KW BV, L.L.C. v. Euclid

[Cite as KW BV, L.L.C. v. Euclid, 2019-Ohio-3180.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
KW BV, L.L.C., ET AL., :
Plaintiffs-Appellants, :
No. 107489
v. :
CITY OF EUCLID, OHIO, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: August 8, 2019
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-17-877179
Appearances:
Dinn, Hochman & Potter, L.L.C., Benjamin D. Carnahan,
and Steven B. Potter, for appellants.
Kelley A. Sweeney, Director of Law, Laura Rubadue,
Assistant Director of Law, City of Euclid, for appellee.
ANITA LASTER MAYS, J.:
Plaintiffs-appellants, KW BV, L.L.C., et al. (AKW@), appeal the trial
court’s decision denying KW’s motion for summary judgment and granting a
decision in favor of defendant-appellant, city of Euclid (AEuclid@). We affirm the
trial court’s decision.
I. Facts and Procedural History
Euclid assesses an annual fee for rental registration. Single, two-,
and three-family homes are charged an annual fee of $200, and multi-family units
or apartments are charged an annual fee of $35 per unit. KW are owners of
condominium units in Blisswood, Village, located in Euclid, and are charged an
annual fee of $200 per condominium unit, because Euclid considers condominiums
single-family homes. KW disagrees and contends that they should be considered a
multi-family dwelling entitled to the $35 per unit rate.
In response to the assessment, KW filed a complaint against Euclid
and sought declaratory judgment that their condominium units were not single,
two-, or three-family homes as defined in the Euclid city ordinances. KW filed a
motion for summary judgment. Euclid opposed KW’s motion for summary
judgment. The trial court denied KW’s motion and issued a decision granting
judgment for Euclid. Euclid did not file a cross-motion for summary judgment.
Euclid asserts that the trial court did not have jurisdiction to entertain KW=s
complaint because, first, they failed to join all necessary parties, because KW
represents only 45 of the 268 property owners in Blisswood; and second, KW made
claims of unconstitutionality of a city ordinance but failed to plead that in the
complaint and failed to serve the attorney general with a copy of the constitutionality
challenge.
II. Assignments of Error
KW assigns two errors for our review:
I. The trial court erred in finding that the subject condominium
units were single-family homes under Euclid Codified
Ordinance 1761.05; and
II. Because Civ.R. 56 did not authorize the trial court to enter
judgment in favor of appellee, a nonmoving party, the trial
court erred as a matter of law in granting summary judgment.
III. Standard of Review
We review a trial court’s entry of summary judgment de novo, using
the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St. 3d
102, 105, 671 N.E.2d 241 (1996). Summary judgment may only be granted when
the following is established: (1) there is no genuine issue as to any material fact;
(2) the moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and the conclusion is adverse to
the party against whom the motion for summary judgment is made, who is entitled
to have the evidence construed most strongly in its favor. Harless v. Willis Day
Warehousing Co., 54 Ohio St. 2d 64, 67, 375 N.E.2d 46 (1978); Civ.R. 56(E).
The party moving for summary judgment bears the initial burden of
apprising the trial court of the basis of its motion and identifying those portions of
the record that demonstrate the absence of a genuine issue of fact on an essential
element of the nonmoving party’s claim. Dresher v. Burt, 75 Ohio St. 3d 280, 293,
662 N.E.2d 264 (1996). “Once the moving party meets its burden, the burden
shifts to the nonmoving party to set forth specific facts demonstrating a genuine
issue of material fact exists.” Willow Grove, Ltd. v. Olmsted Twp.,
2015-Ohio-2702, 38 N.E.3d 1133, & 14-15 (8th Dist.), citing Dresher. “To satisfy
this burden, the nonmoving party must submit evidentiary materials showing a
genuine dispute over material facts.” Willow Grove at & 15, citing PNC Bank v.
Bhandari, 6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477.
