WILLOW GROVE, LTD. v. OLMSTED TOWNSHIP, OHIO
No. 101996
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 2, 2015
2015-Ohio-2702
BEFORE: Laster Mays, J., Celebrezze, A.J., and E.T. Gallagher, J.
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-13-813235
RELEASED AND JOURNALIZED: July 2, 2015
Timothy J McGinty
Cuyahoga County Prosecutor
BY: Dale F. Pelsozy
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. Duff
Jordan Berns
Sheldon Berns
Berns, Ockner & Greenberger, L.L.C.
3733 Park East Drive, Suite 200
Beachwood, Ohio 44122
{¶1} Defendant-appellant Olmsted Township, Ohio (“Township“) appeals1 the trial court‘s partial grant of summary judgment in favor of plaintiff-appellee real estate developer Willow Grove, Ltd. (“Willow“) on Willow‘s complaint for declaratory relief, filed as the result of the Township‘s denial of Willow‘s application for a zoning certificate.
{¶2} The trial court found portions of the Olmsted Township Zoning Resolution (“OTZR“)2 adopted March 9, 2000, as amended through May 2012 to be unlawful as they exceed the scope of authority delegated to the Township pursuant to
I. FACTS AND PROCEDURE
A. Background
{¶3} Willow applied for a zoning certificate to develop residential townhouses on property that Willow owns in Olmsted Township, located between the Township‘s middle and high schools (“Property“). Willow‘s proposed development was a “use permitted by right as a principal use.” OTZR Sections 230.02(b) and 230.03.
{¶5} The Township responded that Willow‘s plans were incomplete, did not comply with OTZR requirements and were hastily compiled to beat the rezoning effective date. Willow submitted amended plans but the Township was not satisfied and identified a number of noncompliant factors.
{¶6} Willow submitted additional protest letters to the Inspector, Trustees, and Commission during the approval process reiterating its objections. On July 18, 2014, the Commission recommended denial of the application to the Trustees, finding deficiencies in the development plan. The Trustees adopted the Commission‘s recommendation and denied the application under Township Board Resolution No. 69-2013, dated September 11, 2013.
B. Trial Court Adjudication
{¶8} Willow argued that (1) the OTZR‘s requirements for zoning certificates and development plan approval for new construction in a permitted multifamily district are unlawful, (2) the unlawful provisions are severable from the remaining provisions of the OTZR, and (3) Willow is not required to obtain a zoning certificate or approval of a development plan for the Property, but does remain subject to other OTZR compliance provisions. Willow also sought attorneys fees and costs.
{¶9} The Township defended that Willow‘s development plans did not comply with the OTZR, justifying the denial of the certificate. The Township also argued that zoning regulations are presumptively constitutional and parties attacking zoning legislation on constitutional grounds must demonstrate that the zoning classification denies a complainant the use of their land without substantially advancing a legitimate interest in the health, safety, or welfare of the community.
{¶10} The trial court issued a journal entry and decision on September 2, 2014, containing a cogent analysis of the issues. The court determined that under
- the Commission and Trustees lack authority to process, approve or deny zoning certificates as the Inspector has sole authority;
the Commission and Trustees lack authority to approve or deny the development plans for Willow‘s permitted use development because the statutory authority lies solely for review of development plans for planned unit developments; and - the unlawful portions of the township‘s zoning resolution could be severed while the remaining provisions retained validity.
{¶11} The court then identified specific portions of the OTZR to be unconstitutional, identifying those that were unlawful except as they applied to planned unit developments, and those that were unlawful to the extent they divested the zoning inspector of authority to approve or deny zoning certificates. The court denied Willow‘s request for attorney fees and costs.
{¶12} The Township appeals.
II. ASSIGNMENTS OF ERROR
{¶13} The Township offers three assignments of error.
- Summary judgment was improper as there were material facts in dispute.
- The lower court erred in determining that the Zoning Commission had no authority to review development plans and invalidating OTZR sections 230.12 and 250.12, and the lower court erred by finding that the issuance of a zoning certificate is not reviewable by the board of zoning appeals.3
- The lower court erred in failing to determine that regulations enacted by the OTZR are constitutionally permitted and that Olmsted Township did not exceed its authority.
