B.J. Alan Co. v. Congress Township Board of Zoning Appeals ( 2009 )

[Cite as B.J. Alan Co. v. Congress Twp. Bd. of Zoning Appeals, 124 Ohio St. 3d 1, 2009-Ohio-
5863.]
B.J. ALAN COMPANY, D.B.A. PHANTOM FIREWORKS, ET AL., APPELLEES, v.
CONGRESS TOWNSHIP BOARD OF ZONING APPEALS ET AL., APPELLANTS.
[Cite as B.J. Alan Co. v. Congress Twp. Bd. of Zoning Appeals,
124 Ohio St. 3d 1, 2009-Ohio-5863.]
Township zoning — R.C. 519.02 — Township’s adoption of county’s
comprehensive plan upheld — Comprehensiveness of plan determined.
(No. 2008-0306 — Submitted December 17, 2008 — Decided
November 12, 2009.)
APPEAL from the Court of Appeals for Wayne County, No. 07CA0051,
2007-Ohio-7023.
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PFEIFER, J.
{¶ 1} We address today the “comprehensive plan” requirement of R.C.
519.02. R.C. 519.02 allows township trustees to create, by resolution, zoning
regulations to cover the unincorporated portions of townships. The statute
requires such zoning resolutions to be “in accordance with a comprehensive
plan.” This case presents the question of whether the comprehensive plan
required by the statute must be a plan developed by the township itself or whether
the township may rely on a comprehensive plan created at the county level. We
hold that a countywide comprehensive plan can fulfill the “comprehensive plan”
requirement of R.C. 519.02.
Factual and Procedural Background
{¶ 2} This case arises out of the attempt of appellees, B.J. Alan
Company, Phantom of West Salem, Inc., and Zoldan Family Ohio Limited
Partnership (collectively referred to as “Phantom”), to construct and operate a
state-licensed fireworks store at the intersection of Interstate 71 and State Route
539 in Congress Township in Wayne County. At the administrative level,
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Congress Township zoning regulations thwarted Phantom in its attempt to build
the store.
Congress Township Zoning Resolution
{¶ 3} Congress Township has an area of approximately 43 square miles
and a population of about 4,400. http://www.city-data.com/township/Congress-
Wayne-OH.html. Three incorporated villages lie within the township: West
Salem, Congress, and Burbank; collectively they account for less than two square
miles of land area and less than half of the total township population. (Area and
population data for the three towns is found at http://www.city-
data.com/city/Burbank-Ohio.html, http://www.city-data.com/city/West-Salem-
Ohio.html, and http://ohio.hometownlocator.com/oh/wayne/congress.cfm.) The
bulk of the residents of Congress Township reside in the 41 square miles of
unincorporated areas of the township.
{¶ 4} In 1992, Congress Township established the Congress Township
Rural Zoning Commission to create a zoning resolution that would cover the
unincorporated areas of the township. The commission’s chairman at the time,
William Cletzer, testified that the commission had relied upon the Wayne County
Comprehensive Plan in drafting the zoning resolution: “We actually, we used the
Wayne County comprehensive plan as our comprehensive plan, to follow suit in
their planning of an agricultural county for agricultural use.” Township electors
approved the zoning resolution in 1994.
{¶ 5} The zoning resolution contains two zoning districts: A-Agricultural
and B-Business/Industry. The zoning district map, incorporated into the zoning
resolution, designates all land in the unincorporated areas of the township as A-
Agricultural; no land is mapped B-Business/Industry. This meant that although
the zoning resolution allowed B-Business/Industry development, no landowner
could simply obtain a zoning certificate for such development from the zoning
inspector. Instead, a landowner seeking to undertake business or industrial
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development would have to either apply to the zoning commission for a change of
district boundaries on the zoning map or seek from the board of zoning appeals a
variation from the zoning resolution.
Fireworks
{¶ 6} When Phantom purchased the property in question, it knew that the
land was zoned A-Agricultural. Still, Phantom applied for a zoning certificate for
its fireworks store. The zoning inspector denied that application, and Phantom
subsequently filed an appeal and request for a use variance with the Congress
Township Board of Zoning Appeals (“BZA”).
