In Ohio, “in accordance with a comprehensive plan” requirement does not require separate written document

by Gary Taylor

Apple Group, Ltd. v. Granger Township Board of Zoning Appeals
Ohio Supreme Court, June 17, 2015

Apple Group, Ltd., purchased 88 acres of undeveloped land in Granger Township in May 2006.  Apple sought to develop a 44-lot subdivision on approximately one-acre lots on its property.  The property was zoned R–1 Residential, which allows single-family and two-family homes on a minimum lot size of two acres. Instead of applying for a rezoning to R-2 Residential, which would allow up to two dwelling units per acre if they can be served by central sewer and water, Apple applied to the Granger Township Board of Zoning Appeals for 176 variances – four variances for each of the 44 proposed lots. The BZA denied the variance applications, and Apple filed an administrative appeal. The BZA’s decision was affirmed by the Medina County Court of Common Pleas based on the fact that the request for variances was in reality an attempt to rezone the land to a new district. Apple also filed a complaint seeking a declaration that Granger exceeded the authority granted to it under the Ohio Code by adopting a zoning resolution without first enacting a separate comprehensive plan.  A magistrate issued a decision denying Apple’s claims, concluding “the zoning resolution itself meets the statutory requirement of a comprehensive plan, because it has the essential characteristics of a comprehensive plan; it encompasses all geographic parts of the community and integrates all functional elements.” Apple appealed to the Ohio Court of Appeals, Ninth District, and lost.  Apple then appealed to the Ohio Supreme Court.

Ohio Revised Code 519.02(a) provides:

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….

Apple did not argue against the reasonableness of the zoning resolution, but rather that the zoning resolution cannot also function as a comprehensive plan.  According to Apple, a zoning resolution must implement a separately-adopted comprehensive plan, and the comprehensive plan must first be created to assure the public that the township’s zoning has been properly considered. Granger argued that its zoning resolution is the comprehensive plan referenced by Ohio R.C. 519.02(a). Thus, the dispute was over the classic question debated since the Standard State Zoning Enabling Act (SZEA) was promulgated: What is the meaning of the phrase “in accordance with a comprehensive plan”?

The Ohio Supreme Court noted that the majority of states adopting the SZEA have taken the view that “comprehensive planning requires some forethought and reasoned consideration, as opposed to a separate plan document that becomes an overarching constitution guiding development.”  Only a minority of states view the “in accordance” language as requiring an independent document separate from the comprehensive zoning ordinance.  After reviewing Ohio case law, the Court concluded that it “has never treated the term ‘comprehensive plan’ as a term of art” as it has come to be used by zoning professionals to refer to the separate written document.  The Court chose instead to adopt a six-part test first articulated by an Ohio Court of Appeals case to determine whether a zoning resolution can satisfy the comprehensive plan requirement:  Does the resolution (1) reflect current land uses; (2) allow for change; (3) promote public health and safety; (4) uniformly classify similar areas; (5) clearly define district locations and boundaries; and (6) identify the use(s) to which each property may be put?”  After finding that all six factors were met by the township’s zoning resolution the Court concluded that the resolution was enacted in “accordance with a comprehensive plan” in satisfaction of Ohio R.C. 519.02. The judgment of the Court of Appeals was affirmed.

Nonconforming use provision preventing re-leasing of mobile home park lot when tenant leaves found unconstitutional

by Hannah Dankbar

State ex rel. Sunset Estate Properties, LLC v. Village of Lodi
Ohio Supreme Court, March 10, 2015

Sunset Properties, L.L.C. and Meadowview Village, Inc. both own property in the village of Lodi where they operate mobile-home parks. Both of the properties are in R-2 zones, which do not allow for mobile-home parks. The mobile-home parks were established before establishing the zone as an R-2 zone, so they are considered legal nonconforming uses under R.C. 713.15.

In 1987 the village of Lodi passed Lodi Zoning Code 1280.05(a), which reads;

Whenever a nonconforming use has been discontinued for a period of six months or more, such discontinuance shall be considered conclusive evidence of an intention to legally abandon the nonconforming use. At the end of the six-month period of abandonment, the nonconforming use shall not be re-established, and any further use shall be in conformity with the provisions of this Zoning Code. In the case of nonconforming mobile homes, their absence or removal from the lot shall constitute discontinuance from the time of absence or removal.

