[Cite as Apple Group Ltd. v. Granger Twp. Bd. of Zoning Appeals, 2013-Ohio-4259.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )
APPLE GROUP LTD. C.A. No. 12CA0065-M 12CA0068-M Appellant
v. APPEAL FROM JUDGMENT BOARD OF ZONING APPEALS ENTERED IN THE GRANGER TWP. COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellee CASE No. 08CIV0090
DECISION AND JOURNAL ENTRY
Dated: September 30, 2013
HENSAL, Judge.
{¶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.
I.
{¶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 2
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. 3
{¶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.
II.
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. 4
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 5
decision in Central Motors Corp. v. City of Pepper Pike, 63 Ohio App.2d 34, 65 (8th Dist.1979),
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,
“[t]here being no yardstick in the regulation by which the zoning commission could possibly be 6
guided, we can come to no conclusion other than that the commission in this instance acted
arbitrarily and unreasonably in refusing to issue the permits.” Id.
{¶12} Apple argues that the more recent decisions of this Court and the Ohio Supreme
Court in B.J. Alan Co. v. Congress Twp. Board of Zoning Appeals, 124 Ohio St.3d 1, 2009-Ohio-
5863 (B.J. Alan II), preclude a zoning ordinance from satisfying Section 519.02’s
“comprehensive plan” requirement. The issue before the Supreme Court in B.J. Alan II,
however, was whether “the comprehensive plan required by the statute must be a plan developed
by the township itself or whether [a] township may rely on a comprehensive plan created at the
county level.” Id. at ¶ 1. After determining that a township could rely on a countywide plan, the
Supreme Court then considered whether the Wayne County plan that Congress Township had
relied on was “a comprehensive plan and whether its breadth includes Congress Township.” Id.
at ¶ 32. The Supreme Court did not address whether a zoning ordinance itself could satisfy the
comprehensive plan requirement. On remand, this Court recognized that B.J. Alan involved a
different issue, writing:
[T]he facts of Cassell and other cases cited by the parties are distinguishable from the facts of the case at bar. For example, in Cassell the Supreme Court examined whether a comprehensive plan existed within the zoning resolution itself and was not faced with the question of whether a regulation complied with a separate and distinct plan.
B.J. Alan III, 191 Ohio App.3d 552, 2010-Ohio-6449 at ¶ 13.
{¶13} Upon review of the decisions of this Court and the Supreme Court in B.J. Alan II
and III, we conclude that they did not overrule this Court’s holdings in Reese and BGC
Properties. The fact that the Supreme Court held that a zoning resolution satisfies the
“comprehensive plan” requirement if it is adopted in accordance with a county’s master plan 7
does not mean that that is the only way that the requirement can be met. We, therefore, reject
Apple’s argument that a zoning ordinance cannot constitute a comprehensive plan.
{¶14} Apple next argues that the Township’s zoning ordinance does not meet the
requirements of a comprehensive plan and, therefore, it was not made “in accordance with a
comprehensive plan” under Section 519.02. The definition of “comprehensive plan” has
generated much debate.
The requirement that zoning decisions be made ‘in accordance with a comprehensive plan’ was contained in the original Standard Zoning Enabling Act (SZEA) issued by the United States Department of Commerce in 1922. Approximately three-quarters of the states [including Ohio] have adopted some form of the SZEA, and typically include the ‘in accordance with a comprehensive plan’ requirement. The term ‘comprehensive plan’ was not defined in the SZEA, and so both its purpose and confines of legal sufficiency have not been well understood or enforced.
Hirokawa, Making Sense of a “Misunderstanding of the Planning Process”: Examining the
Relationship Between Zoning and Rezoning Under the Change-or-Mistake Rule, 44 Urb. Law.
295, 299-300 (2012).
{¶15} Two years after the United States Department of Commerce issued the final
version of the SZEA, it issued the Standard City Planning Enabling Act, which gave local
governments “the discretion to develop substantive planning policies.” Attkisson, Putting a Stop
to Sprawl: State Intervention as a Tool for Growth Management, 62 Vand. L.Rev. 979, 991
(2009); see R.C. 713.01 (allowing the creation of city planning commissions), R.C. 713.22
(allowing the creation of county planning commissions). The Standard Planning Act did not use
the term “comprehensive plan” like the SZEA but did use the term “master plan.” Sullivan &
Bragar, Recent Developments in Comprehensive Planning, 44 Urb. Law. 615, 615 (2012).
