Rice v. Johnstown Planning & Zoning Comm.

[Cite as Rice v. Johnstown Planning & Zoning Comm., 2021-Ohio-1392.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

ANDREW L. RICE, ET AL. : JUDGES:
: Hon. William B. Hoffman, P.J.
Appellants-Appellants : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
VILLAGE OF JOHNSTOWN :
PLANNING AND ZONING : Case No. 2020 CA 0023
COMMISSION :
:
Appellee-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2018CV01131

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 19, 2021

APPEARANCES:

For Appellee-Appellee For Appellants-Appellants

MATTHEW S. ZEIGER YAZAN S. ASHRAWI
KRIS BANVARD THADDEUS M. BOGGS
3500 Huntington Center 10 West Broad Street
41 South High Street Suite 2300
Columbus, OH 43215 Columbus, OH 43215
Licking County, Case No. 2020 CA 0023 2

Wise, Earle, J.

{¶ 1} Appellants-Appellants, Andrew Rice, Mary Neda Ann Shaub, Charles L.

Parker, and Marilyn J. Parker, as co-trustees of the Parker Family Trust, and Wilcox

Communities, LLC, appeal the February 3, 2020 entry of the Court of Common Pleas of

Licking County, Ohio, dismissing their administrative appeal. Appellee-Appellee is

Village of Johnstown Planning and Zoning Commission.

FACTS AND PROCEDURAL HISTORY

{¶ 2} The subject property in this case is the Rice family farm located in Monroe

Township, adjacent to the village of Johnstown. On July 31, 2018, appellants filed an

application with appellee for a preliminary planned unit development (hereinafter "PUD")

for the 80-plus acre property, named the Concord Trails project. The effect of the PUD

would rezone the property. Appellants submitted a revised and updated application and

a hearing was held on August 28, 2018. A final hearing was held on September 19,

2018. At the conclusion of the hearing, appellee voted to reject the PUD application.

Simultaneously, appellants were seeking annexation of the property into the village of

Johnstown.

{¶ 3} Appellants appealed to the Court of Common Pleas. On December 18,

2018, appellants filed a motion for a hearing to present additional evidence, claiming an

insufficient record from the PUD hearing. By judgment entry filed March 6, 2019, the

trial court found a proper record was not made for its review, most importantly, findings

or conclusions to support the decision. The trial court stated appellee "made no findings

concerning which provisions of the Zoning Ordinances the application violated" and "it is

not clear to the Court what formal procedures the Commission follows in hearing the

applications or what the procedures are for formal notice of decision and appeal." The
Licking County, Case No. 2020 CA 0023 3

trial court reversed the decision and remanded the matter to appellee for further

proceedings and findings.

{¶ 4} Appellee filed an appeal to this court. By opinion and judgment entry filed

September 27, 2019, this court affirmed the decision with modification and remanded

the matter to the trial court to conduct an evidentiary hearing pursuant to R.C.

2506.03(A)(5). Rice v. Village of Johnstown, 5th Dist. Licking No. 19-CA-18, 2019-

Ohio-4037.

{¶ 5} After remand, on November 7, 2019, appellee filed a motion to dismiss

appellants' administrative appeal, claiming the trial court did not have jurisdiction to

entertain the appeal. Appellee argued appellants were seeking to appeal a legislative

decision which is not an appealable matter of law under R.C. Chapter 2506. Appellee

further argued the appeal was not ripe, as the subject property was never annexed into

the village of Johnstown and therefore the property was not within the jurisdictional or

geographical boundaries of the village. By entry filed February 3, 2020, the trial court

agreed and dismissed the appeal under Civ.R. 12(B)(6). The trial court found appellee's

denial of the PUD was a legislative action and therefore did not fall under R.C. Chapter

2506. The trial court found the ripeness issue to be moot.

{¶ 6} Appellants filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

I

{¶ 7} "THE COURT OF COMMON PLEAS ERRED AS A MATTER OF LAW BY

FINDING THAT IT LACKED JURISDICTION UNDER R.C. CHAPTER 2506 TO HEAR

THE APPELLANTS' APPEAL FROM THE SEPTEMBER 19, 2018, DECISION OF THE
Licking County, Case No. 2020 CA 0023 4

JOHNSTOWN PLANNING AND ZONING COMMISSION DENYING APPELLANTS'

PRELIMINARY APPLICATION FOR A PLANNED UNIT DEVELOPMENT."