IV. Discussion
A. First Assignment Of Error Part I — the Trial Court
Erred in Dismissing Appellants’ Complaint Because
Appellants’ Condominium Units are Dwelling Units
Within a Building, not Single-Family Homes; this
Genuine Issue of Material Fact Precludes Dismissal of
Appellants’ Complaint
Euclid Codified Ordinances 1761.05(1) and (2) states in part, “The
applicant is entitled to one initial inspection and two follow-up compliance
inspections. The fees are as follows: Building with four or more units. A non-
refundable fee of [$35] per unit. Single, two-, and three-family homes. A non-
refundable fee of [$200].” Euclid claims that they interpret condominiums as
single, two-, and three-family homes and apartment complexes as buildings with
four or more units based on various definitions contained in the Euclid Codified
Ordinances. KW argues that because their condominiums are located within a
building with four or more units, the condominiums should be subjected to the $35
per unit rate rather than the $200 per unit rate. KW is not challenging the
constitutionality of the ordinance.
KW argues that their condominium units should be treated as
apartment units instead of single, two- and three-family homes. We find that KW
is incorrect in their assertion. The condominium units, unlike apartments, are
considered single dwelling units because they can be owned and sold individually.
Apartments in an apartment complex cannot. “Under the plain language of
R.C. 5311.11, each condominium unit is ‘deemed to be a separate parcel for all
purposes of taxation and assessment of real property.=@ Dublin City Schools Bd.
of Edn. v. Franklin Cty. Bd. of Revision, 139 Ohio St. 3d 212, 2014-Ohio-1940, 11
N.E.3d 222, & 17, citing Eastcreek Corp. v. Cuyahoga Cty. Bd. of Revision, 8th Dist.
Cuyahoga Nos. 53150-53156, 1988 Ohio App. LEXIS 18 (Jan. 7, 1988). Also,
“[c]ommon ownership does not transform the condominium units, collectively, into
an apartment complex particularly when the ‘apartment complex’ does not include
all of the units in the building.@ Columbus City Schools Bd. of Edn. v. Franklin
Cty. Bd. of Revision, 148 Ohio St. 3d 700, 2016-Ohio-8375, 72 N.E.3d 637, & 10.
As defined by R.C. 5311.01(K),
“[c]ondominium” means a form of real property ownership in which
a declaration has been filed submitting the property to the
condominium form of ownership pursuant to this chapter and under
which each owner has an individual ownership interest in a unit with
the right to exclusive possession of that unit and an undivided
ownership interest with the other unit owners in the common
elements of the condominium property.
In the case of Blisswood Village, KW owns 45 of the 268
condominium units and has an individual ownership interest in each unit, in
accordance to R.C. 5311.01(K). Each unit is deemed to be a separate parcel for all
purposes of taxation and assessment of real property and, therefore, should not be
considered apartments. Additionally, Euclid Codified Ordinances 1358.02(a)
provides the definition of attached single-family dwelling stating,
“Attached single-family dwelling” means individually owned
single-family dwelling units, i.e. condominiums, not exceeding eight,
which are attached to one another by common walls and which have
individual heating and plumbing. Each dwelling shall have a
permanent parcel number filed with the County Recorder as a
condominium development.
Euclid Codified Ordinances 1751.04(k) provides the definition of a
multiple dwelling stating,
“Multiple dwelling” means a building containing four or more
dwelling units or one or more dwelling units if the building contains a
use other than a dwelling use. For the purpose of applying this
definition, any building which is being operated as a rooming house
pursuant to a valid City license shall be classified as a multiple
dwelling. The words “multiple dwelling” and “apartment house” are
synonymous.
According to the ordinance, condominiums are considered single-
family dwellings and apartments are considered multiple dwellings. The language
in the ordinance is not ambiguous. It is clear that Euclid considers condominiums
single-family dwellings and not apartments. The trial court did not err in finding
that the condominium units were single-family homes.
B. First Assignment of Error Part II — Even if this Court
were to Allow an Interpretation and Analysis of the
Words within the Euclid City Ordinances, the Rules of
Statutory Construction Mandate the Presentation of
Evidence of Legislative Intent; the Opinions of Current
Agency Employees are not Relevant
KW argues that the trial court erred by considering two affidavits
from city employees concerning the ordinances because neither employee works for
Euclid city council or attempted to provide any testimony regarding legislative
intent when the ordinance was enacted. However, KW does not demonstrate that
the trial court considered the affidavits in its summary judgment decision. KW also
argues that Euclid altered the plain meaning of the words it used in its ordinance.
To interpret a statute, we must first look at its language to determine
legislative intent. Provident Bank v. Wood, 36 Ohio St. 2d 101, 105,
304 N.E.2d 378 (1973). When a statute’s meaning is clear and
unambiguous, we apply the statute as written. Id. at 105-106. We
must give effect to the words used, refraining from inserting or
deleting words. Cleveland Elec. Illum. Co. v. Cleveland, 37 Ohio
St.3d 50, 53-54, 524 N.E.2d 441 (1988). If a legislative definition is
available, we construe the words of the statute accordingly. R.C. 1.42.
