Summary
finding that the power granted to townships pursuant to R.C. 519.02 did not encompass the authority to regulate the hours of operation of commercial enterprises within their jurisdiction
Summary of this case from W. Chester Twp. Zoning v. FrommOpinion
No. 89-1228
Submitted September 26, 1990 —
Decided December 5, 1990.
Zoning — Authority possessed by townships limited to that which is specifically conferred by the General Assembly — Police power granted to townships pursuant to R.C. 519.02 does not encompass authority to limit hours of operation of commercial enterprises.
1. The zoning authority possessed by townships in the state of Ohio is limited to that which is specifically conferred by the General Assembly. ( Yorkavitz v. Bd. of Trustees of Columbia Twp., 166 Ohio St. 349, 2 O.O. 2d 255, 142 N.E.2d 655, approved and followed.)
2. The police power granted to townships pursuant to R.C. 519.02 does not encompass the authority to limit the hours of operation of otherwise lawful commercial enterprises within their jurisdiction.
APPEAL from the Court of Appeals for Geauga County, No. 88-G-1475.
Geauga lake is an amusement park which has been located in Bainbridge Township, Ohio, for over one hundred years. Since 1969, defendant-appellee, Funtime, Inc., has been the owner-operator of Geauga Lake. During its existence, Geauga Lake has been the site of various promotional events when its hours of operation were extended beyond its normal closing time of 12:00 midnight. Among the events to which no definite closing time applied were "nickel days" and holiday fireworks displays. On those occasions, the amusement park continued to operate as long as there was consumer demand for its attractions. Similarly, hours of operation were extended to accommodate the Aurora firemen's annual dance, WHK days and Octoberfest. Each of these events involved the performance of live music.
In 1985, Geauga Lake held a special event designated "Grad Night." The event was designed to afford graduating seniors from area high schools and their guests an opportunity to celebrate their accomplishments in a safe environment. During Grad Night the hours of operation extended from 10:00 p.m. to 5:00 a.m. the following morning. Tickets were sold in advance through the high schools and no tickets could be obtained at the gate on the night of the event. Approximately ten thousand students purchased tickets in 1985. Patrons possessing tickets to Grad Night were greeted at the entrance of Geauga Lake by its personnel who would then conduct an inspection of the personal effects of each patron to assure that no alcohol or other contraband was brought into the park. Thereafter, the patrons were permitted free access to the park amusements.
In 1986, Grad Night was again held for graduating seniors of area high schools. Similar to the 1985 event, tickets were available only on a pre-sale basis through the high schools. Thirteen thousand five hundred tickets were pre-sold. However, approximately fifty individuals lacking tickets sought to forcibly gain admission on the night of the activity. The ensuing disturbance resulted in nineteen complaints and nine arrests for felonious assault, assault, robbery, breaking and entering and intoxication.
Largely in reaction to the disturbances occasioned by Grad Night in 1986, plaintiff-appellant, Board of Trustees of Bainbridge Township, on April 13, 1987 adopted Section 151.04 of the Bainbridge Township Zoning Resolution, which prohibited the operation of amusement parks from 12:01 a.m. to 8:00 a.m. In accordance with the township resolution, Grad Night in 1987 was scheduled to conclude at 12:00 midnight. Approximately four hundred fifty-seven tickets were pre-sold for the event. Given the poor attendance for Grad Night in 1987, Geauga Lake officials, believing that the zoning resolution was invalid insofar as it attempted to regulate the park's hours of operation, notified Bainbridge Township on August 14, 1987 that they intended to conduct Grad Night in 1988 during the same hours that the event had been held in 1985 and 1986. In addition to reverting to the previous hours of operation, Geauga Lake also altered somewhat the manner in which the activity was conducted. The principal departure from past practice was the utilization of bus transportation from the high schools to Geauga Lake. No private vehicles were permitted to enter the Geauga Lake parking lot. In an attempt to alleviate any disturbance to the residents of the surrounding neighborhood, the live music was scheduled to cease at 1:30 a.m. rather than 2:30 a.m. Moreover, total pre-sale tickets were limited to eight thousand, and promotion of the event and the attendant ticket sales ended four to six weeks before the event's scheduled occurrence. Finally, additional security personnel were retained to address any potential difficulties.
