APPLE GROUP LTD. Appellant
BOARD OF ZONING APPEALS GRANGER TWP. Appellee
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 08CIV0090
SHELDON BERNS, BENJAMIN J. OCKNER, and GARY F. WERNER, Attorneys at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and WILLIAM L. THORNE and BRIAN M. RICHTER, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
(¶1} Apple Group Ltd. appeals a judgment of the Medina County Common Pleas Court that denied its appeal from a decision of the Granger Township board of zoning appeals and declared that the Township's zoning resolution was constitutional as applied to land that Apple owns in the township. For the following reasons, this Court affirms.
(¶2} In 2006, Apple purchased two adjacent parcels of land in Granger Township that together formed a rectangle slightly more than 88 acres in size. The land is zoned R-1, which requires each residential lot to be at least two acres. Apple wants to maximize the number of houses it can build on the land, but does not want to simply divide the parcels into 44 two-acre lots. Instead, it wants to concentrate the 44 houses on one part of the property and surround them with undeveloped open space. According to Apple, its plan conserves resources and preserves the natural features of the land. Under Apple's plan, each housing lot would be, on average, approximately 5/6 of an acre in size.
(¶3} In 2006 and 2007, Apple consulted with the township's zoning commission about developing the 88 acres according to its plan. In particular, they discussed rezoning the land to the less-restricted R-2 designation or creating a new planned conservation development district. After several meetings, however, the zoning commission tabled the issue. Apple, therefore, explored other ways of accomplishing its goal.
(¶4} In September 2007, Apple submitted an application to the Township's board of zoning appeals, seeking 176 zoning variances, four for each of its 44 proposed lots. Specifically, it asked for a variance of the R-1 district's two-acre lot minimum, 175-foot minimum street-side lot frontage, 175-foot minimum continuous front yard width, and 15-foot side-yard setback requirement. After holding several hearings on the application, the board of zoning appeals determined that what Apple was seeking was, essentially, rezoning of its property. Explaining that it did not have authority to rezone township property, the board of zoning appeals denied Apple's variance application.
(¶5} Apple appealed the denial of its variance application to the Medina County Common Pleas Court, arguing that the board of zoning appeals had incorrectly refused to consider its application. It also argued that it was unconstitutional for the Township to apply its zoning regulations to Apple's property. The common pleas court bifurcated the administrative and constitutional issues. In October 2008, the court upheld the board of zoning appeals' conclusion that the board did not have authority to consider the variance application because the application was, in essence, an attempt to rezone the property. The court set Apple's constitutional claims for an evidentiary hearing.
(¶6} Meanwhile, Apple continued to seek permission from the Township to develop its property in accordance with its plan. After the board of zoning appeals denied its variance application, Apple asked the zoning commission to reconsider whether the 88 acres could be rezoned as a planned conservation development district. Following several hearings, the zoning commission decided that it would not recommend the rezoning of Apple's land. The Township Board of Trustees subsequently denied Apple's request to rezone its property.
(¶7} After the Township refused to rezone Apple's land to accommodate its development plan, Apple sued the Township, seeking a declaratory judgment that the Township's zoning ordinance is unconstitutional as applied to its land. Upon request of the parties, the common pleas court consolidated the declaratory-judgment action with Apple's administrative appeal, which was still pending.
(¶8} In November 2009, a magistrate held a hearing regarding the constitutional claims Apple made in its administrative appeal and declaratory judgment action. Following the hearing, she recommended that the common pleas court rule in favor of the Township. Apple objected, but the common pleas court overruled its objections and entered judgment in favor of the Township. Apple has appealed the judgment entered in both cases, assigning four errors.
ASSIGNMENT OF ERROR I
THE TRIAL COURT'S FINDING THAT GRANGER TOWNSHIP COMPLIED WITH R.C. 519.02'S REQUIREMENT THAT ITS ZONING RESOLUTION BE ADOPTED "IN ACCORDANCE WITH A COMPREHENSIVE PLAN" WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED AS A MATTER OF LAW BY DECLARING THAT GRANGER TOWNSHIP COMPLIED WITH R.C. 519.02'S REQUIREMENT THAT ITS ZONING RESOLUTION BE ADOPTED "IN ACCORDANCE WITH A COMPREHENSIVE PLAN."
