Buckeye Community Hope Found. v. Cuyahoga Falls, 97-137

• Decision Date: 06 May 1998
• Docket Number: No. 97-137,97-137
• Citation: 697 N.E.2d 181,82 Ohio St.3d 539
• Parties: BUCKEYE COMMUNITY HOPE FOUNDATION et al., Appellants, v. CITY OF CUYAHOGA FALLS et al., Appellees.
• Court: Ohio Supreme Court

Page 539

82 Ohio St.3d 539

697 N.E.2d 181

BUCKEYE COMMUNITY HOPE FOUNDATION et al., Appellants, v. CITY OF CUYAHOGA FALLS et al., Appellees.

No. 97-137.

Supreme Court of Ohio.

Submitted Jan. 14, 1998.

Decided May 6, 1998.

Reconsideration Granted and Judgment

Reversed July 16, 1998.

SYLLABUS BY THE COURT

1. The citizens of a municipality may not exercise powers of referendum, by charter or other means, greater than those powers granted by Section 1f, Article II of the Ohio Constitution.

2. Pursuant to Section 1f, Article II of the Ohio Constitution, actions taken by a municipal legislative body, whether by ordinance, resolution, or other means, that constitute administrative action, are not subject to referendum proceedings.

3. The passage by a city council of an ordinance approving a site plan for the development of land, pursuant to existing zoning and other applicable regulations, constitutes administrative action and is not subject to referendum proceedings.

ON MOTION FOR RECONSIDERATION

Appellant Buckeye Community Hope Foundation ("Buckeye Hope"), a nonprofit Ohio corporation, develops housing for individuals through the use of state grants and tax credits. Buckeye Hope is affiliated with Cuyahoga Housing Partners, Inc. and Buckeye Community Three L.P. ("Buckeye Three"), also appellants herein.

In 1995, Buckeye Three purchased a tract of land in Cuyahoga Falls for the purpose of building a seventy-two unit apartment complex. The land was zoned for multifamily use. Subsequently, the Cuyahoga Falls Planning Commission unanimously approved a site plan concerning the proposed complex. Pursuant to Section 1.7, Article VIII of the Charter of Cuyahoga Falls, the plan was then submitted to the City Council of Cuyahoga Falls for its approval.

On April 1, 1996, the city council ratified the decision of the planning commission by passing Ordinance No. 48-1996. The ordinance provided, in part, that "City Council approves the plan for development of land situated in an R-17 Medium Density Multiple Family zoning district in accordance with such district and zoning regulations as stipulated in the Codified Ordinances of the City of Cuyahoga Falls and as approved by the Planning Commission * * *."

Following passage of the ordinance, a group of residents of Cuyahoga Falls filed referendum petitions with the clerk of city council. The petitions sought a referendum to approve or reject Ordinance No. 48-1996, pursuant to Section 2, Article IX of the municipal charter, which provides, in relevant part, that the citizens of Cuyahoga Falls "have the power to approve or reject at the polls any ordinance or resolution passed by the Council * * *." (Emphasis added.) The Summit County Board of Elections then certified that the petitions contained a sufficient number of valid signatures to be placed on the November 1996 ballot.

On May 1, 1996, the appellants filed a complaint against the appellees in the Court of Common Pleas of Summit County, requesting injunctive relief and a declaration that the ordinance could not be challenged by referendum because its passage by the city council was an administrative, rather than legislative, action. Appellants claimed that Section 1f, Article II of the Ohio Constitution did not grant powers of referendum to citizens of municipalities on administrative actions taken by municipal legislative bodies.

The trial court denied the appellants' request for injunctive relief. The court also determined that the Charter of Cuyahoga Falls permitted the residents of the city to exercise powers of referendum on any action taken by the city council, regardless of whether the action taken was legislative or administrative in nature.

Appellants appealed the decision of the trial court to the Court of Appeals for Summit County. The court of appeals affirmed the judgment of the trial court, holding that Section 1f, Article II of the Ohio Constitution does not limit the referendum powers of charter municipalities such as Cuyahoga Falls.

Pursuant to the allowance of a discretionary appeal, this court affirmed the judgment of the court of appeals. Buckeye Community Hope Found. v. Cuyahoga Falls (1998), 81 Ohio St.3d 559, 692 N.E.2d 997.