Because the Standard Planning Act makes planning optional, however, “most state courts [have
been] reluctan[t] to require consistency between zoning regulations and a separately adopted land 8
use plan.” Attkisson, 62 Vand. L.Rev. at 991. Instead, the majority view “is that comprehensive
planning requires some form of forethought and reasoned consideration, as opposed to a separate
plan document that becomes an overarching constitution guiding development.” Sullivan &
Richter, Out of the Chaos: Towards a National System of Land-Use Procedures, 34 Urb. Law.
449, 454 (2002). The minority view, on the other hand, requires “the comprehensive plan [to be]
an independent document separate from the comprehensive zoning ordinance.” Benintendi,
Comment, The Role of the Comprehensive Plan in Ohio: Moving Away from the Traditional
View, 17 U. Dayton L. Rev. 207, 217 (1991).
{¶16} As explained earlier, this Court has followed the majority view that a zoning
resolution itself can satisfy the comprehensive plan requirement. Under the majority view, “the
term ‘comprehensive’ has three meanings: (1) comprehensive in terms of addressing an entire
geographic area; (2) comprehensive in terms of having an ‘all-encompassing’ scope; and (3)
comprehensive as in a separate long-term planning document” as opposed to a temporary
duration. Sullivan & Richter, Out of the Chaos at 453-454. To be “all-encompassing” under the
second prong, a zoning ordinance must address a number of factors such as use, height, and area.
Id. at 454. This Court’s analysis is also guided “by the broad principles outlined by the Supreme
Court of Ohio,” which includes “that a person should be able to examine a zoning resolution in
its entirety and ascertain to what use property may be put.” B.J. Alan III, 191 Ohio App.3d 552,
2010-Ohio-6449 at ¶ 14. Accordingly, the resolution must “define with certainty the location,
boundaries and areas of the * * * districts[.]” White Oak Prop. Dev., L.L.C. v. Washington Twp.,
12th Dist. Brown No. CA2011-05-011, 2012-Ohio-425, ¶ 16, quoting Village of Westlake v.
Elrick, 52 Ohio Law Abs. 538, 541 (8th Dist.1948). In White Oak, the Twelfth District Court of
Appeals determined that a township zoning resolution set forth a comprehensive plan because 9
the resolution and accompanying map: “(1) reflect current land uses; (2) allow for change; (3)
promote public health and safety; (4) uniformly classify similar areas; (5) clearly define district
locations and boundaries; and (6) identify the use(s) to which each property may be put.” Id. at ¶
46.
{¶17} In the instant case, the trial court adopted the decision of the magistrate, who
concluded that the Township’s zoning resolution had been made in accordance with a
comprehensive plan. In her decision, the magistrate considered
1) whether an individual is able to examine the zoning resolution and ascertain to what use the property may be put; 2) whether the text of the zoning resolution is consistent with the zoning map which shows the location of the various zoning classifications, and 3) whether the zoning plan includes business or industrial zoning districts.
She found:
[T]he Granger Township zoning resolution functions as a comprehensive plan. A review of the resolution shows that it covers many factors, including, but not limited to land use, commercial development and conditional zoning terms. It sets forth specific goals and embodies the vision of the residents of the township for future development. The goal of the resolution is “to promote and protect the health, safety, morals and welfare of the residents of the unincorporated area of Granger Township * * * and to conserve and protect property and property values, and to provide for the maintenance of the rural character of [the] Township, and to manage orderly growth and development in said Township” while allowing for “reasonable flexibility for certain kinds of uses.”
She also found that the
resolution is general in nature but it also contains specific zoning districts to manage growth and ret[ain] the rural character of the township. The resolution provides the information needed for property owners to make decisions about public and private investment. It also provides a basis for zoning and conditional use decisions which will control spot zoning.”
