State of Ohio, City of North Ridgeville ex rel. Committee for the Referendum of Ordinance No. 3844-02 v. City of North Ridgeville

IN THE SUPREME COURT OF OHIO

 

STATE OF OHIO, CITY OF NORTH

RIDGEVILLE, ex rel COMMITTEE FOR THE

 REFERENDUM OF ORDINANCE NO. 3844-

02, et al.,

 

                                    Relators,

 

                                    v.

 

CITY OF NORTH RIDGEVILLE, et al.,

 

                                    Respondents.

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CASE NO. 03-0085

 

ORIGINAL ACTION IN MANDAMUS

 

 

 

 

 

 

______________________________________________________________________

 

BRIEF OF INTERVENORS SUGAR CHESTNUT, LLC,

PULTE HOMES OF OHIO LLC, AND WHITLATCH & CO.

______________________________________________________________________

 

 

                                                                  Sheldon Berns (0000140) (Counsel of Record)

                                                                  Benjamin J. Ockner (0034404)

                                                                  BERNS, OCKNER & GREENBERGER, LLC

                                                                  37 Park, Suite 200

                                                                  3733 Park East Drive

                                                                  Beachwood, Ohio 44122

                                                                  (216) 831-8838

                                                                  Counsel for Intervenors

 

 

Gerald W. Phillips

Phillips & Co., L.P.A.

35955 Detroit Road

Avon, OH  44011

Counsel for Relators

 

Eric Zagrans

Law Director

5338 Meadow Lane Court

Elyria, OH  44035

Counsel for Respondents

 


            Intervenors Sugar Chestnut, LLC, whose sole member is Forest City Land Group, Inc. (“Sugar Chestnut”), Pulte Homes of Ohio LLC (successor in interest by merger to Pulte Homes of Ohio, Corporation) (“Pulte”) and Whitlatch & Co. (“Whitlatch”) (collectively, “Intervenors”) respectfully urge this Court to deny Relators’ request for a writ of mandamus directing the Respondents to submit two ordinances granting final plan approval for portions of the Waterbury Planned Community Development (“PCD”) District in the City of North Ridgeville (“City”) to the electorate for a referendum vote to be held on either November 4, 2003 or May 6, 2003.  Under this Court’s rulings in Donnelly v. Fairview Park (1968), 13 Ohio St. 2d 1, 233 N.E.2d 500, and State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio St. 3d 5, 630 N.E.2d 313, the subject ordinances were administrative in nature and, as such, are not subject to referendum.  To the extent this Court’s decision in State ex rel. Crossman Communities of Ohio v. Greene County Bd. Of Elections (1999), 87 Ohio St.3d 132, 717 N.E.2d 1091, is inconsistent with the conclusion mandated by Donnelly and Zonders, moreover, that decision should be limited to its facts.

FACTS

            The facts of this dispute are set forth in the Evidence submitted by Relators, Respondents, and Intervenors[1].

            Briefly, those facts are as follows:

            1.         In September 1999, the North Ridgeville City Council enacted zoning regulations and provisions for the separate zoning classification known as Planned Community Development (PCD) District.  (Complaint, ¶ 37)[2].  Those regulations are included in Chapter 1279 of the City’s Codified Ordinances (“Code”), a copy of which was submitted as Relators’ Evidence, Exhibit X.

            2.         On October 2, 2000, the City Council enacted Ordinance No. 3621-00, which, according to the Complaint, “created the Waterbury Planned Community Development District (Waterbury PCD) and rezoned the [subject] property from R-1 to PCD….”  (Complaint, ¶ 38).  A copy of Ordinance No. 3621-00 was submitted as Relators’ Evidence, Exhibit Y.

            3.         After Ordinance No. 3621-00 was passed, the City “caused the zoning map … to reflect the rezoning….”  (Complaint, ¶ 39).  A copy of the zoning map as amended to reflect the rezoned Waterbury PCD was submitted as Relators’ Evidence, Exhibit Z.

            4.         Once the zoning map was changed to reflect the existence of the rezoned Waterbury PCD, the R-1 zoning regulations ceased to apply to that area.  (Relators’ Evidence, Exhibit X, § 1279.15).

