Wesolowski v. Broadview Hts. Planning Comm. (Slip Opinion) ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Wesolowski v. Broadview Hts. Planning Comm., Slip Opinion No. 2019-Ohio-3713.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-3713
WESOLOWSKI, APPELLEE, v. CITY OF BROADVIEW HEIGHTS PLANNING
COMMISSION, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Wesolowski v. Broadview Hts. Planning Comm., Slip Opinion
No. 2019-Ohio-3713.]
Zoning and planning—Municipal corporations—R.C. 711.09(C), including 30-day
time limit for considering subdivision applications, applies to city planning
commissions—A home-rule municipality’s adoption of subdivision
regulations constitutes an exercise of its police powers rather than an
exercise of its powers of local self-government—R.C. 711.09(C) prevails
over city’s subdivision regulation—Court of appeals’ judgment affirming
trial court’s judgment ordering commission to issue certificate of approval
affirmed.
(No. 2018-0711—Submitted March 27, 2019—Decided September 17, 2019.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 105697,
2018-Ohio-1295.
SUPREME COURT OF OHIO
________________
FISCHER, J.
{¶ 1} In this case, we consider whether the provisions of R.C. 711.09(C)
apply to a city planning commission and whether a home-rule municipality’s
adoption of regulations establishing procedures for submission and consideration
of applications to subdivide property is an exercise of its powers of local self-
government. We conclude that R.C. 711.09(C) does apply to city planning
commissions and that a home-rule municipality’s adoption of subdivision
regulations constitutes an exercise of its police powers rather than an exercise of its
powers of local self-government. We further conclude that R.C. 711.09(C) prevails
over the municipal subdivision regulation at issue in this case, and we therefore
affirm the judgment of the Eighth District Court of Appeals.
I. Factual and Procedural Background
{¶ 2} In April 2016, appellant, the planning commission of the city of
Broadview Heights, denied an application submitted by appellee, Gloria
Wesolowski, seeking to subdivide property. Wesolowski filed an administrative
appeal of that decision in the Cuyahoga County Court of Common Pleas. She
alleged that the commission failed to comply with R.C. 711.09(C), which requires
that the commission either approve or deny a subdivision application within 30 days
after its submission. She asserted that she was entitled to a judgment declaring her
application approved and that the commission must issue her a certificate in lieu of
written endorsement of approval pursuant to R.C. 711.09(C).
{¶ 3} The trial court granted partial summary judgment in Wesolowski’s
favor. It found that the commission had failed to comply with the procedural
standards and time frames set forth in R.C. 711.09(C) and that Wesolowski had
satisfied the conditions set forth in that statute for issuance of a certificate of
approval. The court accordingly granted declaratory judgment ordering the
commission to issue a certificate of approval to Wesolowski.
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{¶ 4} On appeal, the commission argued that the trial court erred because
R.C. 711.09(C) does not apply to cities and because the city’s regulations, adopted
pursuant to its home-rule powers, prevail over R.C. 711.09(C). The Eighth District
Court of Appeals affirmed the trial court’s judgment.
{¶ 5} The Eighth District first held that when R.C. 711.09 is read as a whole,
it is clear that R.C. 711.09(C) applies to cities. 2018-Ohio-1295, 110 N.E.3d 705,
¶ 22. It further held that local subdivision regulations are an exercise of a
municipality’s police powers rather than an exercise of a municipality’s powers of
local self-government. Id. at ¶ 24. The court then addressed the question whether
the state statute prevails over the relevant municipal ordinance, Section 1244.03 of
the Broadview Heights Codified Ordinances (“B.H.C.O. 1244.03”). The court
noted that R.C. 711.09(C) requires that a planning commission either approve or
deny a subdivision application within 30 days whereas B.H.C.O. 1244.03 is silent
as to any time frame. Id. at ¶ 29. The Eighth District concluded that the lack of a
time frame in B.H.C.O. 1244.03 impermissibly conflicts with the procedures set
forth in R.C. 711.09(C). Id. at ¶ 29-31. Having concluded that B.H.C.O. 1224.03
conflicts with R.C. 711.09(C) and that enacting local subdivision regulations is an
exercise of a municipality’s police powers, the Eighth District concluded that R.C.
711.09(C) prevails over the ordinance. Id. at ¶ 31.
