The opinion
[Cite as State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 2017-Ohio-2645.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL : JUDGES:
STEVEN A. ARMATAS :
: Hon. Patricia A. Delaney, PJ.
Relator : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
:
PLAIN TOWNSHIP BOARD OF : Case No. 2016CA00188
TRUSTEES, et al. :
:
Respondents : OPINION
CHARACTER OF PROCEEDING: Writ of Mandamus
JUDGMENT: Dismissed
DATE OF JUDGMENT: May 1, 2017
APPEARANCES:
For Relator: For Respondent:
Steven A. Armatas, Esq. James F. Mathews
7690 Bucknell Circle N.W. Andrea K. Ziarko
North Canton, Ohio 44720 BAKER, DUBLIKAR, BECK,
WILEY & MATHEWS
400 South Main Street
North Canton, Ohio 44720
Stark County, Case No. 16-188 2
Delaney, P.J.
{¶1} Relator, Stephen A. Armatas, has filed a complaint for writ of mandamus
requesting Respondents be ordered to enforce a zoning regulation. Respondents have
filed a motion to dismiss for failure to state a claim upon which relief may be granted.
{¶2} Relator resides in Plain Township, Ohio. Plain Township has a zoning
regulation which provides in relevant part:
FENCES, WALLS, AND HEDGES
Fences, walls and hedges shall be permitted in any required yard or along the
edge of any yard . . . except that a fence, wall or hedge located in or along the
sides or front of a front yard shall not exceed three (3) feet in height. The
maximum height of a fence, wall or hedge in any Residential District shall be
eight (8) feet.
Plain Township Zoning Resolution (“PTZR”) Section 602.10.
{¶3} A house in the rear of Relator’s house has a row of evergreen trees which
are above eight feet in height. Relator argues his neighbor’s trees violate PTZR Section
602.10 because he believes the row of trees fall under the definition of hedge. He asks
this Court to order Respondents to enforce PTZR Section 602.10.
{¶4} To be entitled to a writ of mandamus, appellant must demonstrate that: (1)
he has a clear legal right to the requested relief; (2) the respondents have a clear legal
duty to perform the requested act; and (3) he has no plain and adequate remedy in the
ordinary course of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28, 451
N.E.2d 225 (1983), certiorari denied, 464 U.S. 1017, 104 S.Ct. 548, 78 L.Ed.2d 723
(1983).
{¶5} Relator avers in his complaint that the zoning inspector informed Relator,
“I’m not going to do anything about this.” The complaint goes on to state, “When asked
Stark County, Case No. 16-188 3
‘why?’ by Relator, [the zoning inspector] indicated he felt ‘trees and hedges’ to be different
things.”
{¶6} Relator has provided this Court with a copy of Respondent’s appeal form
which reads in pertinent part, “Appeal from Order, Requirement, Decision or
Determination of Zoning Director.”
{¶7} The zoning director made a decision or determination by stating he was not
going to do anything about Relator’s complaint. Relator has or had an adequate remedy
at law by way of utilizing the township’s appellate process. Relator is in possession of
the appeals form as is evidenced by the fact that he attached it to his complaint.
{¶8} We note Relator has averred that the zoning director informed him neither
the Board of Zoning Appeals nor the Plain Township Zoning Commission would have
jurisdiction over the matter because a variance or permit was not being sought. However,
the appeals form provides otherwise. The form does not limit the appellate process to
denial of variances or permits.
Stark County, Case No. 16-188 4
{¶9} Relator has failed to demonstrate the elements required for the issuance of
a writ of mandamus, therefore, the motion to dismiss is granted. A writ of mandamus will
not issue.
By, Delaney, P.J.
Gwin, J. and
Hoffman, J. concur.
[Cite as State ex rel. Armatas v. Plain Twp. Bd. of Trustees, 2017-Ohio-2645.]