BUCKEYE COMMUNITY HOPE FOUNDATION ET AL., APPELLANTS, v. CITY OF CUYAHOGA FALLS ET AL., APPELLEES.
No. 97-137
SUPREME COURT OF OHIO
Submitted January 14, 1998—Decided May 6, 1998.
81 Ohio St.3d 559 | 1998-Ohio-189
APPEAL from the Court of Appeals for Summit County, No. 17933.
- Sections 3 and 7, Article XVIII of the
Ohio Constitution confer upon municipalities the authority “to exercise all powers of local self-government.”Section 1f, Article II of the Ohio Constitution does not limit that authority. - In accordance with Sections 3 and 7, Article XVIII of the
Ohio Constitution , the people of a municipality may, by charter, reserve to themselves the power to approve or reject, by popular vote, any actions of city council regardless of whether such actions are administrative or legislative in nature.
{¶ 1} The facts giving rise to this appeal are not in dispute. Appellant Buckeye Community Hope Foundation (“Buckeye Hope“) is a nonprofit corporation that develops housing for individuals through the use of low-income housing tax credits. Buckeye Hope is affiliated with Cuyahoga Housing Partners, Inc. and Buckeye Community Three L.P. (“Buckeye Three“), also appellants herein.
{¶ 3} On April 1, 1996, city council accepted the recommendation of the planning commission and passed Ordinance No. 48-1996. In Section 1 of the ordinance, council stated, “That this City Council approves the plan for development of land situated in an R-17 Medium Density Multiple Family zoning district in accordance with such district and zoning regulations as stipulated in the Codified Ordinances of the City of Cuyahoga Falls and as approved by the Planning Commission as per the plans and stipulations contained in Planning Commission File P-6-96-SP.”
{¶ 4} Subsequently, referendum petitions were filed with the appellee Cuyahoga Falls Clerk of Council challenging the passage of the ordinance. The petitions were then forwarded to the appellee Summit County Board of Elections. The board of elections determined that the petitions contained a sufficient number of valid signatures.
{¶ 5} In an attempt to keep the referendum off the November 1996 ballot, appellants, on May 1, 1996, filed a complaint against appellees in the Court of Common Pleas of Summit County. Appellants sought to enjoin appellees from taking any further action regarding the referendum process. Appellants also requested a judicial determination that, because the passage of the ordinance constituted merely administrative as opposed to legislative action by council, the ordinance was not subject to challenge by way of referendum. Appellants claimed
{¶ 6} The trial court conducted a hearing with respect to appellants’ request for injunctive relief. On May 31, 1996, the court ruled in favor of appellees, denying appellants’ request for a preliminary or permanent injunction. The court held that the classification of action taken by council in passing Ordinance No. 48-1996, whether administrative or legislative in character, was not dispositive of whether the ordinance could be submitted to a vote of the electors. Rather, the court determined that the ordinance could be voted on because the citizens of Cuyahoga Falls had specifically reserved to themselves such a right under their charter.
{¶ 7} Appellants appealed the trial court‘s decision to the Court of Appeals for Summit County. On December 18, 1996, the court of appeals affirmed the judgment of the trial court.
{¶ 8} The cause is now before this court upon the allowance of a discretionary appeal.
Zeiger & Carpenter, John W. Zeiger, Jeffrey A. Lipps and Michael N. Beekhuizen; McFarland Law Office and J. Drew McFarland, for appellants.
Virgil Arrington, Jr., Cuyahoga Falls Deputy Law Director, for appellees city of Cuyahoga Falls, Cuyahoga Falls City Council, and Cuyahoga Falls Clerk of Council.
Maureen O‘Connor, Summit County Prosecuting Attorney, and William E. Schultz, Assistant Prosecuting Attorney, for appellee Summit County Board of Elections.
Malcolm C. Douglas, urging affirmance for amicus curiae, South Solon Homeowners Association, Inc.
Roger Gupta, pro se, urging affirmance for amicus curiae, Dr. Roger Gupta, Emeritus Professor, Kent State University.