This ordinance is specific towards each individual mobile home; meaning that when a tenant leaves a mobile home and the lot stands vacant for more than six months, Lodi will not reconnect water and electrical service for the new tenant. This results in the mobile home park owners not being able to rent these lots and essentially losing their property. The property owners claim that this ordinance is unconstitutional on its face.

The property owners claim that this ordinance violates the 14th Amendment of the United States Constitution and Section 16 Article 1 of the Ohio Constitution. these clauses provide that no person shall be deprived of life, liberty or property without due process of law. In Akron v Chapman the Ohio Supreme Court held, “Zoning ordinances contemplate the gradual elimination of nonconforming uses within a zoned area, and, where an ordinance accomplishes such a result without depriving a property owner of a vested property right, it is generally held to be constitutional.”  The state and local governments have wide reaching powers to regulate land use, but that power is not unlimited.

The last sentence of the ordinance deprives the owner of the ability to use the property that was considered legal before the adoption of this ordinance. Even though the mobile home tenant is the one who makes the decision to leave, the park owner is the one who loses their property right to use their entire property in a way that was legal before the adoption of this ordinance. This deprivation trumps Lodi’s goals of promoting development and protecting property values. All other parts of this ordinance are constitutional, it is only the last part that cannot be applied.

The dissenting opinion argues that there are non-constitutional issues in this case that can be addressed to resolve this case without making constitutional claims. The property owners claimed that the ordinance conflicted with state law. The majority found the ordinance ambiguous as to whether Lodi would classify the individual lots as nonconforming uses. The dissent argued that this issue should have been addressed and decided before the constitutional issue.

 

 

Divided Ohio Supreme Court finds that state law preempts city ordinances regulating oil and gas drilling

by Gary Taylor

State ex rel. Morrison and the City of Munroe Falls v. Beck
Ohio Supreme Court, February 17, 2015

Beck Energy Corporation obtained a permit from the Ohio Department of Natural Resources to drill an oil and gas well on property within the corporate limits of the City of Munroe Falls. When Beck Energy began drilling, the City filed a complaint seeking injunctive relief and alleging that Beck Energy was violating several provisions of the Munroe Falls Codified Ordinances. These provisions included a zoning ordinance requirement for a zoning certificate for land disturbing activities within the city, and four ordinances directly relating to oil and gas wells and drilling. The trial court issued a permanent injunction prohibiting Beck Energy from drilling until it complied with all local ordinances. The Ohio Court of Appeals reversed the trial court, concluding that state law preempts local control over the permitting, location, and spacing of oil and gas wells and production operations within the state of Ohio.  Munroe Falls appealed to the Ohio Supreme Court.

In a 4-3 opinion, The Ohio Supreme Court affirmed, holding that the Home Rule Amendment does not grant the City the power to discriminate against, unfairly impede, or obstruct oil and gas activities and production operations that the State has permitted under chapter 1509.  Ohio R.C. 1509.02 gives state government “sole and exclusive authority” to regulate the permitting, location, and spacing of oil and gas wells and production operations within Ohio.  In 2004, the General Assembly amended Chapter 1509 to provide “uniform statewide regulation” of oil and gas production within Ohio and to repeal “all provisions of law that granted or alluded to the authority of local governments to adopt concurrent requirements with the state.” The majority of the Court found that the preemption clauses of R.C. 1509.02 clearly prevent local governments from imposing their own regulations on the oil and gas industry.

In his dissent, Justice Lanzinger countered that “the broad language of a preemption clause is not sufficient to create a conflict. We have never held that a preemption statement alone is sufficient to divest municipalities of their constitutional right to home rule. To the contrary, a declaration by the General Assembly of its intent to preempt a field of legislation ‘does not trump the constitutional authority of municipalities to enact legislation pursuant to the Home Rule Amendment, provided that the local legislation is not in conflict with general laws.'”  Justice Lanzinger pointed out that Chapter 1509 does not specifically preempt local zoning, and also argued that the local ordinances of Munroe Falls do not present specific conflicts with Chapter 1509.