{¶14} We review a trial court‘s entry of summary judgment de novo using the same standard as the trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). Summary judgment may only be granted when the following are established: (1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in its favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67 (1978);
{¶15} The party moving for summary judgment bears the initial burden of apprising the trial court of the basis of its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on an essential element of the nonmoving party‘s claim. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). Once the moving party meets its burden, the burden shifts to the nonmoving party to set forth specific facts demonstrating a genuine issue of material fact exists. Id. To satisfy this burden, the nonmoving party must submit evidentiary materials showing a genuine dispute over material facts. PNC Bank, N.A. v. Bhandari, 6th Dist. Lucas No. L-12-1335, 2013-Ohio-2477.
IV. LAW AND ANALYSIS
A. Assignment of Error No. 1
{¶17} The Township argues in its first assignment of error that summary judgment was not appropriate because of two genuine issues of material fact.
{¶18} The first argument asserts whether the Inspector actually issued the zoning certificate is a material fact that requires resolution in order to determine summary judgment. We disagree.
{¶19} The trial court aptly concluded that:
[T]he resolution of the declaratory judgment issue presented by Willow Grove does not depend upon whether its application was denied or not by the Zoning Inspector because the process of referring the application to the Zoning Commission and then to the Trustees for a decision on the application is the issue in this case.
We also observe that the record reflects the Trustees, not the Inspector, denied the application upon the recommendation of the Commission.
{¶20} Commission Res. C-13, dated August 22, 2013, states that Application No. 20130472, “[t]he only application submitted by Willow Grove, Ltd., was an application for a Zoning Certificate, * * * accompanied by a set of plans.” Id. The
{¶21} The Township offers as a second genuine issue of material fact, “whether or not appellee‘s plan is a major development requiring review” because major development is not defined by the OTZR and the Ohio Revised Code “does not set a number when designating a plan as a major development.” The Township failed to offer an explanation and argument in support of this asserted error.
{¶22} Once a moving party satisfies its burden,
B. Assignments of Error Nos. II and III
{¶23} The Township‘s second assignment of error is that (1) the lower court erred in determining that the Zoning Commission had no authority to review development plans and invalidating OTZR Sections 230.12 and 250.12 and (2) the lower court erred by finding that the issuance of a zoning certificate is not reviewable by the board of zoning appeals.
{¶25} Appellant‘s third assignment of error is the trial court erred by finding certain portions of the OTZR to be unconstitutional. We address these errors in combination for ease of analysis.
1. Constitutionality Challenge
{¶26} A statute, regulation, or ordinance may be attacked as unconstitutional on its face or as applied. See Belden v. Union Cent. Life Ins. Co., 143 Ohio St. 329 (1944), paragraph four of the syllabus. A zoning regulation is “presumed to be constitutional unless determined by a court to be clearly arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community.” Goldberg Cos., Inc. v. Council of Richmond Hts., 81 Ohio St.3d 207, 208 (1998), syllabus.
{¶27} A “party challenging the constitutionality of a zoning ordinance bears the burden of proof and must prove unconstitutionality beyond fair debate.” Id. at 209, citing Cent. Motors Corp. v. Pepper Pike, 73 Ohio St.3d 581, 584 (1995);
{¶28} “The governmental power to interfere [with property rights] by zoning regulations * * * is not unlimited, and * * * cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.” Nectow v. Cambridge, 277 U.S. 183, 188 (1928).
2. Derivative Power of Township Zoning in Ohio
{¶29} We begin with fundamental observations regarding the source of Ohio township zoning powers. Townships are strictly statutory creatures, created under
{¶30} Authority for township zoning is a delegated power of the Ohio General Assembly set forth in
This same doctrine of delegated power with reference to constitutions very generally prevails when the legislature assumes to confer, within its constitutional grant, certain powers upon various political subdivisions of the state or upon some officer, board or commission of such subdivision.
Such grant of power, by virtue of a statute, may be either express or implied, but the limitation put upon the implied power is that it is only such as may be reasonably necessary to make the express power effective. In short, the implied power is only incidental or ancillary to an express power, and, if there be no express grant, it follows, as a matter of course, that there can be no implied grant.