            5.         In January 2002, Whitlatch entered into a contract to purchase approximately 8.2 acres of land in the Waterbury PCD District for development of a single family cluster residential community to be known as “Chaddwyck at Waterbury.”  (Whitlatch Aff., ¶2).  Before Whitlatch agreed to purchase that property, its president, William C. Whitlatch, reviewed the preliminary development plan that was the subject of the Waterbury Preliminary Approval, and was satisfied that Whitlatch could build and develop Chaddwyck at Waterbury as a single family cluster residential community in accordance with that plan and approval.  (Id., ¶3).

            6.         After agreeing to purchase the property, Whitlatch prepared and submitted an application for approval of the Final Plan and Plat for the cluster/single family development of Chaddwyck at Waterbury in accordance with the provisions of Section 1279.09 of the City’s Planning and Zoning Code and Section 1224.02 of the City’s Subdivision Code.  (Id., ¶4).  Whitlatch’s application included full and final engineered drawings, site plan, subdivision plat and other documents, all in accordance with the plans that were approved by the Waterbury Preliminary Approval, and all in accordance with applicable provisions of the North Ridgeville subdivision regulations.  (Id.).  The preparation of these materials cost Whitlatch $40,000.  (Id.).

            7.         On June 11, 2002, the City’s Planning Commission recommended to Council the Approval of the Final Plan and Subdivision Plat for Chaddwyck at Waterbury.

            8.         On August 5, 2002, Whitlatch concluded its purchase of the property on which it would develop Chaddwyck at Waterbury.

            9.         On January 31, 2002, Pulte purchased approximately 11.9 acres of land in the Waterbury PCD District in order to develop a 55-sublot single family residential community to be known as “Andover at Waterbury.”  (Dyer Aff. ¶ 2).  

            10.       Pulte subsequently submitted an application for approval of a proposed final plan for the development of Andover at Waterbury.  This application included full and final engineered drawings, site plan, subdivision plat and other documents, all in accordance with the plans that were approved by the Waterbury Preliminary Approval, and all in accordance with applicable provisions of the North Ridgeville Subdivision Regulations.  (Dyer Aff., ¶4).  The preparation of these materials cost Pulte $42,289.  (Id.).[3]

            11.       On September 16, 2002, the City Council enacted Ordinance Nos. 3844-02 and 3845-02, granting final plan approval and accepting the final plats for the Andover and Chaddwyck developments of the Waterbury PCD.  (Complaint, ¶ ¶ 8, 9; Whitlatch Aff., ¶7; Dyer Aff., ¶5).  Copies of these ordinances were submitted as Relators’ Evidence, Exhibits A and B.

            12.       Under Section 1279.10 of the Code, the final plans must comply with Section 1224.02 of the Code (pertaining to subdivision regulations) and must conform to and represent “a detailed expansion of” the preliminary plan as approved by Ordinance No. 3621-00.  (Relators’ Evidence, Exhibit X, § 1279.10).  Consistent with this requirement, the proposed final plans for both Chaddwyck and Andover were in accordance with the Waterbury Preliminary Approval.  (Whitlatch Aff., ¶4; Dyer Aff., ¶4).

            13.       Since the enactment of Ordinance Nos. 3844-02 and 3845-02, Whitlatch has installed streets and begun construction of six homes in Chaddwyck at Waterbury, consistent with the Chaddwyck Final Approval and the Waterbury Preliminary Approval (Whitlatch Aff., ¶8), while Pulte has installed streets and begun construction of 5 homes, and completed the construction of one fully furnished model, in Andover at Waterbury, consistent with the Andover Final Approval and the Waterbury Preliminary Approval.  (Dyer Aff., ¶6).

            14.       After the enactment of Ordinance Nos. 3844-02 and 3845-02, Relators circulated referendum petitions and have demanded that the City cause those ordinances to be included on the November 4, 2003 election ballot.

            15.       The City has refused to cause the ordinances to be placed on the ballot, claiming that the final plan approvals were administrative determinations.