Fair Housing Law Clinic, Edward G. Kramer, Diane E. Citrino and Kathy J. Grey; Porter, Wright, Morris & Arthur and Robert D. Anderle, urging reversal for amicus curiae, Coalition on Homelessness and Housing in Ohio.
DOUGLAS, J.
{¶ 9} The trial court and court of appeals determined that the citizens of Cuyahoga Falls were entitled, by virtue of their city charter, to vote on the passage of Ordinance No. 48-1996. We agree. Accordingly, we affirm the judgment of the court of appeals.
{¶ 10} Cuyahoga Falls, as a charter municipality, derives its sovereign power from
“Prior to 1912 there was no express delegation of power to municipalities in the Ohio Constitution. Under the decisions of our courts, it had been held again and again * * * that municipal power was delegated only by virtue of a statute. Therefore, municipalities of the state, especially the larger ones, were continually at the door of Ohio‘s General Assembly asking for additional political power for municipalities, or modifications in some form of previous delegations of such power. Such power, being legislative only, could be withdrawn from the municipalities, or amended, at any session of the Legislature.
“Municipalities were, therefore, largely a political football for each succeeding Legislature, and there was neither stability of law, touching municipal power, nor sufficient elasticity of law to meet changed and changing municipal conditions. To the sovereign people of Ohio the municipalities appealed in the constitutional convention of 1912, and the Eighteenth Amendment, then known as the ‘Home Rule’ Amendment, was for the first time adopted as part of the Constitution of Ohio, wherein the sovereign people of the state expressly delegated to the sovereign people of the municipalities of the state full and complete political power in all matters of ‘local self-government.’ ” (Emphasis added and citation omitted.)
{¶ 11}
{¶ 12} Further,
{¶ 13} The words “as are not in conflict with general laws,” found in
{¶ 14} Pursuant to
{¶ 15} Appellants contend that referendum powers reserved in a municipal charter are not absolute and are expressly limited by
“The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.”
{¶ 16} Specifically, appellants contend that the language “authorized by law to control by legislative action,” as used in
{¶ 17} We agree with appellants that the action of council in approving the site plan was essentially administrative in nature. See Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500, paragraph one of the syllabus (“A public body essentially legislative in character may act in an administrative capacity.“). It appears that appellants were at all times in compliance with city zoning laws regarding the proposed development. Further, the action of council in approving the site plan consisted, generally, of executing and administering a zoning law previously enacted. See Myers v. Schiering (1971), 27 Ohio St.2d 11, 56 O.O.2d 6, 271 N.E.2d 864, and State ex rel. Srovnal v. Linton (1976), 46 Ohio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764. However, we disagree
{¶ 18} In this case, the court of appeals determined that
{¶ 19}
{¶ 20} To carry
“Essentially, we have held that
Section 1f of Article II (as contrasted toSection 1d of Article II ) is not ‘self-executing‘; that either the General Assembly, by the enactment of statutory ‘law,’ or the people of the municipality, by the adoption of charter ‘law’ under the ‘home-rule’ provisions of the Constitution, may exempt certain classes of laws from the operation of referendum * * *; that charter provisions, if so adopted, will apply * * *;R.C. 731.41 ; and that where there are no charter provisions the exercise of such power is only as provided for by the General Assembly * * *.” (Emphasis sic.) (Citations and footnote omitted.)
{¶ 21} In Bramblette, this court held that a municipality may, by charter, exempt an ordinance levying a municipal income tax from referendum proceedings. In reaching this conclusion, the court stated:
“In providing for referendum, however, a municipal charter is not restricted to the adoption of the same provisions enacted by the General Assembly. It may be less restrictive as to use of the referendum, as was the Charter of the city of Toledo which authorized referendum on all ordinances, including one levying a tax
passed as an emergency measure. State ex rel. Snyder v. Bd. of Elections (1946), 78 Ohio App. 194 [33 O.O. 519, 69 N.E.2d 634]. It may be more restrictive, as in Dillon v. Cleveland, supra * * *, where a referendum would have been required under state law, but was not required under the provisions of the Charter of the city of Cleveland.” (Emphasis added.) Bramblette, 24 Ohio St.2d at 150, 53 O.O.2d at 350, 265 N.E.2d at 275.
