Peachtree Development Co. v. Paul

Clifford F. Brown, J.,

concurring in part and dissenting in part.

I concur in the majority’s affirmance of the Court of Appeals’ judgment holding Article XYI of the Hamilton County Zoning Resolution to be a legislative act. The majority also correctly finds the Community Unit Plan to be a lawful delegation of authority from the board of county commissioners to the regional planning commission. However, I dissent from the *355majority’s holding Resolution No. 575 to be legislative action subject to referendum under R. C. 303.12.

As the majority correctly notes, the test whether an act of a public body is legislative or administrative is whether the act in question enacts a law or regulation, or merely applies, executes or administers a law or regulation already in existence. Donnelly v. Fairview Park (1968), 13 Ohio St. 2d 1.

Applying this test to Article XVI of the Hamilton County Zoning Resolution, it is clear that the board’s adoption of that resolution creating a new zoning classification known as a Community Unit Plan was a legislative act. That act enabled the regional planning commission to review and recommend individual developments for specific sites in Hamilton County.

However, the conclusion is not “inescapable” that every development authorized under Community Unit Plan legislation is similarly created by a legislative act. Every action of any board or commission necessarily flows from a legislative fount. That does not make it legislative. Resolution No. 575 is simply an application of the legislation authorizing creation of Community Unit Plans. It is an administrative act, not subject to review by referendum, but rather by judicial officers, including this court.

Gray v. Trustees of Monclova Twp. (1974), 38 Ohio St. 2d 310, cited by the majority, has no precedential value for this case. At the time the Monclova Township development known as Byrnwyck was approved, R. C. 303.022 had not been enacted. Therefore, the Monclova Township trustees had no authority to create such a development.5

R. C. 303.022 is the primary legislative source giving counties and townships power to authorize and approve such developments. Article XVI of the Hamilton County Zoning Resolution is the secondary legislative act conferring authority on county officials to approve such developments. Board Resolution No. 575 takes its place under R. C. 303.022 and Article XVI as an administrative application of the legislative policy expressed in the former enactments. Therefore, the *356trial court erred in holding board Resolution No. 575 to be a legislative act subject to referendum.

It is disturbing to find this court using language, inter alia, “***[W]e do not sit as a super board of zoning appeals. Absent clear constitutional, statutory or procedural error, we are not free to impose our judgment in zoning matters.***” These facile statements, mere obiter dicta and without sound judicial precedent, can be easily misconstrued as nullifying meaningful judicial review of zoning matters. If so misconstrued, these statements conflict with many sound pronouncements of this court to the contrary, e.g., Driscoll v. Austintown Associates (1975), 42 Ohio St. 2d 263; Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23; Gates Mills Investment Co. v. Pepper Pike (1975), 44 Ohio St. 2d 73; Curtiss v. Cleveland (1959), 170 Ohio St. 127; State, ex rel. Ice & Fuel Co., v. Kreuzweiser (1929), 120 Ohio St. 352, 356.

Resolution No. 575 is similar to the resolution adopted by the city of Solon approving a zoning use exception under its charter, an action characterized by this court as administrative in State, ex rel. Srovnal, v. Linton (1976), 46 Ohio St. 2d 207.