State ex rel. A. Bentley & Sons Co. v. Pierce, 96 Ohio St. 44, 47 (1917).
Ohio townships have no inherent or constitutionally granted police or zoning power. Yorkavitz v. Bd. of Columbiana Twp. Trustees, 166 Ohio St. 349, 351 (1957). “Accordingly, the zoning authority possessed by townships in the state of Ohio is limited to that which is specifically conferred by the General Assembly.” Bd. of Bainbridge Twp. Trustees v. Funtime, Inc., 55 Ohio St.3d 106, 108 (1990).
In addition, all zoning decisions, whether on an administrative or judicial level, should be based on the following elementary principles which underlie real property law. Zoning resolutions are in derogation of the common law and deprive a property owner of certain uses of his land to which he would otherwise be lawfully entitled. Therefore, such resolutions are ordinarily construed in favor of the property owner.
Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364, ¶ 18-19. {¶32} A township‘s authority to regulate zoning as well as the implementation process is set forth in
(A) Except as otherwise provided in this section, in the interest of the public health and safety, the board of township trustees may regulate by resolution, in accordance with a comprehensive plan, the location, height, bulk, number of stories, and size of buildings and other structures, including tents, cabins, and trailer coaches, percentages of lot areas that may be occupied, set back building lines, sizes of yards, courts, and other open spaces, the density of population, the uses of buildings and other structures, including tents, cabins, and trailer coaches, and the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of the township.
{¶33} The purpose of the
{¶34} “A ‘comprehensive plan’ is a specific plan which sets forth uniform standards in a given district or zone, as opposed to a ‘general plan’ for the entire community.” Bd. of Trustees, Howland Twp., Ohio v. Dray, 11th Dist. Trumbull No. 2004-T-0137, 2006-Ohio-3402, ¶ 52. Simply put, the plan sits as a zoning and use template upon the township‘s land. It is the “local government‘s textual statement of goals, objectives and policies accompanied by maps to guide public and private development within its planning jurisdiction.” Ohio Planning and Zoning Law, Section 4:29.
{¶35} While the
[I]n light of the fact that township zoning authority is strictly limited to that which is expressly granted by the General Assembly, it is important to distinguish
R.C. 519.02 with another provision in Chapter 519. That is,R.C. 519.021 , regarding township zoning for planned-unit development, states that such “regulations shall further the purpose of promoting the general public welfare* * * Within a planned-unit development, the township zoning regulations* * * may vary in order* * * to promote the public health, safety, morals, and the other purposes of this section.” Thus, the legislature has granted townships additional powers to regulate zoning with regard to planned-unit developments.
(Emphasis added.) Id. at ¶ 9.
{¶36}
A township zoning resolution or amendment adopted in accordance with this chapter may establish or modify planned-unit developments. Planned-unit development regulations shall apply to property only at the election of the property owner and shall include standards to be used by the board of township trustees or, if the board so chooses, by the township zoning commission, in determining whether to approve or disapprove any proposed development within a planned-unit development. The planned-unit development shall further the purpose of promoting the general public welfare, encouraging the efficient use of land and resources, promoting greater efficiency in providing public and utility services, and encouraging innovation in the planning and building of all types of development. Within a planned-unit development, the township zoning regulations, where applicable, need not be uniform, but may vary in order to accommodate unified development and to promote the public health, safety, morals, and the other purposes of this section.
(Emphasis added.)
{¶38} The trustees may also elect to implement a zoning certificate system and delegate enforcement powers to a zoning inspector.
{¶39} The zoning inspector has sole authority to approve or deny zoning certificates. Statkus v. Zak, 11th Dist. Geauga No. 645, 1976 Ohio App. LEXIS 6748, * 2-3 (Feb. 2, 1976). The role of the zoning inspector is ministerial in nature and actions that exceed zoning authority are deemed invalid and unenforceable. State ex rel. Ross v. Guion, 8th Dist. Cuyahoga No. 24795, 161 N.E.2d 800 (1959); Jeffrey Mann Fine Jewelers, Inc. v. Sylvania Twp. Bd of Zoning Appeals, 6th Dist. Lucas No. L-08-1013, 2008-Ohio-3503.
