Summary
In Peachtree Development Co. v. Paul, 67 Ohio St.2d 345, 351 (1981), the Ohio Supreme Court held that both the creation and implementation of a planned unit development governed by § 519.021 arc legislative acts because they are the functional equivalent of traditional legislative zoning.
Summary of this case from Stile v. Copley TownshipOpinion
No. 81-92
Decided July 29, 1981.
County — Zoning resolution — Validity — Board of county commissioners — Approval of Community Unit Plan — Legislative action, when — Subject to referendum.
APPEAL from the Court of Appeals for Hamilton County.
Peachtree Development Company (Peachtree), appellee herein, sought to develop a 164.58 acre tract in Colerain Township, Hamilton County, as a Community Unit Plan (CUP), pursuant to R.C. 303.022. Towards this end, Peachtree submitted its plan for the use and development of this tract to the Board of County Commissioners of Hamilton County (the board), pursuant to Article XVI of the Zoning Resolution for the Unincorporated Territory of Hamilton County (Zoning Resolution).
We agree with the Court of Appeals' finding that a Community Unit Plan (CUP), under Article XVI of the Hamilton County Zoning Resolution, is the same zoning device as a Planned Unit Development (PUD), as authorized in R.C. 303.022.
R.C. 303.022 provides:
"A county zoning resolution or amendment adopted in accordance with Chapter 303 of the Revised Code may establish or modify planned-unit development regulations, for the purpose of conserving land through more efficient allocation of private lots, multi-family dwelling units, common grounds, and nonresidential uses, promoting greater efficiency in providing public and utility services, and securing the benefits of new techniques of community development and renewal. Within a planned-unit residential development district or zone, the county zoning, subdivision, and platting regulations need not be uniform, but may vary in order to promote the public health, safety, and morals, and the other purposes of this section. County regulations adopted pursuant to this section may require developers to obtain conditional or final certification of compliance with county zoning, subdivision, or platting regulations at specified stages of development.
"As used in this section, `planned-unit development' means a development which is planned to integrate residential use with collateral uses, and in which lot size, setback lines, yard areas, and dwelling types may be varied and modified to achieve particular design objectives and make provision for open spaces, common areas, utilities, public improvements, and collateral nonresidential uses."
Article XVI of the Hamilton County Zoning Resolution provides:
"Community Unit Plan
"Sec. 161 The owner or owners of any tract of land comprising an area of not less than fifteen (15) acres may submit to the Commissioners a plan for the use and development of the tract of land for residential and related purposes as hereinafter provided in Section 161.3. Such plan for development of the area shall be referred to the Regional Planning Commission for study and report. If the Regional Planning Commission approves the plan, the plan, together with a report stating the findings and recommendations of the Commission shall be filed with the Rural Zoning Commission, and with the Commissioners. The report shall state the reasons for approval of the plan and shall include specific evidence and facts showing the proposed community unit plan meets the following conditions:
"Sec. 161.1 That the location and planning of building sites and the amount, arrangement and treatment of open space will ensure a satisfactory living environment and will be carried out in consideration of property adjacent to the area included in the plan and insure that such adjacent property will not be adversely affected.
"Sec. 161.2 That the plan is consistent with the objectives of this Article to further the best use of the land in relation to its size, configuration, location and physiography, and to produce a residential environment of sustained desirability.
"Sec. 161.3 That the buildings shall be used only for single-family dwellings and such accessory buildings and uses customarily incident to such use if the area of the Community Unit Plan is less than thirty (30) acres, or only for single family, two family or multiple dwellings, or other residentially related activities and customary accessory uses if the area of the Community Unit Plan is more than thirty (30) acres in area. In the case of a Community Unit Plan of fifty (50) acres or more one (1) area may be included in such plan as a shopping center for parking and commercial buildings and uses as regulated in the `E' Retail Business District not to exceed one (1) acre for each hundred (100) lots or dwelling units or fraction thereof.
"Sec. 161.4 That the average lot area per family contained in the site, excluding streets, will not be less than the lot per family required in the District in which the development is located.
"Sec. 162. If the Regional Planning Commission approves the plan, the plan shall then be referred to the Rural Zoning Commission for public hearing and report to the Commissioners, as provided for amendments or supplements to the Zoning Resolution in accordance with Sec. 303.12 of the Ohio Revised Code.
"Sec. 163. If the Commissioners approve the plan, then zoning certificates may be issued even though the use of land, the location of the buildings to be erected in the area, and the yards and open spaces contemplated by the plan do not conform in all respects to the District Regulations of the District in which it is located. The Commissioners may also by the same procedure, authorize the revision or remodeling of any existing community unit plan that does not conform in all respects with the District Regulations of this Resolution.