{¶ 6} We accepted jurisdiction over the commission’s first and second
propositions of law:
1. The adoption of local subdivision regulations by a home
rule municipal corporation is an exercise of the power of local self-
government and, thus, prevail[s] over state law, specifically the
procedures set forth in R.C. 711.09(C).
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2. Giving R.C. 711.09(C) its plain and ordinary meaning,
the subdivision procedures set forth therein do not apply to a city
planning commission.
(Emphasis sic.) 153 Ohio St. 3d 1452, 2018-Ohio-3026, 103 N.E.3d 830.
II. Analysis
{¶ 7} Before we may consider the issue whether a home-rule municipality’s
adoption of subdivision regulations constitutes an exercise of its powers of local
self-government, we must first address whether R.C. 711.09(C) applies to cities.
We will accordingly consider the commission’s propositions of law in reverse
order.
A. The 30-day time limit set forth in R.C. 711.09(C) applies to both cities and
villages
{¶ 8} R.C. 711.09 sets forth procedures for approving and recording plats
of subdivisions of land. Division (A) of that section applies specifically to cities:
(1) Except as otherwise provided in division (A)(2) of this
section, when a city planning commission adopts a plan for the
major streets or thoroughfares and for the parks and other open
public grounds of a city or any part of it, or for the unincorporated
territory within three miles of the corporate limits of a city or any
part of it, then no plat of a subdivision of land within that city or
territory shall be recorded until it has been approved by the city
planning commission and that approval endorsed in writing on the
plat. If the land lies within three miles of more than one city, then
division (A)(1) of this section applies to the approval of the planning
commission of the city whose boundary is nearest to the land.
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(Emphasis added.) R.C. 711.09(A).
{¶ 9} Division (B) of R.C. 711.09 applies specifically to villages:
(1) Except as otherwise provided in division (B)(2) of this
section, when a village planning commission, a platting
commissioner, or, if there is no commission or commissioner, the
legislative authority of a village, adopts a plan for the major streets
or thoroughfares and for the parks and other public grounds of a
village or any part of it, then no plat of a subdivision of land within
that village shall be recorded until it has been approved by the
village commission, commissioner, or legislative authority and that
approval endorsed in writing on the plat. If the county in which the
village lies contains no cities, has no county subdivision regulations
in effect, and the village commission, commissioner, or legislative
authority adopts a plan for the major streets or thoroughfares and for
the parks and other public grounds for the unincorporated territory
within one and one-half miles of the corporate limits of the village
or any part of it, then no plat of a subdivision of land shall be
recorded until it has been approved by the village commission,
commissioner, or legislative authority and that approval is endorsed
in writing on the plat. If the land lies within one and one-half miles
of more than one village, then division (B)(1) of this section applies
to the approval of the commission, commissioner, or legislative
authority of the village whose boundary is nearest to the land.
(Emphasis added.)
{¶ 10} At issue in this case is whether division (C) of R.C. 711.09 applies
only to cities, only to villages, or to both cities and villages. That division provides:
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The approval of the planning commission, the platting
commissioner, or the legislative authority of a village required by
this section, or the refusal to approve, shall be endorsed on the plat
within thirty days after the submission of the plat for approval or
within such further time as the applying party may agree to;
otherwise that plat is deemed approved, and the certificate of the
planning commission, the platting commissioner, or the clerk of the
legislative authority, as to the date of the submission of the plat for
approval and the failure to take action on it within that time, shall be
issued on demand and shall be sufficient in lieu of the written
endorsement or other evidence of approval required by this section.
The planning commission, platting commissioner, or legislative
authority of a village shall not require a person submitting a plat to
alter the plat or any part of it as a condition for approval, as long as
the plat is in accordance with the general rules governing plats and
subdivisions of land, adopted as provided in this section, in effect at
the time the plat was submitted. The ground of refusal or approval
of any plat submitted, including citation of or reference to the rule
violated by the plat, shall be stated upon the record of the
commission, commissioner, or legislative authority. * * *
The planning commission, platting commissioner, or
legislative authority of a village may adopt general rules governing
plats and subdivisions of land falling within its jurisdiction in order
to secure and provide for the coordination of the streets within the
subdivision with existing streets and roads or with the plan or plats
of the municipal corporation, for the proper amount of open spaces
for traffic, circulation, and utilities, and for the avoidance of future
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congestion of population detrimental to the public health or safety
but shall not impose a greater minimum lot area than forty-eight
hundred square feet. The rules may provide for their modification
by the planning commission in specific cases where unusual
topographical or other exceptional conditions require the
modification. The rules may require the county department of
health to review and comment on a plat before the planning
commission, platting commissioner, or legislative authority of a
village acts upon it and may also require proof of compliance with
any applicable zoning resolutions as a basis for approval of a plat.