State v. Gonzales, 150 Ohio St. 3d 276, 2017-Ohio-777, 81 N.E.3d 419, & 4.
Euclid Codified Ordinances 1761.05 is clear and unambiguous. It
provides one fee for single-family dwellings and another for multi-family dwellings.
It is clear that condominiums are considered single-family dwellings under the
statute. The trial court applied the statute as written. Therefore, the trial court
did not err in finding that the condominiums units were single-family dwellings
under the Euclid Codified Ordinances.
C. Second Assignment of Error — the Trial Court Erred in
Failing to Follow Long-Standing Ohio Supreme Court
Precedent that when only the Plaintiff Files for
Summary Judgment, the Trial Court May only Grant
or Deny the Motion, and May not Dismiss the Case if
there were Any Issues of Fact to be Litigated
KW contends Civ.R. 56 does not authorize the trial court to rule in
favor of the nonmoving party by dismissing the case where there are issues of fact to
be litigated.
However, “while Civ.R. 56 does not ordinarily authorize courts to
enter summary judgment in favor of a nonmoving party, Marshall v.
Aaron, 15 Ohio St. 3d 48, 472 N.E.2d 335 (1984), syllabus, an entry of
summary judgment against the moving party does not prejudice
[their] due process rights where all relevant evidence is before the
court, no genuine issue as to any material fact exists, and the
nonmoving party is entitled to judgment as a matter of law. Houk v.
Ross, 34 Ohio St. 2d 77, 296 N.E.2d 266 (1973), paragraph one of the
syllabus.” State ex rel. Cuyahoga County Hospital v. Ohio Bureau
of Workers’ Comp., 27 Ohio St. 3d 25, 28, 500 N.E.2d 1370 (1986).
The Ohio Supreme Court has applied this same principle to affirm the
entry of summary judgment in favor of defendants who did not move
for it, where other defendants did move for summary judgment and
the same reasoning was applicable to all. State ex rel. Newell v.
Cuyahoga County Court of Common Pleas, 77 Ohio St. 3d 269, 673
N.E.2d 1299 (1997), fn. 1.
Samman v. Nukta, 8th Dist. Cuyahoga No. 85739, 2005-Ohio-5444, & 20, fn. 3.
Euclid was entitled to judgment as a matter of law, as the nonmoving
party, where the trial court found that there was no genuine issue of material fact,
and summary judgment did not prejudice KW’s due process rights where all relevant
evidence was before the court. Huntington Natl. Bank v. Anderson, 9th Dist.
Lorain No. 17CA011223, 2018-Ohio-3936, & 14. The ordinance is clear and
unambiguous. It provides one fee for single-family dwellings and another for
multi-family dwellings. It is clear that condominiums are considered single-family
dwellings under the statute. The record reveals no genuine issue as to any material
fact exist. Therefore, the trial court did not err as a matter of law in granting
judgment in favor of Euclid.
V. Euclid’s Arguments
Euclid argues that the trial court lacked jurisdiction to hear KW’s
complaint for declaratory judgment because the complaint did not join all necessary
parties and was not properly pled and served upon the Ohio Attorney General when
the constitutionality of the city code was questioned. Euclid, however, did not file
a cross appeal and asserts that App.R. 3(C)(2) applies.
App.R. 3(C)(2) states, “A person who intends to defend a judgment or
order appealed by an appellant on a ground other than that relied on by the trial
court but who does not seek to change the judgment or order is not required to file
a notice of cross appeal or to raise a cross-assignment of error.” “[P]ursuant to
App.R. 3(C)(2) a cross appeal is not necessary when the arguments raised do not
seek to change the judgment but merely raise alternative grounds in support of the
judgment that were either ignored or overlooked by the trial court. Kaplysh v.
Takieddine, 35 Ohio St. 3d 170, 175, 519 N.E.2d 382 (1988).” Murray v. State, 8th
Dist. Cuyahoga No. 78374, 2002-Ohio-664, & 21, fn. 2.