Joining in Justice Lanzinger’s dissent, Justice O’Neill went on to write:
Let’s be clear here. The Ohio General Assembly has created a zookeeper to feed the elephant in the living room. What the drilling industry has bought and paid for in campaign contributions they shall receive. The oil and gas industry has gotten its way, and local control of drilling-location decisions has been unceremoniously taken away from the citizens of Ohio. Under this ruling, a drilling permit could be granted in the exquisite residential neighborhoods of Upper Arlington, Shaker Heights, or the Village of Indian Hill—local zoning dating back to 1920 be damned.

 

Dust, noise from bridge project did not give rise to taking or public nuisance claims

by Hannah Dankbar and Gary Taylor

Sommer v Ohio Department of Transportation
Ohio Court of Appeals, Tenth District, December 23, 2014

In 2007 Nick Sommer and Alyssa Birge bought a home in the Tremont neighborhood in Cleveland. In 2010 the Ohio Department of Transportation (ODOT) started construction to replace the “Innerbelt Central Viaduct truss bridge.”

The first phase of the project was to realign the sewer system.  This phase of the project ran from September 2010 to July 2011. The construction was coordinated between ODOT and Northeast Ohio Regional Sewer District (NEORSD). This phase of construction took place around Sommer’s home and resulted in “construction noise” and the closure of traffic lanes around Sommer’s home. The driving of piles into bedrock for the westbound bridge “create[d] a loud banging sound.”  In June 2012 Sommer filed a complaint against ODOT complaining that the construction resulted in “extreme noise, pounding and vibrations *** separate and distinct from that experience by other affected properties,” and causing his home to be uninhabitable.  Sommer sought declaration of inverse condemnation, as well as a public and private nuisance.  The Court of Claims filed an entry granting ODOT’s motion for summary judgment.

Sommer claimed that the Court of Claims was wrong by (1) not examining their inverse condemnation (takings) claim under the proper legal standard, and (2) granting summary judgment in favor of ODOT on their takings claim.

Sommer argued that the proper analysis for the takings claim was the three-part test set forth by the US Supreme Court in 1978 in Penn Central Transportation Co. v New York:

[w]here a regulation places limitations on land that falls short of elimination all economically beneficial use, a taking nonetheless may have occurred, depending on a complex list of factors including (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action.”

ODOT countered that because Sommer waited until the appeal to raise this claim, it should not stand.  The Court of Appeals agreed, noting that Sommer’s response to ODOT’s summary judgment motion contained no citation to either Penn Central, or to its three-part test.  It also noted that the lower court did analyze Sommer’s claim under Ohio state caselaw, specifically a 1966 case that recognized a taking as “any direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it.”  The Court of Appeals found no error by the lower court.

The next claim on appeal is that the Court of Claims was wrong to interpret the Ohio law that requires a physical invasion of property or a complete denial of access and that issues of material fact still remain as to whether ODOT substantially interfered with appellants’ use and enjoyment of their property in such a degree as to amount to inverse condemnation. While Sommer complained about how the construction “prohibits you from relaxing completely,” he was never denied access to his property and did not claim any physical damage to his property, prerequisites to an inverse condemnation claim per Ohio caselaw.  “An increase in vibration and dust caused by a highway improvement, both from the construction and from the increase in traffic from the expanded highway, is not compensable as a taking.”  It is assumed that once the construction is complete Sommer will be able to enjoy his property as he did before the construction.

Finally, among Sommer’s other claims he alleged that “a genuine issue of material fact exists regarding whether the harm suffered by appellants was different in kind than suffered by property owners.”  Ohio defines a public nuisance as “an unreasonable interference with a right common to the public.” A private individual does not have standing to claim a public nuisance unless the individual can show that they suffered an injury or damage that was not incurred by the general public. The Court of Appeals reviewed the uncontroverted evidence that the inconveniences experienced by Sommer were also experienced by others in the neighborhood, and concluded that since Sommer failed to show how the harm done to his is different than the harm to others in the neighborhood his claim cannot stand.

