620 N.E.2d 146 | Ohio Ct. App. | 1993
The defendant-appellant, Todd Development Company, Inc. ("Todd"), appeals a decision of the Butler County Court of Common Pleas determining that a zoning change made with regard to one of Todd's properties could be challenged by referendum. Todd asserts two assignments of error: (1) that the pertinent statutes do not provide for a referendum on the zoning change, and (2) that the court of common pleas failed to apply the correct legal standard in reversing the decision of the Butler County Board of Elections that a referendum was not required. We find neither assignment of error to be well taken and affirm the judgment below.
Todd is the owner of land located in Union Township, Butler County, Ohio. The land was originally zoned partly for single-family residences and partly for neighborhood business. Todd applied for a change of zoning to a residential planned-unit development, or what is commonly referred to as a "PUD." The township's zoning commission recommendation was, in effect, approved by the township's trustees when they failed to reject it unanimously. The appellees, Marie K. Jurkiewicz and Michele F. Gilbert, were among a group of citizens who circulated petitions for a referendum on the zoning change. The Butler County Board of Elections rejected the petitions based upon its determination that, pursuant to R.C.
Upon appeal by the petitioners, the appellees herein, the trial court overruled the board of elections, concluding that the relevant statutes, R.C.
Todd's first assignment of error asserts that the trial court erred by finding that the proposed zoning change was assailable by referendum. Todd contends that in 1989 the Ohio legislature specifically amended the pertinent statutory provision, R.C.
"If standards are adopted for approval or disapproval of planned-unit developments, no planned-unit development shall be approved unless the plan for that development satisfies the standards of approval established under this section. No approval of a planned-unit development as being in compliance with the standards of approval established under this section, if any, shall be considered to be an amendment or supplement to the township zoning resolution for the purpose of section
R.C.
There are several difficulties with Todd's position, however. Prior to the 1989 amendments to R.C.
The amended language which Todd relies upon is oblique at best, particularly when it refers not merely to the approval of a PUD but, rather, to the "approval of a planned-unit development as being in compliance with the standards ofapproval under this section." (Emphasis added.) R.C.
It is unclear, however, whether these "standards of approval" pertain to the initial decision to designate a plat a PUD, or whether they pertain to the variable criteria which are normally found in PUD regulations concerning such things as minimum acreage, lot size, and other aesthetic factors which are designed to give the zoning authority maximum flexibility in promoting certain design objectives over a single development unit. Such standards are commonly applied at *506 different stages of development after the submission of final development plans and subsequent variations in those plans.
In this regard, the appellees point out that the Union Township Zoning Resolution requires at first only the submission of a preliminary PUD plan to obtain a zoning classification change to a PUD; more detailed matters are determined in the subsequent preparation of "detailed Site Development Plan(s)." It is thus possible to interpret R.C.
The preamble to Am.Sub.S.B. No. 164 does not offer any further clarification. The preamble states that the purpose of the amending Act was "to permit establishment and regulation of planned-unit developments in various types of integrated developments, * * * [and] to clarify that, under certaincircumstances, decisions of the * * * [zoning authority] to approve planned-unit developments are not amendments or supplements to the county or township resolution subject to referendum." (Emphasis added.) Am.Sub.S.B. No. 164. From this language one can only infer that "under certain circumstances" the decision of the zoning authority to approve PUDs is subject to referendum. Unfortunately, the statute does not in any way delineate the circumstances under which a referendum is required and when it is not.
Based on the foregoing analysis, we are not persuaded that the holding of Peachtree was meant to be superseded by R.C.
We recognize that the trial court, in reaching the same result as we do, interpreted R.C.
Based upon the foregoing analysis, we find that Todd's first assignment of error is not well taken. Moreover, we also reject Todd's second assignment of *507
error asserting that the court of common pleas exceeded the scope of its authority in overruling the board of elections. The appeal to the court of common pleas was brought pursuant to R.C. Chapter 2506. R.C.
Judgment affirmed.
DOAN, P.J., SHANNON and GORMAN, JJ., concur.
RUPERT A. DOAN, P.J., RAYMOND E. SHANNON, J., and ROBERT H. GORMAN, J., of the First Appellate District, sitting by assignment.