{¶ 22} Thus, given the holdings from this court, and applying
{¶ 24} Appellants direct our attention to Myers and Srovnal, and assert that those cases “control the outcome of this case.” Appellants contend that both Myers and Srovnal stand for the proposition that administrative determinations by a legislative municipal body are not subject to referendum “regardless of whether the municipality is chartered or not.”
{¶ 25} In Myers, paragraphs one and two of the syllabus, we held:
“1. Under
Section 1f of Article II of the Ohio Constitution , municipal referendum powers are limited to questions which municipalities are ‘authorized by law to control by legislative action.’“2. The passage by a city council of a resolution granting a permit for the operation of a sanitary landfill, pursuant to an existing zoning regulation, constitutes administrative action and is not subject to referendum proceedings.”
{¶ 26} In Srovnal, we relied upon Myers, and held:
“Where the city council, under favor of the city‘s Planning and Zoning Code, by resolution confirms the action of the city planning and zoning commission granting a zoning use exception as to height regulations for a hotel and office building, which exception will not, in the judgment of the commission, substantially and permanently injure the appropriate use of neighboring property, and the applicant for such use exception files notarized consents of the owners of
89.47 percent of the area of the land deemed by the commission to be immediately affected by the proposed zoning use exception, such resolution is not legislative but is an administrative act and is not subject to the referendum provisions of
R.C. 731.29 .”
{¶ 27} At first glance, both Myers and Srovnal appear to be supportive of appellants’ contentions. However, both cases are distinguishable and are not applicable here. In neither Myers nor Srovnal did we determine whether a charter provision could constitutionally authorize citizens to challenge the actions of a municipal legislative authority. To be sure, neither Myers nor its progeny, Srovnal, dealt with referendum powers granted by charter. Thus, appellants’ reliance on these cases is misplaced.
{¶ 28} Appellants also cite Forest City Ent., Inc. v. Eastlake (1975), 41 Ohio St.2d 187, 70 O.O.2d 384, 324 N.E.2d 740, as further authority for the proposition that the passage of Ordinance No. 48-1996 was not subject to referendum proceedings. In that case, a landowner challenged a city charter provision that required that any change in land use agreed to by the city council must be approved by fifty-five percent of the voters in a city-wide election. Relying on Myers, the Eastlake court, in Part II of the opinion, indicated that a charter provision could not provide for a referendum with respect to administrative determinations made by city council. In Eastlake, the court stated:
“Under the provisions of Section 3, Article VIII [of the charter], all changes in land use require approval by city council. On its face, the charter provision makes no distinction between those changes made by council in an administrative capacity, and those made by council in a legislative capacity. Thus, the requirement of a mandatory referendum falls upon all changes with equal weight. Insofar as this purports to mandate a referendum as to an administrative determination, it is clearly invalid.
“* * *
“However, construing the mandatory referendum requirement as applying only to those land-use changes granted by council acting in a legislative capacity, we must determine whether such a requirement denies appellant due process of law.” (Emphasis sic.) (Citations omitted.) Id., 41 Ohio St.2d at 191, 70 O.O.2d at 386, 324 N.E.2d at 743-744.
{¶ 29} The Eastlake court then held that the municipal charter provision at issue was an unlawful delegation of legislative power in violation of the Due Process Clause of the Fourteenth Amendment to the
{¶ 30} Furthermore, we also note that, on appeal, the United States Supreme Court overruled the part of Eastlake wherein this court held that the charter provision providing for a mandatory referendum was an unlawful delegation of legislative power. See Eastlake v. Forest City Ent., Inc. (1976), 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132. Specifically, the United States Supreme Court held that such a provision in a charter was constitutional, and stated:
“The conclusion that Eastlake‘s procedure violates federal constitutional guarantees rests upon the proposition that a zoning referendum involves a delegation of legislative power. A referendum cannot, however, be characterized as a delegation of power. Under our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create. See, e.g., The Federalist No. 39 (J. Madison). In establishing legislative
bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature. Hunter v. Erickson, 393 U.S. 385, 392 [89 S.Ct. 557, 561, 21 L.Ed.2d 616, 623] (1969).