State law authorizes Board of Elections to keep challenge to development plan off of ballot

by Hannah Dankbar

State ex rel. Ebersole v. Delaware Cty. Bd. of Elections
Ohio Supreme Court, September 19, 2014

In June 2014 the City Council of Powell, Ohio approved Ordinance No. 2014-10, which was a development plan for property in downtown Powell. Three citizens circulated petitions to put three items on the  ballot November 2014: to block the Ordinance from taking effect, an initiative to pass an ordinance to repeal Ordinance No. 2014-10, and an amendment to the city charter that would nullify Ordinance No. 2014-10. The City Council approved the referendum and initiative, but the Delaware County Board of Elections refused to put it on the ballot.  The citizens sought a writ of mandamus to get the referendum on the ballot.

The Board of Elections validated the necessary amount of signatures for each thing in order to get it on the ballot. In August 2014 the board met to discuss the protests of the referendum and initiative. The board accepted that the referendum was administrative in nature and therefore not allowed, this held for the initiative as well and that the protest against both petitions on the grounds that the format of the petitions did not comply with the Powell City Charter and forms prescribed by the secretary of state. As a result, none of the actions were certified to make the November ballot. In September the realtors filed a mandamus action, which is denied.

When City Councils act in an administrative, rather than legislative, capacity, their resolutions and ordinances are not subject to referendum. The Board of Elections rejected the referendum petition because it believed that Ordinance No. 2014-10 was passed by the city council in its administrative capacity. The citizens argue that  (1) passing Ordinance 2014-10 was a legislative act, (2) a challenge to the substance of a referendum is unripe until the referendum is approved and (3) that the board has only ministerial duties in the referendum process and lacks authority to review the substance of the referendum.

(1) The test for determining whether an action is legislative or administrative is “whether the action taken is one enacting a law, ordinance, or regulation, or executing a law, ordinance, or regulation already in existence.” City ordinances that adopt final development plans pursuant to preexisting planned community development, without changing the zoning, are not subject to referendum. In fact, the Ohio Supreme Court has made it clear in prior cases that the Board of Elections is required to withhold the initiative and referendum from the ballot.  In the present case, Ordinance 2014-10 complied with the preexisting requirements for the Downtown Business District and the Downtown District Overlay District and did not require any zoning changes.

(2) The citizens alternatively argued that there is no “case or controversy” until the referendum and initiative have been passed.  Thus, the Board of Elections’ objection was premature.  However, the Board of Elections has an affirmative duty to review the content of proposed referenda and initiatives. The best, and only, time to fulfill this duty is before the election.

(3) The realtors argue that the Powell City Charter does not give the Board of Elections the authority to review the content of referenda or initiatives; rather their job is to certify the number of electors.  The court disagreed. The Powell charter is silent on the question of the board’s power to conduct protests, and therefore no conflict exists. Moreover, Article VI, Section 6.05 of the charter expressly states that where the charter is silent concerning referendum and initiative procedures, state law will govern. Under state law boards of elections are required to, ““[r]eview, examine, and certify the sufficiency and validity of petitions.” As set out in state law, the board was within its statutory authority to conduct the protest hearing.

The Ohio Supreme Court denied the writ filed by the citizens.

In the end, the Cleveland Clinic got its helipad

by Hannah Dankbar

Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals
(
Ohio Supreme Court, November 5, 2014)

The Board of Zoning Appeals of the City of Cleveland denied a permit to Cleveland Clinic Foundation and Fairview Hospital to build a helipad on the roof of a two-story addition to the hospital.

The land that the hospital sits on is zoned as a Local Retail Business District, meaning “a business district in which such uses are permitted as are normally required for the daily local retail business needs of the residents of the locality only.” (Cleveland Code of Ordinances (C.C.O.) 343.01(a)). The hospital has been granted many variances since this zoning was put in place.

In October 2010, the Clinic filed an application with the City’s Department of Building and Housing seeking approval of three construction projects, including the construction of the helipad. The City cited C.C.O. 343.01(b)(8), which says “accessory uses” are allowed “only to the extent necessary [and] normally accessory to the limited types of neighborhood service use permitted under this division,” and rejected all three projects.