"Sec. 163.1 No building permit shall be issued for actual construction until and unless a final Development Plan, as defined in Sec. 31.22, shall have been reviewed and approved by the Regional Planning Commission with a determination that such plan is consistent with the approved plan and the purposes and intent of this Article. The Regional Planning Commission may approve variations in the Final Development Plan not in violation of any standards and requirements prescribed in this Article, and provided that the variations remain completely in harmony with the approved plan and within the spirit of the Resolution.
"Sec. 164. Application may be filed for amendment of the District Map coincidentally with the submitting of a Community Unit Plan in accordance with this Article. In this case, the application for amendment of the zoning classification and the plan for the use and development of the tract of land may be considered together and the hearings and recommendations therefor may be combined. When such amendment and plan are combined, however, any approval shall be conditioned on carrying out the plan, and the new zoning classification shall be void and shall revert to the district in which the tract was classified before the approved plan unless construction is begun within two years after the date of approval of the Commissioners become effective."
The subject property which Peachtree proposed to develop was, at the time of the original development request, and still is, zoned Residence A-2. A Residence A-2 classification, essentially a single-family residential use, requires a minimum lot size of 14,000 square feet with, inter alia, side yards of at least ten feet and front and rear yards of at least 40 and 35 feet, respectively.
Peachtree's CUP, on the other hand, contemplated 99 single-family homes on lots of 12,000 square feet; 56 single-family homes in "clusters" on lots of 7,500 square feet; 124 single-family homes on lots of 7,500 square feet with no side yards on one side (zero lot line dwelling units); and 136 multi-family condominium residential units in groupings of various sizes. The proposed CUP also provided for a commercial-retail area of approximately four acres.
On November 15, 1978, the board, in a divided decision, approved, with modifications, through Resolution No. 575, Peachtree's CUP request.
Within 30 days of the board's approval of Resolution No. 575, referendum petitions were circulated and filed with the board, pursuant to R.C. 303.12, seeking to have approval of the CUP placed on the ballot. The county commissioners forwarded the referendum petitions to the Board of Elections of Hamilton County, which certified the petitions as having a sufficient number of valid signatures. The county commissioners when certified the referendum to the board of elections for submission to the voters of Colerain Township in the general election of November 1979.
R.C. 303.12 provides:
"Amendments or supplements to the zoning resolution may be initiated by motion of the county rural zoning commission, by the passage of a resolution therefor by the board of county commissioners or by the filing of an application therefor by one or more of the owners or lessees of property within the area proposed to be changed or affected by the proposed amendment or supplement with the county rural zoning commission. The board of county commissioners shall upon the passage of such resolution certify it to the county rural zoning commission.
"Upon the adoption of such motion, or the certification of such resolution or the filing of such application the county rural zoning commission shall set a date for a public hearing thereon, which date shall not be less than twenty nor more than forty days from the date of adoption of such motion or the date of the certification of such resolution or the date of the filing of such application. Notice of such hearing shall be given by the county rural zoning commission by one publication in one or more newspapers of general circulation in each township affected by such proposed amendment or supplement at least fifteen days before the date of such hearing.
"If the proposed amendment or supplement intends to re-zone or re-district ten or less parcels of land, as listed on the tax duplicate, written notice of the hearing shall be mailed by the zoning commission, by first class mail, at least twenty days before the date of the public hearing to all owners of property within and contiguous to and directly across the street from such area proposed to be re-zoned or re-districted to the addresses of such owners appearing on the county auditor's current tax list or the treasurer's mailing list and to such other list or lists that may be specified by the board of county commissioners. The failure of delivery of such notice shall not invalidate any such amendment or supplement. The published and mailed notices shall set forth the time and place of the public hearing, the nature of the proposed amendment or supplement and a statement that after the conclusion of such hearing the matter will be referred for further determination to the county or regional planning commission and to the board of county commissioners as the case may be.
"Hearings shall be held in the county court house or in a public place designated by the zoning commission.
"Within five days after the adoption of such motion or the certification of such resolution or the filing of such application the county rural zoning commission shall transmit a copy thereof together with text and map pertaining thereto to the county or regional planning commission, if there is such a commission.
"The county or regional planning commission shall recommend the approval or denial of the proposed amendment or supplement or the approval of some modification thereof and shall submit such recommendation to the county rural zoning commission. Such recommendation shall be considered at the public hearing held by the county rural zoning commission on such proposed amendment or supplement.
