Rispo Realty & Development Co. v. City of Parma

• Decision Date: 05 December 1990
• Docket Number: No. 89-1514,89-1514
• Citation: 564 N.E.2d 425,55 Ohio St.3d 101
• Court: Ohio Supreme Court
• Parties: RISPO REALTY & DEVELOPMENT COMPANY et al., Appellants and Cross-Appellees, v. CITY OF PARMA, Appellee and Cross-Appellant.

Page 101

55 Ohio St.3d 101

564 N.E.2d 425

RISPO REALTY & DEVELOPMENT COMPANY et al., Appellants and Cross-Appellees, v. CITY OF PARMA, Appellee and Cross-Appellant.

No. 89-1514.

Supreme Court of Ohio.

Submitted Oct. 2, 1990.

Decided Dec. 5, 1990.

Syllabus by the Court

A noncharter municipality may not pass a zoning ordinance that contains automatic referendum and ward veto provisions, since those provisions are in direct conflict with R.C. 713.12 and 731.29.

As a noncharter municipality, the city of Parma, appellee and cross-appellant, duly passed Section 1229.01(b) of its codified ordinances, "CHANGES IN ZONING, LAND SALES AND USES; APPROVAL OF ELECTORS REQUIRED" ("C.O. 1229.01[b]"). C.O. 1229.01(b) was enacted by initiative on November 5, 1974 and amended thereafter by Ordinance 293-78, passed January 15, 1979, and Ordinance 162-84, passed December 17, 1984.

At all times relevant to this action, C.O. 1229.01(b) provided, in pertinent part:

"Any change to the existing land uses cannot be approved unless and until it shall have been submitted to the Planning Commission for approval or disapproval. In the event that the City Council should approve any change to the existing land uses, whether approved or disapproved by the Planning Commission, it shall not be approved or passed by Council by the declaration of an emergency, and it shall not be effective; rather, it shall be mandatory that the same be approved by a majority vote of the electors of the City, and of each ward in which the property so changed is located. Such rezoning shall be voted on at the next regular Municipal election, if one shall occur not less than sixty nor more than 120 days after its passage; otherwise the vote will be at a special election falling in the generally established day of the primary election. * * *"

Rispo Realty & Development Company, Albert A. Rispo, and Cabrini Development Company ("Rispo"), appellants and cross-appellees, filed a complaint in the trial court seeking a declaratory judgment and other equitable relief regarding single- residential zoning classification applicable to certain parcels of real property Rispo owned in Parma. Rispo contended that C.O. 1229.01(b) impermissibly conflicted with the provisions for referendum found in R.C. 731.28 and 731.29. Rispo also urged the court to determine that C.O. 1229.01(b) was unconstitutional since it automatically required a referendum on every proposed zoning change and permitted residents of a single ward to veto a zoning ordinance previously approved by both the city council and the general electorate.

Subsequently, Rispo filed a motion for summary judgment, seeking judgment on the two propositions enumerated above. The court declared that portion of C.O. 1229.01(b) relating to the ward veto to be in conflict with R.C. 731.29 and Section 1f, Article II of the Ohio Constitution, but allowed the remainder of C.O. 1229.01(b) to stand. The court of appeals affirmed.

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

Weston, Hurd, Fallon, Paisley & Howley, Ronald A. Rispo and Robert G. Shumay, Cleveland, for appellants and cross-appellees.

Christopher A. Boyko, Law Director, Parma, and Robin B. DeBell, for appellee and cross-appellant.

Walter, Haverfield, Buescher & Chockley, Charles T. Riehl, Jonathan D. Greenberg and Richard T. Hamilton, Jr., Cleveland, urging affirmance for amicus curiae, City of Solon.

MOYER, Chief Justice.

Parma asserts that, as a noncharter municipality and under powers it claims to possess pursuant to the "home rule" provision of Section 3, Article XVIII of the Ohio Constitution, it has the authority to enact zoning ordinances that are irreconcilable with the statutory scheme adopted by the state. For the reasons that follow, we hold that a noncharter municipality may not adopt a zoning ordinance that contains automatic referendum and ward veto provisions since those provisions are in direct conflict with R.C. 713.12 and 731.29.

The applicable constitutional provisions that delineate powers given to municipalities by the state are found in Sections 3 and 7, Article XVIII of the Ohio Constitution.

Pursuant to Section 7, a municipality is free to adopt its own form of government: "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."

Therefore, any municipality may, through the adoption of a charter, enact legislation specifically designed to address the needs and desires of its residents. 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 those local laws will not conflict with the constitution and general laws. A municipality that chooses not to adopt a charter "prescribing its form of government and defining its powers on purely local matters, is subject to general laws enacted by the state Legislature." Harvey v. Brumback (1960), 113 Ohio App. 45, 48, 17 O.O.2d 45, 47, 177 N.E.2d 70, 72.

Section 3, Article XVIII provides: "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 adopting local laws, municipalities must be aware that "police sanitary and other similar regulations" cannot conflict with general statutory provisions enacted by the General Assembly. For, as this court held in paragraph four of the syllabus in State ex rel. Canada v. Phillips (1958), 168 Ohio St. 191, 5 O.O.2d 481, 151 N.E.2d 722: "The words 'as are not in conflict with general laws' found in Section 3 of Article XVIII of the Constitution, modify the words 'local police, sanitary and other similar regulations' but do not modify the words 'powers of local self-government.' "

In further interpreting Section 3, this court determined:

"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. Municipalities may enact police and similar regulations under their powers of local self-government, but such regulations 'must yield to general laws of statewide scope and application, and statutory enactments representing the general exercise of police power by the state prevail over police and similar regulations in the exercise by a municipality of the powers of local self-government.' * * *" (Citations omitted.) Canton v. Whitman (1975), 44 Ohio St.2d 62, 65, 73 O.O.2d 285, 287, 337 N.E.2d 766, 769.

Ohio law has long recognized that the enactment of zoning laws by a municipality is an exercise of its police power as described under Section 3, Article XVIII of the Ohio Constitution. Garcia v. Siffrin Residential Assn. (1980), 63 Ohio St.2d 259, 17 O.O.3d 167, 407 N.E.2d 1369, paragraph two of the syllabus. As a police power regulation, C.O. 1229.01(b) may not conflict with the "general laws" of Ohio.

General laws are those that operate uniformly throughout the state; they establish procedures that provide for the orderly government of municipalities. " * * * The words 'general laws' as set forth in Section 3 of Article XVIII of the Ohio Constitution mean statutes setting forth police, sanitary or other similar regulations and not statutes which purport only to grant or to limit the legislative powers of a municipal corporation to adopt or enforce police, sanitary or other similar regulations." West Jefferson v. Robinson (1965), 1 Ohio St.2d 113, 118, 30 O.O.2d 474, 477, 205 N.E.2d 382, 386.

R.C. 713.12 discusses the notice and public-hearing requirements a municipality must follow prior to passing a zoning ordinance. It then provides:

"No such ordinance, measure, or regulation which violates, differs from, or departs from the plan or report submitted by the commission, board, or officer shall take effect unless passed or approved by not less than three-fourths of the membership of the legislative authority. No ordinance, measure, or regulation which is in accordance with the recommendations, plan, or report submitted by the commission, board, or officer shall be deemed to pass or take effect without the concurrence of at least a majority of the members elected to the legislative authority."

R.C. 731.29 subjects zoning ordinances to referendum in the following manner. Ten percent of specified electors of the municipality must file a petition with...