The Clinic appealed to the Board of Zoning Appeals (BZA).  Opponents testified about potential noise and traffic problems.  The hospital representatives testified that almost all of the hospitals in the Cleveland metropolitan area have helipads, and that the use of helicopters in the transport of patients reduces travel time and, therefore, saves lives.   The BZA approved the other two projects, but denied the permit to construct the helipad citing C.C.O. 343.01(b)(8) by saying, “those uses that the Zoning Code characterizes as retail businesses for local or neighborhood needs would not involve a helipad as normally required for the daily local retail business needs of the residents of the locality.”

From here the Clinic appealed the denial to the Cuyahoga county Court of Common Pleas, who reversed the decision. This court used C.C.O. 343.01(b)(1) that provides that with limited exceptions, all uses permitted in the Multi-Family District are also permitted in the Local Retail Business District. Hospitals are expressly permitted in the Multi-Family district, and so the Court of Common Pleas concluded that a helipad is “customarily incident to” a hospital and therefore qualifies as an “accessory use.”

The BZA appealed to Eighth District Court of Appeals, who reversed again. The court found that ambiguity exists in C.C.O., and ultimately decided to give deference to the BZA and its original decision, saying “When the BZA reasonably relies on a code provision, its determination should hold so long as its decision is not unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record,” This is to be true regardless of the fact that the law requires any ambiguity in a zoning ordinance to be construed in favor of the property owner.

The Supreme Court of Ohio determined that the wrong standard of review was used by the Eighth District Court of Appeals. Rather than review the BZA’s decision for clear error, the Court of Appeals should have been reviewing the Court of Common Pleas decision, and only overruling the Court of Common Pleas if the decision is not supported by a preponderance of reliable, probative and substantial evidence. Reversal is only appropriate when there is an error in the application or interpretation of law.

The Supreme Court of Ohio refers to C.C.O. 325.02 and 325.721 (to define “accessory use”), 337.08 (types of buildings permissible in a Multi-Family District), and 343.01(b) (permitted buildings in a Local Retail Business District). “Given the record before us, we have little trouble concluding that the preponderance of substantial, reliable, and probative evidence supports the [Court of Common Pleas’] conclusion that helipads are customarily incident to hospitals, at least in Cleveland.”

Conflicts in Cincinnati (OH) code concerning designation of historic landmarks construed in favor of property owner

by Kaitlin Heinen

Greenacres Foundation vs. Board of Building Appeals & Zoning Board of Appeals, City of Cincinnati
(Ohio Court of Appeals, October 17, 2012)

Greenacres Foundation is a charity that owns a 22-acre site in Cincinnati. One of the structures on the site (the “Gamble House”) used to be the home of James Gamble, a son of one of the founders of the Proctor & Gamble Company. Greenacres determined that renovation of the house was not economically possible, so it decided to tear it down. On February 18, 2010, Greenacres applied to the City’s director of buildings and inspections for a demolition permit. At the time, the Gamble House property was zoned “SF-10,” single family, without any historic designation. Amit Gosh, the City’s chief building official, found out that there had been prior attempts to save the Gamble House on historic preservation grounds. So Gosh contacted Larry Harris, the City’s urban conservator, for more information. Harris believed that the Gamble House was a “historic structure” with “historic significance” within the meaning of Cincinnati Municipal Code Chapter 1435 and thus could not be demolished without Greenacres obtaining a “Certificate of Appropriateness.” Because Greenacres did not obtain a certificate, the City denied them the demolition permit. Greenacres appealed to the Board of Building Appeals (BBA) and to the Zoning Board of Appeals (ZBA), collectively “the City.” The BBA dismissed the case for lack of jurisdiction, and the ZBA denied Greenacres’ appeal and upheld Harris’ determination of “historic significance.” On appeal, the trial court affirmed the common pleas court’s decision that vacated both the BBA’s and the ZBA’s decisions and remanded the permit application to the City’s director of buildings and inspections, which the City then appealed to the Ohio Court of Appeals.