"The county rural zoning commission shall, within thirty days after such hearing, recommend the approval or denial of the proposed amendment or supplement, or the approval of some modification thereof and shall submit such recommendation together with such application or resolution, the text and map pertaining thereto and the recommendation of the county or regional planning commission thereon to the board of county commissioners.
"The board of county commissioners shall, upon receipt of such recommendation, set a time for a public hearing on such proposed amendment or supplement, which date shall be not more than thirty days from the date of the receipt of such recommendation from the county rural zoning commission. Notice of such public hearing shall be given by the board by one publication in one or more newspapers of general circulation in the county, at least fifteen days before the date of such hearing.
"The published notice shall set forth the time and place of the public hearing and a summary of the proposed amendment or supplement.
"Within twenty days after such public hearing the board shall either adopt or deny the recommendation of the zoning commission or adopt some modification thereof. In the event the board denies or modifies the recommendation of the county rural zoning commission the unanimous vote of the board shall be required.
" Such amendment or supplement adopted by the board shall become effective in thirty days after the date of such adoption unless within thirty days after the adoption of the amendment or supplement there is presented to the board of county commissioners a petition, signed by a number of qualified voters residing in the unincorporated area of the township or part thereof included in the zoning plan equal to not less than eight per cent of the total vote cast for all candidates for governor in such area at the last preceding general election at which a governor was elected, requesting the board to submit the amendment or supplement to the electors of such area, for approval or rejection, at the next primary or general election.
" No amendment or supplement for which such referendum vote has been requested shall be put into effect unless a majority of the vote cast on the issue is in favor of the amendment. Upon certification by the board of elections that the amendment has been approved by the voters it shall take immediate effect." (Emphasis added.)
In an attempt to prevent a referendum on the board's approval of the CUP, Peachtree filed, in the Court of Common Pleas of Hamilton County, an action for declaratory judgment and injunctive relief. More specifically, Peachtree requested the court to (1) enjoin the board of county commissioners and the board of elections of Hamilton County from proceeding with the referendum on Resolution No. 575, and (2) determine whether Resolution No. 575 was lawfully subject to a referendum.
Subsequent to the filing of Peachtree's action, the Colerain Town Meeting Zoning Committee, Charles B. Howell, Arthur C. Wehrman and Harold Tremper, appellants herein, were joined, with leave of the court and permission of all parties, as party defendants.
After a trial to the court, the trial judge (1) denied the injunction, (2) ruled that the board of county commissioners' approval of Resolution No. 575 was legislative action which was subject to a referendum, and (3) declared the Zoning Resolution invalid as an unlawful delegation of legislative authority from the board of county commissioners to the regional planning commission.
On review, the Court of Appeals for Hamilton County reversed the judgment of the Court of Common Pleas, and ruled that (1) the county commissioners' approval of Peachtree's CUP was administrative, not legislative, action and, as such, not subject to a referendum; and that (2) the Zoning Resolution did not unlawfully delegate legislative authority from the board of county commissioners to the regional planning commission. Furthermore, the Court of Appeals ordered the permanent suppression of the results of the November 6, 1979, referendum election.
The cause is now before this court pursuant to allowance of a motion to certify the record.
Santen, Santen Hughes Co., L.P.A., and Mr. William B. Singer, for appellee Peachtree Development Company.
Mr. Robert G. Hyland, for appellants.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Roger E. Friedman, for appellees Board of County Commissioners and Board of Elections.
The two critical issues in this case are (1) whether the board of county commissioners' approval of the CUP, which approval subjects the 164.5 acre tract to a standard of zoning different from that which existed prior to the approval, constitutes legislative action which is subject to a referendum in accordance with R.C. 303.12, and (2) whether Article XVI of the Hamilton County Zoning Resolution unlawfully delegates legislative authority to the regional planning commission.
In resolving the foregoing issues, we are mindful of the test which this court has articulated in unravelling the legislative-administrative dichotomy: "The test for determining whether the action of the 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." Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, paragraph two of the syllabus.
We also have received precedential guidance from Gray v. Trustees of Monclova Twp. (1974), 38 Ohio St.2d 310, a case in which this court unanimously ruled, in a fact pattern analogous to the case at bar, that the action of a board of township trustees in approving a planned unit development consttuted legislative action. As the court specifically stated in Gray v. Trustees of Monclova Twp., supra, at 314: "*** [T]he action of the board in approving such a plat is the functional equivalent of traditional legislative zoning, even though the entire PUD area is covered by the same `nominal' zoning classification both before and after approval of the plat."
