State ex rel. Committee for the Referendum of Ordinance No. 3844-02 v. Norris
| Decision Date | 06 August 2003 |
| Docket Number | No. 2003-0085.,2003-0085. |
| Parties | THE STATE EX REL. COMMITTEE FOR THE REFERENDUM OF ORDINANCE NO. 3844-02 ET AL. v. NORRIS, CLERK, ET AL. |
| Court | Ohio Supreme Court |
Eric H. Zagrans, North Ridgeville Law Director, for respondents.
Berns, Ockner & Greenberger, L.L.C., Sheldon Berns and Benjamin J. Ockner, for intervening respondents.
{¶1} In 1999, respondent North Ridgeville City Council enacted Chapter 1279 of the North Ridgeville Codified Ordinances, which established a new zoning classification known as Planned Community Development ("PCD") District. The specified purposes of the PCD classification were "[t]o encourage skillful planning of parts of the community in accordance with the objectives of the Master Plan; to provide for the utilization of design criteria in the arrangements of buildings related to open spaces, * * * to utilize topography and other site features to their best advantage to obtain creative and coordinated designs" and "to enhance the City's growth in a unified manner."
{¶2} On October 2, 2000, the city council enacted Ordinance No. 3621-2000, which approved a preliminary development plan for a 640-acre PCD known as Waterbury. Ordinance No. 3621-2000 rezoned the Waterbury property from its previous R-1 zoning classification to PCD. North Ridgeville and its city council changed the zoning map to reflect the zoning change to PCD for the Waterbury property.
{¶3} On September 16, 2002, the city council enacted Ordinance Nos. 3844-2002 and 3845-2002, which adopted the final development plans and final plats for, respectively, the Andover and Chaddwyck portions of the Waterbury PCD. The city council stated in these ordinances that the city engineer had reviewed and approved the site plans and plats and found them to fully comply with his recommendations and applicable city ordinances.
{¶4} Relators, the Committee for the Referendum of Ordinance No. 3844-02, the Committee for the Referendum of Ordinance No. 3845-02, and the committee members, circulated petitions for referenda on these ordinances. They requested that the ordinances be submitted to North Ridgeville electors "for their approval or rejection at the general election to be held on the 4th day of November, 2003."
{¶5} On October 16, 2002, relators filed the signed petitions with respondent North Ridgeville Clerk of Council Chuck Norris. On October 29, Norris certified to city council that both referendum petitions contained a sufficient number of valid signatures.
{¶6} At the November 4, 2002 council meeting, North Ridgeville Law Director Eric H. Zagrans advised the council that relators' referendum petitions were invalid. Zagrans stated that the petitions contained the incorrect election date of November 4, 2003, instead of the May 2003 primary election and the ordinances were administrative actions that were not subject to referendum. In a November 6 legal memorandum, Zagrans reiterated these grounds and concluded that council had no duty to act on the petitions or submit the ordinances to the electorate for a vote. Relators responded with a contrary legal opinion and a demand that Zagrans institute a legal proceeding to compel the city council and Norris to submit the referendum petitions for the ordinances to the North Ridgeville electorate. On December 2, Zagrans rejected relators' demand.
{¶7} The city council neither repealed the ordinances nor submitted them to the electorate for approval.
{¶8} On January 15, 2003, after council failed to submit the ordinances to the electorate, relators filed this action for a writ of mandamus. Relators seek to compel respondents, North Ridgeville, the city council, and the clerk of council, to submit North Ridgeville Ordinance Nos. 3844-2002 and 3845-2002 to the Lorain County Board of Elections for placement on the ballot at the next regular election. Relators also moved to expedite consideration if the court agreed with respondents that the pertinent election was the May 6, 2003 primary election. Sugar Chestnut, L.L.C., Pulte Homes of Ohio, L.L.C., and Whitlatch & Co. moved to intervene as respondents. The latter two had purchased the property that is the subject of the ordinances and had begun constructing homes and installing streets in accordance with the approved development plans. Sugar Chestnut owns property in the Waterbury PCD.