Cincinnati Municipal Code Chapter 1435, entitled “Historic Landmarks and Districts,” was in effect when Greenacres applied for the demolition permit. Greenacres argued that Chapter 1435 required the city council to pass an ordinance designating a structure as an “historic landmark” before the Chapter could take effect to regulate a structure, and because council had not done so at the time of the application, Greenacres argued it was not required to obtain a certificate. However, the City argued that the zoning code gave the urban conservator authority to determine a structure to be of “historic significance” without any action by the city council, thus requiring the owner to obtain a “Certificate of Appropriateness” prior to demolition. The City claimed that amendments made to the zoning code in 2004 did not require a city council designation before being subject to the zoning code. Before 2004, 1435 provided that a historic structure was “[a]ny improvement to real property which has historic significance and which has been designated as an historic structure pursuant to the provisions of this chapter.” After 2004, a historic structure was defined as “[a]n improvement to real property that has historic significance.” The City argued that since the designation requirement was removed by the 2004 amendments, the urban conservator had the authority to determine the Gamble House to be of “historic significance” and to thus require a “Certificate of Appropriateness.”

The Ohio Court of Appeals did not agree and acknowledged that zoning regulations must be construed in favor of the property owner. Even though the designation requirement was removed in 2004, the code failed to delineate who or what body may determine if a structure is of “historic significance.” The powers of the urban conservator listed in Chapter 1435 prior to 2004 did not include the authority to deem a structure “historic.” When the designation requirement was removed in 2004 it left the code without any delineation of who or what body was empowered to make an historic designation.  Additionally, the 2004 amendment created other conflicts within the code.  The code still requires that a proposed demolition of property must conform to property guidelines before a “Certificate of Appropriateness” be issued, and those “guidelines” were to adopted at the time the city council legislatively designated a historic landmark or district. (1435-11).  Since the court must construe conflicting provisions in favor of the landowner, the Ohio Court of Appeals held that the city council was required to legislatively designate the structure as a “historic landmark” or to be within a “historic  district.” Because the city council had not done so, Greenacres was not required to obtain a “Certificate of Appropriateness” before a demolition permit could be issued.

The City also argued that the common pleas court failed to give enough deference to the decisions of the ZBA and the BBA, which meant that the trial court thus abused its discretion in affirming the common pleas court’s decision. The Ohio Court of Appeals held that this is correct in evidentiary conflicts, but that this case is a question of law, so the argument had no merit.  In addition, the City argued that the trial court incorrectly reversed the ZBA’s decision when it found that the ZBA was without jurisdiction to review a recommendation by the Historic Conservation Board. Amendments to the Cincinnati Municipal Code effective July 20, 2012, address this issue, so the Ohio Court of Appeals held this argument to be moot. In sum, the Ohio Court of Appeals concluded that Greenacres’ application for a demolition permit must be processed according to the law that was in effect at the time it applied for the permit. The trial court’s decision was affirmed.

Investigations by zoning board member outside the hearing process did not give rise to due process violation

by Kaitlin Heinen and Gary Taylor

Timothy Hutchinson v. Wayne Township Board of Zoning Appeals
(Ohio Court of Appeals, 12th Appellate District, September 10, 2012)

Tim Hutchinson filed an application for a conditional use permit from Wayne Township Board of Zoning Appeals (BZA) to operate a Halloween-themed nature walk on part of Jana Hutchinson’s farm, which was zoned A-1, agricultural district. The BZA held a hearing for Tim Hutchinson’s application in July of 2008. At this hearing, it was found that the nature walk would be open 6-8 weekends per year during the Halloween season from 5pm-midnight. Traffic would come from Wayne-Madison Road using two unpaved roads, while parking would be provided in nearby open fields. The BZA  found that Wayne-Madison Road is a narrow, two-lane, dead-end road with no lighting and with narrow berms that steeply slope into drainage ditches, although Hutchinson presented expert testimony from a traffic engineer that Wayne-Madison Road would be able to handle the additional traffic. The BZA also heard complaints from residents in the area, which addressed safety issues arising from the use of Wayne-Madison Road by drivers who are inexperienced with gravel roads as well as the peace and the security of the residents in area that may be affected by the increased traffic. The BZA adjourned the hearing in progress, expressing concern that Tim Hutchinson was not a proper applicant since he was only a tenant on the property and not the landowner. Jana Hutchinson was then joined on the application for a conditional use permit, and when the hearing resumed she provided additional information to BZA about security, traffic, road maintenance, and insurance for the nature walk.

