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- . .,--"I:-iN 'THE COURT OF COMMON PLEAS

LAKECOUNl:,~ .

I,KAIM PROPERTIES;Li.c . -7395 CENTER STREETMENTOR, OHIO 44Q60

Plaintiff

: I '

-vs-CITY OF MENTOR8500 CIVIC CENTER BLVD.M ENTOR, OHIO 44060

andCITY OF MENTORCITY COUNCIL8500 CNIC CEN TER B LV D.MENTOR, OHIO 44060

andCITY OF MENTORJOHN ALESCI,CODE ENFORCEMENT OFFICER(IN HIS OFFICIAL CAPACITY)8500 CIVIC CENTER BLVD.M ENTOR, OHIO 44060

DefendantsClerk please also serve:MIKEDEWINEOHIO A TIORNEY GENERAL30 East B road Street, 17 th FloorColumbu s, O hio 4 32 15 -3 42 8

llCV000352JO SE PH G IB SON

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COMPLAINT

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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. Theordinances are generally described as "Part Thirteen-Building Code: Title Nine-RentalHousing Maintenance Code;" Chapters 1375 through 1391of the Codified Ordinances ofthe City of Mentor; and Sections 1375.01 through 1375.08 of the Codified Ordinances ofthe City of Mentor, hereafter referenced to as "the Ordinances." The Ordinance waseffective 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 ofOhio.

3. Plaintiff owns certam residential real properties that from time to time may be occupiedby residential rental tenants under either an oral or written rental agreement. From timeto time these properties may also be available for sale to investors or owner occupiedpurchasers. Plaintiff owns two properties, hereafter "the Properties," in the city ofMentor, 8238 Rushton Drive, Mentor, Ohio 44060 and 4790 Glen Lodge, Mentor, Ohio44060, 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 aCouncil-Manager form of government per Article II, Section 2.01 of the Mentor CityCharter; Defendant Mentor CIty Council is the legislative body of the City of Mentor andresponsibility 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 theCode Enforcement Officer with duties as determined per Mentor City Ordinancesincluding in Chapter 131 therein. Defendants enacted, administered and have enforcedthe unconstitutional ordinance and Defendant Alesci is acting outside the scope of anyauthority in the ordinance and has failed to comply with the city ordinances.

5. The Ordmances are unconstitutional, they violate both substantive and procedural dueprocess, they are unconstitutional vague, and they are unconstitutional on their face andas applied to Plaintiff.

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

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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, 17thFloor, Columbus, Ohio 43215-3428, for notification purposes pursuant toOhio Revised Code 2721.12.

FACTUAL BACKGROUND8. 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 owneroccupied purchasers. Plaintiff has a legitimate investment based expectation 10 theProperties. The Properties were constructed prior to enactment of the Ordinances andthe use ofthe Properties has been and remains lawful. Plaintiff has owned the Propertiessince prior to the enactment of the Ordinances. The use, structure and the construction isa pre-existing use and condition. The Ordinances cannot be apphed to Plaintiff.

9. Defendants have enacted and now administer and enforce the Ordinances subsequent tothe construction and use and Plaintiffs ownership and use of the Properties, From timeto time, Defendants have communicated to Plaintiff that it is obligated to comply with theOrdinances, 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 againstPlaintiff's Properties is an attempt to eliminate a present nuisance nor have Defendantsmade a finding that enforcement of the Ordinances against Plaintiffs Properties ISnecessary as the condition of the Properties endanger the public health or safety.

COUNT ONE11. 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 theOrdinances which were adopted subsequent to the construction and ownership,inspection, improvement or regulation ofthe properties may not be constitutionallycompelled by Defendants. The Ordinances do not bear a rational relationship to alegitimate governmental interest and are arbitrary, capricious, and unreasonable.

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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 anyambiguity in the Ordinances must be construed against enforcement, validity and legalityof the Ordinances.

