REACH Counseling Services v. City of Bedford, Ohio

Filing 62

Opinion and Order. Defendant State of Ohio's Motion to Dismiss (Related doc # 57 ) is granted. The Court orders the Ohio Attorney General to file a formal statement, no later than two weeks from the date of this Order, indicating whether the State of Ohio chooses to participate in any fashion with regard to the within Declaratory Judgment claim and the City of Bedford's interpretation and application of the Ohio Building Code. Judge Christopher A. Boyko on 5/23/2018. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

REACH COUNSELING SERVICES,
Plaintiff,
vs.
CITY OF BEDFORD, OHIO,
Defendant.

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CASE NO. 1:15CV2351
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This 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.
I. BACKGROUND
Plaintiff, 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.

Bedford 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.
REACH 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.
REACH 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.
On 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).
On 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

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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.
On 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. § 1983.
The 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.

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II. LAW AND ANALYSIS
Unless 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).
In the 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
attorney general shall be served with a copy of the complaint and shall be heard.
III. CONCLUSION
Therefore, the Motion (ECF DKT #57) of the State of Ohio to Dismiss is granted.
Nonetheless, the Court orders the Ohio Attorney General to file a formal statement, no later
than two weeks from the date of this Order, indicating whether the State of Ohio chooses to
participate in any fashion with regard to the within Declaratory Judgment claim and the City
of Bedford’s interpretation and application of the Ohio Building Code.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: May 23, 2018

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