{¶ 7} The BZA held an evidentiary hearing on November 20, 2006. At
the hearing, Phantom urged the board either to overrule the zoning inspector’s
decision to deny a zoning certificate or to grant Phantom a use variance. Phantom
also argued that Congress Township’s zoning resolution violated R.C. 519.02
because it was not in accordance with a comprehensive plan, both because
Congress Township did not have its own comprehensive plan and because the
resolution contained only one zoning district and was therefore “by definition * *
* not zoning in accordance with the comprehensive plan.” Following the hearing,
the BZA affirmed the zoning inspector’s decision denying the zoning certificate
and denied Phantom’s request for a variance.
{¶ 8} Pursuant to R.C. Chapter 2506, Phantom appealed that decision to
the Wayne County Court of Common Pleas. On June 15, 2007, the trial court
affirmed the decision of the BZA. Phantom appealed that decision, and the court
of appeals reversed the trial court. B.J. Alan Co. v. Congress Twp. Bd. of Zoning
Appeals, 9th Dist. No. 07CA0051, 2007-Ohio-7023. The appellate court held that
the trial court erred in affirming the BZA’s opinion “because the township’s
zoning resolution is an invalid exercise of the township’s authority under R.C.
519.02.” Id. at ¶ 11. The court based its decision on its finding that Congress
Township lacked a comprehensive plan: “In the absence of a comprehensive plan,
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a township zoning resolution is an invalid exercise of the township’s authority
under R.C. 519.02.” Id. at ¶ 12. The court pointed to Cletzer’s BZA hearing
testimony that the township did not have its own comprehensive plan but that the
commission “looked to the Wayne County comprehensive plan and ‘molded or
formed’ the township resolution ‘based on that plan.’ ” Id. at ¶ 14. The court
found that the county plan that Congress Township had relied upon did not set
forth goals or recommendations specific to Congress Township: “The Wayne
County comprehensive plan reports submitted as part of the record are from 1977
and note that Congress Township is one of nine townships in the county which
were merely requesting rural zoning at that time. The county comprehensive plan
does not set forth goals or recommendations specific to Congress Township.” Id.
The court concluded: “Because the zoning resolution does not regulate the use of
unincorporated township land in accordance with a comprehensive plan, the
resolution is invalid. * * * The trial court ignored the requirement of R.C. 519.02
that the township resolution be adopted ‘in accordance with a comprehensive
plan.’ The failure of the township to have a comprehensive plan renders the
zoning resolution invalid.” Id. at ¶ 16.
{¶ 9} The cause is before this court upon the acceptance of a
discretionary appeal.
Law and Analysis
{¶ 10} First, we consider whether a township must develop its own
comprehensive plan in order to conform to the dictates of R.C. 519.02, or whether
the township may rely on the comprehensive plan developed by its county.
Second, we determine whether the Wayne County Comprehensive Plan
constitutes a comprehensive plan for purposes of R.C. 519.02.
The Comprehensive-Plan Requirement of R.C. 519.02
{¶ 11} R.C. 519.02 allows for zoning in unincorporated areas of
townships. It provides:
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{¶ 12} “(A) * * * Except as otherwise provided in this section, in the
interest of the public convenience, comfort, prosperity, or general welfare, the
board [of township trustees] by resolution, in accordance with a comprehensive
plan, may regulate the location of, set back lines for, and the uses of buildings and
other structures, * * * and the uses of land for trade, industry, residence,
recreation, or other purposes in the unincorporated territory of the township, and
may establish reasonable landscaping standards and architectural standards
excluding exterior building materials in the unincorporated territory of the
township.”
{¶ 13} R.C. 519.02 requires a township’s zoning resolution regarding
unincorporated areas of the township to be “in accordance with a comprehensive
plan.” The parties agree that Congress Township did not have its own
comprehensive plan in place at the time it created its zoning resolution. But this
is not a significant fact under R.C. 519.02, despite the appellate court’s contrary
determination. R.C. 519.02 does not require that a township create its own
comprehensive plan – it requires only that a zoning resolution be “in accordance
with a comprehensive plan.” (Emphasis added.) To require each township to
create its own comprehensive plan is to read additional language into R.C. 519.02.