            16.       Neither Whitlatch, nor Pulte, nor any other prudent builder/developer would have purchased property within the Waterbury PCD and incurred the substantial expense of having full and final engineering drawings and a final subdivision plat prepared for a residential community within the Waterbury PCD, consistent with the City’s final PCD approval regulations, unless it was certain that it could develop that community in accordance with the Waterbury Preliminary Approval without the risk of its final plan, prepared in accordance with the Waterbury Preliminary Approval, being the subject of an election.  (Whitlatch Aff., ¶9; Dyer Aff., ¶7).

ARGUMENT

Proposition Of Law: An Ordinance Accepting A Final Plat For Approval And Recording Purposes For The Development Of Property Located Within An Area Already Zoned For Planned Unit Development Consistent With Existing Planned Unit Development Regulations Is Administrative And Therefore Not Subject To Referendum Where That Plat and Accompanying Development Plan Comply With Those Planned Unit Development Regulations.

 

            The issue in this dispute is whether the City’s approvals of the final development plans and plats for the Andover and Chaddwyck portions of the Waterbury PCD (through the Andover and Chaddwyck Final Approvals) were administrative or legislative.

            The determination of whether action by local governmental officials is legislative or administrative is governed by this Court’s decision in Donnelly v. City of Fairview Park:

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, Syllabus paragraph two.  Donnelly arose from a court challenge to the Fairview Park Council’s failure to accept the recommendation of the city’s planning commission approving a property owner’s subdivision application.  Concluding that the property owner’s application complied with applicable provisions of the city’s zoning code, 13 Ohio St. 2d at 3, 233 N.E.2d at 501, this Court held:

The failure or refusal of a municipal council to approve a plan for the resubdivision of land which meets the terms of a zoning ordinance already adopted and in existence is an administrative act, and an appeal from such failure or refusal to approve lies to the Court of Common Pleas under Chapter 2506, Revised Code.

 

Donnelly, Syllabus paragraph three.

            This Court’s decisions in Peachtree Development Co. v. Paul (1981), 67 Ohio St. 2d 345, 423 N.E.2d 1087, Zonders, and Donnelly lead inescapably to the conclusion that the ordinances Relators wish to subject to a referendum were in fact administrative measures that not subject to referendum.

            Insisting that the facts of this case are identical to those in Crossman, Relators essentially disregard the fundamental principles articulated in Peachtree, Zonders and Donnelly.  In fact, there are salient distinctions between this dispute and Crossman and Intervenors respectfully urge this Court that those distinctions vividly illustrate why the extraordinary relief sought by Relators ought to be denied, and Crossman confined to its facts.  A discussion of planned unit developments, their utility and desirability in Ohio, and the development of the law in this state regarding such developments illustrates why.

Planned Unit Developments, Generally

            Under traditional concepts of zoning, a political subdivision is divided into a number of zoning districts by the local legislative body, which also establishes uniform rules concerning allowable type, size and location of buildings within a given district.  Gray v. Monclova Township (1974), 38 Ohio St.2d 310, 311, 313 N.E.2d 366.  Each improvement within a zoning district must comply with the same legislative specifications, unless a variance is sought and granted.  Id.  The popularity of large-scale residential projects, however, engendered a new mode of zoning, variously referred to as Planned Unit Development (PUD), or Community Unit Plan (CUP).  Id.

PUD zoning permits those aspects of land development which are normally regulated by zoning to vary within a geographically defined area bearing a single zoning classification. Within the PUD there may be found single-family dwellings, multi-family units, schools, open spaces, recreational facilities and other collateral nonresidential uses.  In short, a PUD is often a self-contained, although not necessarily politically separate, community.

 

Id.

            Planned unit development is a type of development in which an area of land, typically under the control of a single owner, is to be developed for different types of residential dwelling units frequently along with other uses, including schools, churches and/or commercial uses.  Meck and Pearlman, Ohio Planning and Zoning Law (7 Ed. West Group 2002) (“Meck and Pearlman”) 541, Section 11.22.  Planned unit development is an alternative to conventional lot-by-lot development in which zoning regulations control the placement of buildings and other activities on each lot.  Id.  In such developments, lot size, setback, bulk, lot coverage, parking, and other development standards are relaxed in order to achieve better site design, use relationships, and preservation of open spaces and topography.  Id.  Planned unit development is one technique adopted by municipalities to remedy the defects in traditional zoning theory and practice.  5 Ziegler, Rathkopf’s The Law of Zoning and Planning (West Group 2002) (“Rathkopf”) 88-3, Section 88:1.[4]  The dominant, and most cited, objective of PUD zoning is flexibility.  Id. at 88-9.  PUD zoning also provides for diversification in the location of structures and other site qualities.  Id. 