(¶9} Apple argues that the Township's zoning resolution is invalid because it was not adopted in accordance with a comprehensive plan. Revised Code Section 519.02 provides:
[A] board of township trustees may regulate by resolution, in accordance with a comprehensive plan, the location, height, bulk, number of stories, and size of buildings and other structures, * * * percentages of lot areas that may be occupied, set back building lines, sizes of yards, courts, and other open spaces, the density of population, the uses of buildings and other structures, * * * and the uses of land for trade, industry, residence, recreation, or other purposes in the unincorporated territory of the township."
Apple argues that, under Section 519.02, "a comprehensive plan" covers more than just zoning. Rather, it is a township's chief policy instrument which sets forth goals, policies, and objectives regarding zoning, streets, public facilities, public programs, and public lands. Apple argues that, because the Township does not have a comprehensive plan that is separate from its zoning resolution, the resolution is invalid. Whether a zoning resolution complies with Section 519.02 is a question of law that this Court reviews de novo. B.J. Alan Co. v. Congress Twp. Bd. of Zoning Appeals, 191 Ohio App.3d 552, 2010-Ohio-6449, ¶ 7 (9th Dist.) (B.J. Alan III).
(¶10} Contrary to Apple's argument, this Court has held that a township's failure to have a comprehensive plan "which is separate and distinct from a zoning ordinance does not render unconstitutional a zoning ordinance." Reese v. Copley Twp. Bd. of Trustees, 129 Ohio App.3d 9, 15 (9th Dist.1998); BGC Props. v. Bath Twp., 9th Dist. Summit No. 14252, 1990 WL 31789 *4 (Mar. 21, 1990) ("Ohio law does not require a township to adopt a comprehensive zoning plan as a condition precedent to the enactment of zoning legislation."). In Reese and BGC Properties, this Court noted its agreement with the Eighth District Court of Appeal's decision in Central Motors Corp. v. City of Pepper Pike, 63 Ohio App.2d 34, 65 (8th Dist1979), in which the Eighth District explained that, "although a comprehensive plan is usually separate and distinct from a zoning ordinance, it is possible for an ordinance in and of itself to be a comprehensive plan * * *" See also Columbia Oldsmobile, Inc v City of Montgomery, 56 Ohio St.3d 60, 67 (1990) (Brown, J, concurring) ("As many courts (including our own) have recognized, a well-drafted zoning ordinance can, by itself, constitute the 'comprehensive plan.'"). Accordingly, the fact that the Township does not have a separately designated "comprehensive plan" does not mean that it did not have authority to create a zoning resolution.
(¶11} The purpose of the "comprehensive plan" requirement is "to prevent 'piecemeal' or 'spot' zoning * * *." Scioto Haulers, Inc. v. Circleville Twp. Zoning Bd. of Appeals, 4th Dist. No. 80 CA 7, 1981 WL 6022 *1 (Sept. 18, 1981). A comprehensive plan allows someone purchasing property to "determine in advance to what use that property could be put." Cassell v. Lexington Twp. Bd of Zoning Appeals, 163 Ohio St. 340, 345 (1955). It also prevents zoning laws and regulations from being "exercised in an arbitrary or unreasonable manner." Id.In Cassell, for example, the Ohio Supreme Court concluded that a zoning resolution that allowed one square mile of the township to be used for "farming, residential, commercial and recreational purposes, " but failed to designate which parts of the affected area could be used for each or any of those uses, did not constitute a comprehensive plan. Id.at 345-46. The Supreme Court also noted that, although the township denied a request for housing permits, in part, because the proposed lots were too small, the zoning resolution made "no provision for lot sizes, setback building lines, sizes of yard, courts, and other open spaces or any other of the items permitted to be regulated by [the predecessor to Section 519.02]." Id.at 346. According to the Court, ...