Rice v. Johnstown Planning & Zoning Comm. , 2021 Ohio 1392 ( 2021 )

[Cite as Rice v. Johnstown Planning & Zoning Comm., 2021-Ohio-1392.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANDREW L. RICE, ET AL. : JUDGES:
: Hon. William B. Hoffman, P.J.
Appellants-Appellants : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
VILLAGE OF JOHNSTOWN :
PLANNING AND ZONING : Case No. 2020 CA 0023
COMMISSION :
:
Appellee-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2018CV01131
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 19, 2021
APPEARANCES:
For Appellee-Appellee For Appellants-Appellants
MATTHEW S. ZEIGER YAZAN S. ASHRAWI
KRIS BANVARD THADDEUS M. BOGGS
3500 Huntington Center 10 West Broad Street
41 South High Street Suite 2300
Columbus, OH 43215 Columbus, OH 43215
Licking County, Case No. 2020 CA 0023 2
Wise, Earle, J.
{¶ 1} Appellants-Appellants, Andrew Rice, Mary Neda Ann Shaub, Charles L.
Parker, and Marilyn J. Parker, as co-trustees of the Parker Family Trust, and Wilcox
Communities, LLC, appeal the February 3, 2020 entry of the Court of Common Pleas of
Licking County, Ohio, dismissing their administrative appeal. Appellee-Appellee is
Village of Johnstown Planning and Zoning Commission.
FACTS AND PROCEDURAL HISTORY
{¶ 2} The subject property in this case is the Rice family farm located in Monroe
Township, adjacent to the village of Johnstown. On July 31, 2018, appellants filed an
application with appellee for a preliminary planned unit development (hereinafter "PUD")
for the 80-plus acre property, named the Concord Trails project. The effect of the PUD
would rezone the property. Appellants submitted a revised and updated application and
a hearing was held on August 28, 2018. A final hearing was held on September 19,
2018. At the conclusion of the hearing, appellee voted to reject the PUD application.
Simultaneously, appellants were seeking annexation of the property into the village of
Johnstown.
{¶ 3} Appellants appealed to the Court of Common Pleas. On December 18,
2018, appellants filed a motion for a hearing to present additional evidence, claiming an
insufficient record from the PUD hearing. By judgment entry filed March 6, 2019, the
trial court found a proper record was not made for its review, most importantly, findings
or conclusions to support the decision. The trial court stated appellee "made no findings
concerning which provisions of the Zoning Ordinances the application violated" and "it is
not clear to the Court what formal procedures the Commission follows in hearing the
applications or what the procedures are for formal notice of decision and appeal." The
Licking County, Case No. 2020 CA 0023 3
trial court reversed the decision and remanded the matter to appellee for further
proceedings and findings.
{¶ 4} Appellee filed an appeal to this court. By opinion and judgment entry filed
September 27, 2019, this court affirmed the decision with modification and remanded
the matter to the trial court to conduct an evidentiary hearing pursuant to R.C.
2506.03(A)(5). Rice v. Village of Johnstown, 5th Dist. Licking No. 19-CA-18, 2019-
Ohio-4037.
{¶ 5} After remand, on November 7, 2019, appellee filed a motion to dismiss
appellants' administrative appeal, claiming the trial court did not have jurisdiction to
entertain the appeal. Appellee argued appellants were seeking to appeal a legislative
decision which is not an appealable matter of law under R.C. Chapter 2506. Appellee
further argued the appeal was not ripe, as the subject property was never annexed into
the village of Johnstown and therefore the property was not within the jurisdictional or
geographical boundaries of the village. By entry filed February 3, 2020, the trial court
agreed and dismissed the appeal under Civ.R. 12(B)(6). The trial court found appellee's
denial of the PUD was a legislative action and therefore did not fall under R.C. Chapter
2506. The trial court found the ripeness issue to be moot.
{¶ 6} Appellants filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 7} "THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW BY
FINDING THAT IT LACKED JURISDICTION UNDER R.C. CHAPTER 2506 TO HEAR
THE APPELLANTS' APPEAL FROM THE SEPTEMBER 19, 2018, DECISION OF THE
Licking County, Case No. 2020 CA 0023 4
JOHNSTOWN PLANNING AND ZONING COMMISSION DENYING APPELLANTS'
PRELIMINARY APPLICATION FOR A PLANNED UNIT DEVELOPMENT."
