324 N.E.2d 740 (Ohio 1975), 73-901, Forest City Enterprises, Inc. v. City of Eastlake

Docket Nº:73-901.
Citation:324 N.E.2d 740, 41 Ohio St.2d 187
Opinion Judge:PAUL W. BROWN, J.
Party Name:FOREST CITY ENTERPRISES, INC., Appellant, v. CITY OF EASTLAKE, Appellee.
Attorney:Thompson, Hine & Flory, William D. Ginn, Michael M. Hughes and Stephen L. Buescher, Cleveland, for appellant., J. Melvin Andrews, Eastlake, for appellee. Messrs. Thompson, Hine & Flory, Mr. Michael M. Hughes and Mr. Stephen L. Buescher, for appellant., Messrs. Andrews & Illenberger, Mr. J. Melvin...
Judge Panel:C. WILLIAM O'NEILL, C. J., and HERBERT, STERN, and WILLIAM B. BROWN, JJ., concur. CORRIGAN and CELEBREZZE, JJ., dissent. C. WILLIAM O'NEILL, C. J., and HERBERT and WILLIAM B. BROWN, JJ., concur in the foregoing concurring opinion. [41 Ohio St.2d 202]
Case Date:March 19, 1975
Court:Supreme Court of Ohio
 
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Page 740

324 N.E.2d 740 (Ohio 1975)

41 Ohio St.2d 187

FOREST CITY ENTERPRISES, INC., Appellant,

v.

CITY OF EASTLAKE, Appellee.

No. 73-901.

Supreme Court of Ohio.

March 19, 1975

Page 741

Syllabus by the Court

1. Under Section 1f of Article II of the Ohio Constitution, municipal referendum powers are limited to questions which

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municipalities are 'authorized by law to control by legislative action.' (Paragraph one of the syllabus in Myers v. Schiering, 27 Ohio St.2d 11, 271 N.E.2d 864, approved and followed.)

2. A municipal charter provision, which requires that any ordinance changing land use be ratified by the voters in a city-wide election, constitutes an unlawful delegation of legislative power, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution.

Appellant is an Ohio corporation, and the owner of an 8-acre parcel of real property in Eastlake, Ohio. On May 18, 1971, appellant applied to the Eastlake Planning Commission for the rezoning of its property from industrial to multi-family, highrise use. The Planning Commission approved the application, and on December 28, 1971, the Eastlake City Council amended Eastlake's comprehensive zoning ordinance to permit the requested use.

On April 6, 1972, appellant applied to the Planning Commission for parking and yard approval, a preliminary [41 Ohio St.2d 188] step to obtaining a construction permit. The Planning Commission denied the permit because appellant had failed to obtain voter approval of council's amendment to the comprehensive zoning ordinance, as required by Section 3, Article VIII of the Eastlake City Charter. 1 That provision requires any ordinance which change existing land use to be approved by a 55 percent vote in a city-wide election, the cost to be borne by the applicant-landowner.

In May 1972, such an election was held, but the ordinance rezoning appellant's property failed to obtain the requisite 55 percent of the votes cast.

Subsequently, appellant filed a declaratory judgment action in the Court of Common Pleas, asserting that Section 3 of Article VIII was unconstitutional. Appellant contended that the voter-approval requirement, as a prerequisite to any land use of zone change, denied appellant due process of law, and further, violated the referendum provisions of the Ohio Constitution. Appellant also attacked the validity of the provision requiring 55 percent approval, and the provision requiring that election costs be borne by the applicant-landowner.

The Court of Common Pleas upheld the validity of the voter approval and 55 percent requirements, but held the provision requiring an applicant-landowner to pay the election costs unconstitutional. Upon appeal and cross-appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas. [41 Ohio St.2d 189]

The cause is now before this court pursuant to the allowance of a motion to certify the record. 2

Thompson, Hine & Flory, William D. Ginn, Michael M. Hughes and Stephen L. Buescher, Cleveland, for appellant.

J. Melvin Andrews, Eastlake, for appellee.

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PAUL W. BROWN, Justice.

Appellant challenges the validity of Section 3, Article VIII of the Eastlake City Charter, which provides that no ordinance changing land use becomes effective until ratified by 55 percent of the voters in a city-wide election. Because such provision denies appellant due process of law, we hold it unconstitutional.