We cannot do that: “In matters of construction, it is the duty of this court to give
effect to the words used, not to delete words used or to insert words not used.”
Cleveland Elec. Illum. Co. v. Cleveland (1988), 37 Ohio St. 3d 50, 524 N.E.2d
441, paragraph three of the syllabus.
{¶ 14} Congress Township asserts that it did follow a comprehensive
plan: that created by Wayne County. But the appellate court found that the
countywide plan did not set forth goals or recommendations specific to Congress
Township, and held that it thus could not function as a comprehensive plan that
would meet the requirements of R.C. 519.02. We find that the court erred in
making that determination.
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{¶ 15} Countywide planning is encouraged by law in Ohio. Counties are
equipped for developing broad, big-picture plans encompassing all the
communities within their jurisdictions. R.C. 713.22 allows for the creation of
county planning commissions; R.C. 713.23 sets forth their powers and duties:
{¶ 16} “(B) The duties of the planning commission include, but are not
limited to:
{¶ 17} “(1) Preparing the plans, including studies, maps,
recommendations, and reports on:
{¶ 18} “(a) Regional goals, objectives, opportunities, and needs, and
standards, priorities, and policies to realize such goals and objectives;
{¶ 19} “ * * *
{¶ 20} “(c) The general pattern and intensity of land use and open space;
{¶ 21} “(d) The general land, water, and air transportation systems, and
utility and communication systems;
{¶ 22} “(e) General locations and extent of public and private works,
facilities, and services;
{¶ 23} “(f) General locations and extent of areas for conservation and
development of natural resources and the control of the environment;
{¶ 24} “ * * *
{¶ 25} “(2) Promoting understanding of and recommending administrative
and regulatory measures to implement the plans of the region;
{¶ 26} “ * * *
{¶ 27} “(4) Contracting with and providing planning assistance to other
units of local government, councils of governments, planning commissions, and
joint planning councils; coordinating the planning with neighboring planning
areas; cooperating with the state and federal governments in coordinating
planning activities and programs in the region;
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{¶ 28} “(5) Reviewing, evaluating, and making comments and
recommendations on proposed and amended comprehensive land use, open space,
transportation, and public facilities plans, projects, and implementing measures of
local units of government; and making recommendations to achieve compatibility
in the region;
{¶ 29} “(6) Reviewing, evaluating, and making comments and
recommendations on the planning, programming, location, financing, and
scheduling of public facility projects within the region and affecting the
development of the area;
{¶ 30} “(7) Undertaking other studies, planning, programming,
conducting experimental or demonstration projects found necessary in the
development of plans for the region or county, and coordinating work and
exercising all other powers necessary and proper for discharging its duties.”
{¶ 31} County planning commissions are charged with creating a
framework for development within a county. A county or regional
comprehensive plan can address zoning goals like conservation and controlling
sprawl that townships within the region share but cannot achieve alone. The
countywide view accounts for the interrelationship of communities and marshals
resources and expertise. We thus conclude that a county comprehensive plan that
sets forth county land-use goals and recommendations can constitute a
“comprehensive plan” for purposes of R.C. 519.02.
Wayne County Comprehensive Plan
{¶ 32} The next question is whether the Wayne County plan is a
comprehensive plan and whether its breadth includes Congress Township.
{¶ 33} The Wayne County Regional Planning Commission created the
Wayne County Comprehensive Plan in 1977. At the time of the development of
the plan, the county estimated its population at 102,051; its 2008 estimated
population is 113,812. http://quickfacts.census.gov/qfd/states/39/39169.html.
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Less than 2 percent of the 555 square miles in Wayne County consists of urban
areas. Ohio Historical Society, http://www.ohiohistorycentral.org/entry.php?rec=
2032.
{¶ 34} The over-200-page plan makes numerous recommendations for all
of Wayne County, including Congress Township. In developing the plan, the
commission prepared separate reports titled “Community Facilities and Land
Use,” “Land Use Plan,” “Regional Housing,” and “Land Use and Housing
Implementation.” The plan highlights the importance of regional planning:
{¶ 35} “The purpose of a regional comprehensive development plan is to
provide a blueprint for the region’s urban and rural development. It must be
comprehensive in three ways: (1) Areawide – it must cover the entire region, (2)
time wise – it must cover the short and long term future, and (3) subject wise – it
must cover urban , rural, agricultural and natural resource aspects.