I

{¶ 8} In their sole assignment of error, appellants claim the trial court erred in

finding it did not have jurisdiction to hear the administrative appeal. We disagree.

{¶ 9} The trial court dismissed the appeal pursuant to Civ.R. 12(B)(6).

Subsection (B)(6) permits dismissal for "failure to state a claim upon which relief can be

granted." Under this standard, a trial court is limited to a review of the four corners of

the complaint. Appellants argue the pertinent subsection is (B)(1), "lack of jurisdiction

over the subject matter." Under this standard, a trial court is not confined to the

complaint and "may consider material pertinent to such inquiry without converting the

motion into one for summary judgment." Our standard of review of a decision under

either subsection is de novo, and therefore this court "must review the issues

independently of the trial court's decision." Perrysburg Township v. Rossford, 103 Ohio

St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44; Mellion v. Akron City School District Board of

Education, Summit App. No. 23227, 2007-Ohio-242. "We review the grant of the motion

to dismiss afresh, again taking the factual allegations of the complaint as true and

drawing all reasonable inferences in favor of [appellants]." Habibi v. University of

Toledo, 10th Dist. Franklin No. 19AP-583, 2020-Ohio-766, ¶ 10.

{¶ 10} R.C. 2506.01 governs appeal from decisions of any agency of any political

subdivision and states the following:

(A) Except as otherwise provided in sections 2506.05 to 2506.08 of

the Revised Code, and except as modified by this section and sections
Licking County, Case No. 2020 CA 0023 5

2506.02 to 2506.04 of the Revised Code, every final order, adjudication,

or decision of any officer, tribunal, authority, board, bureau, commission,

department, or other division of any political subdivision of the state may

be reviewed by the court of common pleas of the county in which the

principal office of the political subdivision is located as provided in Chapter

2505. of the Revised Code.

(B) The appeal provided in this section is in addition to any other

remedy of appeal provided by law.

(C) As used in this chapter, "final order, adjudication, or decision"

means an order, adjudication, or decision that determines rights, duties,

privileges, benefits, or legal relationships of a person, but does not include

any order, adjudication, or decision from which an appeal is granted by

rule, ordinance, or statute to a higher administrative authority if a right to a

hearing on such appeal is provided, or any order, adjudication, or decision

that is issued preliminary to or as a result of a criminal proceeding.

{¶ 11} Under R.C. 713.01, the village of Johnstown has the authority to create a

planning commission. In accordance with its authority, the village enacted Article VII,

Section 7.03 under its charter which gives the planning and zoning commission the

following powers and duties:

The Planning and Zoning Commission shall have the power and

duty to hear applications for land use, zoning classifications or districts

and, as merited, to submit written recommendations for legislative action
Licking County, Case No. 2020 CA 0023 6

or to render final determinations for administrative action; to initiate, review

and recommend legislation, rules and regulations on all matters of

municipal planning, land use, and zoning classification; and to exercise

such other powers, duties and functions as provided by Council.

{¶ 12} Appellants argue the planning and zoning committee has the power to: 1)

submit recommendations for legislative action, or 2) render final determinations for

administrative action. Appellants argue because appellee cannot render legislative

decisions, appellee's final determination in rejecting the PUD was an administrative

action; therefore, the trial court has jurisdiction to hear the appeal under R.C. Chapter

2506.

{¶ 13} Appellee argues the PUD application involved a rezoning which required

legislative action, not administrative; therefore, the trial court does not have jurisdiction

to hear the appeal under R.C. Chapter 2506.