In December of 2008, the hearing was reconvened. Tim Hutchinson testified that he estimated 500 cars would be expected at the nature walk each evening. However, BZA member Carleen Yeager stated that she had researched attendance at other Halloween-themed events and, to the contrary, 500 cars would be a “light night” and that nearly 1500 cars would be expected on a “good night.” Tim Hutchinson countered that the nature walk was new and that he was “starting off small.” At the end of the hearing, BZA member Jerry Gerber moved to deny the Hutchinsons’ application.  The vote was unanimous against the application. The Hutchinsons appealed the BZA’s oral denial of the application to the Butler County Court of Common Pleas and the case was remanded to the BZA for the issuance of a written decision.

In March of 2010, the BZA issued its written decision, which found that the Hutchinsons’ nature walk would be inconsistent and incompatible with the current uses of the surrounding area and would adversely affect the general welfare of neighboring residents in the area. The Hutchinsons’ appealed. In January of 2012, the common pleas court issued its decision that affirmed the BZA’s denial of the Hutchinsons’ application for a conditional use permit.

The issue before the Ohio Court of Appeals in this decision then is that “the common pleas court erred to the prejudice of the [appellants] by affirming the BZA’s decision.” The Hutchinsons claimed that the trial court erred in its affirmation of the BZA’s decision, even though the appellants had satisfied all requirements of the zoning resolution, and that the trial court erred in finding that their due process rights were not violated by BZA member Yeager’s outside investigation.

In regards to the Hutchinsons’ first claim, the township’s zoning code requires that conditional uses must meet several criteria, such as not adversely affecting the health, safety, comfort and general welfare of the surrounding area by threats of traffic hazards, noise disturbances, night lighting, fire hazards, etc. (Section 25.053). However, citing prior case law the court stated that satisfaction of these requirements does not make approval automatic, and that the township zoning code also requires the BZA to “give due regard to the nature and condition of all adjacent uses and structures” surrounding the proposed conditional use. After reviewing the record, the court found that the Hutchinsons did not satisfy all the requirements in the code. Despite the Hutchinsons’ presentation of an expert witness, the BZA had reason to find that the increased traffic would be incompatible with the surrounding area. Thus the trial court did not err in their decision to affirm the BZA’s denial on this count.

As for the due process violation alleged, “[t]he essence of due process dictates, at the very least, that an individual have an opportunity to be heard and to defend, enforce and protect his rights before an administrative body in an orderly proceeding.” Here, Yeager admitted to making “some calls” inquiring into the reasonable number of cars to be expected for a Halloween-themed event. The Hutchinsons argued that her statement negatively affected their ability to have a fair hearing, since they were not able to cross-examine Yeager’s informants as well as Yeager herself, at the risk of losing her vote. Again citing previous caselaw, the court stated that “[t]he combination of investigative, executive and adjudicative functions does not necessarily create a risk of bias or unfairness in an administrative adjudication.” The court noted that the BZA’s decision stated, in part, that it was denying appellants’ application because the Nature Walk “would significantly increase traffic flow, according to applicant’s testimony, by hundreds of cars each evening.” From this statement, according to the court, “it is clear that the BZA did not rely on Yeager’s view that as many as 1,500 cars would be traveling Wayne-Madison Road, but only that 500 cars would be on the road, as indicated by Tim Hutchinson.”

Further, the court noted that the BZA unanimously denied appellants’ application. Thus, even if Yeager’s statements demonstrated her own bias and prejudice toward the Nature Walk, the exclusion of her vote would not have altered the result.   No due process rights were violated.

The judgment of the trial court was affirmed, maintaining the denial of the Hutchinsons’ application for a conditional use permit to operate a Halloween-themed nature walk.

Ohio Township’s impact fees constituted impermissible tax

by Victoria Heldt

Drees Company et al., v. Hamilton Township et al.
(Supreme Court of Ohio, May 31, 2012)

In the last twenty years, Hamilton Township in Ohio has experienced significant growth in its population and development.  In response to the growth, the Township adopted a resolution that required potential developers to pay impact fees in order to apply for and acquire a zoning certificate to develop in an unincorporated area.  The stated purpose of the impact fee was “to benefit the property by providing the Township with adequate funds to provide the same level of service to that property that the Township currently affords previously developed properties.”