However, no city or village planning commission shall adopt
any rules requiring actual construction of streets or other
improvements or facilities or assurance of that construction as a
condition precedent to the approval of a plat of a subdivision unless
the requirements have first been adopted by the legislative authority
of the city or village after a public hearing. The rules shall be
promulgated and published as provided by sections 731.17 to 731.42
of the Revised Code, and before adoption a public hearing shall be
held on the adoption and a copy of the rules shall be certified by the
commission, commissioner, or legislative authority to the county
recorder of the county in which the municipal corporation is
located.
In the exercise of any power over or concerning the platting
and subdivision of land or the recording of plats of subdivisions by
a city, county, regional, or other planning commission pursuant to
any other section of the Revised Code, the provisions of this section
with respect to appeals from a decision of a planning commission
apply to the decision of any such commission in the exercise of any
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power of that kind granted by any other section of the Revised Code
in addition to any other remedy of appeal granted by the Revised
Code. When a plan has been adopted as provided in this section, the
approval of plats shall be in lieu of the approvals provided for by
any other section of the Revised Code, so far as territory within the
approving jurisdiction of the commission, commissioner, or
legislative authority, as provided in this section, is concerned.
Approval of a plat shall not be an acceptance by the public of the
dedication of any street, highway, or other way or open space shown
upon the plat.
(Emphasis added.) R.C. 711.09(C).
{¶ 11} The commission argues that because the word “city” does not appear
in the first paragraph of R.C. 711.09(C), including the language describing the 30-
day time limit for considering subdivision applications, and because the first
paragraph refers only to villages (“the planning commission, the platting
commissioner, or the legislative authority of a village”), the plain and unambiguous
language of R.C. 711.09(C) dictates that its first paragraph does not apply to a city
planning commission.
{¶ 12} The Eighth District disagreed. It reasoned that the language of R.C.
711.09(B) shows that when a division of R.C. 711.09 applies only to villages, the
division’s language specifically provides that it applies to the actions of “a village
planning commission, a platting commissioner, or, if there is no commission or
commissioner, the legislative authority of a village” and “the village commission,
commissioner, or legislative authority.” 2018-Ohio-1295, 110 N.E.3d 705, at ¶ 21.
The court concluded that because R.C. 711.09(C) does not contain that clear,
limiting language but, rather, includes a general reference to a “planning
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commission” without a qualifier, division (C) must be read more broadly as
applying to both cities and villages. Id. at ¶ 21.
{¶ 13} We agree with the Eighth District’s conclusion that R.C. 711.09(C)
applies to both cities and villages. If the General Assembly had intended division
(C) to apply only to cities, it would have made that clear by including the limiting
language used in division (A): “when a city planning commission * * *” (emphasis
added), R.C. 711.09(A). Likewise, if the General Assembly had intended division
(C) to apply only to villages, it would have made that clear by including the limiting
language used in division (B): “when a village planning commission, a platting
commissioner, or, if there is no commission or commissioner, the legislative
authority of a village * * *” (emphasis added), R.C. 711.09(B). Division (C)
contains neither limitation. Instead, it uses the phrase “the planning commission,
the platting commissioner, or the legislative authority of a village.”
{¶ 14} Because R.C. 711.09(C) generally refers to “the planning
commission” and “platting commissioner” in contrast to the language of divisions
(A) and (B) of R.C. 711.09 and because division (C) specifically refers only to “the
legislative authority of a village,” we conclude that division (C) applies to the
planning commissions of both cities and villages. Reading R.C. 711.09(C) as a
whole reinforces this conclusion given that division (C) includes references to both
cities and villages, as well as to municipal corporations, in its third paragraph.
{¶ 15} For these reasons, we hold that the provisions of R.C. 711.09(C),
including the 30-day time limit for consideration of subdivision applications, apply
to both cities and villages.