{¶ 14} Under Section 1179.02 of the Codified Ordinances of Johnstown

(Planning and Zoning Code) in effect at the time, appellee was vested with reviewing

PUD applications and then "shall approve in principle with modifications, or reject the

application. Approval in principle with modification shall be necessary before an

applicant may submit a final development plan." Appellants argue the effect of this

language is that in the event appellee rejects a PUD application, appellee is the final

decision making authority because no mechanism is in place for review by village

council, the legislative authority. They argue because they were foreclosed from

appealing appellee's rejection of their application to village council, they had no choice

but to treat the rejection as a final administrative decision and file an appeal under R.C.
Licking County, Case No. 2020 CA 0023 7

Chapter 2506. Appellants argue appellee's rejection of their plan was final and "[i]t

killed the project." Appellant's Reply Brief at 5 and 6.

{¶ 15} It is safe to say the parties agree that R.C. Chapter 2506 review applies to

administrative actions, not legislative actions, and rezoning property under a PUD is a

legislative action. Berg v. City of Struthers, 176 Ohio St. 146, 198 N.E.2d 48 (1964).

The issue in this case surrounds the effect of the village's language in Section 1179.02

of the planning and zoning code cited above.

{¶ 16} In reviewing a PUD application, appellee has the authority to 1) approve

the PUD in principle with modifications, or 2) reject the application. In the event that the

application is rejected, a provision does not exist to appeal to the village council, the

legislative body. The effect of rejecting the application makes the decision final; it is not

a recommendation to village council for legislative action, nor is it a final determination

on an administrative action as it involves a decision on rezoning, a legislative issue.

While appellee's act of rejection was authorized under Article VII, Section 7.03 of the

village's charter, such authorization was an improper delegation of the village counsel's

legislative function. As an administrative body, appellee acted as a legislative body.

Appellants were placed in a conundrum by the village's charter and ordinance.

{¶ 17} In Robertson v. Board of Troy Township Trustees, 5th Dist. Ashland No.

01-COA-01406, 2001 WL 1010988, *2, this court stated when deciding whether the

action taken was legislative or administrative, "[a] court is to examine the nature of the

action taken":

Revised Code Chapter 2506 applies to administrative or quasi-

judicial decisions but not to legislative decisions. Tuber v. Perkins (1966),
Licking County, Case No. 2020 CA 0023 8

6 Ohio St.2d 155, syllabus. "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 v. City of Fairview Park (1968), 13 Ohio St.2d 1, [paragraph two

of the] syllabus. A court is to examine the nature of the action taken.

Buckeye Community Hope Foundation v. Cuyahoga Falls (1998), 82 Ohio

St.3d 539, 544. See J.D. Partnership v. Berlin Township Board of

Trustees (Aug. 2, 2000), Delaware App. No. 99CVF7274, unreported,

2000 WL 1074302. Previously, the Ohio Supreme Court has determined

that the decision as to whether to rezone is a legislative matter. Berg v.

City of Struthers (1964), 176 Ohio St. 146; Donnelly, 13 Ohio St.2d at 3-4;

Tuber, 6 Ohio St.2d at syllabus. In contrast, decisions as to whether to

grant a variance, permit a conditional use or approve a site plan constitute

an administrative matter. Donnelly, 13 Ohio St.2d 3-4; Buckey Community

Hope Foundation, supra. Such administrative actions involve the

application of existing law, while the decision as to whether to rezone an

area is the legislative act of making law. See Id.

{¶ 18} In this case, the nature of the action taken, a denial to rezone property

under a PUD, was a legislative action, and therefore, the trial court was without

jurisdiction to entertain an appeal under R.C. Chapter 2506. We acknowledge the

legislative action was made by the incorrect body as a result of the faulty wording of
Licking County, Case No. 2020 CA 0023 9

Section 1179.02 of the planning and zoning Code in effect at the time, but nevertheless

find R.C. Chapter 2506 to be inapplicable herein.

{¶ 19} Upon review, we find the trial court did not err in dismissing the appeal.

{¶ 20} The sole assignment of error is denied.

{¶ 21} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Baldwin, J. concur.

EEW/db