{¶40} Trustees may also elect to appoint a board of zoning appeals whose role is to:
(A) Hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative
official [such as the zoning inspector] in the enforcement of sections
519.02 to519.25 of the Revised Code, or of any resolution adopted pursuant thereto;(B) Authorize, upon appeal, in specific cases, such variance from the terms of the zoning resolution as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the resolution will result in unnecessary hardship, and so that the spirit of the resolution shall be observed and substantial justice done;
(C) Grant conditional zoning certificates for the use of land, buildings, or other structures if such certificates for specific uses are provided for in the zoning resolution. If the board considers conditional zoning certificates for activities that are permitted and regulated under
Chapter 1514. of the Revised Code or activities that are related to making finished aggregate products, the board shall proceed in accordance with section519.141 of the Revised Code.(D) Revoke an authorized variance or conditional zoning certificate granted for the extraction of minerals, if any condition of the variance or certificate is violated. The board has three primary functions: to hear appeals from the administrative official in charge of the enforcement of the zoning resolution, authorize variances and grant conditional uses.
3. The Olmsted Township Zoning Resolution
{¶41} The OTZR requires that all buildings and structures comply with the regulations for that particular district and acknowledges that the resolution must adhere to the Ohio Revised Code. OTZR 101.04 and 101.06. A judicial declaration that any provision is invalid does not affect the validity of the remainder. OTZR 101.07.
{¶42} The Trustees implemented a zoning certificate system under OTZR Chapter 510. Zoning certificates may not be “issued unless the plans for the proposed
{¶43} The Trustees delegated zoning certificate and enforcement powers to the Inspector. The Inspector‘s explicit powers include the authority to “issue zoning certificates as provided by this Zoning Resolution” and “to deny the issuance of a zoning certificate.” OTZR 410.02(b) and (c).
{¶44} The Commission is vested with “all the powers and duties prescribed by law and by this Resolution.” OTZR 420.01. The delineated powers include reviewing all development plans, all planned residential development plans, recommending approval, modification, or denial of plans to the Trustees, and providing advice to the Inspector upon request regarding interpretation or enforcement of the zoning regulations. OTZR 420.06(b), (c), and (h).
{¶45} Procedurally, the Inspector receives a zoning certificate application and processes the application. OTZR 510.03. The actions to be taken by the Inspector depend on the basis for the zoning application submission. “Applications for Zoning Certificates for permitted uses [such as the Willow development] requiring review of developments shall be transmitted to the Zoning Commission according to Chapter 520.” OTZR 510.05(b).
{¶46} Chapter 520 is entitled, “Development Plan Review” and provides that the Commission “shall” review development plans and make recommendations to the Trustees for new construction of all permitted multifamily uses and any planned
{¶47} Zoning permits may not be issued for uses in a nonresidential district unless the development plans have been reviewed by the Commission pursuant to Chapter 520. OTZR 250.12. Applications for planned developments (PUDs per
4. Analysis
{¶48} The trial court prepared a well-reasoned analysis of the OTZR provisions and procedures. We agree that certain provisions exceed the statutory authority of
a. Zoning Certificates
{¶49} OTZR 410.02 vests authority in the Inspector to enforce zoning regulations, to receive applications for zoning certificates and to approve or deny zoning certificates. The Inspector‘s authority is exclusive. The Commission and Trustees have no authority to approve or deny zoning certificates under
{¶50} In Statkus v. Zak, 11th Dist. Geauga No. 645, 1976 Ohio App. LEXIS 6748, * 2-3 (Feb. 2, 1976), the appellate court affirmed the trial court‘s finding that Section 803 of the Claridon Township Zoning Resolution was invalid, unlawful, and contrary to
{¶51} The Statkus court held, “it is clearly the intent of RC 519.16 that the zoning inspector is the township official charged with the issuance of zoning certificates. Other sections of Chapter 519 also clearly indicate that the enforcing of the township zoning law is not a proper function of the zoning commission.” Id. at *2-3. See also Lyman v. Chester Twp. Bd. of Trustees, 11th Dist. Geauga No. 778, 1979 Ohio App. LEXIS 9540 (Mar. 19, 1976), rev‘d on other grounds, 63 Ohio St.2d 208, 407 N.E.2d 511 (1980); Jeffrey Mann Fine Jewelers, 2008-Ohio-3503, ¶ 24.