The trial court adopted the magistrate’s findings, finding them to be “correct.”
{¶18} Apple argues that the trial court’s findings were against the manifest weight of
the evidence. When reviewing the manifest weight of the evidence in a civil case, this Court 10
“weighs the evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way
and created such a manifest miscarriage of justice that the [judgment] must be reversed and a
new trial ordered.” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20, quoting
Tewarson v. Simon, 141 Ohio App.3d 103, 115 (9th Dist.2001).
{¶19} The Township’s zoning resolution and map divides the Township into six
different districts: two residential, three commercial, and one industrial. There is also a planned
development district that overlays part of the R-1 residential and C-2 general commercial
districts. For each district, the zoning resolution sets out use, height, and area restrictions. It
defines with certainty the location and boundaries of each zone. The zoning resolution also
provides separate regulations regarding the placement of signs and wireless telecommunication
towers.
{¶20} Upon review of the zoning resolution, we conclude that there is some competent
credible evidence in the record from which the trial court could have found that it is “a
comprehensive plan” under Section 519.02. See Carlton v. Riddell, 72 Ohio Law Abs. 254, 256
(9th Dist.1955) (“The Brunswick Township zoning resolution is comprehensive, for it provides
for agriculture in all zones (which is usually the predominant use of township lands), business
and commercial uses (to provide food, drug and department stores, and other such uses), and
residences.”). The zoning resolution addresses the entire geographic area of the Township, is all-
encompassing in that it addresses use, height, and area, and it is intended to operate on a
permanent basis to manage the long-term growth and development of the Township. In addition,
a person examining the “zoning resolution in its entirety [can] ascertain to what use property
may be put.” B.J. Alan III, 191 Ohio App.3d 552, 2010-Ohio-6449 at ¶ 14. Further, the 11
county’s deputy planning director testified that, even though the township does not have a
separate comprehensive plan, the zoning resolution functions as a comprehensive plan. We,
therefore, conclude that the court’s decision is not against the manifest weight of the evidence.
The trial court correctly determined that the zoning resolution was adopted “in accordance with a
comprehensive plan” under Section 519.02. Apple’s first and second assignments of error are
overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED AS A MATTER OF LAW BY DECLARING THAT THE GRANGER TOWNSHIP ZONING RESOLUTION, AS APPLIED TO PROHIBIT APPLE’S PROPOSED USE, WAS NOT ULTRA VIRES AND IN EXCESS OF THE TOWNSHIP’S STATUTORY ZONING POWERS UNDER R.C. 519.02.
{¶21} Apple next argues that the zoning resolution’s R-1 district’s area restrictions are
not reasonably related to the two purposes that are allowed under Section 519.02. According to
Apple, Section 519.02 allows townships to impose area restrictions only if they are “in the
interest of the public health and safety.” The magistrate determined that the area restrictions
were permissible because they preserve the aesthetics of the community and, therefore, had “a
substantial relationship to the general welfare of the public.” Apple argues that, under Section
519.02, an area restriction is not allowed merely because it will promote the “general welfare” of
the community. It, therefore, argues that the Township exceeded its statutory authority.
{¶22} Apple’s argument fails because it cites language from an attempted amendment to
Section 519.02 that was ruled unconstitutional. From 1957 to 2004, Section 519.02 provided
that townships could enact zoning resolutions “[f]or the purpose of promoting the public health,
safety, and morals” of its residents. In 2004, the General Assembly amended the section to allow
zoning that is “in the interest of the public health, safety, convenience, comfort, prosperity, or 12
general welfare * * *.” Later that same year, the legislature attempted to amend the language of
Section 519.02 again. Under Senate Bill 18, use and area restrictions would be allowed only if
they were “in the interest of public health and safety[.]” The bill was determined to be
unconstitutional, however, under the single subject clause. Akron Metro. Hous. Auth. Bd. of
Trustees v. State, 10th Dist. No. 07AP-738, 2008-Ohio-2836, ¶ 28. See also Riebe Living Trust
v. Concord Twp., 11th Dist. Lake No. 2011-L-068, 2012-Ohio-981, ¶ 22, 25-29 (agreeing that
Senate Bill 18 was unconstitutional and explaining that a 2006 amendment to Section 519.02 did
not reenact the amendments that were attempted in the unconstitutional bill).