On May 4, 1988, plaintiff-appellant instituted the present action in the Geauga County Common Pleas Court seeking to enjoin operation of the park in violation of Section 151.04 of the zoning resolution.
On July 19, 1988, the trial court denied the relief sought, concluding that the prior operation of the park between 12:00 midnight and 5:00 a.m. constituted a preexisting nonconforming use. On May 22, 1989, the court of appeals affirmed, holding that the zoning authority of the township did not extend to the regulation of hours of operation.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
David P. Joyce, prosecuting attorney, and Forrest W. Burt, for appellant.
Peterson, Ibold Wantz, Jerry Peterson and David M. King, for appellee.
The present action challenges the validity of Section 151.04 of the Bainbridge Township Zoning Resolution, which provides as follows:
"No outdoor recreational park activities or operations which involve public participation shall be carried on between the hours of 12:01 a.m. and 8:00 a.m."
The authority of townships in Ohio to adopt local zoning regulations is derived from R.C. 519.02. It provides:
"For the purpose of promoting the public health, safety, and morals, the board of township trustees may in accordance with a comprehensive plan regulate by resolution the location, height, bulk, number of stories, and size of buildings and other structures, including tents, cabins, and trailer coaches, percentages of lot areas which may be occupied, set back building lines, sizes of yards, courts, and other open spaces, the density of population, the uses of buildings and other structures including tents, cabins, and trailer coaches, and the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of such township, and for such purposes may divide all or any part of the unincorporated territory of the township into districts or zones of such number, shape, and area as the board determines. All such regulations shall be uniform for each class or kind of building or other structure or use throughout any district or zone, but the regulations in one district or zone may differ from those in other districts or zones." (Emphasis added.)
In Yorkavitz v. Bd. of Trustees of Columbia Twp. (1957), 166 Ohio St. 349, 2 O.O. 2d 255, 142 N.E.2d 655, this court clearly stated that whatever authority townships possess to enact local police power regulations is limited to that which is specifically conferred by statute. In this regard, the court observed:
"At the outset it must be noted that the townships of Ohio have no inherent or constitutionally granted police power, the power upon which zoning legislation is based. Whatever police or zoning power townships of Ohio have is that delegated by the General Assembly, and it follows that such power is limited to that which is expressly delegated to them by statute." 166 Ohio St. at 351, 2 O.O. 2d at 256, 142 N.E.2d at 656.
Accordingly, the zoning authority possessed by townships in the state of Ohio is limited to that which is specifically conferred by the General Assembly. In the case sub judice such authority is derived from R.C. 519.02. However, the plain language of this section limits the authority sought to be exercised by appellant to regulation of "the uses of buildings and other structures * * * and the uses of land for trade, industry, residence, recreation, or other purposes * * *."
It is therefore apparent that the authority of townships to zone is limited to the types of uses to which structures and land may be put. The police power granted to townships pursuant to R.C. 519.02 does not encompass the authority to limit the hours of operation of otherwise lawful commercial enterprises within their jurisdiction.
Appellant cites Akron v. Klein (1960), 171 Ohio St. 207, 12 O.O. 2d 331, 168 N.E.2d 564, and Cincinnati v. Correll (1943), 141 Ohio St. 535, 26 O.O. 116, 49 N.E.2d 412, for the proposition that regulation of this type, if otherwise constitutional, is a permitted activity of local government. However, both cited cases involved charter municipalities, which exercise the power of self-government pursuant to Section 3, Article XVIII of the Ohio Constitution. Townships enjoy no similar authority.
Appellee has urged as an additional basis for affirmance that its prior operation of recreational activities during the hours sought to be addressed by Section 151.04 of the zoning resolution constituted a preexisting nonconforming use. However, inasmuch as we have concluded that hours of operation are not a use for purposes of R.C. 519.02, it is unnecessary to determine whether appellee has established a preexisting nonconforming use pursuant to R.C. 519.19.
The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
MOYER, C.J., HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.