“The reservation of such power is the basis for the town meeting, a tradition which continues to this day in some States as both a practical and symbolic part of our democratic processes. The referendum, similarly, is a means for direct political participation, allowing the people the final decision, amounting to a veto power, over enactments of representative bodies. The practice is designed to ‘give citizens a voice on questions of public policy.’ James v. Valtierra [(1971), 402 U.S. 137], at 141 [91 S.Ct. 1331, at 1333, 28 L.Ed.2d 678, at 682].” (Footnotes omitted.) Eastlake v. Forest City Ent., Inc., 426 U.S. at 672-673, 96 S.Ct. at 2361-2362, 49 L.Ed.2d at 137.
{¶ 31} Therefore, we hold that
{¶ 32} In State ex rel. Doerfler v. Otis (1918), 98 Ohio St. 83, 94, 120 N.E. 313, 316, we held that “[w]here the language of a charter is plain, clear, and unambiguous, it must be given its usual and ordinary meaning, and if such construction is not in accord with the intent and purpose of the electors the remedy is by amendment of the charter.” Section 2, Article IX of the charter is plain, clear, and it unambiguously states that the people of Cuyahoga Falls “have the power to approve or reject at the polls any ordinance or resolution passed by Council, except
{¶ 33} For all the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
MOYER, C.J., PFEIFER and COOK, JJ., dissent.
MOYER, C.J., dissenting.
{¶ 34} I respectfully dissent because the citizens of a municipality may not exercise powers of referendum, by charter or other means, greater than those powers granted by
I
{¶ 35} Paragraph one of the syllabus in the majority opinion states that
{¶ 36} While the Home Rule Amendment grants broad powers to municipalities, the scope of those powers is confined by the remaining clauses of the Constitution.
{¶ 37} Similarly, we described the limits of charter government by interpreting
{¶ 38} In Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864, paragraph one of the syllabus, the court held that a “charter city has all powers of local self-government except to the extent that those powers are taken from it or limited by other provisions of the Constitution or by statutory limitations on the powers of the municipality which the Constitution has authorized the General Assembly to impose.” (Emphasis added.) Therefore, any exercise of municipal authority under charter and pursuant to Section 3 must not, in order to be valid, conflict with any remaining provision of the Constitution. In essence, the authority to “exercise all powers of local self-government” is a delegation of the power to exercise all powers that are within the bounds of the Constitution.
{¶ 39} The constitutional provision at issue here is
{¶ 40} Assuming, without analyzing, that the majority is correct in concluding that
{¶ 41} However, when either a city council of a charter municipality or the General Assembly acts to execute the powers of
{¶ 42} As the United States Supreme Court stated in Eastlake v. Forest City Ent., Inc. (1976), 426 U.S. 668, 672, 96 S.Ct. 2358, 2361, 49 L.Ed.2d 132, 137, “[u]nder our constitutional assumptions, all power derives from the people, who can delegate it to representative instruments which they create.” Therefore, to the extent that the action of a legislative body is required to execute power that the people have reserved for themselves, i.e., to execute a nonself-executing provision, the legislative body, in doing so, may not go beyond the power that has been reserved. Such an improper action would violate the intentions of the people of Ohio who established the Constitution, with the principle, among others, that any powers not so kept are assigned by the people, to be considered and decided on behalf of the people, by their representatives in legislative bodies.
{¶ 44} For charter municipalities, the source of authority, according to the majority, is “found in
{¶ 45} By its syllabus that
{¶ 46} Therefore, an analysis of
II
{¶ 47} “The first step in determining the meaning of a constitutional provision is to look at the language of the provision itself.” State ex rel. Maurer v. Sheward (1994), 71 Ohio St.3d 513, 520, 644 N.E.2d 369, 375.