{¶23} Because Senate Bill 18 was unconstitutional, the trial court did not err when it
determined that the Township had authority to zone in the interest of the “general welfare.”
Apple’s third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED AS A MATTER OF LAW BY DECLARING THAT THE GRANGER TOWNSHIP ZONING RESOLUTION WAS CONSTITUTIONAL AS APPLIED TO PROHIBIT APPLE’S PROPOSED USE OF ITS PROPERTY.
{¶24} Apple also argues that the trial court incorrectly analyzed whether the Township’s
lot size and frontage requirements substantially further any legitimate zoning objective. It
contends that the prohibition of its proposed use of the 88 acres does not substantially advance
the district’s “rural character” and “open space” objectives.
{¶25} “In an appeal * * * which challenges the constitutionality of a zoning ordinance as
applied, the issue for determination is whether the ordinance, in proscribing a landowner’s
proposed use of his land, has any reasonable relationship to the legitimate exercise of police
power by the municipality.” Mobil Oil Corp. v. City of Rocky River, 38 Ohio St.2d 23 (1974),
syllabus. While Mobil Oil involved a municipality, the parties agree that the same test applies in 13
this case. See Valley Auto Lease of Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning Appeals,
38 Ohio St.3d 184, 185 (1988) (applying Mobil Oil in a case challenging the constitutionality of
a township zoning resolution).
In a constitutional analysis, the object of scrutiny is the legislative action. The zoning ordinance is the focal point of the analysis, not the property owner’s proposed use, and the analysis begins with a presumption that the ordinance is constitutional. The analysis focuses on the legislative judgment underlying the enactment, as it is applied to the particular property, not the municipality’s failure to approve what the owner suggests may be a better use of the property. If application of the zoning ordinance prevents an owner from using the property in a particular way, the proposed use is relevant but only as one factor to be considered in analyzing the zoning ordinance’s application to the particular property at issue.”
Jaylin Investments, Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, ¶ 18. “The
challenge must focus on the constitutionality of the ordinance as applied to prohibit the proposed
use, not the reasonableness of the proposed use.” Id. at ¶ 20. Accordingly, the question in this
case is whether the zoning resolution, insofar as it prohibits Apple from constructing a
development of 44 homes on lots ranging from 0.7551 to 1.0934 acres with less than the required
frontage and setback requirements has any reasonable relationship to the Township’s legitimate
exercise of authority under Section 519.02. Mobil Oil at 29; Jaylin at ¶ 20; BGC Props. v. Bath
Twp., 9th Dist. Summit No. 14252, 1990 WL 31789, *3 (Mar. 21, 1990).
{¶26} In adopting the zoning resolution, the Township’s board of trustees made the
legislative judgment that they wanted to maintain the rural character of the township. According
to the zoning resolution, the term “rural” means “[l]ow-density housing, country/agrarian uses,
and green space.” The trustees determined that for housing to be considered low-density, each
lot would have to be at least two acres. The resolution defines green space as “[u]ndeveloped
open space lacking a structure including but not limited to fields, pastures, forest, and mowed 14
and maintained grass.” Open space is defined as “[a]n area of land which is in its natural state,
or is developed only for the raising of agricultural crops, or for outdoor recreation.”
{¶27} The United States Supreme Court has recognized that it is a legitimate goal of
governments to regulate housing density to “discourage the ‘premature and unnecessary
conversion of open-space land to urban uses’ * * * and protect * * * residents * * * from the ill
effects of urbanization.” Agins v. City of Tiburon, 447 U.S. 255, 261 (1980), quoting
Cal.Govt.Code 65561. Apple’s proposed plan, although providing for more open space than a
plan that simply divides the 88 acres into 44 two-acre parcels, clusters 44 houses on one part of
the property on lots averaging less than one-acre in size. All together, the 44 homes would be on
less than 37 acres of land.
