Summary
holding that a municipality has the inherent authority to rescind its preliminary approval of a proposed housing development plan
Summary of this case from Center for Powell Crossing, LLC v. City of PowellOpinion
No. 90-2018
Submitted November 13, 1991 —
Decided February 12, 1992.
APPEAL from the Court of Appeals for Summit County, No. 14468.
On January 11, 1988, Mary Harpley of Harpley Builders, Inc. submitted a petition for conditional use to Akron City Council that sought approval of a planned unit development of eight single-family residences to be located off Eaton Avenue. Harpley Builders, Inc. ("the Builder") had an option to purchase a parcel of land from a larger tract of undeveloped land owned by the University of Akron. The parcel and the adjoining property were zoned residential/single family. Prior to the Akron City Planning Commission's action on the petition for conditional use, the Builder changed the plan from a planned unit development to a subdivision called Eaton Place, which was to consist of eight single-family residences on a cul-de-sac.
The Akron Department of Planning and Urban Development ("the Planning Department") recommended preliminary approval of the Eaton Place subdivision with three conditions. The conditions were as follows: (1) that the final plat meet the requirements of all city departments, (2) that the plan include approved landscaping and fencing, and (3) that the subdivision homeowner's association maintain the cul-de-sac planting area. The Akron City Planning Commission ("the Planning Commission") then voted unanimously on March 4, 1988, to preliminarily approve the Eaton Place plan, subject to the three conditions, plus a fourth condition that the plan include a storm water management plan approved by the Engineering Bureau for the entire university property. A later memorandum from the Planning Department recommended a fifth condition, that the developer pay the "required fee in lieu of open space."
The Planning Commission next discussed Eaton Place on July 8, 1988. At this meeting about thirty concerned citizens were present in opposition, and after some discussion the Commission voted to postpone its vote on the final approval of the subdivision. Mary Harpley requested additional time by letters dated July 21 and August 17, and then informed the Commission by a letter dated August 29 that she wished to speak at its meeting on September 9, to present a plan for Eaton Place with six houses instead of eight. This plan was submitted on September 19, 1988 and discussed at the Planning Commission's September 30, 1988 meeting. At that meeting, the Planning Commission members again deferred any decision on the eight-unit plan. The builder and Akron stipulated that Eaton Place would not be discussed at the October 21 meeting and that neither party would claim that it was harmed by this delay.
At the November 18, 1988 meeting, the Planning Commission voted to rescind its preliminary approval of Eaton Place on the basis of five areas in which the subdivision did not meet subdivision regulations. The five areas of noncompliance were: (1) the plan's 3.39 units per acre exceeded the maximum allowed density of 3 units per acre; (2) the lot depth-to-width ratio was less than 1:1 and the minimum allowed is 2:1; (3) two of the building setbacks were less than the required twenty-five feet, and the two corner houses were set back twenty and twenty-five feet from Eaton Avenue, which has an existing building line of sixty feet; (4) the cul-de-sac radius was forty feet, instead of the required fifty feet; and (5) two lots did not meet the minimum lot frontages.
On November 23, 1988, appellee Harpley Builders, Inc. filed a complaint in the Summit County Court of Common Pleas against the city of Akron and the Planning Commission. The complaint demanded various types of relief, but ultimately the action proceeded as an administrative appeal pursuant to R.C. Chapter 2506. The case was referred to a court referee, who concluded that the Planning Commission did not have the power to rescind its preliminary approval, and was required to grant approval once the conditions initially attached to the preliminary approval were satisfied. The referee found that the Builder had fulfilled the initial four requirements noted above and the fifth requirement added in July 1988. The referee's report recommended that the matter be remanded to the Planning Commission for a decision on final approval, and that the report serve as a final approval if the Planning Commission did not convene and grant final approval of the Eaton Place allotment within fourteen days of the court's final order. The court of common pleas adopted the report in its entirety, and the court of appeals affirmed, aside from striking the recommendation that the report serve as final approval if the Planning Commission did not approve the plan within the time frame noted above.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
John C. Freeman, for appellee.
Max Rothal, Director of Law, and Cheri B. Cunningham, for appellants.
This case requires a review of the extent of the Planning Commission's authority to rescind its own decisions and a determination of whether preliminary approval, or the decision to rescind preliminary approval, is a final appealable order.
We have previously held that administrative agencies have inherent authority to reconsider their own decisions, unless they are otherwise limited by statute. Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 28 OBR 83, 502 N.E.2d 590, paragraph three of the syllabus; State, ex rel. Borsuk, v. Cleveland (1972), 28 Ohio St.2d 224, 57 O.O.2d 464, 277 N.E.2d 419, paragraph one of the syllabus. An agency retains this jurisdiction to set aside its own decision until a party appeals or the time to file an appeal has passed. Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., supra; State, ex rel. Borsuk, v. Cleveland, supra. We hold that it is this inherent authority that the Planning Commission exercised when it voted to rescind its preliminary approval of Eaton Place.
