State ex rel. Srovnal v. Linton, 75-904
Decision Date | 12 May 1976 |
Docket Number | No. 75-904,75-904 |
Citation | 75 O.O.2d 241,46 Ohio St.2d 207,346 N.E.2d 764 |
Parties | , 75 O.O.2d 241 The STATE ex rel. SROVNAL et al., Appellants, v. LINTON, Appellee. |
Court | Ohio Supreme Court |
Syllabus by the Court
Where the city council, under favor of the city's Planning and Zoning Code, by resolution confirms the action of the city planning and zoning commission granting a zoning use exception as to height regulations for a hotel and office building, which exception will not, in the judgment of the commission, substantially and permanently injure the appropriate use of neighboring property, and the applicant for such use exception files notarized consents of the owners of 89.47 percent of the area of the land deemed by the commission to be immediately affected by the proposed zoning use exception, such resolution is not legislative but is an administrative act and is not subject to the referendum provisions of R.C. 731.29.
On January 27, 1975, the Planning and Zoning Commission of the city of Solon heard a proposal by the Stouffer Corporation and Davis Construction Company for the building of a hotel-office building complex in the city of Solon. The proposed site for the complex consists of 11.89 acres of land in a 'Use District, Class U-8, or Motor Service District' under Section 1123.01 of the Planning and Zoning Code of the city Solon.
Section 1132.03 of the Planning and Zoning Code permits as main uses in Motor Service Districts: Automotive facilities; lodging facilities; and eating and drinking establishments. The Motor Service District does not authorize office buildings as such. Additionally, there is a 35-foot height limitation on buildings in the Motor Service Area (Section 1132.09). The proposed office building was to be 50 feet high and the hotel 89 feet.
On February 10, 1975, the planning and zoning commission decided to permit a 'use exception' for the Stouffer project, pursuant to Section 1127.02, which reads, in part, as follows:
'The city planning and zoning commission may in the event of property being alloted (sic) which was undeveloped at the time of the passage of this ordinance * * * and in other specific cases, after public notice and hearing and subject to such conditions and safeguards as the commission may establish, determine and interpret the application of the use district regulations herein established, which permission shall be confirmed by resolution of council before effective, as follows:
'* * *
'Permit the location in any use district of any use provided such use in such location will not, in the judgment of the commission substantially and permanently injure the appropriate use of neighboring property, provided the petitioning applicant for such permit files the consents, duly acknowledged, of the owners of eighty per cent of the area of the land deemed by the commission to be immediately affected by the proposed use.'
The planning and zoning commission set a public hearing and ordered the developer to obtain a petition of consent signed by at least 80 percent of the owners of land within a radius of 500 feet of the proposed site excluding all streets, highways and railroads.
The commision held a public hearing on April 14, 1975, and the developer presented the notarized consenting signatures of 89.47 percent of the property owners affected by the proposed development. As a result of these hearings and considerable discussion, the commission adopted Resolution No. 1975-1 granting a use exception to the Stouffer Corporation and the Davis Construction Company.
On June 16, 1975, the council of the city of Solon adopted Resolution No. 1975-78 confirming the action of the city planning commission in the granting of a use exception to Stouffer and Davis. The resolution reads as follows:
'A RESOLUTION
'Conforming the action of the city planning commission in the granting of a use exception to the Stouffer Corporation and the Davis Construction Company to construct a hotel, office building and all necessary appurtenances thereto on approximately 11.89 acres of land at the southeast corner of Bainbridge Road and Old Harper Road.
'WHEREAS, the city planning commission adopted its Resolution No. 1975-1 on May 12, 1975, granting a use exception to the Stouffer Corporation and the Davis Construction Company to construct a hotel and office building and all necessary appurtenances thereto on approximately 11.89 acres of land at the southeast corner of Bainbridge Road and Old Harper Road * * *.
'WHEREAS, this council approves the action of the city planning commission in granting of the aforesaid use exception, subject to the conditions stated therein, and the additional condition hereinafter stated.
'NOW, THEREFORE, BE IT RESOLVED By the Council of the city of Solon, state of Ohio:
Following the adoption of Resolution No. 1975-78, the appellants filed a referendum petition with the appellee, Thelma Linton, Director of Finance of the city of Solon Ohio. The appellee refused to certify the petition to the board of elections, maintaining that Resolution No. 1975-78 was not an ordinance or any legislation whatever but an administrative act made pursuant to existing law and, therefore, not subject to the referendum provisions of R.C. 731.29. The appellants then filed an original complaint for a writ of mandamus in the Court of Appeals for Cuyahoga County, seeking to require the appellee to certify the petition to the board of elections.
The Court of Appeals granted the appellee's motion to dismiss the complaint and denied the writ of mandamus on the basis that the granting of the zoning use exception by the planning and zoning commission and its approval by the Solon city council was an administrative action subject to an administrative appeal but not subject to referendum.
The cause is now before this court pursuant to an appeal as a matter of right from the judgment of the Court of Appeals.
Cain & Lobo and Arthur L. Cain, Cleveland, for appellants.
Joseph W. Bartunek, Bartunek, Bennett & Garofoli and Isaac Schulz, Cleveland, for appellee.
It should be borne in mind that in this case we are concerned with a zoning use exception and not with a zoning use classification change. The former is purely administrative in character in connection with executing provisions of a municipal zoning code. The latter id legislative in character.
The appellants argue, in their brief, that Resolution No. 1975-78 makes substantive changes in the zoning code which are not provided for in the administrative procedure of the code and is, therefore, legislative in nature, constituting an amendment of the zoning code and subject to the referendum provisions of R.C. 731.29. Appellants maintain further that, where there is doubt on the question of whether or not the action of a legislative body is legislative or administrative, uncertainty should be...
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