14. The Ordinances fail to recognize the pre-existing use, control, condition and managementreal property in the city of Mentor in general and the real property owned by Plaintiff, theProperties, as applied. Hence, there IS no explicit standard which governs and definesthe authonty, duty, and conduct of Defendants in interpretation, administration andenforcement of the Ordinances. It is a basic principle of due process that a governmentalact is void for vagueness if its prohibitions are not clearly defined and the act is notgoverned by explicit standards in the Ordinances.

15. Section 1391.01 ofthe Codified Ordinances of the City of Mentor purports to require thePlaintiff apply for and acquire a Rental Dwelling Unit Certificate. To acquire the sameand Section 1391.06 requires that Plaintiff consent to an inspection to acquire or renewsaid certificate.

16. With regard to existing occupancies, and presumably pre-existing uses, Section 1391.03provides: "Within 30 days of adoption of this section, the owner or agent of eachmulti-family apartment structure or single, duplex, or triplex dwelling unit shall submit tothe Engineering and Building Department an application for Rental Dwelling UnitCertificate for each such multi- family apartment structure or for each single, duplex, ortriplex dwelling unit. Units occupied at the time of adoption of this section maycontinue to be occupied until such time as an inspection has been made by the propertymaintenance officer, after which all units shall comply with all of the provisions of thiscode." "The code" is not defined in Title Nine of Chapter Thirteen of the CodifiedOrdinance of the City of Mentor. "Building Code" is defined in Section 1375.06(1) ofthe Codified Ordinances of the City of Mentor and reads: "Building Code- The officiallyadopted building codes ofthe City of Mentor, as applicable to the particular building orstructure. 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 multifamily dwelling structures with four or more dwelling units, and all mixed use buildingswith residential uses." "Officially adopted building codes of the City of Mentor" is not a

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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 forconstruction, structures, maintenance, repair and the hke which existed at the time thestructure was constructed or last had improvement thereto. (Exhibit 8.) The relevantCity of Mentor "Inspection Reports" do not provide standards which govern and definethe authority. duty. and conduct of Defendants in interpretation, administration andenforcement of the Ordinances and make no accommodation or provision for pre-existinguses. (Exhibit C.) The Ordinances must be strictly construed in this regard as theypurport to restrict the use, control or management of private property and any ambiguitymust 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, theOrdinances are vague, and otherwise violate both substantive and procedural due process.

18. A declaration on the unconstitutionality of zoning cannot be issued by an administrativeagency. Further, an administrative remedy would be a wholly futile, onerous andunusually expensive burden on Plaintiff.

19. A controversy exists as to the legahty and constitutionality of the Ordinances on theirface and as applied to the real properties owned by Plaintiffs. The Defendants must beordered that the Ordinances are Illegal and unconstitutional, in the alternative, they mustbe ordered that they are illegal and unconstitutional as applied and that enforcementagainst Plaintiff's Properties must be enjoined.

COUNT TWO20. 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 andunconstitutional performed in furtherance of the Ordinances. Plaintiff will sufferirreparable harm, damage and injury unless the acts and conduct of Defendants abovecomplaint of are enjoined. Plaintiff is entitled to a preliminary, temporary andpermanent order enjoining Defendants from taking any action to enforce or administerthe Ordinances against Plaintiff

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PRAYER FOR REL IEFWHEREFORE, Plaintiff respectfully requests that:

A. The Court enter a declaratory judgment pursuant to O.R.C. 2721, ct seq., declaring thatthe Ordinances both on their face and as applied to Plaintiffs Properties fails to bear arational relationship to a legitimate governmental interest, to substantially advance thehealth or safety of the government and that it IS arbitrary, capncious and unreasonableand is, therefore, unconstitutional and that Plaintiff is entitled to continue to use theproperty consistent with the pre-existing use;

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

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

D. The Court issue an order enjoining the Defendants from enforcing the Ordinances;E. The Court award Plaintiff their costs incurred in bringing this action including, without

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

compensatory damages, punitive damages, and any other Iremedy dete~ined just.Respectfully su )fl}itte'd, 71/,/JOSEPRR. KLA MER, Reg. #0068831THE/KLAMMER LAW OFFICE, LTD.699