{¶52} In Lyman, Chester Township enacted a zoning resolution that included a zoning certificate procedure and zoning inspector. The inspector received the zoning certificate application, referred it to the architectural review board with approval or denial recommendations that, in turn, referred non-residential use applications to the zoning commission that accepted or rejected the application.
{¶53} As with the instant case, the appellate court entertained the questions of (1) the sole authority of the inspector to approve or deny zoning certificates pursuant to
{¶54} Further to the inspector‘s authority:
In his ministerial role, a zoning inspector has the duty to issue a permit or certificate where the property owner has complied with all legal requirements, and the proposed use falls within the use classification applicable to the area where the owner proposes to engage in the use.
(Citations omitted.) Barrett Paving Materials, Inc. v. Bd. of Zoning Appeals, 12th Dist. Clermont No. CA90-07-066, 1991 Ohio App. LEXIS 2961, *6 (June 24, 1991).
{¶55} OTZR Chapter 510 entitled “Approval of Zoning Certificates,” states that zoning certificate applications (1) are filed with the Inspector for all buildings or uses requiring a permit, and (2) must include the development plan items required by OTZR 520.03 for “uses that require review by the Zoning Commission.” OTZR 510.03. The chapter also provides that “[a]pplications for Zoning Certificates for permitted uses requiring review of development plans shall be transmitted to the Zoning Commission according to Chapter 520.” OTZR 510.05(b)
{¶56} OTZR Chapter 520 addresses development plan review only. There is no provision in Chapter 520 for accepting, processing, denying, modifying, or approving zoning certificate applications. While the term “application” is used throughout OTZR Chapter 520, it relates solely to applications for development plan review for planned residential districts (PUDs per
The only application submitted by Willow Grove, Ltd. was an application for a Zoning Certificate, which was filed on June 3, 2013. Also submitted on June 3, 2013, was a set of plans, three pages in length. * * * The Zoning Commission recommends that Application No. 20130472 be denied by the Olmsted Township Board of Trustees.
(Emphasis added.) Commission Res. C-13 dated August 22, 2013.
{¶58} Based on the Commission‘s unlawful referral, the Trustees “considered Application No. 20130472” based on the “Zoning Commission[‘s] recommended denial of the application and plan as submitted by Willow Grove, Ltd.” Trustees Res. 69-2013, September 11, 2013. After holding a public hearing on the matter, the Trustees “denie[d] Application No. 20130472, submitted by Willow Grove, Ltd.” Id.
{¶59} The express acts by the Commission and Trustees denying Willow‘s zoning certificate application, usurping the sole power of the Inspector, exceeded the authority of those bodies, not only under
{¶60} We therefore find that the OTZR zoning certificate application process is unlawful.
b. Development Plan Review
{¶61} We next consider whether the procedure for development plan review by the Commission and Trustees is unlawful as it applies to Willow‘s development.
{¶63} The Willow development is a permitted use. OTZR 230.02(b) and 230.03. Zoning ordinances generally provide for two types of uses, permitted (or principal)6 uses and conditional uses. A permitted or principal use is one that is “‘allowed as of right, provided the landowner meets all other requirements, e.g., building code requirements.‘” Dinardo v. Chester Twp. Bd. of Zoning Appeals, 186 Ohio App.3d 111, 2010-Ohio-40, 926 N.E.2d 675, ¶ 23 (11th Dist.), quoting Meck and Pearlman, Ohio Planning and Zoning Law, Section 9:11, at 387 (2004 Ed.).
{¶64} The OTZR requires that the Commission (1) review and approve the development plans for all uses in an RMF District according to the Chapter 520 procedures (OTZR 230.12), and (2) review all development plans for new construction of all permitted uses in multifamily districts, recommending approval, disapproval or modification of the plans to the Trustees (OTZR 520.02(a)(2)).