            Many communities in Ohio have adopted PUD regulations.  Meck and Pearlman at 542.  Such regulations parallel subdivision control, and the PUD planning documents typically resemble those submitted for subdivision approval.  Id.

            The approval process for PUD’s typically involves two steps:

(1) submission of a preliminary development plan, which provides an overall concept or design for the site, designating uses and densities or intensities; and (2) a final development plan, which is very specific in the location of buildings, uses and structures, streets, landscaping, parking and other site features.

 

Id.  Regardless of how clear PUD regulations may be, the approval process typically entails considerable negotiation between and among the developer, local government and, often, neighboring property owners.  Id.

            PUD’s in townships and counties are the subjects of Sections 519.021 and 303.022 of the Ohio Revised Code, respectively.  Within township and county PUD’s, township and county zoning regulations (as well as county subdivision and platting regulations) “need not be uniform, but may vary in order to accommodate unified development and to promote the public health, safety, morals, and the other purposes” of those sections of the Revised Code.  R.C. §§519.021, 303.022.  While there are three different procedures through which property in townships or counties can be subjected to PUD regulations, with respect to each such procedure, the designation of specific territory to be governed by PUD regulations adopted pursuant to Sections 519.021 and 303.022 entails an amendment to the zoning map in accordance with the provisions of either Section 519.12 or Section 303.12.

            In both statutes, the General Assembly has conferred upon townships and counties the power to adopt planned unit development regulations.  R.C. §§519.021(A), 303.022(A).  Such regulations, however, “do not automatically apply to any property.”  Id.  Instead, those standards apply only to property that has become part of a planned unit development.  Once an area to be subjected to PUD regulations has been rezoned, property within that area is no longer subject to previously applicable zoning regulations.  Id.  Subsequent development of such property must instead comply with the PUD regulations.

              The statutes also authorize property owners to ask their township trustees or county commissioners (as the case may be) to establish a planned unit development for their property.  R.C. §§519.021(B), 303.022(B).  This procedure entails a change to the zoning map and the simultaneous adoption of regulations that will apply only to that PUD.  Id.  Within the PUD development area, property is subject to the PUD regulations “and not to any other zoning regulations.”  Id.

            The third procedure through which property in townships or counties can be subjected to PUD regulations is described in Revised Code Sections 519.021(C) and 303.022(C).  Under this procedure, the township trustees or county commissioners may adopt PUD regulations and amend the zoning map to rezone certain property to a PUD designation.  Id.  Existing zoning regulations continue to apply within the designated PUD area unless and until an application from a property owner within the PUD to subject that owner’s property to PUD regulations is approved.  Id.  The application must include a development plan that complies with the PUD regulations.  Id.

            As to all of the procedures detailed in Revised Code Sections 519.021 and 303.022, once PUD regulations have been adopted and the specific territory of the township or county to be subject to those PUD regulations has been designated on the zoning map, the approval of specific PUD developments within those areas consistent with those PUD regulations is not an amendment or supplement to the zoning map or resolution, and is reviewable only through administrative appeals under Revised Code Chapter 2506.  For example, Revised Code Section 519.021(A) provides, in pertinent part:

After the designation of the property as a planned-unit development on the zoning map, any approval or disapproval of subsequent use or development of property in a planned-unit development as being in compliance with regulations established as authorized by this division shall not be considered to be an amendment or supplement to a township zoning resolution for the purpose of section 519.12 of the Revised Code, but may be appealed pursuant to Chapter 2506. of the Revised Code.

 

See also R.C. §303.022(A).  Revised Code Section 519.021(B) provides:

After the designation of the property as a planned-unit development on the zoning map and the simultaneous adoption of regulations that will apply only to that planned-unit development, any approval or disapproval of subsequent use or development of property in a planned-unit development as being in compliance with regulations established as authorized by this division shall not be considered to be an amendment or supplement to a township zoning resolution for the purpose of section 519.12 of the Revised Code, but may be appealed pursuant to Chapter 2506. of the Revised Code.

