City of Moraine v. Board of County Com'rs of Montgomery County

• Decision Date: 08 July 1981
• Docket Number: No. 80-1101,80-1101
• Citation: 21 O.O.3d 88,423 N.E.2d 184,67 Ohio St.2d 139
• Parties: , 21 O.O.3d 88 CITY OF MORAINE, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF MONTGOMERY COUNTY et al., Appellees. BROWN et al.; Harrison et al., Appellants, v. CRESS et al., Appellees.
• Court: Ohio Supreme Court

Page 139

67 Ohio St.2d 139

423 N.E.2d 184, 21 O.O.3d 88

CITY OF MORAINE, Appellant, v. BOARD OF COUNTY COMMISSIONERS OF MONTGOMERY COUNTY et al., Appellees.

BROWN et al.; Harrison et al., Appellants, v. CRESS et al., Appellees.

No. 80-1101.

Supreme Court of Ohio.

July 8, 1981.

Morris and Ruth Cress, appellees herein, are owners of approximately 101 acres of real estate located in Montgomery County. North Sanitary Landfill, Inc., also an appellee herein, an Ohio corporation, engaged in the business of developing and operating landfills, leased the above-described premises from the Cresses for the furtherance of its business. George and Minnie Harrison, appellants herein, and Michael and Shirley Brown are neighboring property owners to the tract owned by the Cresses and leased to North Sanitary Landfill.

The city of Moraine, an appellant herein, is an Ohio municipal corporation, whose jurisdiction extends to the areas sought to be rezoned by reason of appellee's application for an amendment to the zoning resolution.

On February 15, 1978, appellees filed an application for an amendment to the resolution to the Montgomery County Rural Zoning Commission. The application sought to change the zoning resolution on an approximate 81-acre tract of land from R-1, single family residential district, to I-3, heavy industrial district, for purposes of operating a sanitary landfill.

The rural zoning commission referred the appellees' application to the Montgomery County Planning Commission for review. On March 2, 1978, a public hearing was held and the planning commission unanimously recommended approval of the requested zoning change.

The application and the planning commission's recommendation were returned to the rural zoning commission for public hearing and review. After appropriate notice procedures were adhered to, the zoning commission unanimously recommended that appellees' application be denied, which is the polar determination of the planning commission.

Pursuant to statute, the rural zoning commission forwarded the application and its recommendation of denial to the Board of County Commissioners of Montgomery County.

Consistent with statute, notice of a hearing scheduled on May 16, 1978, was published in a newspaper of general circulation in the affected areas.

In order to reverse or modify the determination of the rural zoning commission, the decision of the county commissioners must be unanimous.

On May 16, 1978, the county commissioners held a public hearing on appellees' application. The city of Moraine noted its opposition to the zoning amendment.

On June 8, 1978, the board of county commissioners unanimously denied appellees' application and thereby upheld the rural zoning commission's determination.

Shortly thereafter, North Sanitary Landfill, Inc., pursuant to R.C. 2506.01, filed a notice of appeal from the decision of the board of county commissioners to the Court of Common Pleas.

Before trial, appellees requested the board of county commissioners to reconsider its decision, denying the appellees' application. The board of county commissioners decided to reconsider the matter, conditioned upon appellees' dismissal of their action in the Court of Common Pleas. Appellees promptly dismissed their pending action in the Court of Common Pleas.

Public hearing concerning the reconsideration of appellees' application was scheduled on the agenda of the board of county commissioners' regular session of November 2, 1978. The matter was deferred until the meeting of November 9, 1978. The reconsideration of appellees' zoning application was listed as item IV on the agenda. When the matter was to be discussed, it was deferred until later in the meeting. Shortly thereafter and before reconsidering appellees' application, the board of county commissioners went into executive session for the purposes of discussing personnel matters. The executive session was adjourned within a short period of time and the board of county commissioners went back into public session.

When the application at issue herein was discussed, it was established that a committee to review and oversee the landfill operation would be formed. Noting the formation of this committee the board of county commissioners unanimously adopted a resolution approving the zoning change, completely reversing its prior determination.