A zoning certificate is essentially a building permit issued prior to the construction of a building within territory included in a zoning resolution. A zoning certificate shall not be issued unless the plans for the proposed building or structure fully comply with the zoning resolution in effect.
R.C. 519.17 . * * * When approving an application for a zoning certificate, the zoning inspector must determine first if the planned structure complies with the zoning regulations; and secondly, whether the proposed use falls within the provisions of the applicable zoning resolution.R.C. 519.17 .
(Emphasis added and citations omitted.) Barrett Paving Materials at ¶ 54. Id. at *5, *7.
{¶66} Where a township has delegated enforcement and zoning certificate powers to a zoning inspector, the only
Planned-unit development regulations shall apply to property only at the election of the property owner and shall include standards to be used by the board of township trustees or, if the board so chooses, by the township zoning commission, in determining whether to approve or disapprove any proposed development within a planned-unit development.
(Emphasis added.)
{¶67} Willow‘s permitted use fits within the narrow construct of
{¶68} Further, as to the unique nature of PUDs:
Ohio Planning and Zoning Law at Section 11:24.
{¶69} The Township PUD regulations were implemented under the third statutory procedure option:
Pursuant to
section 519.12 of the Revised Code , the board of township trustees may adopt planned-unit development regulations and amend the zoning map to rezone property as planned-unit developments. Any other zoning regulations and zoning district that exist at the time a planned-unit development district is established under this division continue to apply within the planned-unit development district unless the board or the township zoning commission approves an application of an owner of property within the district to subject the owner‘s property to planned-unit development regulations under this division. Such an application shall be made in accordance with the planned-unit development regulations andshall include a development plan that complies with the planned-unit development regulations. Upon receiving such an application, the board of township trustees or township zoning commission, as applicable, shall determine whether the application and plan comply with the planned-unit development regulations.
(Emphasis added.)
{¶70} The Township refers to a PUD as a “planned residential development” (“PRD“), and defines it as:
An area of land to be planned and developed as a single entity, in which a variety of housing units are accommodated under more flexible standards, such as lot size and setbacks, than those that would normally apply under single-family district regulations, allowing for the clustering of houses to preserve common open space.
OTZR 110.02(b)(78).
{¶71} Under the Township‘s “Planned Residential Development Overlay Regulations,” PRDs are established to allow various residential dwelling types and natural areas that preserve the character of the Township. OTZR 220.01. The chapter also provides that the use and dimensional specifications generally found in the OTZR are replaced by the detailed plan approval process7 whereby the plan becomes the basis for land use control. OTZR 220.02(c).
- GENERAL DEVELOPMENT PLAN: Drawings and maps including all the elements set forth in Section 520.03.
- FINAL DEVELOPMENT PLAN: Drawings and maps including all the elements set forth in Section 520.04.
OTZR 110.02(b)(77).
{¶73} First, the applicant submits the general development plan, “[a]n application for a proposed Planned Residential Development shall include review and approval of a general development plan * * *.” OTZR 520.03. The final development plan requirements are found at OTZR 520.04. The remaining sections of OTZR Chapter 520 set forth the steps for plan review and approval by the Commission and Trustees. See also
{¶74} The OTZR 220.13 requirement that PRD development plans be submitted for Commission and Trustee review and approval pursuant to OTZR 520.03 for PRD development plan reviews is endorsed by
{¶75} The Commission‘s delineated powers under OTZR 420.06 unlawfully vests authority in the Commission to review all development plans required by the OTZR.
{¶76} In Lofino Props., L.L.C. v. Wal-Mart Stores, Inc., 2d Dist. Greene No. 2003 CA 57, 2004-Ohio-458, adjacent property owners appealed from a judgment of the Greene County Common Pleas Court. The trial court granted summary judgment to the shopping center owners, manager, and the Wal-Mart lessee in plaintiffs’ declaratory judgment action seeking to prevent the planned expansion of Wal-Mart‘s store and parking area. Lofino argued that the defendants-appellees failed to comply with Article 8 of the Sugarcreek Township zoning code that required a detailed review of the plans and a public hearing, even though the expansion involved a permitted use.
