Powell v. Warren Cty. Bd. of Commrs.

[Cite as Powell v. Warren Cty. Bd. of Commrs., 2020-Ohio-5570.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

RANDY POWELL, et al., :

Appellants, : CASE NO. CA2020-02-008

: OPINION
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:

BOARD OF COMMISSIONERS of :
WARREN COUNTY, et al.,
:
Appellees.

CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 19 CV 92120

McNamee & McNamee, PLL, Michael B. McNamee, Gregory B. O'Connor, 2625 Commons
Boulevard, Beavercreek, Ohio 45431, for appellants

David P. Fornshell, Warren County Prosecuting Attorney, Bruce A. McGary, Adam M. Nice,
520 Justice Drive, 2nd Floor, Lebanon, Ohio 45036, for appellee Board of County
Commissioners

Robbins, Kelly, Patterson & Tucker, LPA, Robert M. Ernst, 7 West Seventh Street, Suite
1400, Cincinnati, Ohio 45202, for appellee Highland Development Partners, LLC

RINGLAND, J.

{¶1} Appellants, Randy and Victoria Powell, appeal the decision of the Warren

County Court of Common Pleas granting summary judgment to appellees, the Warren

County Board of Commissioners (the "Board"), Stephen Deger, Julia Schwartz, and
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Highland Development Partners, LLC in a zoning dispute. The issue before this court is

whether the Board approved a planned-unit development in violation of the county's zoning

resolution. For the reasons discussed below, we hold that the Board's approval of the

planned-unit development violated the county's zoning resolution.

{¶2} The applicable facts are not in dispute. At the time of the application, Deger

and Schwartz were the owners of 70.39 acres of land in an unincorporated portion of

Turtlecreek Township. They contracted with Highland Development Partners, LLC, to

develop the land and apply to the Warren County Zoning Department to have it rezoned as

a planned-unit development. The proposed planned-unit development would set aside

18.59 acres—around 26.4% of the total land in the development—as open space.

However, 7.43 acres of that 18.59 acres was designated for use as a common sanitary

sewer drip irrigation area. Additionally, the proposal set the net density of the development

at 0.88 units per acre. The density for the original zone, before the planned-unit

development change, was 0.5 units per acre. The proposal went through the appropriate

application process. The county rural zoning commission provided several

recommendations to the proposal. With those recommendations integrated into the

proposal, the Board approved the planned-unit development in Resolution 19-0214.

{¶3} Appellants brought an action for declaratory judgment on the basis that the

planned-unit development violated the county's zoning resolution because it did not comply

with the open space or density requirements in the zoning resolution. Both appellants and

the Board moved for summary judgment. The other appellees joined in the Board's motion

for summary judgment and separately moved for dismissal. The trial court granted

summary judgment for the Board, holding that the zoning resolution did not apply to the

planned-unit development sub judice.

{¶4} Appellants now appeal raising one assignment of error for review:

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{¶5} THE TRIAL COURT ERRED IN DENYING THE POWELLS' MOTION FOR

SUMMARY JUDGMENT AND GRANTING THE [BOARD OF COUNTY

COMMISSIONERS'] CROSS MOTION.

{¶6} In their sole assignment of error, appellants argue that the trial court erred

when it entered summary judgment for the Board because the plain language of the zoning

resolution provides that the planned-unit development regulations apply to all planned-unit

developments. Appellants further argue that the Board does not have authority, pursuant

to R.C. 303.022(B) to approve the planned-unit development because that provision is

inapplicable in this instance.

{¶7} An appellate court conducts a de novo review of the trial court's decision to

grant summary judgment. Eastbrook Farms, Inc. v. City of Springboro, 12th Dist. Warren

No. CA2003-08-080, 2004-Ohio-1377, ¶ 14, citing Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105 (1996). To grant summary judgment, the moving party must demonstrate

that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) it appears from the evidence and stipulations that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

non-moving party. Civ. R. 56(C); Westfield Ins. Co. v. R.L. Diorio Custom Homes, Inc., 187

Ohio App.3d 377, 2010-Ohio-1007, ¶ 18 (12th Dist.). The court must construe the evidence

in favor of the nonmoving party. Civ.R. 56(C); Drees Co. v. City of Mason, 12th Dist. Warren

No. CA2003-05-060, 2004-Ohio-3670, ¶ 9.