I

Since Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303, the constitutionality of zoning has not been questioned. Modern authorities agree that some restrictions on the use of land are essential to orderly community development. But because the power to zone infringes upon the individual use of private property, the exercise of such authority has been carefully hedged with procedural and substantive safeguards. To be sustained as valid, a zoning ordinance must be comprehensive in nature, must bear a reasonable relationship to the public health, safety, welfare, or morals, and must provide for the amelioration of unnecessary hardships imposed upon the owners of specific property.

In Ohio, the power to zone or rezone, via the passage or amendment of a comprehensive zoning ordinance, is clearly a legislative function. Berg v. Struthers (1964), 176 Ohio St. 146, 198 N.E.2d 48; Tuber v. Perkins (1966), 6 Ohio St.2d 155, 216 N.E.2d 877; Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 233 N.E.2d 500. See also, Justice Corrigan's concurrence in Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St.2d 23, 31, 309 N.E.2d 900. As such, the zoning [41 Ohio St.2d 190] or rezoning of property is subject to the referendum process. Hilltop Realty v. South Euclid (1960), 110 Ohio App. 535, 164 N.E.2d 180.

Grants of relief from unnecessary hardship, on the other hand, are classified as administrative acts, regardless of the label placed on them. Donnelly v. Fairview Park, supra; Myers v. Schiering (1971), 27 Ohio St.2d 11, 271 N.E.2d 864. See also, Justice Corrigan's concurrence in Mobil Oil Corp. v. Rocky River, supra. This is so because the action executes or administers a zoning ordinance, rather than brings it into existence. Donnelly v. Fairview Park, supra. Whether such administrative relief is provided by council, acting in an administrative capacity, or by an administrative zoning board, created pursuant to R.C. 713.11, the proper route of appeal is to the Court of Common Pleas, via R. C. Chapter 2506. The power to referend an administrative zoning determination, by whatever body made, has long since been foreclosed. Myers v. Schiering, supra.

II

Section 3, Article VIII of the Eastlake charter sets forth the procedures prerequisite to a zone or land-use change in that city. Those procedures specifically govern 'any change' in existing land use, or 'any change whatsoever to any ordinance,' or 'the enactment of any ordinance,' affecting the use of land. Several steps are required to effectuate a proposed change.

First, the proposed change must be submitted to the City Planning Commission which has the power to approve or disapprove the change. Next, regardless of the action taken by the Planning Commission, the proposal goes to city council, which may approve or disapprove. Finally, if the approval of council has been obtained, the proposed change must be ratified by 55 percent of the voters of Eastlake, at the next regular municipal election, or at a special election falling on the generally established election day. The cost of this required election, including the cost of the requisite advertising, must be borne by the applicant. In their briefs, and during oral argument, the parties have characterized the election requirement as a 'mandatory referendum.' [41 Ohio St.2d 191]

Under the provisions of Section 3, Article VIII, all changes in land use require

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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. Myers v. Schiering, supra; Kelley v. John (1956), 162 Neb. 319, 75 N.W.2d 713.

Paragraph one of the syllabus in Myers states: '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."

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.

III

Appellant has not claimed, not does the record indicate, that the zoning of appellant's 8-acre parcel for industrial use is unreasonable and unconstitutional. Rather, appellant's narrow claim is that Eastlake's charter provision constitutes a delegation of legislative power to the people, and as such violates the requirement that the police powers be exercised in a reasonable and unarbitrary fashion. The focus of our inquiry then, is whether Eastlake's mandatory referendum provision allows the exercise of legislative power by the voting public, such that zoning regulations might be imposed which are arbitrary and unreasonable.

The Supreme Court of the United States has addressed this issue. In Eubank v. Richmond (1912), 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156; Thomas Cusack Co. v. Chicago (1917), 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472; and Washington ex rel. Seattle Title Trust Co., v. Roberge (1928), 278 U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210, that court established guidelines by [41 Ohio St.2d 192] which an appropriate due process determination might be made.

In Eubank, a Virginia statute authorized city and town councils to enact regulations concerning the building of houses, including the establishment of building lines. Pursuant to such authority, Richmond's city council passed an ordinance providing 'that whenever the owners of two thirds of the property abutting on any street shall, in writing, request the committee on streets to establish a building line on the side of the square on which their property fronts, the said committee shall establish such line * * *.' Two-thirds of the property owners on plaintiff's block filed such a request, and a building line was subsequently established. When plaintiff challenged that action, the Virginia courts sustained both the statute and the ordinance, finding neither 'unreasonable nor unusual.'

The United States Supreme Court...

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