{¶77} Though Sugarcreek Township did not require the defendants to comply with the Article 8 PUD process for the defendants’ permitted use as Olmsted Township requires in the instant case, the appellate court made a salient observation:
[I]t would not be logical for a developer of an area to have to complete the same procedures for building a permitted use within an existing zone as a developer seeking to change the zoning on an area for their development. Therefore, we find that those procedures * * * pertain only to the creation of a planned development.
(Emphasis added.) Id. at ¶ 23.
c. Severability and Reformation
{¶79} The trial court‘s final step was to excise or amend the unlawful OTZR sections. This court has held that:
One part of a statute may be invalid for want of conformity to the Constitution without affecting the validity of the remainder of the statute, where the invalid part may be stricken and is not in its nature and connection so essential to the remainder of the statute or so related to the general purpose of its enactment as to warrant the conclusion that the General Assembly would have refused to adopt the statute with the invalid part thereof stricken therefrom. Also see Lyman v. Chester Twp. Bd. of Trustees, 63 Ohio St.2d 208, 210, 407 N.E.2d 511 (1980); State, ex rel. Allen v. Ferguson, 155 Ohio St. 26, 44-45, 97 N.E.2d 660 (1951); State, ex rel. Greenward Realty v. Zangerle, 135 Ohio St. 533, 21 N.E.2d 662 (1939); and Treasurer v. Bank, 47 Ohio St. 503, 25 N.E. 697 (1890).
Cleveland v. Walters, 8th Dist. Cuyahoga No. 43050, 1981 Ohio App. LEXIS 14032, *3-4 (May 7, 1981). See also Lyman, 11th Dist. Geauga No. 778, 1979 Ohio App. LEXIS 9540; Emmons v. Keller, 21 Ohio St.2d 48, 254 N.E.2d 687 (1970).
{¶80} Authority for this process lies not only in case law but also the OTZR itself:
If any section, subsection, or any provision of this Resolution, or amendments thereto, is held to be invalid by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution or amendments thereto.
OTZR 101.07. In addition, OTZR 101.06 reflects the legislative intent that the OTZR comply with the Revised code.
{¶81} We uphold the trial court‘s findings that OTZR: (1) unlawfully vests authority in the Commission and Trustees to approve or deny zoning certificates; (2) provides no procedure for processing zoning applications in OTZR Chapter 520; and (3) unlawfully applies the OTZR Chapter 520 development plan process to permitted uses but that the procedure only applies to PRDs where the Commission and Trustees have authority to review and approve per
{¶82} We therefore determine that the unlawful provisions are arbitrary and unreasonable and without substantial relation to the public health, safety, morals, or general welfare of the community. We further determine that the unlawful portions are severable and may be stricken from the OTZR while the remaining substantive provisions shall be enforced. OTZR 101.06, OTZR 101.07,9 Walters at *3-4.
{¶83} The following OTZR sections are stricken in their entirety:
230.12 DEVELOPMENT PLAN REVIEW
250.12 DEVELOPMENT PLAN REVIEW
All uses in a nonresidential district shall be permitted only after development plans have been reviewed and approved by the Zoning Commission according to the procedures set forth in Chapter 520.
510.05(b) APPROVAL OF ZONING CERTIFICATE
Applications for Zoning Certificate for permitted uses requiring review of development plans shall be transmitted to the Zoning Commission according to Chapter 520.
{¶84} The following OTZR sections are limited to PRDs only:
420.06(b) [Zoning Commission] POWERS AND DUTIES
To review all development plans required by this Resolution.
420.06(d) [Zoning Commission] POWERS AND DUTIES
To review all sign applications required by this Resolution.
510.03(b) Zoning Certificates Requiring Zoning Commission Review.10
Chapter 520 DEVELOPMENT PLAN REVIEW.
{¶85} The second and third assignments of error are overruled.
{¶86} The trial court‘s order is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
__________________________________________
ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
FRANK D. CELEBREZZE, JR., A.J., CONCURS IN JUDGMENT ONLY