{¶8} Zoning regulations are a product of the exercise of governmental police

power. Am. Aggregates Corp. v. Warren Cty. Commrs., 39 Ohio App.3d 5, 6 (12th

Dist.1987), superseded by statute on other grounds as stated in Jurkiewicz v. Butler Cty.

Bd. of Elections, 85 Ohio App.3d 503, 505 (12th Dist.1993). A county does not have

authority to regulate land use unless that authority has been provided by the General

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Assembly. Am. Aggregates Corp. at 6-7. The General Assembly has delegated some of

its zoning police power to counties pursuant to R.C. Chapter 303. In particular, R.C.

303.022 provides counties the authority to establish and modify planned-unit developments

through its zoning resolution. As the basis for the county's zoning authority at issue, we will

first address the parties' arguments concerning R.C. 303.022.

{¶9} The primary concern of statutory interpretation is legislative intent. State v.

Seawell, 12th Dist. Warren No. CA2019-05-050, 2020-Ohio-155, ¶ 6. To determine

legislative intent, this court will first look at the plain language of the statute. Antoon v.

Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, ¶ 20. The statute will be

applied as written if the language is unambiguous and definite. State v. Pettus, Slip Opinion

No. 2020-Ohio-4836, ¶ 10, citing Summerville v. City of Forest Park, 128 Ohio St.3d 221,

2010-Ohio-6280, ¶ 18.

{¶10} R.C. 303.022 provides that:

A county zoning resolution or amendment adopted in
accordance with this chapter may establish or modify planned-
unit developments. Planned-unit development regulations shall
apply to property only at the election of the property owner and
shall include standards to be used by the board of county
commissioners or, if the board so chooses, by the county zoning
commission, in determining whether to approve or disapprove
any proposed development within a planned-unit development.
The planned-unit development shall further the purpose of
promoting the general public welfare, encouraging the efficient
use of land and resources, promoting greater efficiency in
providing public and utility services, and encouraging innovation
in the planning and building of all types of development. Within
a planned-unit development, the county zoning regulations,
where applicable, subdivision regulations, and platting
regulations need not be uniform, but may vary in order to
accommodate unified development and to promote the public
health, safety, and morals, and the other purposes of this
section.

Planned-unit developments may be included in the county
zoning resolution under one of the following procedures:

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{¶11} R.C. 303.022 then provides three separate methods in R.C. 303.022(A), (B),

and (C) by which a county's board of commissioners may adopt planned-unit development

regulations. As can be seen in the second paragraph of R.C. 303.022, for a county to

establish or modify a planned-unit development, it must adopt in its zoning resolution the

procedure or procedures provided in R.C. 303.022(A), (B), or (C). The plain language of

the statute is unambiguous and definite.

{¶12} R.C. 303.022(A) permits a county board of commissioners to develop general

planned-unit development regulations. These regulations do not automatically attach to

any existing property, instead a property owner has to apply to the county to have the

property rezoned as a planned-unit development pursuant to the regulations. On the other

hand, R.C. 303.022(B) allows a board of commissioners to adopt ad hoc planned-unit

developments. Property owners may apply to the board of commissioners to designate

their property a planned-unit development and the standards that will apply to the planned-

unit development will be set forth in the development proposal. The standards will apply

only to that development. Finally, R.C. 303.022(C) authorizes a board of commissioners to

adopt planned-unit development regulations and "amend the zoning map to rezone property

as planned-unit developments." The property retains its previous zoning regulations until

the property owner applies to the county to subject it to the planned-unit development

regulations.

{¶13} The Board concedes that it adopted regulations for planned-unit

developments in its zoning resolution specifically pursuant to R.C. 303.022(A) and (C). The

county's zoning resolution is silent as to any approval method under R.C. 303.022(B) for ad

hoc planned-unit developments. The Board argues, that by creating three types of planned-

unit developments, as will be discussed below, it implicitly adopted the R.C. 303.022(B)

procedure.

