Holiday Homes Inc. v. Butler County Bd. of Zoning Appeals

• Decision Date: 26 May 1987
• Docket Number: No. CA86-01-008,CA86-01-008
• Citation: 35 Ohio App.3d 161,520 N.E.2d 605
• Parties: HOLIDAY HOMES, INC., Appellant, v. BUTLER COUNTY BOARD OF ZONING APPEALS, et al., Appellees. *
• Court: Ohio Court of Appeals

Page 161

35 Ohio App.3d 161

520 N.E.2d 605

HOLIDAY HOMES, INC., Appellant, v. BUTLER COUNTY BOARD OF ZONING APPEALS, et al., Appellees. ^*

No. CA86-01-008.

Court of Appeals of Ohio, Twelfth District, Butler County.

May 26, 1987.

Syllabus by the Court

1. Zoning regulations are enacted through the exercise of the government's police power.

2. Under Section 1, Article II of the Ohio Constitution, and with the exception of the Home Rule Amendment, the police power of this state is entrusted to the Ohio General Assembly. In the area of zoning or land use control, the General Assembly has delegated a portion of its police power to the Ohio counties in R.C. 303.02.

3. A county planning commission does not possess the authority to prevent or overrule a decision by a county board of zoning appeals on the granting of a conditional use permit, for the county planning commission's role in zoning is limited to such things as planning, gathering pertinent information, and making recommendations based thereon. (R.C. 303.14[C], 713.22 and 713.23, applied.)

4. A decision by an administrative body which is not appealed is entitled to res judicata effect.

5. An administrative body's decision is clothed with a presumption of validity and regularity and is to be accorded full force and effect upon expiration of the applicable appeal time.

6. A county board of zoning appeals is without jurisdiction to rescind a resolution granting a conditional use permit when the period for an appeal of the zoning board's resolution to the court of common pleas, as set forth in R.C. 2505.07 and 2506.01, has expired.

Strauss, Troy & Ruehlmann Co., L.P.A., George H. Palmer and C. Francis Barrett, Katz, Teller, Brant & Hild Co., L.P.A., and Jerome S. Teller, Cincinnati, for appellant.

John F. Holcomb, Pros. Atty., and Victoria Daiker, Hamilton, for appellees.

Crabbe, Brown, Jones, Potts & Schmidt and William J. Brown, Columbus, urging reversal for amicus curiae Ohio Manufactured Housing Ass'n.

Anthony J. Celebrezze, Jr., Atty. Gen., and Stephanie A. Zembar, urging affirmance for amicus curiae Ohio Dept. of Health.

PER CURIAM.

This cause came on to be heard upon an appeal from the Court of Common Pleas of Butler County.

This is an appeal by plaintiff-appellant, Holiday Homes, Inc., from a decision of the Court of Common Pleas of Butler County granting summary judgment to defendants-appellees, the Butler County Board of Zoning Appeals and others on appellant's nine-count complaint ¹ against them.

The record discloses that after obtaining an option to purchase approximately seventy-seven acres of land, appellant, on April 3, 1984, filed an application for a conditional use permit in order to construct and operate a mobile home park near State Route 747's intersection with Port Union Road in Union Township. The land in question was zoned A-1 (agricultural) at the time. However, according to Section 7.034 of the Butler County Zoning Resolution, mobile home parks could be located in an agricultural zone if a conditional use permit was obtained. According to appellant's president, appellant filed an application in April 1984 in order to assure itself that the zoning board of appeals would not subsequently disapprove the mobile home park after $60,000 to $70,000 of engineering work and planning was undertaken.

On April 17, 1984, the zoning board held a public hearing on appellant's conditional use permit application and passed a resolution stating:

" * * * On the basis of the above findings and by virtue of the authority vested in the Board of Zoning Appeals by law, said Board herewith approve[s] this request contingent upon compliance with [the] rules of the Ohio Public Health Council adopted pursuant to the Ohio Revised Code and upon recommendation of the Butler County Planning Commission and other local government agencies regarding compliance with regulations."

Appellant then purchased the land, began planning and engineering for the park, and expended considerable time and effort to obtain fourteen or more approvals from various agencies. Appellant's mobile park project came on for discussion before the Butler County Planning Commission on June 11, 1985.

At the June 11, 1985 planning commission meeting, considerable discussion and questioning of appellant's representatives took place regarding drainage, sidewalks, housing density, location of recreation facilities, and a relocation of the intersection of Port Union Road and State Route 747. When a vote was finally taken on whether appellant's plan should be approved, it was defeated three to two. ² However, this did not end consideration of the plan.

