Buckeye Community Hope Foundation v. City of Cuyahoga Falls , 82 Ohio St. 3d 539 ( 1998 )

Moyer, C.J.

This court has invoked the reconsideration procedures set forth in S.Ct.Prac.R. XI to “correct decisions which, upon reflection, are deemed to have been made in error.” State ex rel. Huebner v. W. Jefferson Village Council (1995), 75 Ohio St.3d 381, 383, 662 N.E.2d 339, 341. For the reasons that follow, we grant the appellants’ motion for reconsideration and reverse the judgment of the court of appeals.

I

Section 3, Article XVIII of the Ohio Constitution grants powers of local self-government to municipalities by providing, “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 exercising those powers, municipalities may choose to govern themselves by charter in accordance with Section 7, Article XVIII of the Ohio Constitution: “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.”

It is well settled that although the Ohio Constitution grants broad powers of local self-government to municipalities, the scope of those powers is not without limits. In Canton v. Whitman (1975), 44 Ohio St.2d 62, 73 O.O.2d 285, 337 N.E.2d 766, this court interpreted Section 3, Article XVIII as follows: “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.” (Emphasis added.) Id. at 65, 73 O.O.2d at 287, 337 N.E.2d at 769. See, also, State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio St.3d 17, 20, 577 N.E.2d 645, 647.

In Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864, paragraph one of the syllabus, we articulated the limits of charter government by stating that “a charter city has all powers of local self-government except to the extent that those powers are taken from it or limited by other provisions of the Constitution or by statutory limitations on the powers of the municipality which the Constitution has authorized the General Assembly to impose.” (Emphasis added.) More recently, we stated that “[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 these local laws will not conflict with the Constitution and general laws.” (Emphasis added.) Rispo Realty & Dev. Co. v. Parma (1990), 55 Ohio St.3d 101, 102, 564 N.E.2d 425, 426-427.

The City Charter of Cuyahoga Falls provides that voters may exercise powers • of referendum on any ordinance or resolution passed by the city council. The appellants contend that this provision conflicts with Section If, Article II of the Constitution, which provides, “The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers may be exercised in the manner now or hereafter provided by law.”

Words used in the Constitution are construed according to their usual or customary meaning. See State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 998; R.C. 1.42. Section If, Article II reserves referendum powers to the people of “each municipality.” Those words are unambiguous. There is no distinction between charter municipalities and municipalities that have no charter. Additionally, Section If, Article II is the sole constitutional source of initiative and referendum powers, reserved by the people of the state to the people of each municipality.

Section If, Article II provides initiative and referendum powers only on those questions that municipalities “may now or hereafter be authorized by law to control by legislative action.” We have interpreted this phrase to exclude, from referendum proceedings, administrative actions taken by a city council.¹ In Myers v. Schiering (1971), 27 Ohio St.2d 11, 56 O.O.2d 6, 271 N.E.2d 864, we held that “[u]nder Section If of Article II of the Ohio Constitution, municipal referendum powers are limited to questions which municipalities are ‘authorized by law to control by legislative action.’ ” Myers at paragraph one of the syllabus. There, we determined that the passage of a resolution “granting a permit for the operation of a sanitary landfill, pursuant to an existing zoning regulation, constitutes administrative action and is not subject to referendum proceedings.” Id. at paragraph two of the syllabus. See, also, State ex rel. Srovnal v. Linton (1976), 46 Ohio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764.

The prior majority opinion in this case determined that both Myers and Srovnal were inapposite because neither case presented an issue regarding referendum powers granted by charter. That conclusion was not correct.

The prior majority opinion reasoned that because Section If, Article II is not a self-executing provision, charter municipalities enacting ancillary legislation to carry out the principles enunciated in Section If, Article II were not restricted to following the statutory initiative and referendum procedures enacted by the General Assembly for non-charter municipalities. Buckeye Hope, 81 Ohio St.3d at 565-566, 692 N.E.2d at 1001-1002. The prior majority opinion then concluded that by virtue of Section 7, Article XVIII, charter municipalities were not limited by Section If, Article II to providing referendum powers only for actions legislative in nature. Id. at 566, 692 N.E.2d at 1002.

It is true that charter municipalities, in providing for referendum and initiative powers, are not restricted to the statutory mechanisms for initiative and referendum proceedings that govern non-charter municipalities. Charter provisions may be more restrictive, or less restrictive than those statutory procedures pursuant to the power of local self-government granted by the people under Sections 3 and 7 of Article XVIII, as the prior majority opinion noted. Id. at 565-566, 692 N.E.2d at 1001-1002. However, both the statutory procedures enacted by the General Assembly to carry into effect Section If, Article II, and provisions enacted by charter municipalities to do the same, must be consistent with the specific powers granted by Section If, Article II, since it is the sole constitutional source for referendum and initiative powers. Otherwise, the meaning of any constitutional provision that is not self-executing, and therefore requires ancillary legislation, could be altered by the words of the legislation carrying the provision into effect.

Accordingly, there is no persuasive reason to deviate from our well-established case law as stated in Myers and Srovnal. Section If, Article II clearly limits referendum and initiative powers to questions that are legislative in nature. Charter municipalities are subject to this limitation, as the powers of local self-government granted pursuant to Sections 3 and 7 of Article XVIII are subject to the limitations of other provisions of the Constitution. See Bazell, at paragraph one of the syllabus, and Whitman, 44 Ohio St.2d at 65, 73 O.O.2d at 287, 337 N.E.2d at 769.