The city of Moraine timely filed a complaint against appellees in the Court of Common Pleas. Michael and Shirley Brown and George and Minnie Harrison also filed an action against appellees. The cases were consolidated for purposes of trial.

The trial court upheld the approval of the amendment to the zoning regulation. Appellants timely filed an appeal to the Court of Appeals, which affirmed the trial court's decision.

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

Lucas, Prendergast, Albright, Gibson, Newman & Gee, Richard C. Brahm, Phillip B. Herron and Robert E. Albright, Columbus, for appellants.

Chris R. Van Schaik, Dayton, and Kenneth R. Pohlman, Maria Stein, for appellee Board of County Commissioners.

Austin & Jones Co., L.P.A., Taylor Jones, Jr., Richard Austin, Smith & Schnacke and Beverly F. Shillito, Dayton, for appellees North Sanitary Landfill, Inc., and Cress.

PER CURIAM.

I.

Appellants' first proposition of law is two-fold.

Initially, appellants assert, in essence, that, since the board of county commissioners is not specifically authorized to reconsider its own prior zoning decision, it must initiate the full procedural requirements as prescribed by R.C. 303.12 before reconsidering its own prior zoning decision.

We find no merit in this contention and hold that the county commissioners do have the inherent authority to reconsider their own legislative decisions.

R.C. 303.12 ¹ expressly confers upon the board of county commissioners the authority to rezone a parcel of property by amendment of a county's comprehensive zoning plan. This authority to rezone is clearly a legislative function. Forest City Enterprises v. Eastlake (1975), 41 Ohio St.2d 187, 189, 324 N.E.2d 740; Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 233 N.E.2d 500; Tuber v. Perkins (1966), 6 Ohio St.2d 155, 216 N.E.2d 877; Berg v. Struthers (1964), 176 Ohio St. 146, 198 N.E.2d 48.

Although there is no specific statutory grant of authority for reconsideration, the board of county commissioners, when acting in a legislative capacity, do have the inherent power to reconsider their own prior legislative zoning decisions. This rationale was espoused in State, ex rel., v. Board of Public Service of Columbus (1909), 81 Ohio St. 218, at pages 224-225, 90 N.E. 389, where the court aptly stated:

"* * * That rule, well settled by numerous adjudications, is to the effect that the action of such bodies respecting legislative * * * matters is not always conclusive and beyond recall, but that they are possessed of inherent power to reconsider their action in matters of that nature, and adopt if need be the opposite course * * *, the power to thus act being a continuing power. * * * " (Emphasis added.) Accord, Thornton v. Duffy (1918), 99 Ohio St. 120.

In zoning matters, the great weight of authority holds that a legislative body should be allowed to reconsider the passage of prior legislation, to wit: proposed amendments to the comprehensive zoning plan, absent a restrictive statute or ordinance. See 1 Anderson, American Law of Zoning (2 Ed.), 241, Section 4.28. Thus, even though there is no specific statutory authority in reference to reconsideration, the county commissioners have the inherent authority to reconsider unless there is a specific statutory restriction to do so.

In 2 Rathkoft, The Law of Zoning and Planning (1977) (4th Ed.), Section 22-01(6), the treatise concludes the above-cited section by noting numerous cases for its initial statement that, "(i)n the majority of cases * * * (when) a new vote was taken, it was held the matter might be reconsidered and a new vote taken without the necessity of a new public hearing."

Based upon the foregoing, we hold that legislative activity, such as amendments to a comprehensive zoning plan, may be reconsidered only if, as in the instant cause, there is no change or modification from the original proposal.

In the second prong of its first proposition of law, appellants assert, in essence, that appellees' appeal to the Court of Common Pleas divested the commissioners of any further jurisdiction over this matter. In the cause sub judice, the Court of Common Pleas had no jurisdiction to entertain the appeal, which was filed pursuant to R.C. 2506.01.

It is well settled herein that the denial of an amendment to a comprehensive zoning plan is a...