On July 1, 1985, in apparent response to a letter from the Butler County Administrator, an assistant prosecuting attorney wrote an opinion letter stating the planning commission's defeat of the motion to approve appellant's plan on June 11, 1985 did not necessarily constitute a planning commission recommendation for or against the board of zoning appeals' approval as required by the Butler County Zoning Resolution. Consequently, on July 9, 1985, appellant's mobile home park plan went before the planning commission a second time. After unsworn public discussion for and against the park was heard (most of it focusing on claims that the best use of this parcel would be industrial), the commission voted five to three to recommend against approval. The planning commission notified the zoning board by letter of its negative recommendation.

On July 16, 1985, with the planning commission's negative recommendation in hand, the Butler County Board of Zoning Appeals again took up appellant's application for a conditional use permit. After hearing from appellant's attorney regarding what had transpired to date and notwithstanding the negative planning commission recommendation, the board voted four to zero (with one abstention) to grant appellant a conditional use permit.

The next day, in what can only be termed an unusual event, ³ and in apparent response to a phone call from Anthony Cecere, the Administrator of the Butler County Building and Zoning Department, the same assistant prosecuting attorney previously mentioned wrote a letter to Cecere stating that the July 16, 1985 decision of the board of zoning appeals to grant appellant a conditional use permit was "invalid," and Cecere should not issue a zoning certificate.

Presented with Cecere's objections and the assistant prosecuting attorney's opinion, the board of zoning appeals on August 20, 1985 voted to rescind the conditional use permit it had granted appellant on July 16, 1985.

Frustrated by this course of events, appellant filed the instant action on August 28, 1985. In its prayer, appellant asked the trial court, inter alia, to: (1) declare the board of zoning appeals' July 16, 1985 decision granting appellant a conditional use permit a valid final decision (since time for an appeal had expired and no appeal was taken); (2) hold that if the zoning board's August 20, 1985 vote to rescind its July 16 conditional use permit was valid, that it constituted reversible error because it was unconstitutional, illegal, arbitrary, unreasonable, and was unsupported by any reliable, probative and substantial evidence; (3) enjoin the Butler County Department of Building and Zoning and its administrator, Cecere, from taking civil or criminal action against appellant arising from an alleged lack of a conditional use permit for construction of a mobile home park; and (4) award appellant compensatory and punitive damages for violation of its civil rights.

Appellees responded to appellant's complaint by filing an answer, a counterclaim, and a motion to dismiss for failure to state a claim on which relief can be granted. (Civ.R. 12[B].)

After conducting a hearing on appellant's motion for a preliminary injunction and appellees' motion to dismiss, the trial court, on October 24, 1985, issued an opinion in which it treated both sides' motions as requests for summary judgment. After so construing the motions, the trial court denied appellant's motion for an injunction and granted appellees' motion for summary judgment. Stated succinctly, the trial court's opinion found that the board of zoning appeals' July 16, 1985 resolution granting appellant a conditional use permit was void and unlawful because an affirmative recommendation of the mobile home park plan by the Butler County Planning Commission was a prerequisite to the granting of a conditional use permit by the board of zoning appeals and because the zoning board's resolution failed to affirmatively find the relevant criteria in the zoning resolution were met by appellant's plans.

On January 3, 1986, the trial court entered judgment for appellees in accordance with its opinion. This appeal followed.

Before this court, appellant assigns a single error:

"The trial court erred to the prejudice of plaintiff-appellant in granting defendant[s]-appellees' motion for summary judgment and in overruling plaintiff-appellant's cross-motion for summary judgment."

We find this single assignment of error actually contains two separate claims and we will treat each separately. In Part I, we will address the trial court's granting of summary judgment to appellees. In Part II, we will examine the trial court's overruling of summary judgment for appellant.

I

We find the trial court erred in granting summary judgment to appellees and reverse its judgment to that effect for the reasons which follow.

A Ohio's Statutory Scheme for Zoning Unincorporated Areas

Zoning regulations are enacted through the exercise of the government's police power. Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Pritz v. Messer (1925), 112 Ohio St. 628, 149 N.E. 30; Garcia v. Siffrin (1980), 63 Ohio St.2d 259, 17 O.O.3d 167, 407 N.E.2d 1369. Under Section 1, Article II of the Ohio Constitution, and with the exception of the municipal Home Rule Ame...