 

See also R.C. §303.022(B).  Finally, Revised Code Section 519.021(C) provides:

[T]he board of township trustees or township zoning commission, as applicable, shall determine whether the application and plan comply with the planned-unit development regulations. The board's or commission's determination shall not be considered to be an amendment to a township zoning resolution for purposes of section 519.12 of the Revised Code, but may be appealed pursuant to Chapter 2506. of the Revised Code. If the board or commission makes a final determination that the plan included in the application complies with the planned-unit development regulations or, if the board's or commission's final determination is one of noncompliance then if a court of competent jurisdiction makes a final nonappealable order finding compliance, the board or commission, as applicable, shall approve the application and upon approval shall cause the zoning map to be changed so that any other zoning district that applied to the property that is the subject of the owner's application no longer applies to that property. The removal of the prior zoning district from the zoning map is a ministerial act and shall not be considered to be an amendment or supplement to a township zoning resolution for the purposes of section 519.12 of the Revised Code and may not be appealed pursuant to Chapter 2506. of the Revised Code.

 

See also R.C. §303.022(C).

            In sum, the development of property in areas of Ohio townships and counties already designated for planned unit development consistent with existing planned unit development regulations can occur only after: a) legislation adopting planned unit development regulations has been passed; and b) the property on which such development is to occur has been rezoned.  Language in the statutes providing appeal rights under Chapter 2506 suggests that the General Assembly wanted to be clear that while some aspects of the procedures it established obviously entailed the enactment of laws or policies, others entailed the implementation or effectuation of such laws or policies.  See generally Meck and Pearlman at 543-544.[5]

            In Peachtree, this Court identified two stages of the PUD approval process that were legislative.  The first legislative stage identified by the Court was the “creation of the [PUD] concept was a legislative act that was subject to a referendum,” 67 Ohio St. 2d at 351, 423 N.E.2d at 1092 (italics in original, emphasis added), more precisely the adoption of a new zoning classification in the Hamilton County Zoning Resolution:

The Court of Appeals correctly observed that the creation of the CUP concept was a legislative act that was subject to a referendum. As the court below stated: "The Board's adoption of Article XVI of the Zoning Resolution under R. C. 303.022 was an amendment to the Zoning Resolution and it was subject to a referendum under R. C. 303.12.  By that legislative act the board created a new zoning classification known as a Community Unit Plan, different from the other districts, more flexible but subject to the limitations and proceedings set forth in Article XVI." (Footnote omitted.)

 

67 Ohio St. 2d at 351, 423 N.E.2d at 1092 (italics in original, emphasis added).

            The second legislative stage identified by Peachtree was the “implementation” of the PUD, separate and apart from the creation of the regulatory scheme allowing for the creation of such districts in the first place.  The Court’s statement of the issues best explains what it meant by the term “implementation” in this context:

whether the board of county commissioners'  approval of the CUP, which approval subjects the 164.5 acre tract to a standard of zoning different from that which existed prior to the approval, constitutes legislative action which is subject to a referendum in accordance with R.C. 303.12….

 

67 Ohio St. 2d at 350, 423 N.E.2d at 1091.  Peachtree held that a decision implementing the Hamilton County PUD regulations was legislative because it “was the functional equivalent of altering the zoning classification of a sizeable section of Colerain Township.”  67 Ohio St. 2d at 351, 423 N.E.2d at 1092.  The Court further explained: “As a practical matter, the implementation of the CUP effects a zoning change of this area.  When the board of county commissioners approved the CUP, the preexisting Residence A-2 classification remained in name only.”  Id.

            Clearly, when this Court used the term “implementation” in Peachtree, it was referring to the determination that development in a particular area in the county would thereafter be subject to existing PUD regulations, notwithstanding the fact that the nominal zoning classification did not change.  The Court was not referring to the situation where, as here, a determination was made that a specific subdivision proposed to be developed in an area already zoned for planned unit development use complied with existing planned unit development regulations.