The fee included four categories:  a road-impact fee, a fire-protection impact fee, a police-protection-impact fee, and a park-impact fee.  The amount assessed to each property was determined by its use.  Properties to be used for single-family dwellings were assessed a total of $6,153 while those being developed for retail/commercial purposes were assessed a $7,962.  The money received was placed into separate accounts (one for each category) not put into the general fund.  The funds in each account may be used only for the purpose of each account.

Drees Company, among others, alleged that the impact fees are contrary to Ohio law and are unconstitutional.  Hamilton Township is a limited-home-rule township that may “exercise all powers of local self-government within the unincorporated area of the township…and shall enact no other taxes other than those authorized by general law.”  Drees Company argued that the impact fee is really a tax and, therefore, the Township was not authorized to enact the resolution.  The trial court ruled in favor of the Township.  It stated that Hamilton Township “may make and fund improvements to benefit new development by use of its system of impact fees, because the resolution is not in conflict with any other Ohio statute, and because it is sufficiently narrowly tailored to provide services to the class of fee payers in exchange for the fees.”  The Court of Appeals affirmed, noting that the impact fee did not constitute a prohibited form of taxation.  Drees further appealed the case.

In this case, the Supreme Court of Ohio had to distinguish a fee from a tax.  It looked to precedent in its analysis to note how the two have been historically contrasted.  In State ex rel. Petroleum Underground Storage Tank Release comp. Bd. V. Withrow, the Court looked to “the substance of the assessments and not merely their form.”  It had to determine whether assessments imposed on owners and operators of underground storage tanks (“USTs”) were taxes.  The stated purpose of the fees was “to reimburse owners and operators of USTs for the costs of corrective actions in the event of a release of petroleum into the environment and to compensate third parties for bodily injury and/or property damage resulting from such occurrences.”

In Withrow, the Court determined the assessments to be fees for four reasons: (1) the fees were imposed to further regulatory measures to address environmental problems caused by leaking USTs; (2) the funds were never placed in general funds and were to be used strictly for problems related to USTs; (3) the fee was in exchange for protection from UST leaks; and (4) if the fund exceeded a certain amount, no assessment would be charged that year.  The Court noted that, when applying the factors from Withrow to this case, the impact fees seem to constitute taxes.  The fees lack any sort of regulatory function, can be spent on typical township expenses, are not in exchange for any particular service, and are not responsive to need.

The Court next looked to Am. Landfill, Inc. v. Stark/Tuscarawas/Wayne Joint Solid Waste Mgt. Dist., where the Sixth Circuit Court of Appeals was faced with a similar situation.  It had to determine wither assessments imposed by Ohio solid-waste-management districts on people disposing of waste were fees or taxes.  The fees were to be used for various things pertaining to the county’s waste management plan.  The court employed a three-factor analysis that considered (1) the entity that imposes the assessment; (2) the parties upon whom the assessment is imposed; and (3) whether the assessment is expended for general public purposes, or sued for the regulation or benefit of the parties upon whom the assessment is imposed.

The Court noted that an assessment imposed by a legislature is more likely to be a tax than one imposed by an administrative agency.  Furthermore, an assessment imposed upon a broad class of parties is more likely to be a tax than one imposed on a narrow class.  The third factor, the use of the assessment, is the predominant factor.  Applying the Am. Landfill test to this case points to the fact that the impact assessments constitute taxes.  They were imposed by a legislative body, not an administrative one.  They were also imposed on a fairly large group of people.  Furthermore, the funds were to be used for public benefit, not solely for the benefit of those property owners.

The Court noted that an essential question was whether the assessments were for public or private benefit.  It noted that the goal of the assessment was “for the township to have the necessary funds to allow all properties in the township to maintain their same level of service despite recent, rapid growth.”  The resolution itself stated it was for “the protection of the health, safety, and general welfare of the citizens and property owners of the Township.”  Consequently, the Court concluded that the assessments constituted a tax and were therefore not authorized.  It reversed the decision and remanded it to trial court.

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