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Ohio Supreme Court Finds Comprehensive Plan Requirement Fulfilled In Local Zoning Ordinance

Granger Township Map - BingEditor's note: Edward J. Sullivan and Carrie A. Richter were cited by the Ohio Supreme Court.

Apple Group, Ltd. v. Granger Township Board of Zoning Appeals, 2015 WL 3774084 (Ohio) arose out of a dispute over the interpretation of statutory language that Ohio townships were required to exercise their zoning powers “in accordance with a comprehensive plan,” and whether that requirement necessitated a document separate from the local zoning regulations. 

Plaintiff purchased 88 acres within the Township in a zone that permitted residential development on two-acre lots and applied for a development that included a total of 176 variances, which Defendant Board denied. The trial court upheld that denial. Plaintiff also sought a declaratory judgment to the effect that the local zoning regulations (adopted by resolution in accord with statute) were unconstitutional and exceeded the delegated power to zone in the absence of a separate comprehensive plan. A local magistrate disagreed, stating:

The zoning resolution itself meets the statutory requirement of a comprehensive plan, because it has the essential characteristics of a comprehensive plan; it encompasses all geographic parts of the community and integrates all functional elements.

The trial court and the Ohio Court of Appeals affirmed. The latter court added that the purposes of the comprehensive plan included prevention of “piecemeal zoning” and provision of stability for the landowner.

On review, Plaintiff contended that the zoning resolution was not equivalent to a comprehensive plan and was insufficient by itself to meet the statutory requirement that zoning be “in accordance with a comprehensive plan.”

The court commenced its analysis with finding that zoning authorization was dependent on statute, rather than being inherently present at the local level under R.C. 519.02(A). No statute defines “comprehensive plan,” nor was the term defined in the Standard Zoning Enabling Act (1926) on which the Ohio legislation was based. Citing Sullivan and Richter, Out of the Chaos: Towards a National System of Land Use Procedures, 34 Urb. Law. 449, 454 (2002), the Court noted that the “in accordance” language has been frequently interpreted as not requiring a separate comprehensive plan, but only to require a process involving some forethought and reasoned consideration, as opposed to a separate plan document.

The Court said that in Ohio, the zoning regulations alone would be insufficient to avoid its implementation and enforcement at the “whim or caprice” of enforcement officials. Thus the purpose of the comprehensive plan was to protect against the “arbitrary and unreasonable” administration or enforcement of zoning regulations, which is apparently undertaken at the time of the adoption of those regulations. But the court rejected the contention that “comprehensive plan” was a term of art that could be defined in terms of current planning practices and understandings, instead opting for what it termed the ”plain meaning” of the statute, which did not specifically require a separate document. A plan may be “comprehensive” if it addresses the specific goals and objectives of the township, so as to prevent later arbitrariness in its implementation and enforcement. It did not appear that the Court would have required findings or articulation of those goals and policies in the zoning regulations or anywhere else.

The Court drew upon an unreported Ohio Court of Appeals case, White Oak Property Dev. L.L.C. v. Washington Township, 12th Dist. Brown No. CA2011-05-011, 2012 Ohio-425, where the Township adopted a zoning map that reflected the rural and agricultural character of the area, but provided for transportation, housing and environmental matters, set specific zoning boundaries and allowed for rezoning of lands, which that court found to be within the “in accordance” language and allowed property owners the stability of a zoning regime. That court also listed a number of factors to be indicative of a “comprehensive plan,” i.e., that the zoning regulations:

  1. Reflect current land uses;
  2. Allow for change;
  3. Promote public health and safety;
  4. Uniformly classify similar areas;
  5. Clearly define zoning district locations and boundaries; and
  6. Identify those uses to which property may be put.

The Supreme Court in this case found those factors present in Defendant’s zoning resolution, citing inter alia, its statement of purposes and upheld the same as consistent with “in accordance” language of the enabling legislation.

Justice Kennedy dissented, and while agreeing that the power to regulate land uses by zoning was derived solely from statute, the “in accordance” language (which appeared three times in the township zoning enabling legislation) conditioned the exercise of that power on the existence of a separate comprehensive plan, adding that the Supreme Court had on several occasions recognized terms that acquired meaning through understandings and practices over time and chided the majority for failing to accept expert testimony on the meaning of “comprehensive plan.” Because zoning and planning are referred to in different ways, they cannot be the same thing. Moreover, “in accordance” connotes rigid compliance that is inconsistent with an approach that requires zoning regulations comply with themselves. The dissent also noted that Ohio cities do not operate under the “in accordance” language and inferred that the legislature must have meant something by this distinction. More importantly, the dissent noted that the Court did not accept the issue of what constituted a comprehensive plan when it took review of this case, so the use of the White Oak factors was not before the Court. Those factors were found in the zoning enabling legislation purposes and parroting them added nothing to the necessary comprehensive plan requirement. While it rejected the notion that a professional planner must draft such a plan, the dissent would require a separate plan document. The absence of such a plan shifts the burden to the local government to demonstrate that its zoning regulations are a valid exercise of the legislative delegation of power to zone.

This is an improvident decision that “saves” zoning from invalidation for the moment, but provides no check on local zoning authority other than the whim of the reviewing court on the basis of the vagaries and vagueness of substantive due process (i.e., that the regulations or their application are somehow “arbitrary and capricious” or “unrelated to the public health, safety, morals and general welfare,” both of which presuppose a special power of divination that accompanies the wearing of black robes. Moreover, the use of the six “factors,” in addition to their not being used as a definition of a “comprehensive plan” by statute is curious in view of the majority’s assertion that it would use the “plain meaning” of the statute, especially when those factors were pulled together from the zoning enabling legislation and must be met in any event.

Ohio has opted for the traditional way out of the conundrum presented when statutory language requires plan conformity and the local government either has no plan or that plan is inconsistent with the actions taken by the public agency. By requiring zoning to be in accordance with itself, Ohio has refused to provide for meaningful review of zoning regulations and actions against state or local policies. Most states no longer adhere to this primitive approach, but such an approach does allow for business as usual, notwithstanding its internal inconsistency. Perhaps that is all Ohio aspires to.

Apple Group, Ltd. v. Granger Township Board of Zoning Appeals, 2015 WL 3774084 (Ohio).

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