The cause is now before this court upon a motion for reconsideration filed by the appellants.

Zeiger & Carpenter, John W. Zeiger, Jeffrey A. Lipps and Michael N. Beekhuizen, Columbus; McFarland Law Office, and J. Drew McFarland, Granville, for appellants.

MOYER, Chief Justice.

This court has invoked the reconsideration procedures set forth in S.Ct.Prac.R. XI to "correct decisions which, upon reflection, are deemed to have been made in error." State ex rel. Huebner v. W. Jefferson Village Council (1995), 75 Ohio St.3d 381, 383, 662 N.E.2d 339, 341. For the reasons that follow, we grant the appellants' motion for reconsideration and reverse the judgment of the court of appeals.

I

Section 3, Article XVIII of the Ohio Constitution grants powers of local self-government to municipalities by providing, "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." In exercising those powers, municipalities may choose to govern themselves by charter in accordance with Section 7, Article XVIII of the Ohio Constitution: "Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government."

It is well settled that although the Ohio Constitution grants broad powers of local self-government to municipalities, the scope of those powers is not without limits. In Canton v. Whitman (1975), 44 Ohio St.2d 62, 73 O.O.2d 285, 337 N.E.2d 766, this court interpreted Section 3, Article XVIII as follows: "This section, adopted in 1912, preserved the supremacy of the state in matters of 'police, sanitary and other similar regulations,' while granting municipalities sovereignty in matters of local self-government, limited only by other constitutional provisions." (Emphasis added.) Id. at 65, 73 O.O.2d at 287, 337 N.E.2d at 769. See, also, State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 20, 577 N.E.2d 645, 647.

In Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864, paragraph one of the syllabus, we articulated the limits of charter government by stating that "a charter city has all powers of local self-government except to the extent that those powers are taken from it or limited by other provisions of the Constitution or by statutory limitations on the powers of the municipality which the Constitution has authorized the General Assembly to impose." (Emphasis added.) More recently, we stated that "[a] municipality that chooses to adopt a charter does so in order to manage its own purely local affairs without interference from the state, with the understanding that these local laws will not conflict with the Constitution and general laws." (Emphasis added.) Rispo Realty & Dev. Co. v. Parma (1990), 55 Ohio St.3d 101, 102, 564 N.E.2d 425, 426-427.

The City Charter of Cuyahoga Falls provides that voters may exercise powers of referendum on any ordinance or resolution passed by the city council. The appellants contend that this provision conflicts with Section 1f, Article II of the Constitution, which provides, "The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers may be exercised in the manner now or hereafter provided by law."

Words used in the Constitution are construed according to their usual or customary meaning. See State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 998; R.C. 1.42. Section 1f, Article II reserves referendum powers to the people of "each municipality." Those words are unambiguous. There is no distinction between charter municipalities and municipalities that have no charter. Additionally, Section 1f, Article II is the sole constitutional source of initiative and referendum powers, reserved by the people of the state to the people of each municipality.

Section 1f, Article II provides initiative and referendum powers only on those questions that municipalities "may now or hereafter be authorized by law to control by legislative action." We have interpreted this phrase to exclude, from referendum proceedings, administrative actions taken by a city council. ¹ In Myers v. Schiering (1971), 27 Ohio St.2d 11, 56 O.O.2d 6, 271 N.E.2d 864, we held that "[u]nder 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.' " Myers at paragraph one of the syllabus. There, we determined that the passage of a resolution "granting a permit for the operation of a sanitary landfill, pursuant to an existing zoning regulation, constitutes administrative action and is not subject to referendum proceedings." Id. at paragraph two of the syllabus. See, also, State ex rel. Srovnal v. Linton (1976), 46 Ohio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764.

The prior majority opinion in this case determined that both Myers and Srovnal were inapposite because neither case presented an issue regarding referendum powers granted by charter. That conclusion was not correct.

The prior majority opinion reasoned that because Section 1f, Article II is not a self-executing provision, charter municipalities enacting ancillary legislation to carry out the principles enunciated in Section 1f, Article II were not restricted to following the statutory initiative and referendum procedures enacted by the General Assembly for non-charter...