As previously stated, KW owns 45 of the 268 condominiums in
Blisswood Village. The other 223 property owners did not join KW in their
complaint, although the codified code affects them identically. If KW’s units are
treated as apartment units, subjected to the $35 per unit fee, then the owners of the
other units would be subjected to the same fee because their units are in the same
building.
Euclid contends that the trial court lacked jurisdiction to hear KW’s
complaint because R.C. 2721.12(A) states in part, “when declaratory relief is sought
under this chapter in an action or proceeding, all persons who have or claim any
interest that would be affected by the declaration shall be made parties to the action
or proceeding.” The other 223 property owners were not made parties to the action
or proceeding.
The absence of a necessary party is a jurisdictional defect that
precludes any declaratory judgment. Bretton Ridge Homeowners
Club v. Deangelis, 51 Ohio App. 3d 183, 185, 555 N.E.2d 663 (1988),
citing, Cincinnati v. Whitman, 44 Ohio St. 2d 58, 59, 337 N.E.2d 773(1975). Thus, failure to join necessary parties renders any
declaration by the court void. Id. See also, Walter v. Romerock
Assn., 11th Dist. Ashtabula No. 94-A-0019, 1995 Ohio App. LEXIS 885
(Mar. 10, 1995) (upholding trial court’s dismissal of complaint for
failure to join necessary parties in declaratory action).
Cerio v. Hilroc Condominium Unitowners Assn., 8th Dist. Cuyahoga No. 83309,
2004-Ohio-1254, & 10.
In addition, “R.C. 2721.12 governs jurisdiction, which any party may
challenge. Further, because all necessary parties were not named, the trial court
was without jurisdiction to award declaratory judgment, and such judgment is void.
See, Bretton Ridge, supra. We cannot say that a void judgment is harmless.” Id.
at & 13. “We hold that the declaratory judgment is void, and the complaint should
be dismissed unless all necessary parties are joined.” Id. at & 14.
Euclid is incorrect that App.R. 3(C)(2) applies to them.
App.R. 3(C)(2) applies only if Euclid does not seek to change the judgment.
However, that is not the case here. Euclid argues that the trial court did not have
jurisdiction to hear the case because all of the affected parties were not joined. If
that is the case, the result would be a void judgment and therefore, the complaint
would be dismissed unless all necessary parties are joined. That decision changes
the trial court’s judgment by rendering it void, which is a substantial change. “A
void judgment puts the parties in the same position they would be in if it had not
occurred.” (Citations omitted.) Video Shack, Inc. v. Smith, 7th Dist. Columbiana
No. 2001-CO-41, 2003-Ohio-5149, & 12. “Under App.R. 3(C)(1), a notice of cross-
appeal must be filed when the cross-appealing party seeks to change the judgment.”
Alternatives Unlimited-Special, Inc. v. Ohio Dept. of Edn., 10th Dist. Franklin
No. 09AP-756, 2010-Ohio-1226, & 31. Euclid is not merely raising alternative
grounds in support of the judgment, it is seeking to have the judgment changed.
Therefore, Euclid was required to file a cross appeal.
Secondly, Euclid contends that the trial court lacked jurisdiction to
hear KW=s complaint for declaratory judgment because the complaint was not
properly pled and served upon the Ohio Attorney General when the constitutionality
of the city code was questioned. R.C. 2721.12 states in part,
In any action or proceeding that involves the validity of a municipal
ordinance or franchise, the municipal corporation shall be made a
party and shall be heard, and, if any statute or the ordinance or
franchise is alleged to be unconstitutional, the attorney general also
shall be served with a copy of the complaint in the action or
proceeding and shall be heard.
We find that Euclid’s argument is misplaced because KW did not
claim that the city code was unconstitutional. Instead, KW argued that there was
a genuine issue of fact regarding whether their units should be regarded as single-
family units or multi-family units. Therefore, KW was not required to serve a copy
of the complaint to the Ohio Attorney General.
VI. Conclusion
We affirm the trial court’s decision denying KW’s motion for
summary judgment and granting a decision in favor of Euclid.
Judgment is affirmed.
It is ordered that the appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
________________________________
ANITA LASTER MAYS, JUDGE
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY WITH
SEPARATE OPINION;
SEAN C. GALLAGHER, P.J., DISSENTS WITH SEPARATE OPINION
MICHELLE J. SHEEHAN, J., CONCURRING IN JUDGMENT ONLY:
I concur in judgment only. I respectfully disagree that Euclid
Codified Ordinances (“E.C.O.”) 1761.05 is unambiguous. When E.C.O. 1761.05 is
read in its entirety, including both subsections (a)(1) and (a)(2), condominiums
could qualify as “single, two and three family homes” subject to the $200 per
property fee and “buildings with four or more units” subject to the $35 per unit fee.