{¶28} Apple argues that Section 519.02 does not allow townships to regulate lot size,
only population density. What Apple overlooks though is that it is by limiting the permissible
number of homes per acre that a township regulates population density “as only a certain number
of residents would live in each home.” White Oak, 2012-Ohio-425 at ¶ 26; Ketchel v.
Bainbridge Twp., 52 Ohio St.3d 239, 242 (1990) (explaining that establishing lot sizes is a
commonly approved technique for limiting population density).
{¶29} Apple argues that its plan actually results in lower population density because the
R-1 district allows duplexes while its plan does not. Under the R-1 district, however, the most
duplexes that could be constructed on 37 acres is 18, resulting in a total of 36 households. That
is less than the number of households that Apple proposed for the 37 acres. In addition, the two-
acre lot and frontage requirements advance the Township’s aesthetic interest of preserving its
rural character. Franchise Developers, Inc. v. City of Cincinnati, 30 Ohio St.3d 28 (1987),
paragraph two of the syllabus (“There is a legitimate governmental interest in maintaining the 15
aesthetics of the community and, as such, aesthetic considerations may be taken into account by
the legislative body in enacting zoning legislation.”); Smythe v. Butler Twp., 85 Ohio App.3d
616, 622 (2d Dist.1993) ([T]he appearance of a community is closely linked to its citizens’
happiness, comfort and general well-being.”). According to a Township trustee, under Apple’s
plan, the houses would look just “too close” together. The county’s deputy planning director
also testified that areas with one-acre lots are generally not considered “rural.”
{¶30} Upon review of the record, we conclude that the trial court correctly determined
that the Township’s zoning resolution was constitutional as applied to Apple’s property. The lot
size, frontage and setback requirements reasonably advance the Township’s legitimate goal of
maintaining its rural character. Apple’s plan to cluster homes on less-than-one-acre lots conflicts
with the Township’s vision of what constitutes low-density housing and its vision of what
constitutes a rural landscape. Apple’s fourth assignment of error is overruled.
CONCLUSION
{¶31} The trial court correctly determined that the Township’s zoning resolution
complies with Revised Code Section 519.02 and is not unconstitutional as applied to Apple’s
property. The judgment of the Medina County Common Pleas Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 16
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL FOR THE COURT
MOORE, P. J. CONCURS.
BELFANCE, J. DISSENTING.
{¶32} I respectfully dissent from the judgment of the majority as I would conclude that
the evidence does not support the conclusion that the zoning resolution was adopted in
accordance with a comprehensive plan as required by R.C. 519.02.
{¶33} The law in this area is far from clear, stemming in part from the lack of a
definition of “comprehensive plan” in the statutory scheme. See Meck and Pearlman, Ohio
Planning & Zoning Law, Section 4:39 (2013) (“Ohio courts remain uncertain about what a
comprehensive plan is due to the lack of a precise definition in state statutes.”). The phrase “in
accordance with a comprehensive plan” originated in Section 3 of the 1926 Standard State
Zoning Enabling Act (“SZEA”), which has been adopted by approximately 75% of the states.
See Sullivan, Recent Developments in Comprehensive Planning Law, 43 Urb. Law. 823, 823 17
(2011); Meck and Pearlman at Section 4:38. The phrase is not defined in the SZEA either;
however, a footnote to Section 3 attempts to clarify the phrase by providing that, “‘[t]his will
prevent haphazard or piecemeal zoning. No zoning should be done without such a
comprehensive study[.]’” (Emphasis omitted.) Meck and Pearlman at Section 4:38.
{¶34} Notably, the individual who coined the phrase, Harland Bartholomew, indicated
that the following studies should be made in advance of drafting a zoning ordinance: “existing
use of land and buildings; new buildings erected by five-year periods; building heights; lot
widths; front yards; population density; population distribution; topography; and computation of
areas for different land uses.” Id. Additionally, he believed that
there should be available a major street plan, a transit plan, a rail and water transportation plan and a park and recreation plan; in other words, a comprehensive city plan. Without such a comprehensive city plan, the framers of the zoning plan must make numerous assumptions regarding the future of the city in respect to all of these matters without the benefit of detailed information and study. Zoning is but one element of a comprehensive city plan. It can neither be completely comprehensive nor permanently effective unless undertaken as part of a comprehensive plan.1
Id.