The Court of Appeals correctly observed that the creation of the CUP concept was a legislative act that was subject to a referendum. As the court below stated: "The Board's adoption of Article XVI of the Zoning Resolution under R.C. 303.022 was an amendment to the Zoning Resolution and it was subject to a referendum under R.C. 303.12. By that legislative act the board created a new zoning classification known as a Community Unit Plan, different from the other districts, more flexible but subject to the limitations and proceedings set forth in Article XVI." (Footnote omitted.)
However, the Court of Appeals committed reversible error in failing to rule that the implementation of the CUP, as well as its creation, is a legislative act, which is subject to a referendum. Applying the aforementioned theory to the facts at bar, the conclusion is inescapable that the Board of County Commissioners of Hamilton County, in approving Resolution No. 575, acted in a legislative manner since the board's action was the functional equivalent of altering the zoning classification of a sizeable section of Colerain Township.
That the board's attempt to implement appellee's CUP is tantamount to rezoning the area is readily apparent from the changes in the permitted uses associated with the CUP. Before the subject tract was designated as a CUP, the land was zoned for single-family residential use with each lot containing a minimum of 14,000 square feet with, inter alia, side yards of at least 10 feet and front and rear yards of at least 40 and 35 feet, respectively. Appellee's CUP as modified and approved by the board, provided for 87 single-family homes on lots of 12,000 square feet, 56 single-family homes in "clusters" on lots of 7,500 square feet, 136 single-family homes on lots of 7,500 square feet (with no side yard on one side), and 136 multi-family condominium units in groupings of various sizes. The CUP also provided for a retail-commercial area of approximately four acres.
As a practical matter, the implementation of the CUP effects a zoning change of this area. When the board of county commissioners approved the CUP, the preexisting Residence A-2 classification remained in name only. As this court stated in Gray v. Trustees of Monclova Twp., supra, at 314, footnote 4: "The overall zoning classification in a PUD area can be termed `nominal' because it does not, by itself, indicate the specific zoning restrictions in the area. These restrictions are ascertainable only by referring to the approved plats for the development."
We find additional support for our decision today from Lutz v. Longview (1974), 83 Wn.2d 566, 569, 520 P.2d 1374, in which the court, in analyzing the legal nature and effect of imposing a PUD upon a specific parcel of land, stated: "The authorities are clear that such a change in permitted uses is a rezone or amendment of the zoning ordinance. `The end product is, of course, an amendment to the zoning ordinance which reclassifies the land in question.' 2 R. Anderson, American Law of Zoning, Section 8.38, at 19 (1968).***"
For all the foregoing reasons, therefore, we conclude that the board of county commissioners' approval of appellee's CUP constitutes legislative action, within the context of Donnelly v. Fairview Park, supra, and Gray v. Trustees of Monclova Twp., supra, because the approval is, in essence, an enactment, amendment or the functional equivalent of a new zoning classification for the affected area of Colerain Township. As such, the approval is subject to a referendum, pursuant to R.C. 303.12.
We summarily reject appellants' contention that Article XVI of Hamilton County Zoning Resolution impermissibly delegates legislative authority to the regional planning commission. Our review of the Zoning Resolution compels us to conclude that Article XVI only confers, on the regional planning commission, discretion as to the execution of the law by setting forth standards and guidelines that are sufficiently definite to pass constitutional muster.
Section 163.1 of Article XVI of the Zoning Resolution reads as follows:
"No building permit shall be issued for actual construction until and unless a final Development Plan, as defined in Sec. 31.22, shall have been reviewed and approved by the Regional Planning Commission with a determination that such plan is consistent with the approved plan and the purposes and intent of this Article. The Regional Planning Commission may approve variations in the Final Development Plan not in violation of any standards and requirements prescribed in this Article, and provided that the variations remain completely in harmony with the approved plan and within the spirit of the Resolution."
In analyzing the propriety of the board of county commissioners' delegation of authority to the regional planning commission to approve (1) a Final Development Plan and (2) variations in a Final Development Plan, we take into consideration this court's long-standing rule on the permissible delegation of legislative authority: "*** The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." Cincinnati, Wilmington Zanesville RR. Co. v. Commrs. of Clinton County (1852), 1 Ohio St. 77, 88. See, also, State, ex rel. Selected Properties, Inc., v. Gottfried (1965), 163 Ohio St. 469; L M Investment Co. v. Cutler (1932), 125 Ohio St. 12.
We have examined Article XVI of the Zoning Resolution and find that it contains sufficient standards to ensure that the regional planning commission acts in a manner consistent with the will of the board of county commissioners. More precisely, in approving a Final Development Plan, the regional planning commission must determine "that such plan is consistent with the approved plan and the purposes and intent of this Article [Article XVI]." Furthermore, the regional planning commission can only approve variations in a Final Development Plan if such variations are: "*** not in violation of any standards and requirements prescribed in this Article, and provided that the variations remain completely in harmony with the approved plan and within the spirit of the Resolution."