I
{¶ 8} In their sole assignment of error, appellants claim the trial court erred in
finding it did not have jurisdiction to hear the administrative appeal. We disagree.
{¶ 9} The trial court dismissed the appeal pursuant to Civ.R. 12(B)(6).
Subsection (B)(6) permits dismissal for "failure to state a claim upon which relief can be
granted." Under this standard, a trial court is limited to a review of the four corners of
the complaint. Appellants argue the pertinent subsection is (B)(1), "lack of jurisdiction
over the subject matter." Under this standard, a trial court is not confined to the
complaint and "may consider material pertinent to such inquiry without converting the
motion into one for summary judgment." Our standard of review of a decision under
either subsection is de novo, and therefore this court "must review the issues
independently of the trial court's decision." Perrysburg Township v. Rossford, 103 Ohio
St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44; Mellion v. Akron City School District Board of
Education, Summit App. No. 23227, 2007-Ohio-242. "We review the grant of the motion
to dismiss afresh, again taking the factual allegations of the complaint as true and
drawing all reasonable inferences in favor of [appellants]." Habibi v. University of
Toledo, 10th Dist. Franklin No. 19AP-583, 2020-Ohio-766, ¶ 10.
{¶ 10} R.C. 2506.01 governs appeal from decisions of any agency of any political
subdivision and states the following:
(A) Except as otherwise provided in sections 2506.05 to 2506.08 of
the Revised Code, and except as modified by this section and sections
Licking County, Case No. 2020 CA 0023 5
2506.02 to 2506.04 of the Revised Code, every final order, adjudication,
or decision of any officer, tribunal, authority, board, bureau, commission,
department, or other division of any political subdivision of the state may
be reviewed by the court of common pleas of the county in which the
principal office of the political subdivision is located as provided in Chapter
2505. of the Revised Code.
(B) The appeal provided in this section is in addition to any other
remedy of appeal provided by law.
(C) As used in this chapter, "final order, adjudication, or decision"
means an order, adjudication, or decision that determines rights, duties,
privileges, benefits, or legal relationships of a person, but does not include
any order, adjudication, or decision from which an appeal is granted by
rule, ordinance, or statute to a higher administrative authority if a right to a
hearing on such appeal is provided, or any order, adjudication, or decision
that is issued preliminary to or as a result of a criminal proceeding.
{¶ 11} Under R.C. 713.01, the village of Johnstown has the authority to create a
planning commission. In accordance with its authority, the village enacted Article VII,
Section 7.03 under its charter which gives the planning and zoning commission the
following powers and duties:
The Planning and Zoning Commission shall have the power and
duty to hear applications for land use, zoning classifications or districts
and, as merited, to submit written recommendations for legislative action
Licking County, Case No. 2020 CA 0023 6
or to render final determinations for administrative action; to initiate, review
and recommend legislation, rules and regulations on all matters of
municipal planning, land use, and zoning classification; and to exercise
such other powers, duties and functions as provided by Council.
{¶ 12} Appellants argue the planning and zoning committee has the power to: 1)
submit recommendations for legislative action, or 2) render final determinations for
administrative action. Appellants argue because appellee cannot render legislative
decisions, appellee's final determination in rejecting the PUD was an administrative
action; therefore, the trial court has jurisdiction to hear the appeal under R.C. Chapter
2506.
{¶ 13} Appellee argues the PUD application involved a rezoning which required
legislative action, not administrative; therefore, the trial court does not have jurisdiction
to hear the appeal under R.C. Chapter 2506.