{¶35} Despite the above language, which would suggest that a comprehensive plan is a
separate document apart from the zoning regulation, the trend in the past in Ohio has been to not
require the existence of a separate document apart from the zoning regulations to satisfy R.C.
519.02. See Benintendi, Comment: The Role of the Comprehensive Plan in Ohio: Moving
Away from the Traditional View, 17 U.Dayton L.Rev. 207, 220 (1991); see also Columbia
Oldsmobile, Inc. v. 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,
1 While Mr. Bartholomew was focused on city planning, which would likely involve elements that would not be involved in township planning due to the inherent differences between cities and townships, the underlying principles he articulates are equally applicable to township planning. 18
constitute the ‘comprehensive plan.’”). This Court has even stated that “Ohio law does not
require a township to adopt a comprehensive zoning plan as a condition precedent to the
enactment of zoning legislation. Failure to have a zoning plan which is separate and distinct
from a zoning ordinance does not render a zoning ordinance unconstitutional.” (Internal citation
omitted.) BGC Properties, Inc. v. Twp. of Bath, 9th Dist. Summit No. 14252, 1990 WL 31789,
*4 (Mar. 21, 1990). Notably, BGC Properties and the cases like Reese v. Copley Twp. Bd. of
Trustees, 129 Ohio App.3d 9 (9th Dist.1998), which rely on it, in turn rely on Cent. Motors
Corp. v. Pepper Pike, 63 Ohio App.2d 34 (8th Dist.1979). The problem with relying on Central
Motors in any case dealing with township zoning is that Central Motors involved a municipality.
See Central Motors. Unlike townships, which are governed in part by R.C. 519.02, “[t]he legal
power of Ohio municipal corporations to undertake activities which regulate land use is not
dependent on the state legislature’s enactment of enabling statutes.” Benintendi at 214-215.
Thus, there is no statutory requirement that municipalities zone in accordance with a
comprehensive plan. See Columbia Oldsmobile, Inc. at 66. Therefore, the analysis undertaken
in the municipal zoning cases is limited to analyzing whether the zoning regulations comply with
constitutional limitations; however, in the cases involving townships, courts must also determine
whether the resolution complies with the statute. Unfortunately, given the conflation of
constitutional standards pertaining to municipalities and the separate statutory mandate
pertaining to townships, Ohio jurisprudence has not truly focused upon the meaning of the plain
language of R.C. 519.02 nor attempted to glean the legislative intent underlying its enactment.2
2 For example, it is evident that in repeatedly employing the phrase “in accordance with a comprehensive plan” in R.C. 519.02, the legislature wished to avoid short-term, piecemeal development of Ohio townships. As such, the legislature, in mandating the “comprehensive plan” requirement, recognized that proper long-range planning is essential to fostering and 19
Nonetheless, irrespective of whether the comprehensive plan is a separate document, or is
ultimately housed within the ordinance itself, R.C. 519.02 expressly states that township zoning
regulations must be “in accordance with a comprehensive plan[.]”
{¶36} Moreover, recent case law from the Ohio Supreme Court suggests that townships
are required, pursuant to R.C. 519.02, to engage in some form of planning and study that would
form the basis for the creation and adoption of their zoning regulations. See B.J. Alan Co. v.
Congress Twp. Bd. of Zoning, 124 Ohio St.3d 1, 2009-Ohio-5863, ¶ 32-42 (noting that Wayne
County’s plan constituted a comprehensive plan as it “present[ed] a thorough study of the region
and set[] forth comprehensive land-use goals for the county[]”). It would seem that, if the
Supreme Court was inclined to take the position that a zoning regulation and a comprehensive
plan were one and the same, it could have used B.J. Alan as an opportunity to clarify the law in
this area. Thus, instead of examining whether the county’s plan was a comprehensive plan, the
Court could have chosen to examine the zoning regulations to see if they constituted a
comprehensive plan. Some commentators have even suggested that B.J. Alan indicates that R.C.
519.02 requires that “zoning must be consistent with an independently prepared comprehensive
plan that is adopted separately.” Meck and Pearlman at Section 4:37.