B. A home-rule municipality’s adoption of subdivision regulations is an exercise
of its police powers
{¶ 16} Having concluded that the provisions of R.C. 711.09(C) apply to
cities, we next consider whether a home-rule municipality’s adoption of
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subdivision regulations is an exercise of its powers of local self-government that
prevails over the procedures set forth in R.C. 711.09(C).
{¶ 17} Article XVIII, Section 3 of the Ohio Constitution provides:
“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.” This court has set
forth a three-part test for determining whether a provision of a state statute takes
precedence over a municipal ordinance: “A state statute takes precedence over a
local ordinance when (1) the ordinance is in conflict with the statute, (2) the
ordinance is an exercise of the police power, rather than of local self-government,
and (3) the statute is a general law.” Canton v. State, 95 Ohio St. 3d 149, 2002-
Ohio-2005, 766 N.E.2d 963, ¶ 9. The issue raised in the commission’s first
proposition of law concerns the second prong of that test—whether a home-rule
municipality’s adoption of subdivision regulations is an exercise of its police
powers or an exercise of its powers of local self-government. If it is an exercise of
its powers of local self-government, then the local ordinance prevails over the state
statute. See Ohio Assn. of Pub. School Emps., Chapter No. 471 v. Twinsburg, 36
Ohio St. 3d 180, 182, 522 N.E.2d 532 (1988) (“municipal charter and ordinance
provisions enacted under the power of local self-government prevail over state
statutes, and only municipal regulations enacted pursuant to a city’s police powers
are subject to the general laws of the state”), citing State ex rel. Canada v. Phillips,
168 Ohio St. 191, 151 N.E.2d 722 (1958).
{¶ 18} An ordinance adopted under a power of local self-government “must
relate ‘solely to the government and administration of the internal affairs of the
municipality.’ ” Marich v. Bob Bennett Constr. Co., 116 Ohio St. 3d 553, 2008-
Ohio-92, 880 N.E.2d 906, ¶ 11, quoting Beachwood v. Cuyahoga Cty. Bd. of
Elections, 167 Ohio St. 369, 148 N.E.2d 921 (1958), paragraph one of the syllabus.
We have held, for example, that the determination of the salaries of city employees,
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N. Ohio Patrolmen’s Benevolent Assn. v. Parma, 61 Ohio St. 2d 375, 383, 402
N.E.2d 519 (1980), and the procedure for appointing city police officers, Canada
at paragraph one of the syllabus, constitute matters of local self-government. By
contrast, a police-power regulation seeks to “protect the public health, safety, or
morals, or the general welfare of the public.” Marich at ¶ 11.
{¶ 19} Here, the city’s planning ordinance does not relate solely to the
management of the city’s internal affairs. Rather, subdivision planning regulates
the conduct of the city’s citizens for the general welfare of the public by restricting
the division of land. As we have stated previously, subdivision planning “embraces
the systematic and orderly development of a community with particular regard for
streets, parks, industrial and commercial undertakings, civic beauty and other
kindred matters properly included within the police power.” State ex rel. Kearns v.
Ohio Power Co., 163 Ohio St. 451, 460, 127 N.E.2d 394 (1955). By its own terms,
the purpose of B.H.C.O. Chapter 1244 is to “define the steps by which a developer
may design, make an application, record plats and construct improvements.”
B.H.C.O. 1244.01(A). In turn, the planning commission must comply with certain
procedures to “review, make recommendations, approve the plans and otherwise
administer these regulations.” Id. The ordinance does not relate to a matter of
internal city governance. Rather, it regulates the conduct of city citizens by
imposing requirements on subdivision applicants, and it prescribes the manner in
which the commission must carry out its public functions.
{¶ 20} Here, Wesolowski submitted her subdivision application under
B.H.C.O. 1244.03. Subsection (B)(1) addresses the requirements that applicants
must follow when submitting a sketch plan. If the planning commission decides to
reject a proposed plan, “the Commission shall state the conditions to be complied
with before it will be approved and return the sketch to the developer with reasons
specified.” B.H.C.O. 1244.03(D). The city’s ordinance does not impose a deadline
for responding to an application. By contrast, R.C. 711.09(C) states that if a
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planning commission fails to approve or deny an application for plat approval
within 30 days, a certificate of approval “shall be issued on demand.” The
ordinance conflicts with the statute because it permits what the statute forbids—a
response later than 30 days after the submission of a subdivision request. Because
the city’s ordinance is an exercise of police power that conflicts with a state law,
the ordinance must give way to the requirements in R.C. 711.09(C). See Canton,
95 Ohio St. 3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 9.
{¶ 21} The commission argues that because the city’s subdivision
regulations affect only the city itself, without any extraterritorial effects, the city’s
subdivision regulations are an exercise of its powers of local self-government and
are a matter for its own determination.
