent
to abrogate immunity, the Eleventh Amendment “bars all
suits, whether for injunctive, declaratory or monetary
relief” brought by individuals against a state.
McCormick v. Miami Univ., 693 F.3d 654, 661 (6th
Cir. 2012); Latham v. Office of Atty. Gen. of State of
Ohio, 395 F.3d 261, 270 (6th Cir. 2005).
absence of objection from REACH, the Court agrees that the
State of Ohio should be dismissed as a party defendant.
However, under R.C. § 2721.12 governing declaratory
judgment actions, if any statute or ordinance is alleged to
be unconstitutional, the ...