Opinion
No. 91-CV-0151.
Decided October 23, 1991 and November 29, 1991.
Don Williams, for George C. and Ruth Pidgeon.
Frederick J. Buckley, for Charles A. Denny.
Daniel J. Buckley, for Steven and Sandra Pidgeon.
Thompson, Hine Flory, William C. Wilkinson and Richard B. Tranter, for Ramar Land Corporation. Chad Carey, for Ralph L. Roberts.
G. Alan Gano, Special Assistant Prosecuting Attorney, for Clinton County Commissioners.
On or about May 1, 1991, plaintiffs Pidgeons and Denny, as landowners, filed a complaint in the Clinton County Court of Common Pleas for preliminary injunction and declaratory judgment against defendants Roberts, Ramar Land Corporation, and Clinton County Commissioners.
On or about February 25, 1991, Ramar acquired 90.5 agricultural acres adjoining plaintiffs' land and, through its agent, defendant Roberts submitted an application for rezoning to the Clinton County Commissioners, requesting zoning from A-2 Agricultural to I-2 Industrial.
I-2 zoning permits industry, either open or enclosed, in accordance with an industrial development plan, but no business uses unless they are accessory to the particular industrial use.
The Clinton County Zoning Commission then caused to be published a notice of public hearing on the zoning petition, which plaintiffs alleged failed to properly notify the public concerning the designation of the proposed zoning classification, as well as the time and place for review of the application. Plaintiffs also alleged that defendants Roberts and Ramar failed to obtain the Clinton County Regional Planning Commission's recommendations, as required per R.C. 303.12.
The Clinton County Zoning Commission met on March 25 to consider the application and continued the meeting to April 15, 1991. At the April meeting, the zoning commission recommended rezoning of the land from A-2 to B-2, instead of I-2, without notice, and in the absence of any application for B-2 zoning. Plaintiffs allege that the recommendation of the zoning board was defective in that it failed to properly notify the public as to the change.
B-2 zoning in Clinton County permitted heavier types of business operations, including warehouses, storage, enclosed industrial operations and local business uses and service businesses which I-2 zoning permitted.
The matter first came for hearing on a preliminary injunction filed by plaintiffs, requesting that defendants Ramar Land and R L Transfer, Inc. be temporarily enjoined from proceeding on the proposed zoning amendment before the county commissioners, and that the county commissioners be enjoined from conducting further hearings as to the subject real estate under R.C. 303.12 et seq. Evidence was adduced, exhibits were introduced into evidence, written and oral argument were submitted, and the court took the matter under advisement.
It is well-settled law, and plaintiffs did not dispute, that the right to a preliminary injunction must be proved by clear and convincing evidence, which is a higher standard than the normal preponderance of the evidence burden in civil cases, see S. Ohio Bank v. S. Ohio Savings Assn. (1976), 51 Ohio App.2d 67, 5 O.O.3d 183, 366 N.E.2d 296, and Diamond Co. v. Gentry Acquisition Corp. (1988), 48 Ohio Misc.2d 1, 531 N.E.2d 777. A great deal of evidence was presented concerning issues of procedural defects in the Clinton County Rural Zoning Board's hearings, as well as the potential effect on part of the acreage considered wetlands. However, before this court could address these issues on procedural irregularities and the effect of zoning change on the existing wetlands, it was necessary to determine the threshold question whether plaintiffs have an adequate remedy at law.
The purpose of a preliminary injunction is to preserve and protect the ability of the court to provide an effective judgment on the merits. It was not intended as a remedy per se for the litigant. Rather, it was intended as a means of preserving the court's ability to grant effective meaningful relief after a determination of the merits, Gobel v. Laing (1967), 12 Ohio App.2d 93, 41 O.O.2d 175, 231 N.E.2d 341. Thus, the issue remained whether this court had an ability to grant effective, meaningful relief by way of a remedy at law.