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{¶14} Applying the plain language of R.C. 303.022, the Board's argument lacks

merit. The zoning resolution adopted by the county does not implement the R.C.

303.022(B) method. Instead, the county included in its zoning resolution specific types of

planned-unit developments; a detailed approval process, which requires compliance with

the zoning resolution; and general and specific regulations for planned-unit developments.

All of these factors show that the Board did not adopt the planned-unit development

procedure authorized by R.C. 303.022(B). Consequently, the Board may not rely on R.C.

303.022(B) as an alternative process to the one adopted in the county's zoning resolution.

We must now look at the zoning resolution adopted by the Board to determine whether its

provisions apply to the planned-unit development sub judice.

{¶15} In interpreting zoning resolutions, the Ohio Supreme Court has explained that

there are two principles that guide our consideration.

The first of these principles states that zoning ordinances are to
be construed in favor of the property owner because they are in
derogation of the common law and deprive the property owner
of uses to which the owner would otherwise be entitled. Thus,
we have long held that restrictions imposed on the use of private
property via ordinance, resolution, or statute must be strictly
construed, and the scope of the restrictions cannot be extended
to include limitations not clearly prescribed. In other words, we
do not permit zoning "limitations by implication."

Second, we have long held that when applying a zoning
provision, a court must not view the provision in isolation; rather,
its "meaning should be derived from a reading of the provision
taken in the context of the entire ordinance."

(Internal citations omitted.) Cleveland Clinic Found. v. Bd. of Zoning Appeals, 141 Ohio

St.3d 318, 2014-Ohio-4809, ¶ 34-35.

{¶16} The zoning resolution adopted by the Board, the Warren County Rural Zoning

Code ("ZC"), consists of four separate articles divided into chapters and further divided into

sections. The relevant provisions for planned-unit developments are found in Article II,

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Chapter 5 of the zoning resolution. Before looking at the specific regulations, we observe

the context of those regulations. In setting forth the Board's authority to create planned-

unit developments, ZC 2.502 states

AUTHORITY: The Board of County Commissioners (BOCC)
may approve a rezoning request and development plan for a
PUD in accordance with the procedures and standards
specified in this Chapter and other regulations applicable to the
district in which the subject property is located.

{¶17} In addition, ZC 2.506(A) provides that the Board shall consider compliance

with the zoning resolution and compatibility with the purposes of the underlying zoning

district as a factor in deciding to approve or deny the planned-unit development. Reading

these two provisions together establishes that the zoning resolution provides the

procedures and standards for planned-unit developments.

{¶18} The county's zoning resolution then sets forth three different types of planned-

unit developments. The first type is an interstate highway overlay, which is also referred to

as an "Interstate PUD." ZC 2.504.1. The other two alternatives—an "overlay district" and

a "new base district"—are subclassifications of a "Standard PUD." ZC 2.504.2.

Consequently, a "Standard PUD" could refer to either an overlay or a new base district.

{¶19} The Interstate PUD is an overlay that removes the base zone and replaces it

with the planned-unit development designation subject to a property owner's application for

the change. ZC 2.504.1. The "overlay district" is a planned-unit development that applies

"regulations supplementary to the underlying zoning district if only marginal changes from

the underlying zoning regulations are contemplated." ZC 2.504.2.(A). Finally, the "new

base district" is a new zone that completely displaces the previous zoning regulations. ZC

2.504.2(B). It is undisputed that the planned-unit development sub judice qualifies as a

"new base district."

{¶20} While ZC 2.504.2(B) provides that a "new base district" completely displaces

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the previous zoning regulation, nothing in this section establishes that the planned-unit

development shall not follow the remaining provisions in the zoning resolution or otherwise

permits the planned-unit development proposal to supplant the chapter's standards.

