Summary
In Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1 [42 O.O.2d 1], paragraph two of the syllabus, we held that "[t]he test for determining whether the action * * * is legislative or administrative is whether the action taken is one enacting a law * * * or administering a law * * * already in existence."
Summary of this case from State, ex Rel. Ashcraft, v. Indus. CommOpinion
No. 40619
Decided January 3, 1968.
Appeal — From order of administrative body — Chapter 2506, Revised Code — Legislative body may act administratively — Whether act legislative or administrative determined, how — Municipal council — Refusal to approve resubdivision plan, administrative, when.
1. A public body essentially legislative in character may act in an administrative capacity.
2. The test for determining whether the action of a legislative body is legislative or administrative is whether the action taken is one enacting a law, ordinance or regulation, or executing or administering a law, ordinance or regulation already in existence.
3. The failure or refusal of a municipal council to approve a plan for the resubdivision of land which meets the terms of a zoning ordinance already adopted and in existence is an administrative act, and an appeal from such failure or refusal to approve lies to the Court of Common Pleas under Chapter 2506, Revised Code.
APPEAL from the Court of Appeals for Cuyahoga County.
Rosalie E. and Vincent E. Donnelly, owners, made application to the city planning commission of the city of Fairview Park to resubdivide sublots Nos. 15 and 31 in the South Park Drive Subdivision of that city.
Section 913.30 of the Fairview Park Zoning Code recites:
"A parcel of land may be divided into two or more zoning lots, provided, all lots resulting from such division shall conform to all area and width regulations of the district in which it is located."
The resubdivision proposed by the Donnellys came within the provisions of the quoted ordinance, and the planning commission approved the application.
Among other things, Section 2, Subsection (b) of Article VII of the Charter of the city of Fairview Park, reads, in part:
"* * * All plans, recommendations and regulations made by the planning commission shall be submitted to council for approval before the same shall be considered as official."
The city council declined to act on the acceptance and approval of the Donnelly resubdivision by the planning commission, and the Donnellys appealed under Chapter 2506, Revised Code, to the Court of Common Pleas of Cuyahoga County. That court found that the city council in failing and refusing to approve the decision of the city planning commission under the facts presented was not acting in a legislative capacity but was acting in a quasi-judicial administrative capacity and that the decision of council was properly appealable under Chapter 2506, Revised Code.
It was found further that the decision of the Fairview Park Council was unconstitutional, illegal, arbitrary, capricious, unreasonable and unsupported by the preponderance of substantial, reliable and probative evidence upon the whole record, and the court ordered the Council of Fairview Park to issue its approval of the Donnellys' application.
On an appeal by the city to the Court of Appeals, that court reversed the judgment of the Common Pleas Court and entered final judgment for the city "for the reason that the order appealed from was a legislative act of the Council of the City of Fairview Park, Ohio, acting in its legislative capacity, and therefore said order was not appealable [to the Court of Common Pleas] under Chapter 2506 of the Ohio Revised Code."
The cause is here on an appeal as of right and upon the allowance of a motion to require the Court of Appeals to certify the record.
Messrs. McDonald, Hopkins Hardy and Mr. James B. Davis, for appellants.
Mr. Robert M. Krewson, director of law, for appellee.
The question for decision is whether the action of a municipal council, in refusing or failing to approve the recommendation of a municipal planning commission as to a resubdivision of real estate which is authorized and sanctioned by a zoning ordinance, is legislative and nonappealable under Chapter 2506, Revised Code, or administrative and appealable under that Chapter.
The resubdivision of their land, as proposed by the Donnellys, accorded with Section 913.30 of the city's zoning code and was approved by the planning commission in compliance with that section. Approval by the city council was likewise governed by Section 913.30 (see Gibson v. Oberlin, 171 Ohio St. 1, 167 N.E.2d 651), and its function, in recognizing and following the provisions of that ordinance, was administrative or directory rather than legislative. A public body essentially legislative in character may act in an administrative capacity. Of course, the adoption or amendment of a zoning regulation or ordinance is a legislative act ( Tuber v. Perkins, 6 Ohio St.2d 155, 216 N.E.2d 877), but the failure or refusal to approve a resubdivision of land coming within the terms of a zoning regulation or ordinance already adopted and in existence is an administrative matter.
Thus, in the case of Jacobs v. Maddux, 7 Ohio St.2d 21, 23, 218 N.E.2d 460, 461, it is said in the opinion by O'Neill, J.:
"This court held in Tuber v. Perkins et al., Board of Trustees, * * * that a Board of Township Trustees may function as a legislative body, and, when it functions as such, there can be no appeal from its action.
"Functionally, the action which the trustees took in the instant case [denial of a petition for incorporation of a village] is not legislative since it involves merely the application of existing law to a given factual situation."
The prevailing rule is succinctly stated in Kelley v. John, 162 Neb. 319, 321, 75 N.W.2d 713, 715, as follows:
"* * * The crucial test for determining that which is legislative from that which is administrative or executive is whether the action taken was one making a law, or executing or administering a law already in existence."
To the same effect, see Kleiber v. City and County of San Francisco, 18 Cal.2d 718, 117 P.2d 657, and Bird v. Sorenson, 16 Utah 2d 1, 394 P.2d 808. Compare Remy v. Kimes, 175 Ohio St. 197, 191 N.E.2d 837, and Berg v. Struthers, 176 Ohio St. 146, 198 N.E.2d 48, cited and discussed in Jacobs v. Maddux, supra.
If, then, the action of a legislative body creates a law, that action is legislative, but if the action of that body consists of executing an existing law, the action is administrative.
In the instant case an administrative function is involved, and an appeal to the Court of Common Pleas under Chapter 2506, Revised Code, was proper procedure.
The judgment of the Court of Appeals is reversed, and the cause is remanded to that court for further proceedings not inconsistent with this opinion.
Judgment reversed.
TAFT, C.J., MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.