Defendants claimed that at least three legal remedies existed for plaintiffs in resolving this zoning dispute. First, they alleged, the right of referendum existing under R.C. 303.12(H) provided an adequate remedy. In support of this proposition, defendants cited Trees v. Loomis (1957), 76 Ohio Law Abs. 565, 3 O.O.2d 445, 145 N.E.2d 339. While that case involved discussions of Ohio constitutional referendum power, this court was not persuaded that the statutory referendum power provided in R.C. 303.12 was in fact an adequate remedy at law, particularly where issues of procedural or constitutional (due process) infirmity potentially existed. The court in Trees assumed that no irregularities existed in the performance of the legislative board. Admittedly, the Trees court, in dicta, impliedly categorized the referendum procedure as a remedy at law, but case law existed which held otherwise, see Howland Realty Co. v. Walcott (1982), 8 Ohio App.3d 424, 8 OBR 548, 457 N.E.2d 883.
Notwithstanding the Trees court's dicta, this court could find no support that a referendum was an adequate remedy at law which could address alleged procedural defects and ratify legislative acts which may be judicially determined to be void for want for subject matter jurisdiction.
Second, defendants argued that plaintiffs had an adequate remedy at law, in that any zoning change approved by the commissioners would be required to be reviewed by the board of zoning appeals at a later stage. As such, defendants argued, any decision from the board of zoning appeals could then be appealed to the court of common pleas. The issues under such an appeal would involve different issues from those raised by the original commissioners' decision. Moreover, this court was mindful of the high burden required to overturn an administrative appeal, inasmuch as a decision of the administrative board would be upheld if there existed a preponderance of reliable, probative, and substantial evidence to support the agency's decision. See Dudukovich v. Lorain Metro. Hous. Auth. (1979), 58 Ohio St.2d 202, 12 O.O.3d 198, 389 N.E.2d 1113; see, also, Schoell v. Sheboy (1973), 34 Ohio App.2d 168, 63 O.O.2d 285, 296 N.E.2d 842. This court was also mindful of our Twelfth District Court of Appeals' strict interpretation of such standard of review. York v. Bd. of Edn. of the New Richmond Exempted Village School Dist. (May 12, 1986), Clermont App. No. CA85-04-023, unreported, 1986 WL 5498; Chrisman v. Butler Cty. Bd. of Zoning Appeals (July 25, 1988), Butler App. No. CA87-12-168, unreported, 1988 WL 76819. While this might have been arguably a plausible remedy, plaintiffs' remedy of injunction would be more direct. An injunction would directly address the original zoning change but is not the modum to review the later approval of board of zoning appeals which would concern itself on how the particular project would be specifically built, i.e., by the time the board of zoning appeals would meet the basic issues of zoning would have been beyond review.
Defendants additionally alleged that plaintiffs had an adequate remedy of law in the form of declaratory judgment, citing Kroeger v. Standard Oil Co. (Aug. 7, 1989), Clermont App. Nos. CA88-11-086 and CA88-11-087, unreported, 1989 WL 87837. Defendants further argue that by implication R.C. 303.122 provides an adequate remedy, that declaratory judgment was the proper procedure. On this point, this court was persuaded that such adequate remedy at law did exist for purposes of determining the effect of procedural impropriety in the conduct of the zoning board, and its subsequent recommendations.
Plaintiffs' reliance upon Brown v. Sperry (1970), 23 Ohio App.2d 163, 52 O.O.2d 205, 261 N.E.2d 351, was misplaced. There, prospective injunctive relief against township trustees was upheld where no adequate remedy at law existed; here, such remedy does exist and Brown is inapposite. Defendant commissioners argued that they should be permitted to pass upon the zoning board's recommendations before this court ruled on the propriety of the board's actions. This court agreed with that position. While certainly the spector of inadequate procedure and notice had been raised by plaintiffs, nevertheless, this court would not prospectively interfere with the commissioners' process, thus permitting the commissioners to review, in open public forum, the board's recommendations.
Of equal importance and consideration by this court was the issue of whether irreparable harm would occur to wetlands existing on the proposed property. Plaintiffs failed to prove at that time that the wetlands would be immediately affected before this issue could be reviewed by the commissioners and, if necessary, the courts. Plaintiffs conceded that numerous administrative agencies existed to closely scrutinize the effect of potential development upon the wetlands existing on this real estate. In addition to the stringent permit procedures and a plethora of federal regulations under the Clean Water Act, Section 1251 et seq., Title 33, U.S. Code, for the Corps of Engineers, Environmental Protection Agency, and Soil and Conservation Service, this court had the right during the pendency of this action to entertain injunctive relief, should there have been any imminent threat of damage to the wetlands which was not addressed by those federal agencies.