{¶ 22} The Eighth District rejected this argument. In doing so, it relied on
this court’s conclusion in Kearns that the adoption and enforcement of planning
measures is an exercise of local police powers. Kearns, 163 Ohio St. at 460, 127
N.E.2d 394, citing 1 Yokley, Zoning Law and Practice, Section 1, at 2-3 (2d
Ed.1953), Mansfield & Swett, Inc. v. W. Orange, 120 N.J.L. 145, 149, 198 A. 225
(1938), and Mills v. Baton Rouge, 210 La. 830, 839, 28 So. 2d 447 (1946).
{¶ 23} We see no reason to deviate from this court’s statement in Kearns
that the adoption and enforcement of planning measures constitutes an exercise of
local police powers, as opposed to an exercise of the powers of local self-
government. Kearns has been in effect for more than 60 years, and there is no
persuasive argument supporting a conclusion that the rule defies practical
workability.
{¶ 24} The commission offers two arguments in support of its assertion that
we should not apply Kearns in this case. First, it argues that this court’s reliance
on Zoning Law and Practice was imprecise and that this court should have
differentiated between “procedural” and “substantive” planning regulations. As an
example of substantive planning regulations, the commission identifies
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specifications for water and sewer service, and it concedes that substantive planning
regulations would be an exercise of local police powers. The commission
distinguishes substantive planning regulations, however, from what it terms
“procedural” planning regulations, citing as an example regulations specifying how
long a planning commission may take to issue a decision. It asserts that the
adoption of procedural planning regulations constitutes an exercise of the powers
of local self-government.
{¶ 25} We decline to distinguish between substantive and procedural
regulations for the purpose of analyzing whether a municipality’s adoption of
subdivision regulations constitutes an exercise of its powers of local self-
government. The commission cites no authority for doing so, and we are
unconvinced that the substantive/procedural distinction would hold up in practice.
There may often be no clear line between what constitutes a substantive regulation
and what constitutes a procedural regulation, and even if a clear distinction could
be made, municipalities might attempt to work around it by adopting regulations
that appear to be procedural on their face but would actually be substantive in their
effect. Rather than encourage litigation that would put courts in the position of
having to decide which side of this blurry line a regulation is on, we find it more
sensible to continue to adhere to our home-rule jurisprudence and the clear rule set
forth in Kearns.
{¶ 26} Second, the commission argues that Kearns is distinguishable
because that case involved a regional planning commission, which, unlike a
municipality, lacks broad home-rule authority. We decline the commission’s
invitation to hold that an action constitutes an exercise of local police powers when
taken by one governmental entity but that the identical action constitutes an
exercise of the powers of local self-government when taken by another
governmental entity. Which governmental entity acted does not affect the
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determination that an action is an exercise of local police powers. Again, this court
set forth a clear, workable rule in Kearns, and we will continue to abide by it.
{¶ 27} We therefore reaffirm our statement in Kearns, 163 Ohio St. at 460,
127 N.E.2d 394, that the adoption of planning measures constitutes an exercise of
local police powers. We accordingly hold that a home-rule municipality’s adoption
of subdivision regulations is an exercise of its police powers and that R.C.
711.09(C) thus prevails over any conflicting municipal subdivision regulation.
{¶ 28} As a final note, we acknowledge that in its reply brief, the
commission argues that the Eighth District failed to consider whether R.C.
711.09(C) is a general law, pursuant to the third prong of the Canton test. Because
this argument is beyond the scope of the propositions of law over which this court
accepted jurisdiction, we decline to consider it in this opinion. See State ex rel.
Colvin v. Brunner, 120 Ohio St. 3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 61.
III. Conclusion
{¶ 29} We hold that the 30-day time limit set forth in R.C. 711.09(C)
applies to both cities and villages. We further hold that a home-rule municipality’s
adoption of subdivision regulations is an exercise of its police powers and that R.C.