However, buildings with three or fewer condominiums would only qualify as “single,
two and three family homes.” Univ. Circle Inc. v. Cleveland, 56 Ohio St. 2d 180,
184, 383 N.E.2d 139 (1978) (an ordinance should not be construed in isolation but
in context of the entire ordinance). Thus, a plain reading of the ordinance reveals
the ordinance is susceptible to more than one interpretation as to whether
condominiums are required to pay a $200 or $35 rental license fee.
Application of an ordinance or statute to the facts is a question of law
that we review de novo. Cleveland Clinic Found. v. Bd. of Zoning Appeals, 141 Ohio
St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 25. Construction of ordinances
adhere to the same rules of statutory construction. See Bosher v. Euclid Income
Tax Bd. of Rev., 99 Ohio St. 3d 330, 2003-Ohio-3886, 792 N.E.2d 181, ¶ 14. When
the language of an ordinance is unambiguous, the court is to apply the clear meaning
of the words used. Id. However, if an ordinance is ambiguous, i.e., if the language
of the ordinance is susceptible to more than one reasonable interpretation, we must
apply rules of construction to interpret the ordinance. See Georgetown of the
Highlands v. Cleveland Div. of Water, 2016-Ohio-8039, 75 N.E.3d 794, ¶ 21 (8th
Dist.), citing State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St. 3d 508, 513, 1996-
Ohio-376, 668 N.E.2d 498.
Appellant argues in the alternative that “even if this Court were to
allow an interpretation and analysis of the words within the Euclid City Ordinances,
the rules of statutory construction mandate the presentation of evidence of
legislative intent; the opinions of current agency employees is not relevant.”
Appellants are correct that when interpreting a statute, courts
consider legislative intent. R.C. 1.49 provides that if a statute is ambiguous or
susceptible to more than one interpretation, courts may consider several factors in
determining the legislative intent, including “the circumstances surrounding the
legislative enactment, the history of the statute, the spirit of the statute (the ultimate
results intended by adherence to the statutory scheme), and the public policy that
induced the statute’s enactment.” State ex rel. Toledo Edison Co. at 514.
In this case, the ordinance fails to define relevant terms such as what
constitutes a “home” or “unit.” The appellate record also provides little
information regarding the legislative intent of the ordinance. While I would find
that E.C.O. 1761.05 is ambiguous, considering the spirit of the ordinance, the
ultimate results intended, and various definitions considered elsewhere in the
Euclid Codified Ordinances defining similar structures as discussed in the opinion
(such as E.C.O. 1358.02 defining “single family dwellings” as an “individually
owned” unit, “i.e. condominiums * * * which are attached to one another by common
walls”) I agree that Euclid considers condominiums “family homes” independently
owned and subject to the $200 rental inspection fee.
I therefore concur in judgment only.
SEAN C. GALLAGHER, P.J., DISSENTING:
I respectfully dissent. The city of Euclid (“City”) sees a dichotomy: a
building is either an “apartment or multi-family” or “single (two or three) family
property.” There is nothing in between. The ordinance at issue, Euclid Codified
Ordinances (“E.C.O.”) 1761.05 sets out two options as well. That section provides
that “single, two and three family homes” owe a nonrefundable fee of $200 for a
rental license. “Buildings with four or more units” owe $35 per unit for that same
license. Neither party nor the trial court has provided a definition of “single, two
and three family homes.” KW claims that an unambiguous reading of section
1761.05 leads to one conclusion — a condominium building, or any building for that
matter, with four or more units should be charged $35 per unit for each rental
license instead of the $200 fee associated with a one-, two-, or three-family home.
The separate concurring opinion would find the statute susceptible to more than one
interpretation because of the fact that the regulatory scheme provides that
condominiums are subject to two fee structures depending on whether there are four
or more, or three or fewer units within one building structure. This setup does not
create ambiguity. The question posed by the regulatory scheme is
straightforward — are there four or more condominium units within the same
building structure? If there are not, the $200 fee applies instead of the $35 per-
unit fee. This is not an ambiguity, it is a bright-line rule. Further, neither party,
nor the trial court for that matter, has asserted that the statute is ambiguous.