{¶21} The zoning resolution then provides for certain standards to be implemented

with a planned-unit development. Specifically, ZC 2.509 sets forth

PUD DEVELOPMENT STANDARDS: The density, total floor
area, and land coverage by buildings, within a PUD Overlay,
shall not exceed the maximums allowed in the underlying zoning
district by an amount greater than twenty percent (20%) except
in accordance with Section 2.509.5(B). PUD projects granted
relief from normal regulatory requirements of this chapter shall
meet the following specific standards regarding density and
intensity, uses, development size, design, open space, and
landscaping.1

In considering this language, a court must give effect to the words used and not insert or

delete words. See Dundics v. Eric Petro. Corp., 155 Ohio St.3d 192, 2018-Ohio-3826, ¶ 7.

The plain language used in this section makes a clear distinction between a "PUD Overlay"

in the first sentence and the more general "PUD projects" in the second sentence. The

zoning resolution does not define the term "PUD project." In the absence of a specific

definition provided in the law for a word or phrase, words are to be given their common,

ordinary, and accepted meaning. State v. Black, 142 Ohio St.3d 332, 2015-Ohio-513, ¶ 39.

A "project" is defined as a plan, scheme, or design. Collins English Dictionary (12th Edition

2014), https://www.thefreedictionary.com/project (accessed October 28, 2020). By using

the term "PUD project," the zoning resolution explicitly broadened the scope of the

1. There is a discrepancy between the section heading for ZC 2.509 in the record and the one found on the
Warren County website. The website version of the zoning resolution shows the heading "PUD OVERLAY
DEVELOPMENT STANDARDS." It is not clear whether the addition of the word "overlay" was an amendment
after the application for the planned-unit development. Appellee has not addressed this difference in heading.
The zoning regulations in effect at the time an applicant files for a zoning change control. See Alesi v. Bd. of
Cty. Commrs., 12th Dist. Warren Nos. CA2013-12-123, CA2013-12-124, CA2013-12-127, CA2013-12-128,
CA2013-12-131, CA2013-12-132, 2014-Ohio-5192, ¶ 30. Consequently, we will use the version submitted to
the trial court.

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development standards. "PUD project" is a general description that encompasses all the

types of planned-unit developments. Therefore, the definite and unambiguous language of

ZC 2.509 sets forth that there is a specific restriction for "PUD Overlays," and that the

subsequent subsections will provide other and additional standards for all planned-unit

developments.

{¶22} These additional standards are provided in ZC 2.509.1 through 2.509.7.

While arguing that these subsections only apply to planned-unit development "overlay"

districts, the Board again essentially concedes that one of the subsections, ZC 2.509.2,

applies to new base districts. The Board attempts to characterize this defect in their

argument as the zoning resolution being "poorly organized." But that is not how a court

interprets zoning resolutions, the zoning resolution is considered as a whole, not in isolation.

Cleveland Clinic Found., 2014-Ohio-4809 at ¶ 35.

{¶23} Turning to the relevant provisions in the zoning resolution, ZC 2.509.1

provides a standard for density and intensity within the planned-unit development. While

ZC 2.509.1(B) sets forth a specific density requirement for an Interstate PUD, ZC 2.509.1(C)

provides general density and intensity standards. ZC 2.509.1(C) provides that the Board

may not vary density or intensity by more than 20%.

{¶24} Similarly, ZC 2.509.5 uses general terms to set forth "open space"

requirements in the planned-unit developments and plainly prohibits land dedicated to a

sewage disposal system from being included in the open space designation. There are no

express limitations to a particular type of planned-unit development. Indeed, the only

consideration for open space requirements in ZC 2.509.5 is whether the development

concerns residential, mixed use, or nonresidential. "[W]here the statute is expressed in

general language, it is to be applied to all cases coming within its terms." Wachendorf v.

Shaver, 149 Ohio St. 231, 237 (1948).

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{¶25} Consequently, the language in ZC 2.509.1(C) and 2.509.5 is definite and

unambiguous. The standards in these sections apply to all types of planned-unit

developments, except when limited to a particular type of planned-unit development as

expressly provided within the section. The trial court erred when it held that the density and

open space standards were inapplicable to the planned-unit development sub judice.