{¶9} We denied relators' motion to expedite, granted the motion to intervene, and granted an alternative writ. State ex rel. Commt. for the Referendum of Ordinance 3844-02 v. Norris, 98 Ohio St.3d 1473, 2003-Ohio-904, 784 N.E.2d 707.
{¶10} This cause is now before the court for its consideration of relators' motion for oral argument and the merits.1
{¶11} Relators request a writ of mandamus to compel respondents to submit the referendum petitions to the board of elections for placement of ordinances on the ballot for the next regular election. In order to be entitled to the requested writ, relators must establish a clear legal right to have respondents submit the referendum petitions to the board of elections for placement on the ballot, a corresponding clear legal duty on the part of respondents to do so, and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Miles v. McSweeney, 96 Ohio St.3d 352, 2002-Ohio-4455, 775 N.E.2d 468, ¶ 13.
{¶12} Respondents claim that the referendum petitions are defective and that relators' mandamus action is barred by laches. The law director claimed that the referendum petitions were defective because (1) they lacked a proper election date, and (2) they sought referenda on administrative actions.
{¶13} Section 13.2, Article XIII of the North Ridgeville Charter requires the city council to either repeal an ordinance that is the subject of a timely filed referendum petition after a finding of sufficiency or submit it to electors at the next regular election:
{¶14} "If Council fails to repeal said ordinance or resolution * * * the Council shall submit it to a vote of the electors at the next regular election occurring more than seventy-five (75) days after the filing of such petition." (Emphasis added.)
{¶15} Under Section 14.1, Article XIV of the North Ridgeville Charter, a regular municipal election is held on the first Tuesday after the first Monday in November in odd-numbered years. This charter definition is identical to the statutory definition of "regular municipal election." R.C. 3501.01(B); see, also, Section 14.6, Article XIV, North Ridgeville Charter ("Except as otherwise provided in this Charter, all elections shall be held and conducted and the results thereof ascertained and certified as provided by the general laws of Ohio and by the election authorities therein provided for").
{¶16} Therefore, the next regular election occurring more than 75 days after the filing of the referendum petitions is the November 4, 2003 election. Because the petitions specified this election date, they were not defective on this basis. "Municipal charters must be construed to give effect to all separate provisions and to harmonize them with statutory provisions whenever possible." State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 477, 764 N.E.2d 971.
{¶17} The primary issue raised by this case is whether the city council's enactment of Ordinance Nos. 3844-2002 and 3845-2002 constituted legislative or administrative action.
{¶18} Section 1f, Article II of the Ohio Constitution provides initiative and referendum power only on those questions that municipalities "may now or hereafter be authorized by law to control by legislative action." (Emphasis added.) Conversely, "[p]ursuant 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." (Emphasis added.) Buckeye Community Hope Found. v. Cuyahoga Falls (1998), 82 Ohio St.3d 539, 697 N.E.2d 181, paragraph two of the syllabus.
{¶19} "The test for determining whether the action of a legislative body is legislative or administrative is whether the action taken is one enacting a law, ordinance or regulation, or executing or administering a law, ordinance or regulation already in existence." Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500, paragraph two of the syllabus.
{¶20} In applying this test to traditional zoning cases that do not involve a planned-unit development ("PUD"), we have held that the following are administrative acts, which are not subject to referendum. Id., paragraph three of the syllabus (failure or refusal of a municipal council to approve a plan for resubdivision of land that meets terms of a previously adopted zoning ordinance); Buckeye Community, 82 Ohio St.3d 539, 697 N.E.2d 181, paragraph three of the syllabus (passage by city council of an ordinance approving a site plan for development of land pursuant to existing zoning and other applicable regulations); C & D Partnership v. Gahanna (1984), 15 Ohio St.3d 359, 362, 15 OBR 480, 474 N.E.2d 303 ().
{¶21} "Traditional zoning techniques commonly resulted in neighborhoods of like structures on essentially identical lots, creating 'cookie cutter' subdivisions which did not...
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