{¶37} Even if a zoning regulation can still constitute the expression of a comprehensive
plan, there are problems with taking this approach where there is no evidence that the township
engaged in a thorough and long-range planning process. Viewing the zoning regulation as the
functional equivalent of the comprehensive plan without more essentially renders the
requirement that townships zone in accordance with a comprehensive plan “symbolic at best.”
Benintendi, 17 U.Dayton L.Rev. at 227. This is so, because “[z]oning regulations which are not
maximizing economic development as such entails identifying and maximizing regional strengths as well as developing supporting infrastructure. 20
required to conform to a sound, long-range comprehensive plan are neither truly comprehensive
in nature, nor do they provide necessary limitations upon local governmental bodies or adequate
protection from possible arbitrary and discriminatory action to landowners.” Id.
[Absent such a requirement], a zoning board in Ohio may enact a comprehensive zoning ordinance or zoning amendment, either through authorization from the state via enabling legislation or through the home rule provision of the Ohio Constitution, and be assured of its validity so long as the ordinance or amendment is not violative of the due process or equal protection clauses of the United States Constitution.
Id. at 224. In other words, by eliminating any requirement of a separate comprehensive planning
document, or at least evidence that a township actually engaged in a comprehensive, long-range
planning process, townships can pass ordinances that technically pass constitutional muster but
do not comport with the legislative directive that such ordinances be enacted “in accordance with
a comprehensive plan.” R.C. 519.02.
{¶38} While it would seem that the legislature envisioned a separate and comprehensive
planning process culminating in a separate document called a comprehensive plan, I recognize
the current state of this Court’s precedent. Nonetheless, I would hold that, in order for a zoning
resolution or ordinance itself to constitute a comprehensive plan, there must be some
demonstration that the zoning resolution or ordinance is based upon information that would
evidence long-range, comprehensive planning and that the resulting zoning resolution or
ordinance was intended to constitute the comprehensive plan of the township. Absent some
evidence that the township intended the resolution to actually be the ultimate expression of the
comprehensive plan and that it engaged in comprehensive planning in developing the resolution,
townships could create resolutions without gathering any pertinent information or conducting
any long-range planning. Nonetheless, in situations where a zoning resolution is automatically
deemed synonymous with a comprehensive plan, such resolutions are deemed in compliance 21
with R.C. 519.02 merely because the resolution could be viewed as a comprehensive plan. Just
because a resolution could be a comprehensive plan does not mean that it was intended to be so
when it was created. Likewise, just because a resolution appears comprehensive in that it
provides for a variety of zoning, does not necessarily mean it was the product of thorough,
comprehensive planning. Requiring evidence of the foregoing would help prevent townships
from creating arbitrary, and piecemeal zoning – clearly at odds with the express directive of
R.C. 519.02 – and would prevent townships from justifying their zoning after the fact.
{¶39} In the instant matter, I would conclude both facets are lacking. There is little
discussion in the record concerning the development of the resolution at issue; thus, one cannot
say the resolution was based upon information gathered from comprehensive planning.
Moreover, while there is testimony that the zoning resolution is “used” as the comprehensive
plan and that the zoning resolution “could function” as a comprehensive plan, there does not
appear to be any testimony stating that, when the zoning resolution was created, it was intended
to be the township’s comprehensive plan. Instead, there is abundant testimony that Granger
Township does not have a comprehensive plan and neither does Medina County. Additionally, I
note that the zoning resolution at issue, which “function[s]” as a comprehensive plan, was
adopted a little over a year after Granger Township adopted its prior zoning resolution. The
adoption of a new zoning resolution every year would tend, in my mind, to support the notion
that the zoning resolution was not based on long-term planning and was not intended to be a
comprehensive plan. See Meck and Pearlman at Section 4.29 (“The essential characteristics of a
plan are that it is comprehensive, general and long range.”). Under these circumstances, I would
conclude that Granger Township failed to follow R.C. 519.02 in enacting its zoning resolution
and would reverse the judgment of the lower court. Accordingly, I dissent. 22
APPEARANCES:
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.