Thus, as plaintiffs failed to establish that there was no adequate remedy at law, injunctive relief was denied at that time.
The zoning commission's recommendation was then reviewed by the Clinton County Commissioners on July 1, 1991. All counsel concurred that the hearing before the commissioners was properly advertised and properly conducted procedurally. The commissioners modified the zoning commission's recommendation in part. Since the 90.5 acres consisted of 50 acres in Chester Township and 40.5 in Adam Township, the commissioners voted to keep the Adams Township acreage A-2, but adopted the recommended change to B-2 zoning in Chester Township. Citizens of Clinton County thereafter submitted a petition for a referendum to be voted on in November 1992.
This matter now comes before the court on plaintiffs' complaint and defendants' answer on the merits of a declaratory judgment. The plaintiffs seek to have this court declare invalid the recommendation of the Clinton County Zoning Commission and the subsequent Clinton County Resolution on the rezoning of 90.5 acres more particularly described in the complaint. The gravamen of plaintiffs' complaint is that the zoning commission failed to follow the requisite procedural steps for amending a zoning ordinance by (1) failing to obtain the Clinton County Regional Planning Commission's recommendation under R.C. 303.12(E); (2) failing to require a development plan prior to the recommendation of the zoning commission, (3) failing to provide adequate notice of the Clinton County Regional Zoning Commission's hearing, and (4) recommending rezoning different from that requested by the applicant. Plaintiffs also allege as an issue that the commissioners' subsequent modification of the zoning commission recommendation amounts to unconstitutional spot zoning.
On March 9, 1991, the zoning commission had caused to be published a notice of public hearing on the zoning petition. The notice did not designate any proposed zoning classification for the land other than I-2 Industrial and failed to provide notice of the time and place for review of the application.
On March 25, 1991, the zoning commission met to consider the application and continued the meeting to April 15, 1991, without giving further written notice.
On April 15, the zoning commission met, and recommended rezoning of the land to B-2 zoning.
In the application Ramar, through its agent, Roberts, stated that the purpose of the requested zoning was "for an industrial park and the relocation of R L Transfer, Inc. and its affiliated companies, and also to attract warehousing and distributing companies from surrounding areas." R L Transfer, Inc. was a trucking company. Defendant, while arguably exempt under PUCO regulations, has submitted itself to the jurisdiction of the zoning commission, county commissioners and this court.
All counsel agree that at no time has the Clinton County Regional Planning Commission followed R.C. 303.12(E) by recommending approval or denial of the proposed amendment.
Plaintiffs assert that the zoning amendment in question violates R.C. 303.12(E), in that the planning commission failed to make a recommendation on the Ramar application. In pertinent part R.C. 303.12 provides as follows:
"(E) Within five days after the adoption of such motion or the certification of such resolution or the filing of such application the county rural zoning commission shall transmit a copy thereof together with text and map pertaining thereto to the county or regional planning commission, if there is such a commission.
"The county or regional planning commission shall recommend the approval or denial of the proposed amendment or the approval of some modification thereof and shall submit such recommendation to the county rural zoning commission. Such recommendation shall be considered at the public hearing held by the county rural zoning commission on such proposed amendment. * * *"
Plaintiffs opine that it is a mandatory requirement for the planning commission to issue a recommendation on rezoning applications prior to consideration by the zoning commission or the county commissioners. Defendants argue that the planning commission's role is purely ministerial and, as such, legally insignificant, thereby not creating a fatal flaw if it fails to provide a recommendation. Defendants suggest that the court should treat the planning commission's failure to act as a recommendation of approval, relying upon other statutory schemes where approval is conclusively presumed upon the planning commission's failure to act. See R.C. 303.07 and 711.10. The First District Court of Appeals, however, has rejected the notion that approval could be conclusively presumed under R.C. 303.12 in the absence of an agency's action. Deserisy v. DeCourcy (1968), 16 Ohio App.2d 147, 45 O.O.2d 431, 242 N.E.2d 670. In Deserisy, the court refused to imply provisions where the legislature apparently chose not to so provide. This court likewise rejects defendants' contentions that approval on the part of the planning commission may be presumed in the absence of that body's taking any action on the rezoning application.