            In Zonders, this Court held: “R.C. 519.021 does not exempt the initial rezoning of property from one classification to another from the referendum provisions of R.C. 519.12 where the latter classification is a PUD.”  69 Ohio St. 3d at 12, 630 N.E.2d at 318.  After the Genoa Township trustees voted to accept the recommendation of the township zoning commission to approve rezoning certain property from rural residential to planned residential, citizens opposed to the rezoning circulated referendum petitions.  The Delaware County Board of Elections determined that the rezoning was not referendable pursuant to R.C. §519.021.  This Court disagreed.

            Referring to Peachtree, the Court explained:

 we held that the implementation of a PUD, as well as its creation, is a legislative act subject to referendum since the "'action of the board in approving such a plat is the functional equivalent of traditional legislative zoning, even though the entire PUD area is covered by the same "nominal" zoning classification both before and after approval of the plat.'"

 

69 Ohio St. 3d at 11, 630 N.E.2d at 317-318.  Explaining that amendments to R.C. §519.021 enacted subsequent to Peachtree did not supercede that decision, moreover, Zonders quoted with approval the following analysis in Jurkiewicz v. Butler Cty. Bd. of Elections (Butler App. 1993), 85 Ohio App.3d 503, 506, 620 N.E.2d 146, 148:

It is thus possible to interpret R.C. 519.021 as merely exempting from referendum the zoning authority's determinations whether a particular piece of property, once generally approved as a PUD, is then developed according to PUD standards, or 'standards of compliance.' Such an interpretation would leave intact Peachtree's holding that the initial decision to designate a particular piece of property as a PUD is a legislative act subject to referendum.

 

69 Ohio St. 3d at 11-12, 630 N.E.2d at 318 (emphasis added).  The Court summarized as follows:

[T]he enactment of a new PUD classification that is not tied to any specific piece of property is a legislative act subject to referendum.  However, where specific property is already zoned as a PUD area, approval of subsequent development as being in compliance with the existing PUD standards is an administrative act which is not subject to referendum. . .  Finally, the application of preexisting PUD regulations to a specific piece of property which is zoned under a non-PUD classification (the situation here) effects a rezoning of the property and is thus a legislative act subject to referendum.

 

69 Ohio St. 3d at 13, 630 N.E.2d at 319 (citations omitted, emphasis added).

            Analyzed through the lens of the Court’s decisions in Peachtree, Zonders, and Donnelly, the Chaddwyck and Andover Final Approvals were determinations that those final development plans and plats complied with existing PUD regulations for development of property already zoned for PUD use.

            In Crossman, this Court expressly relied upon its earlier holdings in Donnelly, Monclova, Peachtree, and Zonders and reiterated:

[T]he implementation of a PUD, as well as its creation, is a legislative act subject to referendum" because the action of approving a plat is the functional equivalent of traditional legislative zoning, although the entire PUD area is covered by the same nominal zoning classification both before and after the approval of the plat.

 

87 Ohio St.3d at 136-137, 717 N.E.2d at 1096.  Crossman neither expressly nor impliedly modified any of the decisions upon which it relied or which it quoted, and did not intend to.

            As in Peachtree, moreover, the emphasized language in the quotation above (the linchpin of the case) reveals what the Court means when it uses the term “implementation” in the context of planned unit development approvals.  PUD regulations, by the measure of Crossman, are “implemented” so as to constitute legislative action when their terms are brought to bear on specific property in such a way as to amount to the “functional equivalent” of traditional zoning.  That is not what happened here.

            Crossman involved a confusing planned unit development regulatory scheme in which actual rezoning of property could occur at any one of three different stages.  The City’s PCD regulations are not confusing.  Indeed, sophisticated developers have invested substantial sums of money, time and energy in the pursuit of developments under those regulations.  Such an investment would make no sense, and therefore would not be possible, if its efficacy were subject to a popular vote in the final analysis.  There was no evidence, and no discussion, in Crossman about the costs, risks and practical realities of complying with regulations like the City of North Ridgeville’s final PCD approval regulations.[6]

            Section 1279.08 of the City’s Zoning Code instructs that the legislative process of creating the Waterbury PCD ended upon City Council’s enactment of the Waterbury Preliminary Approval in October 2000.  At that point, the zoning classification of the effected land was changed from R-1 to PCD and a notation to that effect was inscribed upon the City’s Zoning Map.  The R-1 regulations that applied to the former zoning classification, moreover, ceased to apply to that land.