{¶ 14} Under Section 1179.02 of the Codified Ordinances of Johnstown
(Planning and Zoning Code) in effect at the time, appellee was vested with reviewing
PUD applications and then "shall approve in principle with modifications, or reject the
application. Approval in principle with modification shall be necessary before an
applicant may submit a final development plan." Appellants argue the effect of this
language is that in the event appellee rejects a PUD application, appellee is the final
decision making authority because no mechanism is in place for review by village
council, the legislative authority. They argue because they were foreclosed from
appealing appellee's rejection of their application to village council, they had no choice
but to treat the rejection as a final administrative decision and file an appeal under R.C.
Licking County, Case No. 2020 CA 0023 7
Chapter 2506. Appellants argue appellee's rejection of their plan was final and "[i]t
killed the project." Appellant's Reply Brief at 5 and 6.
{¶ 15} It is safe to say the parties agree that R.C. Chapter 2506 review applies to
administrative actions, not legislative actions, and rezoning property under a PUD is a
legislative action. Berg v. City of Struthers, 176 Ohio St. 146, 198 N.E.2d 48 (1964).
The issue in this case surrounds the effect of the village's language in Section 1179.02
of the planning and zoning code cited above.
{¶ 16} In reviewing a PUD application, appellee has the authority to 1) approve
the PUD in principle with modifications, or 2) reject the application. In the event that the
application is rejected, a provision does not exist to appeal to the village council, the
legislative body. The effect of rejecting the application makes the decision final; it is not
a recommendation to village council for legislative action, nor is it a final determination
on an administrative action as it involves a decision on rezoning, a legislative issue.
While appellee's act of rejection was authorized under Article VII, Section 7.03 of the
village's charter, such authorization was an improper delegation of the village counsel's
legislative function. As an administrative body, appellee acted as a legislative body.
Appellants were placed in a conundrum by the village's charter and ordinance.
{¶ 17} In Robertson v. Board of Troy Township Trustees, 5th Dist. Ashland No.
01-COA-01406, 2001 WL 1010988, *2, this court stated when deciding whether the
action taken was legislative or administrative, "[a] court is to examine the nature of the
action taken":
Revised Code Chapter 2506 applies to administrative or quasi-
judicial decisions but not to legislative decisions. Tuber v. Perkins (1966),
Licking County, Case No. 2020 CA 0023 8
6 Ohio St.2d 155, syllabus. "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. City of Fairview Park (1968), 13 Ohio St.2d 1, [paragraph two
of the] syllabus. A court is to examine the nature of the action taken.
Buckeye Community Hope Foundation v. Cuyahoga Falls (1998), 82 Ohio
St.3d 539, 544. See J.D. Partnership v. Berlin Township Board of
Trustees (Aug. 2, 2000), Delaware App. No. 99CVF7274, unreported,
2000 WL 1074302. Previously, the Ohio Supreme Court has determined
that the decision as to whether to rezone is a legislative matter. Berg v.
City of Struthers (1964), 176 Ohio St. 146; Donnelly, 13 Ohio St.2d at 3-4;
Tuber, 6 Ohio St.2d at syllabus. In contrast, decisions as to whether to
grant a variance, permit a conditional use or approve a site plan constitute
an administrative matter. Donnelly, 13 Ohio St.2d 3-4; Buckey Community
Hope Foundation, supra. Such administrative actions involve the
application of existing law, while the decision as to whether to rezone an
area is the legislative act of making law. See Id.
{¶ 18} In this case, the nature of the action taken, a denial to rezone property
under a PUD, was a legislative action, and therefore, the trial court was without
jurisdiction to entertain an appeal under R.C. Chapter 2506. We acknowledge the
legislative action was made by the incorrect body as a result of the faulty wording of
Licking County, Case No. 2020 CA 0023 9
Section 1179.02 of the planning and zoning Code in effect at the time, but nevertheless
find R.C. Chapter 2506 to be inapplicable herein.
{¶ 19} Upon review, we find the trial court did not err in dismissing the appeal.
{¶ 20} The sole assignment of error is denied.
{¶ 21} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Baldwin, J. concur.
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