711.09(C) thus prevails over any conflicting municipal subdivision regulation. For
these reasons, we affirm the judgment of the Eighth District Court of Appeals.
Judgment affirmed.
O’CONNOR, C.J., and FRENCH, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
________________
KENNEDY, J., dissenting.
{¶ 30} Because the municipal power of local self-government is protected
from state interference by Article XVIII, Section 3 of the Ohio Constitution and
because the adoption of Section 1244.03 of the Broadview Heights Codified
Ordinances (“B.H.C.O. 1244.03”) was an exercise of local self-government,
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B.H.C.O. 1244.03 takes precedence over the conflicting requirement of R.C.
711.09(C) that a city planning commission approve or deny a subdivision
application within 30 days. I therefore dissent and would reverse the judgment of
the Eighth District Court of Appeals and remand the case to the trial court for
further proceedings.
{¶ 31} The Home Rule Amendment establishes municipalities’ 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.” Article XVIII, Section 3, Ohio Constitution.
{¶ 32} In conducting the home-rule analysis, we first consider “whether the
ordinance involves an exercise of local self-government or an exercise of local
police power.” In re Complaint of Reynoldsburg, 134 Ohio St. 3d 29, 2012-Ohio-
5270, 979 N.E.2d 1229, ¶ 24. We have explained that “[i]f the ordinance relates
solely to self-government, the analysis ends because the Constitution authorizes a
municipality to exercise all powers of local self-government within its jurisdiction.”
Id. However, a conflicting ordinance enacted pursuant to a municipality’s police
power “must yield in the face of a general state law.” Am. Fin. Servs. Assn. v.
Cleveland, 112 Ohio St. 3d 170, 2006-Ohio-6043, 858 N.E.2d 776, ¶ 23. The
majority finds an exercise of the police power in this case. I disagree.
{¶ 33} We have described ordinances enacted under the power of local self-
government as “relat[ing] ‘solely to the government and administration of the
internal affairs of the municipality.’ ” Marich v. Bob Bennett Constr. Co., 116 Ohio
St.3d 553, 2008-Ohio-92, 880 N.E.2d 906, ¶ 11, quoting Beachwood v. Cuyahoga
Cty. Bd. of Elections, 167 Ohio St. 369, 148 N.E.2d 921 (1958), paragraph one of
the syllabus. In contrast, “the police power allows municipalities to enact
regulations only to protect the public health, safety, or morals, or the general
welfare of the public.” Id. “ ‘Any municipal ordinance, which prohibits the doing
of something without a municipal license to do it, is a police regulation within the
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meaning of Section 3 of Article XVIII of the Ohio Constitution.’ ” Ohio Assn. of
Private Detective Agencies, Inc. v. N. Olmsted, 65 Ohio St. 3d 242, 244, 602 N.E.2d
1147 (1992), quoting Auxter v. Toledo, 173 Ohio St. 444, 446, 183 N.E.2d 920
(1962).
{¶ 34} The majority relies on State ex rel. Kearns v. Ohio Power Co., 163
Ohio St. 451, 460, 127 N.E.2d 394 (1955), for the proposition that the adoption of
any city planning regulation—whether substantive or procedural—is an exercise of
the police power. But Kearns was not a home-rule case. It involved a regional
planning commission, established pursuant to statute, seeking to compel an electric
utility (which was regulated by the Public Utilities Commission of Ohio and had
the statutory power of eminent domain) to comply with a regional plan. Our
decision in that case did not mention or apply the Home Rule Amendment, and it
cannot be read so broadly as holding that any ordinance relating to city planning
may be superseded by the General Assembly. There is a difference between a city
planning ordinance, enacted by a municipality pursuant to the police power, that
prohibits the subdivision of land without a municipal license to do it and an
ordinance that establishes a city planning commission and sets forth the procedures
that the commission must follow in exercising the municipal police power.
{¶ 35} For example, even though a city’s police department exercises the
police power in enforcing ordinances, we have recognized that “[t]he organization
and regulation of its police force, as well as its civil service functions, are within a
municipality’s powers of local self-government,” Harsney v. Allen, 160 Ohio St.