{¶ 48} Words used in the Constitution that are not defined therein must be taken in their usual, normal, or customary meaning. See State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 998;
{¶ 49} In determining whether the issue here was one that the city was authorized to control by legislative action, it first must be understood that the distinction by this court in the past, and by the parties here, between “legislative” and “administrative” actions does not truly capture the actual meaning of “legislative action” as stated in
{¶ 50} An administrative action that is adjudicatory is a “determination of individual rights or duties.” Id. It is a decision-making process that applies “preexisting standards to individual circumstances,” and uses the specific facts of the case “to decide whether a given rule is applicable.” Any resultant policy making is incidental to the dispute. Id. at 46. See, also, Londoner v. Denver (1908), 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103. Administrative adjudications are often initiated by private citizens. “Private individuals find that they cannot engage in a certain conduct or activity without clearance from an administrative agency.” 2
{¶ 51} By contrast, rulemaking is more like the activity of legislating. See 1 Koch at 47, Section 2.11. While the processes used to establish rules sometimes differ from typical legislative processes, the objective and the outcome of rulemaking is similar—the implementation of law or policy for the future. See United States v. Florida East Coast Ry. Co. (1973), 410 U.S. 224, 244-246, 93 S.Ct. 810, 820-821, 35 L.Ed.2d 223, 239-240. Rulemaking is characterized by a focus on general issues that affect future conduct, with an intent on making policy determinations: “The core facts in rulemaking are general facts. Rulemaking is investigation rather than individual dispute resolution and hence it is often said to be by nature legislative. It is a legislative-like activity because it focuses on resolving some sort of policy-type question and not merely resolution of factual disputes.” 1 Koch at 48, Section 2.11. See, also, Bi-Metallic Investment Co. v. State Bd. of Equalization (1915), 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372. Many of the rules established pursuant to the rulemaking process envision some form of public participation, a feature which is not apparent in adjudicatory proceedings. See 1 Koch at 325-326, Section 4.11.
{¶ 52} The difference between adjudicatory and rulemaking administrative actions is important because city councils may preside over the performance of these functions by a variety of administrative agencies. “[A] city council may perform not only legislative acts, but administrative acts as well.” Myers v. Schiering (1971), 27 Ohio St.2d 11, 13, 56 O.O.2d 6, 7, 271 N.E.2d 864, 865. “A public body essentially legislative in character may act in an administrative capacity.” Donnelly, at paragraph one of the syllabus. When a city council has acted to approve or exercise final decision over an “administrative action” by an
{¶ 53} Applying those principles to this case, it is evident that the Cuyahoga Falls City Council acted in an adjudicatory manner when it passed Ordinance No. 48-1996 approving the plan for “development of land situated in an R-17 Medium Density Multiple Family zoning district in accordance with such district and zoning regulations as stipulated in the Codified Ordinances of the City of Cuyahoga Falls and as approved by the Planning Commission as per the plans and stipulations contained in Planning Commission File P-6-96-SP.” By the very words of the ordinance, the action by the council approves the Planning Commission‘s application of the zoning regulations to Buckeye‘s plan. Thus, the ordinance is a final determination of an application of the preexisting zoning standards to the individual plan submitted by the appellees. There are no rules approved in the ordinance, of the Planning Commission or any other agency, that are general and prospective in nature. There is no approval of any general public
{¶ 54} An analysis of the cases upon which Buckeye relies, Myers v. Schiering, and State ex rel. Srovnal v. Linton (1976), 46 Ohio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764, illustrates the correctness of the above approach in analyzing the true nature of “administrative actions” in interpreting “legislative action” under
III
{¶ 55} The majority opinion rests upon the assumption that because of Article XVIII, there is a difference in the initiative and referendum powers enjoyed by charter municipalities as opposed to noncharter municipalities. The majority‘s distinction is one without a difference. Neither a charter nor a noncharter municipality can grant greater powers than those allowed by the Ohio Constitution. In this case, neither can grant more initiative or referendum power than what is permitted by
PFEIFER, J., concurs in the foregoing dissenting opinion.
COOK, J., dissenting.
{¶ 57}
{¶ 58} The powers of self-government possessed by a municipality pursuant to the Home Rule Amendment to the
{¶ 59} For the foregoing reasons, I concur in Part I of Chief Justice Moyer‘s dissenting opinion.
Notes
“What the General Assembly has done in
“We find no constitutional impediment to a grant of legislative power by the General Assembly to township trustees to make zoning resolutions, nor for the General Assembly to reserve the power of referendum to the people who will be affected by such resolutions. Therefore,