App.R. 16(A)(7). Both sides contend that an unambiguous reading of the statute
compels a decision in their favor.
The City’s argument is more complex. The City presented an
affidavit from the Building and Housing Manager who professed that the City treats
every unit in a “condominium complex” as a “single family property” for the
purposes of the rental licensing. Those terms have also not been defined, and are
not included in the relevant statutory section. Nevertheless, in support of its
argument, the City cites E.C.O. sections 1358.02 and 1751.04. The former defines
“attached single-family dwelling” as “individually owned single-family dwelling
units, i.e., condominiums, not exceeding eight, which are attached to one another by
common walls and which have individual heating and plumbing.” The latter
section defines “multiple dwelling” as a “building” that contains “four or more
dwelling units or one or more dwelling units if the building contains a use other than
a dwelling use.” The definition of “attached single-family dwelling” does not
appear relevant to determining the legal definition of “single, two and three family
homes.” Neither party, nor the trial court, has explained whether there is any
parity between a “home” and a “single-family dwelling” or a “single family property.”
Instead, the City claims that because condominium units are
separately owned and taxed, under E.C.O. 1761.05(a)(2), the City may charge $200
for each unit regardless of how many units are within a single building structure.
Although not part of the current discussion, it should be noted that under E.C.O.
1761.05(a), the drafters expressly provided that the $35 fee was “per unit.” That
“per unit” language was omitted from the $200 registration fee that applies to
single-, two-, and three-family homes. Nevertheless, the City does not cite any
authority to support this proposition. App.R. 16(A)(7). Under the City’s rationale,
any single family “home” individually owned and taxed, owes $200 for a rental
license. Thus, the City essentially adds in the modifier “individually owned and
taxed” to “single family home” to explain its interpretation of the statute. Such a
modifier may be necessary in light of the breadth of the undefined word “home,”
which can encompass an apartment or condominium unit in the general sense of the
word. Without the modifier, the City would have unbridled discretion to charge
anyone intending to rent or lease any “home” $200 regardless of how many units
are in the building. Such an interpretation would impermissibly nullify E.C.O.
1761.05(a)(1). State v. Polus, 145 Ohio St. 3d 266, 2016-Ohio-655, 48 N.E.3d 553,
¶ 12 (courts should avoid construction of a statute that renders a provision
meaningless or inoperative).
According to the unambiguous language of E.C.O. 1761.05(a)(1), any
building with “four or more units” is to be charged a nonrefundable fee of $35 per
unit to obtain the rental license. Neither party has disputed that the word “unit” is
referring to a “dwelling unit” as defined under E.C.O. 1751.04(g). Under the
applicable definitional section, a “dwelling” is defined as “a building” intended or
designed to be occupied by not more than three families living separately and
independent of each other.” E.C.O. 1751.04(e). KW’s units are not “dwellings” for
the purposes the “Building and Property Maintenance Code of the City of Euclid”
under which the licensing ordinance at issue falls, much less can they be considered
a “single family dwelling.” Each of KW’s units is a “multiple dwelling” as defined
by division (k) of that section.
The definition of “attached single-family dwelling” as defined
elsewhere in the E.C.O. is not dispositive, although if anything, it demonstrates that
the drafters are aware of how to properly reference condominium units when
necessary. The phrase was not included in E.C.O. 1761.05. When statutes are
unambiguous, we need not interpret the language. Polus at ¶ 7. Under a plain
reading of E.C.O. 1761.05, any building with four or more units owes a fee of $35 per
unit. Thus E.C.O. 1761.05(a) presents a dichotomy, but not the one interpreted by
the City.
And although the phrase “single, two or three family homes” is
undefined, it is undisputed that the issue in this case is the fee to be assessed against
a “multiple dwelling,” in other words, a building with four or more units. As a
result, we need not determine the scope of what constitutes the “single, two or three
family homes.” The units at issue fall under the more-specific, but unambiguous
statutory language. Polus at ¶ 10. Further, we cannot read any modifiers into
E.C.O. 1751.04(a) in order to shift a condominium unit, now defined as a multiple
dwelling, into the “single, two or three family homes” category. Nor can the phrase
“single, two or three family homes” be interpreted as a reference to those single-
family homes that are “individually owned and taxed.”
For the foregoing reasons, I dissent.