Accordingly, we sustain appellants' sole assignment of error. The summary judgment

granted in favor of the Board is hereby vacated and, finding that appellants are entitled to

judgment as a matter of law, we hereby enter summary judgment on behalf of appellants

according to App.R.12(B).

{¶26} Judgment reversed and judgment entered on behalf of appellants.

PIPER, J., concurs.

HENDRICKSON, P.J., concurs separately.

HENDRICKSON, P.J., concurring separately.

{¶27} I concur with the majority's opinion to reverse the judgment of the trial court

because the zoning resolution adopted by the Warren County Board of County

Commissioners ("BOCC") provides general requirements for all planned-unit developments

and the BOCC failed to apply those requirements in the cause sub judice. Nevertheless, I

write to further clarify a county's authority to create planned-unit developments pursuant to

R.C. 303.022.

{¶28} The second paragraph of R.C. 303.022 provides that "[p]lanned-unit

developments may be included in the county zoning resolution under one of the following

procedures" and then sets forth three procedures in R.C. 303.022(A), (B), and (C). While

the majority opinion rejected the BOCC's argument that it could rely on all three procedures

outlined in R.C. 303.022 when it did not clearly adopt the procedure in R.C. 303.022(B), I

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would hold that the phrase "under one of the following" strictly limits a county to a single

planned-unit development procedure.

{¶29} As discussed in the majority opinion, the primary concern of statutory

interpretation is legislative intent. That said, "[w]hen the language of a statute is plain and

unambiguous and conveys a clear and definite meaning, there is no need for this court to

apply the rules of statutory interpretation." Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio

St.3d 549, 553 (2000). By using the phrase "under one of the following," the General

Assembly has plainly and unambiguously required a county to choose a single procedure

to the exclusion of the others.

{¶30} The General Assembly has employed the phrase "under one of the following"

at least 12 other times.2 One of these instances is R.C. 519.021, which sets forth a

township's authority to create planned-unit developments. Except where the language has

been changed to identify the political subdivision of township, instead of a county, this

statute is substantially the same as R.C. 303.022. Therefore, it presents the same issue as

in R.C. 303.022

{¶31} In the other times the phrase "under one of the following" was employed, the

phrase is used to limit applicability of the provision and the stated alternatives provided are

inherently exclusive to each other. In R.C. 742.3711(A), for example, the General Assembly

employed the phrase "under one of the following" to limit the options available to members

of the police and fire pension fund should the member elect to receive their retirement

allowance as an "actuarial equivalent" payment to allow for a payment to a designated

beneficiary or beneficiaries. In R.C. 742.3711(A), there are then four options exclusive to

each other available for the member to choose. See also R.C. 3307.60(A) (similarly

2. See R.C. 519.021, 742.3711(A), 1111.13(A)(2), 1751.52(B), 1751.691(B), 2953.08(A)(1), 3307.60(A),
3701.14(B), 3923.851(B), 5164.091(B)(1), 5505.162(A)(2), and 5748.01(A).

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employs the phrase "under one of the following" for various alternative payment options to

members of the state teachers' retirement system).

{¶32} On the other hand, the General Assembly has employed the phrase "under

any of the following" around 67 times and the variant phrase "under any one of the following"

an additional 31 times.3 The phrase "under any of the following" is a more expansive and

inclusive designation. It allows one or multiple alternatives to apply simultaneously. By

employing the phrase "under any of the following" the General Assembly has shown there

is a distinction to be made.

{¶33} If the General Assembly had intended a county to be able to use all of the

three procedures provided in R.C. 303.022 it could have provided for such a method by

using the phrase "under any of the following" or even "under all of the following." Instead,

the General Assembly instructed the county to include planned-unit developments in the

county zoning resolution "under one of the following procedures" set forth in R.C.

303.022(A) thru (C). As such, the county was limited to a single planned-unit development

procedure. I therefore concur with the majority in reversing the trial court’s decision.

3. Without reproducing the entire list of relevant statutes, some examples for "under any of the following"
include R.C. 2151.34(D)(2)(a), 1303.32(C), 2152.18(E), 2901.23(A), 3107.02(B), 3111.03(A), and
4582.31(A)(18)(c).

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