This court can come to no other conclusion but that the recommendation of the planning commission is a mandatory procedural step in the amendment process. The word "shall" appearing in a statute is generally interpreted so as to make mandatory the provisions contained therein. State ex rel. Niles v. Bernard (1978), 53 Ohio St.2d 31, 7 O.O.3d 119, 372 N.E.2d 339; Dorrian v. Scioto Conserv. Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834. The provisions of R.C. 303.12(E) requiring action on the part of the planning commission, thus, are mandatory in spite of the fact that the planning commission's role is purely ministerial in nature.
Courts in other states have regarded planning commissions' actions as mandatory regardless of whether the planning commissions' recommendations are binding. Schroeder v. Burleigh Cty. Bd. of Commrs. (N.D. 1977), 252 N.W.2d 893; Wilgus v. Murfreesboro (Tenn.App. 1975), 532 S.W.2d 50 ("The lawmaking powers of the municipality being vested in its governing body, there is no requirement that it abide by the commission's suggestions. It is required, however, that it have before it those suggestions when it acts."). Id. at 54. Wilgus also stands for the proposition that a pattern of noncompliance with mandatory requirements, no matter how well established, does not vitiate the mandatory requirements. In the case sub judice, the court must honor the mandatory provisions of R.C. 303.12(E), regardless of defendants' claim that the Clinton County Regional Planning Commission "never made any recommendation with respect to any zoning amendment application under authority of O.R.C. 303.12."
While the court recognizes the distinctions which defendants draw between the case sub judice and the cases of State ex rel. Fairmount Ctr. Co. v. Arnold (1941), 138 Ohio St. 259, 20 O.O. 330, 34 N.E.2d 777, and Vito v. Garfield Hts. (1962), 31 O.O.2d 530, 200 N.E.2d 501, the court views these distinctions to be without a difference, inasmuch as defendants have not shown any authority for the proposition that mandatory requirements are any less mandatory depending upon the body which is supposed to be acting under their guidance. The court concludes that the amendment in question is invalid due to the failure of the planning commission to issue a recommendation upon the defendant's application.
With regard to plaintiffs' contentions that the zoning amendment is invalid due to the defendants' failure to submit a development plan, the court holds that defendants' Exhibit 1 qualifies as a development plan, albeit a rough one. Despite the lack of detail provided in this plan, the court holds that such failure to provide greater detail does not in and of itself create a fatal flaw, thereby making the amendment invalid. While it is still unclear what will happen to the wetlands involved here, the court, as it has noted before, feels that the wetlands are adequately protected by federal regulations.
The parties to this action have spend a great deal of time discussing whether strict compliance or substantial compliance is required in order to properly amend a zoning ordinance. Assuming arguendo that a party need only substantially comply with the procedural steps set forth in the Revised Code, the court holds that defendants have fallen short of this standard, due to their failure to follow several requirements which in and of themselves may not be crucial, but combined together indicate that compliance has not been substantial. The defendants failed to provide notice as to the time and place at which the rezoning application could be examined. They also failed to give notice that rezoning to a B-2 district, instead of an I-2 industrial district, was being considered. No notice was given of the zoning commission's second meeting to consider the application. Although defendants assert that notice as to the second meeting was waived as a result of plaintiff Steven Pidgeon's request to hold said meeting, the court holds that even if Steven Pidgeon waived the notice requirement, he could not waive the right to notice that the other plaintiffs held.
Finally, plaintiffs opine that the defendants have engaged in spot zoning, thus making the amendment invalid. The court must reject this contention inasmuch as the plaintiffs have not shown that the property in question is being treated much differently than other property within the same general area.
Upon consideration of the foregoing, the court hereby holds the zoning amendment in question to be invalid, due to the failure of the planning commission to issue a recommendation, and the failure of adequate notice in several respects. Accordingly, the court grants a declaratory judgment in plaintiffs' favor.
Judgment for plaintiffs.
ROBERT P. RINGLAND, J., of the Clermont Count Court of Common Pleas, sitting by assignment.