            Sections 1279.09 through 1279.11 of the City’s Code govern the process and conditions for the final approval of a development within an existing PCD District.  Unlike those set forth in Sections 1279.03 through 1279.08 of the Code, none of the final PCD approval provisions call for or mandate a change to the zoning classification, a notation on the Zoning Map, or a change in regulations set by the preliminary approval.  In fact, under the North Ridgeville Code, a final PCD approval cannot be granted until the effected property has already been rezoned.

            The City’s approvals of the Chaddwyck and Andover final plans and plats entailed a review of those materials to ensure compliance with provisions of the City’s subdivision code and to confirm that those plans were in accordance with “and represent[ed] a detailed expansion of” the Waterbury Preliminary Approval.  Code Section 1279.10.  Clearly, the Chaddwyck and Andover Final Approvals were administrative under Donnelly.

            Relators insist, however, that because Chaddwyck and Andover are part of a planned community development, then no matter what the substance or effect of the City’s final PCD approval regulations, the final approvals for those developments amount to decisions “implementing” the City’s PCD regulations, and as such are legislative.  This position is wrong and emanates from an incomplete reading of Peachtree.

            The property on which Whitlatch and Pulte are developing Chaddwyck at Waterbury and Andover at Waterbury, respectively, already is zoned as PCD, having been rezoned from R-1.  The final plats and development plans for Chaddwyck and Andover conform to the Waterbury Preliminary Approval and comply with provisions of the City’s Subdivision Code.  As recognized by this Court in Zonders, those approvals were administrative.

If Peachtree and Zonders are to retain vitality and efficacy after Crossman, as this Court clearly intended, then the City’s adoption in 1999 of Chapter 1279 of the Code creating the PCD use classification and setting forth applicable standards and procedures for its implementation, and the adoption of legislation in October 2000 implementing those provisions by creating the Waterbury PCD District on approximately 640 acres of land in the City (including the change in Zoning Map and cessation of R-1 zoning regulations) were legislative actions, while the subsequent Chaddwyck and Andover Final Approvals must be regarded as “approval of subsequent development as being in compliance with the existing [PCD] standards” (in the parlance of Zonders) which were administrative acts.  Otherwise, and if the approach espoused by Relators in this action should prevail, every amendment to those final development plan and plat approvals would be subject to referendum.

CONCLUSION

            No prudent builder/developer would purchase property in an existing PCD development, and incur the substantial expense of having full and final engineering drawings and a final subdivision plat prepared consistent with the City’s final PCD approval regulations, unless that developer knew, with certainty, that it could develop that land in accordance with an existing Preliminary Approval without the risk of its final plan, prepared in accordance with that Preliminary Approval, being the subject of an election.  Compliance with the engineering requirements set forth in the City’s final PCD approval regulations is enormously expensive.   If the experiences of Whitlatch and Pulte are any indication, the price of merely seeking final development plan and plat approval for all 640 acres of the Waterbury PCD could exceed $2.5 million!  The City could not reasonably have anticipated that prudent builders and developers would be willing to gamble such high stakes, subject to the whim of the electorate, just to gain the opportunity (with accompanying additional risk) to develop, improve and build subdivisions of homes at substantial additional expense.  The City’s Code is not written, and should not be read, as requiring builders and developers to incur such enormous expense and risk.

            Consistent with Peachtree, the City’s adoption of Chapter 1279 creating the PCD use classification was legislative.  So was the City’s adoption of the Waterbury Preliminary Approval, which implemented the provisions of Chapter 1279 by subjecting specific territory, consisting of  640 acres of land, to the Code’s PCD provisions, as well as those articulated in that approval.  As recognized by this Court in Zonders and in Donnelly, however, the City’s subsequent adoptions of the Whitlatch and Andover Final Approvals, which approvals merely confirmed compliance by those final development plans and plats with provisions of the City’s subdivision regulations and the Waterbury Preliminary Approval, were administrative.  As such, those approvals are not subject to referendum, and Relators have no right to the relief they seek.