Thus, in tailoring the specifics of a CUP, the regional planning commission exercises discretion, but only within the confines of sufficiently precise and definite standards, which standards enable a reviewing court to determine if the will of the board of county commissioners has been obeyed.
In rendering this decision, we are fully cognizant that the purpose of a CUP is to introduce an element of flexibility into the zoning of large tracts so that a mixture of uses can be employed and open spaces preserved, with minimum disturbance of the natural topography and little or no increase in the density of residences within the area. See, generally, 2 Anderson, American Law of Zoning (2 Ed.), Sections 11.01-11.24. Indeed, as the Court of Appeals colorfully observed, traditional Euclidean zoning sometimes resembles a cookie cutter design that is monotonous and sterile. However, as we have repeatedly stated, we sit as an appellate court with a limited scope of review; we do not sit as a super board of zoning appeals. Absent clear constitutional, statutory or procedural error, we are not free to impose our judgment in zoning matters. See Leslie v. Toledo (1981), 66 Ohio St.2d 488; Brown v. Cleveland (1981), 66 Ohio St.2d 93. Consequently, we believe that the voters of Colerain Township are in a much better position than we are to evaluate the desirability of appellee's CUP.
For all the foregoing reasons, the judgment of the Court of Appeals is reversed in part and affirmed in part. The cause is hereby remanded for further proceedings consistent with this opinion.
Judgment reversed in part and affirmed in part, and cause remanded.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.
I concur in the majority's affirmance of the Court of Appeals' judgment holding Article XVI of the Hamilton County Zoning Resolution to be a legislative act. The majority also correctly finds the Community Unit Plan to be a lawful delegation of authority from the board of county commissioners to the regional planning commission. However, I dissent from the majority's holding Resolution No. 575 to be legislative action subject to referendum under R.C. 303.12.
As the majority correctly notes, the test whether an act of a public body is legislative or administrative is whether the act in question enacts a law or regulation, or merely applies, executes or administers a law or regulation already in existence. Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1.
Applying this test to Article XVI of the Hamilton County Zoning Resolution, it is clear that the board's adoption of that resolution creating a new zoning classification known as a Community Unit Plan was a legislative act. That act enabled the regional planning commission to review and recommend individual developments for specific sites in Hamilton County.
However, the conclusion is not "inescapable" that every development authorized under Community Unit Plan legislation is similarly created by a legislative act. Every action of any board or commission necessarily flows from a legislative fount. That does not make it legislative. Resolution No. 575 is simply an application of the legislation authorizing creation of Community Unit Plans. It is an administrative act, not subject to review by referendum, but rather by judicial officers, including this court.
Gray v. Trustees of Monclova Twp. (1974), 38 Ohio St.2d 310, cited by the majority, has no precedential value for this case. At the time the Monclova Township development known as Byrnwyck was approved, R.C. 303.022 had not been enacted. Therefore, the Monclova Township trustees had no authority to create such a development.
Resolution No. 575 is similar to the resolution adopted by the city of Solon approving a zoning use exception under its charter, an action characterized by this court as administrative in State, ex rel. Srovnal, v. Linton (1976), 46 Ohio St.2d 207.
R.C. 303.022 is the primary legislative source giving counties and townships power to authorize and approve such developments. Article XVI of the Hamilton County Zoning Resolution is the secondary legislative act conferring authority on county officials to approve such developments. Board Resolution No. 575 takes its place under R.C. 303.022 and Article XVI as an administrative application of the legislative policy expressed in the former enactments. Therefore, the trial court erred in holding board Resolution No. 575 to be a legislative act subject to referendum.
It is disturbing to find this court using language, inter alia, "*** [W]e do not sit as a super board of zoning appeals. Absent clear constitutional, statutory or procedural error, we are not free to impose our judgment in zoning matters. ***" These facile statements, mere obiter dicta and without sound judicial precedent, can be easily misconstrued as nullifying meaningful judicial review of zoning matters. If so misconstrued, these statements conflict with many sound pronouncements of this court to the contrary, e.g., Driscoll v. Austintown Associates (1975), 42 Ohio St.2d 263; Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23; Gates Mills Investment Co. v. Pepper Pike (1975), 44 Ohio St.2d 73; Curtiss v. Cleveland (1959), 170 Ohio St. 127; State, ex rel. Ice Fuel Co., v. Kreuzweiser (1929), 120 Ohio St. 352, 356.