The court of appeals erred in holding that the Akron Subdivision Plan and Regulations ("the regulations") deny the Planning Commission the authority to reconsider its preliminary approval. The court reached this conclusion based on the regulation that provides that the Planning Commission shall grant final approval if the developer "has done everything that he was required to do" and fulfilled all of the conditions specified in the preliminary approval. Appellee suggested that the regulations render final approval nothing more than a ministerial function and basically mandate that final approval be granted if those conditions originally attached to the preliminary approval are fulfilled. Based on this reading of the applicable regulations, the court of appeals held that the original grant of preliminary approval was a final appealable order, and, therefore, that the Planning Commission could not reconsider it once the time for appeal had passed.
The regulation governing final approval provides as follows:
"(5) Approval by Planning Commission.
"The City Planning Commission shall approve or disapprove the final plat within thirty (30) days after it has been filed. Failure of the Commission to act upon the final plat within such time shall be deemed as approval of the plat. If the plat is disapproved, the grounds for disapproval shall be stated in the records of the Commission, and a copy of said record shall be forwarded to the developer. The Commission shall not disapprove the final plat if the developer has done everything that he was required to do and has proceeded in accordance with the conditions and standards specified in the approved preliminary plat. If disapproved the Developer shall make the necessary corrections and resubmit the final plat within thirty (30) days to the Commission for its final approval. If a plat is refused by the Commission, the person submitting the plat which the Commission refused to approve may file a petition within ten (10) days after such refusal in the Court of Common Pleas of the county in which the land described in said plat is situated to reconsider the action of the Commission." Akron Subdivision Plan and Regulations Section 1208.06(C)(5).
The regulations do not expressly or implicitly limit the Planning Commission's inherent authority to reconsider its own decisions. The regulations provide that "[a]pproval of the preliminary plan shall also be conditional upon compliance with all other applicable statues [ sic] and ordinances (resolutions and regulations) of the City." This language is contrary to the interpretation that once conditions noted at the time of preliminary approval are fulfilled, the Planning Commission loses all power to evaluate the proposed plan. A preliminary plan must be approved or disapproved within thirty days and the preliminary approval then remains effective for twelve months, a schedule which is certainly more consistent with a quick nod of approval than with a formal decision which renders all later decisions by the Planning Commission purely ministerial. Akron Subdivision Plan and Regulations Sections 1208.06(B)(4) and (5). Simply speaking, a preliminary approval is just that, preliminary. It connotes initial, not final, approval, after which the parties can hammer out all of the relevant details for final action.
The regulation governing preliminary approval provides in relevant part as follows:
"(4) Approval of Preliminary Plan.
"The City Planning Commission shall forward copies of the preliminary plan to such officials and agencies as may be necessary for the purpose of study and recommendation. These shall include at least the Directors of Public Service and the City Health Department, and shall also include any other department or agency that the Planning Commission deems appropriate in any given case. After receipt of reports from such officials and agencies, the City Planning Commission shall determine whether the preliminary plan shall be approved, approved with modifications or disapproved. If a plan is disapproved, the reasons for such disapproval shall be stated in writing. The City Planning Commission shall act on the preliminary plan within thirty (30) days after filing unless such time is extended by agreement with the developer. When a preliminary plan has been approved by the City Planning Commission, the chairman shall sign all copies and return one (1) to the developer for compliance with final approval requirements. Approval of the preliminary plan shall also be conditional upon compliance with all other applicable statues [ sic] and ordinances (resolutions and regulations) of the City.
"(5) Approval period.
"The approval of the preliminary plan shall be effective for a maximum period of twelve (12) months and shall guarantee that the terms under which the approval was granted will not be affected by changes to these regulations." (Emphasis added.) Akron Subdivision Plan and Regulations Sections 1208.06(B)(4) and (5).
Nor is the original grant of preliminary approval a final appealable order. Preliminary approval is but one step in the approval process. Once preliminary approval is granted, the developer must fulfill the Planning Commission's conditions, and then submit a final plat for approval. Akron Subdivision Plan and Regulations Section 1208.06(C)(1). These further steps are persuasive evidence that the decision to grant preliminary approval is not final. Preliminary approval of a real estate project does not determine the final rights and duties of the developer until further action is taken. Therefore, the grant of preliminary approval is not a final appealable order under R.C. 2506.01.
Accordingly, we reverse the judgment of the court of appeals and reinstate the November 18, 1988 order of the Planning Commission.
Judgment reversed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, H. BROWN and RESNICK, JJ., concur.