            For the foregoing reasons, Intervenors respectfully urge this Court to deny Relators’ Motion for Summary Judgment, and to dismiss their Complaint for Writ of Mandamus.

                                                                  Respectfully submitted,

                                                                                                                                   

                                                                  Sheldon Berns (0000140) (Counsel of Record)

                                                                  Benjamin J. Ockner (0034404)

                                                                  BERNS, OCKNER & GREENBERGER, LLC

                                                                  24500 Chagrin Blvd., Suite 101

                                                                  Beachwood, Ohio 44122

                                                                  (216) 831-8838

                                                                  Counsel for Intervenors

 

CERTIFICATE OF SERVICE

            A copy of the foregoing Brief of Intervenors Sugar Chestnut, LLC, Pulte Homes, and Whitlatch & Co. In Opposition to Motion for Summary Judgment was served upon the following by regular U.S. mail, postage prepaid, this 3rd day of March, 2003, to Gerald W. Phillips, Esq., Phillips & Co., L.P.A., 35955 Detroit Road, Avon, OH  44011, Counsel for Relators, and Eric Zagrans, Esq., Law Director, 5338 Meadow Lane Court, Elyria, OH  44035, Counsel for Respondents.

 

 

                                                            __________________________________

                                                                        Benjamin J. Ockner



[1]  The Evidence submitted on behalf of Intervenors consisted of Affidavits from Whitlatch’s President, William C. Whitlatch (“Whitlatch Aff.”), and Pulte’s Director of Land, Robert Dyer (“Dyer Aff.”)  The caption of that submission inadvertently omitted reference to Pulte.

[2]  Relators’ evidence includes several affidavits from Relators’ Counsel, and the affidavit of John Prajzner, the chairman of the Relator committees, verifying the facts alleged in the Verified Complaint in Mandamus.  As they did in their Brief opposing Relators’ Motion for Summary Judgment, Intervenors once again will treat as true the factual allegations of the Complaint.

[3]  While the math may be rough, Whitlatch and Pulte paid an average of more than $4,000 per acre to have the full and final engineering drawings and other materials required by the City’s final PCD approval regulations prepared and submitted.  The Waterbury PCD consists of approximately 640 acres.  (Relators’ Evidence, Exhibit Y).  Assuming it is developed in phases like the Andover and Chaddwyck developments, just the preparation of drawings and materials required by the final PCD approval regulations for the entire Waterbury PCD District will obviously cost well into the millions of dollars.

[4]  In Zonders, this Court elaborated as follows:

 

Traditional zoning techniques commonly resulted in neighborhoods of like structures on essentially identical lots, creating "cookie cutter" subdivisions which did not provide sufficient open space. See, generally, 5 Rohan, Zoning and Land Use Controls (1994), Section 32.01[1]; 2 Anderson, American Law of Zoning (3 Ed.1986), Section 11.01.  As a result of the problems associated with traditional zoning laws, PUDs were developed through local zoning ordinances and state enabling legislation.

 

69 Ohio St. 3d at 8, 630 N.E.2d at 316.

[5]  In Zonders, this Court observed: “given the remedial purpose of PUDs to allow greater flexibility in zoning and to maintain open space, R.C. 519.021 must be liberally construed.”  69 Ohio St. 3d at 10, 630 N.E.2d at 317. 

[6]  According to some commentators, Crossman “considerably blurs the line between what is legislative and what is administrative.”  Meck and Pearlman at 549.  They contend, further, that the holding in Crossman is incorrect:

 

Because of the technical detail and discretionary judgments involved in its review, the approval of a final development plan, in practice, is equivalent to approval of a subdivision plat, an action that the Ohio Supreme Court has held to be administrative….  If approval of a final plat of a subdivision and a site plan are administrative actions, how can approval of a final development plan be anything else but administrative as well, once the overall framework has been established by a preliminary development plan and the zoning change? …. A better approach … would have been to separate the policy-making question of rezoning … from the question of the policy-effectuating approval of the final development plan, each of which constitutes an action of a different character.

 

Id. at 549-550.


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