dissents.
I fail to see how a plan that is clearly preliminary in nature and contemplates a future approval or disapproval decision after consideration of the fulfillment of designated conditions, can be considered "final" thirty days after imposition of those conditions, without the Commission actually determining that the conditions were met. The action on the final plan was hardly a "ministerial" function.
The Planning Commission is a tribunal. It is analogous to a court and like a court can only speak through its "journal" regardless of whether the conditions were in fact met. Like a court reduces its decision to writing and spreads it upon its journal, so must the tribunal here enter its decision in writing in its minutes for the preliminary plan to have become final. That was never done in this case.
What was done here, was the exercise of inherent power by the Commission to sua sponte reconsider its approval of the preliminary plan. (See Hal Artz Lincoln Mercury v. Ford Motor Co. (1986), 28 Ohio St. 3d 20 at 25; and Bispeck v. Bd. of Commrs. of Trumbull Cty. (1988), 37 Ohio St. 3d 26; State, ex rel. Borsuk, v. Cleveland (1972), 28 Ohio St. 2d 224.)
While a cross-appeal was not filed, I believe the Planning Commission erred in not affording the appellee due process when it decided to reconsider its earlier decision on the preliminary plan. This sua sponte motion was not on the agenda for that meeting. While the general issue of a "subdivision" v. "conditional zoning" procedure was discussed at earlier hearings, the appellee clearly went to that November meeting expecting approval or disapproval of its preliminary plan. The motion to reconsider should have been on the agenda and all parties given the opportunity to prepare for that issue. Thus, the trial court erred as a matter of law in not recognizing the tribunal's inherent power to reconsider its decision, and in not finding plain error in the lack of due process afforded the appellee. I would vacate the trial court's judgment, as well as the Commission's order, and remand it to the Commission to afford due process to all parties on the motion to reconsider.
I have purposely avoided any discussion of whether a "Chapter 2506" appeal was a proper procedure to test the lawfulness of the Commission's action.