36, 41, 113 N.E.2d 86 (1953). As this court explained in N. Ohio Patrolmen’s
Benevolent Assn. v. Parma, “ ‘[t]he mere fact that the exercise of a power of local
self-government may happen to relate to the police department does not make it a
police regulation within the meaning of the words “police-regulations” found in
Section 3 of Article XVIII of the Constitution.’ ” 61 Ohio St. 2d 375, 383, 402
N.E.2d 519 (1980), quoting State ex rel. Canada v. Phillips, 168 Ohio St. 191, 151
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N.E.2d 722 (1958), paragraph five of the syllabus; accord Local 330, Akron
Firefighters Assn., AFL-CIO v. Romanoski, 68 Ohio St. 3d 596, 599, 629 N.E.2d
1044 (1994) (“A municipality has the authority to exercise all powers of local self-
government and may allocate authority between its fire chief and civil service
commission over the utilization and employment of its fire protection forces”
[emphasis added]).
{¶ 36} It is not enough to consider whether an ordinance simply relates to
the exercise of the police power; rather, “[t]o determine whether legislation is such
as falls within the area of local self-government, the result of such legislation or the
result of the proceedings thereunder must be considered,” Beachwood, 167 Ohio
St. at 371, 148 N.E.2d 921. We therefore must review the ordinance on its own
terms to determine whether it regulates the government and administration of the
municipality’s internal affairs or whether it serves to protect the public health,
safety, or morals or the general welfare of the public. That is, does the ordinance
regulate the municipality or its citizens?
{¶ 37} Relevant here, B.H.C.O. 1244.03(B)(2) provides that “[t]he
Commission shall consider the sketch plan at the next regularly scheduled meeting
after receipt of an application and all required maps, sketches and information, and
shall approve or disapprove at the following regular meeting.” And B.H.C.O.
1244.03(D) states: “Rejection. If the Commission determines that [the proposed
division of land] is a major subdivision, or the sketch plan is not approved for other
reasons, the Commission shall state the conditions to be complied with before it
will be approved and return the sketch to the developer with reasons specified.”
(Underlining sic.)
{¶ 38} B.H.C.O. 1244.03 does not specify a time period within which the
planning commission must act before the application will be deemed approved.
Rather, division (B) directs the commission to approve or disapprove the
application at the next regularly scheduled meeting after the application was first
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SUPREME COURT OF OHIO
considered, and division (D) sets forth the process by which the commission must
inform the applicant of its decision to deny the application—i.e., by returning the
sketch to the applicant and explaining the reasons for the denial. In enacting this
ordinance, the city council was regulating only an arm of the city, governing and
administering the city’s internal affairs. That is the exercise of local self-
government.
{¶ 39} R.C. 711.09(C), in contrast, imposes a separate procedure for the
planning commission to follow. The statute requires the commission to endorse
the approval or denial of the subdivision plat within 30 days after its submission or
else the plat is deemed approved. This court has explained that a 30-day limitation
for the approval or rejection of a subdivision plat “is designed to ensure prompt
action to protect the developer from bureaucratic obstructionism.” P. H. English,
Inc. v. Koster, 61 Ohio St. 2d 17, 19, 399 N.E.2d 72 (1980) (construing R.C. 711.10,
an analogous provision applying to county and regional planning commissions).
That is, R.C. 711.09(C) regulates the planning commission, stripping it of authority
to approve or deny an application after 30 days. By regulating how a municipality
governs and administers its own planning commission, the statute purports to
control the municipality’s exercise of self-government. The Home Rule
Amendment, however, protects municipalities from this type of interference in their
internal affairs.
{¶ 40} Because B.H.C.O. 1244.03(B) and (D) represent the exercise of self-
government, the analysis ends there; the Ohio Constitution authorizes Broadview
Heights to exercise all powers of local self-government within its jurisdiction. For
these reasons, I would reverse the judgment of the court of appeals and remand this
case to the trial court to consider appellee Gloria Wesolowski’s remaining claims.
DEWINE, J., concurs in the foregoing opinion.
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Walter Haverfield, L.L.P., R. Todd Hunt, and Aimee W. Lane, for appellant.
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January Term, 2019
Kristen L. Sours, urging affirmance for amici curiae Ohio Home Builders
Association and National Association of Home Builders.
Mansour Gavin, L.P.A., Anthony J. Coyne, and Kathryn E. Weber, urging
reversal for amici curiae American Planning Association, Ohio Chapter, and
Northeast Ohio Law Directors Association.
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