The section of the Charter of Cuyahoga Falls providing that voters may exercise powers of referendum on any ordinance or resolution passed by the city council is constitutionally invalid. Voters of Cuyahoga Falls may exercise powers of referendum on any ordinance or resolution that constitutes legislative action. Section If, Article II does not authorize the residents of Cuyahoga Falls to initiate referendum proceedings on an action taken by the city council that is not legislative in nature. Section If, Article II permits initiative and referendum powers only on those matters that constitute legislative action.

Therefore, we hold that the citizens of a municipality may not exercise powers of referendum, by charter or other means, greater than those powers granted by Section If, Article II of the Ohio Constitution.

II

The remaining question for our determination is whether the approval of the site plan by the city council constituted administrative or legislative action.

The city argued that the approval of the site plan was a legislative action because the action was taken by adopting an ordinance. In support of its position, the city cited 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, which states that “[t]he 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.”

The question presented to this court in Donnelly was whether the action of a city council in failing to approve the recommendation of the city’s planning commission for a resubdivision of a parcel of real estate constituted legislative or administrative action. Id. at 3, 42 O.O.2d at 2, 233 N.E.2d at 501. This court determined that the action was administrative. Id. at 4, 42 O.O.2d at 3, 233 N.E.2d at 502. In arriving at that conclusion, the court stated, “ ‘The crucial test for determining that which is legislative from that which is administrative or executive is whether the action taken was one already making a law, or executing or administering a law already in existence.’ * * * If, then, the action of a legislative body creates a law, that action is legislative, but if the action of that body consists of executing an existing law, the action is administrative.” (Emphasis added.) Id. at 4, 42 O.O.2d at 2-3, 233 N.E.2d at 502, citing Kelley v. John (1956), 162 Neb. 319, 321, 75 N.W.2d 713, 715. Therefore, paragraph two of the syllabus in Donnelly established that the test requires an examination of the nature of the action taken, rather than the mere form in which it is taken.² Accordingly, the city’s position that the approval of the site plan was a legislative action because the council took action via an ordinance (rather than by resolution or other means) is in error.

Additionally, the city argued that the ordinance approving the site plan constituted legislative action because city law stated that decisions made by the city council relating to approvals of site plans “shall be considered as legislative rather than administrative actions.” Cuyahoga Falls Zoning Ordinance No. 1171.03(c). This argument also is without merit. The city council cannot designate an action as legislative simply because it desires the action to be legislative. Donnelly requires that the nature of the action taken determines whether it is legislative or administrative, ie., whether the action creates or establishes law, or whether the action merely applies existing law to a given situation. Donnelly at 4, 42 O.O.2d at 2, 233 N.E.2d at 502. Additionally, it is our constitutional duty, in interpreting the words of Section If, Article II, to independently analyze whether the action by the city is a legislative action.

The action taken by the city council here was clearly administrative in nature. Ordinance No. 48-1996 passed by the city council approved a plan for the “development of land * * * in accordance with such district and zoning regulations as stipulated in the Codified Ordinances of the City of Cuyahoga Falls and as approved by the Planning Commission * * *.” The ordinance merely approves the planning commission’s application of existing zoning regulations to the plan submitted by the appellants. The ordinance has no general, prospective application such that the action taken would fit within the usual and customary meaning of the phrase “legislative action” contained in Section If, Article II. See Black’s Law Dictionary (6 Ed.1990) 899 (defining “legislative act” as “[l]aw * * * passed by legislature in contrast to court-made law. One which prescribes what the law shall be in future cases arising under its provisions.”). Rather, the city council determined the rights of the appellants by applying existing law to the site plan submitted by the appellants. Accordingly, adoption of Ordinance No. 48-1996 was an administrative act, and therefore was not a legislative action that could be subjected to referendum proceedings pursuant to Section If, Article II.

Therefore, we hold that pursuant to Section If, 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. The passage by a city council of an ordinance approving a site plan for the development of land, pursuant to existing zoning and other applicable regulations, constitutes administrative action and is not subject to referendum proceedings.

Pursuant to S.Ct.Prac.R. XI, the timely filing of a motion for reconsideration temporarily prevents the issuance of a mandate in accordance with the court’s judgment. A timely motion was filed in this cause. Thus, this court has not yet issued a mandate in this action to implement our opinion rendered on May 6, 1998, and reported at 81 Ohio St.3d 559, 692 N.E.2d 997. Under S.CtPrac.R. XI(3)(A)(2), where a timely filed motion for reconsideration is granted, a mandate shall issue at the time the Supreme Court’s judgment entry on reconsideration is entered. In accordance with our grant of the motion for reconsideration today, a mandate implementing this opinion shall also issue today.

For the foregoing reasons, we grant the motion for reconsideration and reverse the judgment of the court of appeals.³

Reconsideration granted and judgment reversed.

Pfeifer, Cook and Lundberg Stratton, JJ., concur. Lundberg Stratton, J., concurs separately. Douglas, Resnick and F.E. Sweeney, JJ., dissent.

1 . As a municipal legislative body, city councils may act in an administrative capacity. Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500, paragraph one of the syllabus.

2 . The quoted language in the text of Donnelly is instructive in determining the meaning of paragraph two of the syllabus because paragraph two itself is not stated within the text.

3 . Our earlier opinion, including paragraphs one and two of the syllabus, as reported at 81 Ohio St.3d 559, 692 N.E.2d 997, is hereby nullified in all respects by virtue of our decision today, and thus has no controlling authority.