Powell v. Warren Cty. Bd. of Commrs.

Ohio Court of Appeals

Powell v. Warren Cty. Bd. of Commrs.

2020 Ohio 5570, 163 N.E.3d 1135

CourtOhio Court of Appeals

DecidedDecember 7, 2020

DocketCA2020-02-008

StatusPublished

This text of 2020 Ohio 5570 (Powell v. Warren Cty. Bd. of Commrs.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Powell v. Warren Cty. Bd. of Commrs., 2020 Ohio 5570, 163 N.E.3d 1135 (Ohio Ct. App. 2020).

Pincite

Opinion

[Cite as Powell v. Warren Cty. Bd. of Commrs., 2020-Ohio-5570.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

RANDY POWELL, et al., :

Appellants, : CASE NO. CA2020-02-008

: OPINION - vs - 12/7/2020 :

BOARD OF COMMISSIONERS of : WARREN COUNTY, et al., : Appellees.

CIVIL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 19 CV 92120

McNamee & McNamee, PLL, Michael B. McNamee, Gregory B. O'Connor, 2625 Commons Boulevard, Beavercreek, Ohio 45431, for appellants

David P. Fornshell, Warren County Prosecuting Attorney, Bruce A. McGary, Adam M. Nice, 520 Justice Drive, 2nd Floor, Lebanon, Ohio 45036, for appellee Board of County Commissioners

Robbins, Kelly, Patterson & Tucker, LPA, Robert M. Ernst, 7 West Seventh Street, Suite 1400, Cincinnati, Ohio 45202, for appellee Highland Development Partners, LLC

RINGLAND, J.

{¶1} Appellants, Randy and Victoria Powell, appeal the decision of the Warren

County Court of Common Pleas granting summary judgment to appellees, the Warren

County Board of Commissioners (the "Board"), Stephen Deger, Julia Schwartz, and Warren CA2020-02-008

Highland Development Partners, LLC in a zoning dispute. The issue before this court is

whether the Board approved a planned-unit development in violation of the county's zoning

resolution. For the reasons discussed below, we hold that the Board's approval of the

planned-unit development violated the county's zoning resolution.

{¶2} The applicable facts are not in dispute. At the time of the application, Deger

and Schwartz were the owners of 70.39 acres of land in an unincorporated portion of

Turtlecreek Township. They contracted with Highland Development Partners, LLC, to

develop the land and apply to the Warren County Zoning Department to have it rezoned as

a planned-unit development. The proposed planned-unit development would set aside

18.59 acres—around 26.4% of the total land in the development—as open space.

However, 7.43 acres of that 18.59 acres was designated for use as a common sanitary

sewer drip irrigation area. Additionally, the proposal set the net density of the development

at 0.88 units per acre. The density for the original zone, before the planned-unit

development change, was 0.5 units per acre. The proposal went through the appropriate

application process. The county rural zoning commission provided several

recommendations to the proposal. With those recommendations integrated into the

proposal, the Board approved the planned-unit development in Resolution 19-0214.

{¶3} Appellants brought an action for declaratory judgment on the basis that the

planned-unit development violated the county's zoning resolution because it did not comply

with the open space or density requirements in the zoning resolution. Both appellants and

the Board moved for summary judgment. The other appellees joined in the Board's motion

for summary judgment and separately moved for dismissal. The trial court granted

summary judgment for the Board, holding that the zoning resolution did not apply to the

planned-unit development sub judice.

{¶4} Appellants now appeal raising one assignment of error for review:

-2- Warren CA2020-02-008

{¶5} THE TRIAL COURT ERRED IN DENYING THE POWELLS' MOTION FOR

SUMMARY JUDGMENT AND GRANTING THE [BOARD OF COUNTY

COMMISSIONERS'] CROSS MOTION.

{¶6} In their sole assignment of error, appellants argue that the trial court erred

when it entered summary judgment for the Board because the plain language of the zoning

resolution provides that the planned-unit development regulations apply to all planned-unit

developments. Appellants further argue that the Board does not have authority, pursuant

to R.C. 303.022(B) to approve the planned-unit development because that provision is

inapplicable in this instance.

{¶7} An appellate court conducts a de novo review of the trial court's decision to

grant summary judgment. Eastbrook Farms, Inc. v. City of Springboro, 12th Dist. Warren

No. CA2003-08-080, 2004-Ohio-1377, ¶ 14, citing Grafton v. Ohio Edison Co., 77 Ohio

St.3d 102, 105 (1996). To grant summary judgment, the moving party must demonstrate

that: (1) there is no genuine issue of material fact, (2) the moving party is entitled to

judgment as a matter of law, and (3) it appears from the evidence and stipulations that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

non-moving party. Civ. R. 56(C); Westfield Ins. Co. v. R.L. Diorio Custom Homes, Inc., 187

Ohio App.3d 377, 2010-Ohio-1007, ¶ 18 (12th Dist.). The court must construe the evidence

in favor of the nonmoving party. Civ.R. 56(C); Drees Co. v. City of Mason, 12th Dist. Warren

No. CA2003-05-060, 2004-Ohio-3670, ¶ 9.

{¶8} Zoning regulations are a product of the exercise of governmental police

power. Am. Aggregates Corp. v. Warren Cty. Commrs., 39 Ohio App.3d 5, 6 (12th

Dist.1987), superseded by statute on other grounds as stated in Jurkiewicz v. Butler Cty.

Bd. of Elections, 85 Ohio App.3d 503, 505 (12th Dist.1993). A county does not have

authority to regulate land use unless that authority has been provided by the General

-3- Warren CA2020-02-008

Assembly. Am. Aggregates Corp. at 6-7. The General Assembly has delegated some of

its zoning police power to counties pursuant to R.C. Chapter 303. In particular, R.C.

303.022 provides counties the authority to establish and modify planned-unit developments

through its zoning resolution. As the basis for the county's zoning authority at issue, we will

first address the parties' arguments concerning R.C. 303.022.

{¶9} The primary concern of statutory interpretation is legislative intent. State v.

Seawell, 12th Dist. Warren No. CA2019-05-050, 2020-Ohio-155, ¶ 6. To determine

legislative intent, this court will first look at the plain language of the statute. Antoon v.

Cleveland Clinic Found., 148 Ohio St.3d 483, 2016-Ohio-7432, ¶ 20. The statute will be

applied as written if the language is unambiguous and definite. State v. Pettus, Slip Opinion

No. 2020-Ohio-4836, ¶ 10, citing Summerville v. City of Forest Park, 128 Ohio St.3d 221,

2010-Ohio-6280, ¶ 18.

{¶10} R.C. 303.022 provides that:

A county zoning resolution or amendment adopted in accordance with this chapter may establish or modify planned- unit developments. Planned-unit development regulations shall apply to property only at the election of the property owner and shall include standards to be used by the board of county commissioners or, if the board so chooses, by the county zoning commission, in determining whether to approve or disapprove any proposed development within a planned-unit development. The planned-unit development shall further the purpose of promoting the general public welfare, encouraging the efficient use of land and resources, promoting greater efficiency in providing public and utility services, and encouraging innovation in the planning and building of all types of development. Within a planned-unit development, the county zoning regulations, where applicable, subdivision regulations, and platting regulations need not be uniform, but may vary in order to accommodate unified development and to promote the public health, safety, and morals, and the other purposes of this section.

Planned-unit developments may be included in the county zoning resolution under one of the following procedures:

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