{¶ 36} “ * * *
{¶ 37} “ * * * This plan is general in nature and yet it recommends
specific direction and magnitude to urban growth and retention of rural lands. * *
* This will provide an equitable basis for staff recommendations and Commission
decisions on public and private investment policies. It also provides a basis for
zoning and subdivision decisions which are not possible without an adopted plan.
{¶ 38} “This adopted plan is a guide for the next several decades of
development in Wayne County.”
{¶ 39} The overriding goal of the plan is to retain the rural character of
the county. The plan’s proposed regional land-use and development goals include
the retention of “the better agricultural areas, as exclusively as possible, for food
and fiber production,” the direction of additional urban growth “in and around
existing centers to provide economies of scale to benefit present and future
residents,” including “economies in land use, utilities, investments and services,”
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and the improvement of the quality of the environment “through reasonable water,
air and solid waste solutions.”
{¶ 40} The plan states that in conjunction with the comprehensive plan,
the regional planning commission has drafted a model zoning text for the
townships in Wayne County to use, which included recommended districts, lot
dimensions, and administration procedures. The plan also sets forth a zoning-
adoption procedure for townships.
{¶ 41} The plan includes numerous references to Congress Township. It
introduces Wayne County Planning Areas, “discrete units which will be used
throughout this study for the purpose of detailed population and housing analyses
of the Wayne County region.” The plan notes that “[t]he Areas were aggregated
based upon economic, social, and physical similarities among the political units
within each; they have been used for discussion of local planning and zoning
issues.” Id. Congress Township is in the Northwest Planning Area, an area
described as one of the “key sectors” the plan recommends for distribution of
federal low- and moderate-income housing-assistance funds. Congress Township
is included in the comprehensive-development-plan maps and regional strategy
map for housing. The plan also discusses the effect of Interstate 71 on Congress
Township.
{¶ 42} We conclude that the Wayne County Comprehensive Plan presents
a thorough study of the region and sets forth comprehensive land-use goals for the
county. Further, it demonstrates an intent to include Congress Township within
its purview. Therefore, we conclude that the Wayne County Comprehensive Plan
constitutes a comprehensive plan for purposes of R.C. 519.02.
Conclusion
{¶ 43} Our decision today is limited. We have determined that a
countywide comprehensive plan can meet the comprehensive-plan requirement of
R.C. 519.02 and that pursuant to that statute the Wayne County Comprehensive
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Plan qualifies as a comprehensive plan encompassing Congress Township.
Among the issues we have not determined today is whether the Congress
Township zoning ordinance is indeed “in accordance” with the Wayne County
Comprehensive Plan. Accordingly, we reverse the judgment of the court of
appeals and remand the matter to that court for further consideration consistent
with this opinion.
Judgment reversed
and cause remanded.
MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
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Roetzel & Andress, L.P.A., Stephen W. Funk, and Paul W. Lombardi, for
appellees.
Manley Burke, L.P.A., Timothy M. Burke, Emily T. Supinger, and Daniel
J. McCarthy; and Martin Frantz, Wayne County Prosecuting Attorney, and
Katherine Gallagher and Latecia Wiles, Assistant Prosecuting Attorneys, for
appellants.
Loveland & Brosius, L.L.C., Donald F. Brosius, and Peter N. Griggs,
urging reversal for amici curiae Ohio Township Association, Ohio Farm Bureau
Federation, Inc., and Wayne County Farm Bureau.
Nick A. Selvaggio, Champaign County Prosecuting Attorney, and Scott D.
Schockling, Assistant Prosecuting Attorney, urging reversal for amicus curiae
Ohio Prosecuting Attorneys’ Association.
Berns, Ockner & Greenberger, L.L.C., Sheldon Berns, and Gary F.
Werner, urging affirmance for amicus curiae Ohio Home Builders Association.
Law Office of Gary E. Powell and Gary E. Powell, urging affirmance for
amici curiae American Planning Association and Ohio Planning Conference.
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