State ex rel. Committee for the Referendum of Ordinance No. 3543-00 v. White

736 N.E.2d 873, 90 Ohio St. 3d 212

• Court: Ohio Supreme Court
• Decided: September 29, 2000
• Docket: No. 00-1457
• Status: Published

Opinions

Douglas, J.

Relators claim that they are entitled to a writ of mandamus to compel respondents to submit Ordinance No. 3543-99 to the electors for their consideration on the November 7 general election ballot. We agree, and for the reasons that follow we grant the writ requested by relators.

Initially we must address respondents’ contention that relators’ cause of action is barred by the doctrine of laches. Respondents contend that relators failed to act with the diligence and promptness required in election cases and, further, that relators lack any justifiable excuse for failing to file this action sooner to contest the action taken by city council on April 17. We do not agree with respondents.

It is well established that in election-related matters, extreme diligence and promptness are required. State ex rel. Schwartz v. Brown (1964), 176 Ohio St. 91, 26 O.O.2d 438, 197 N.E.2d 801. See, also, State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 49, 600 N.E.2d 656, 659. When the required promptness has not been exhibited, we have routinely denied extraordinary relief in election-related cases based on laches. See, generally, White, 65 Ohio St.3d at 48, 600 N.E.2d at 659, and cases cited therein. Relators bear the burden of establishing that they acted with the requisite diligence in extraordinary writ cases involving elections. State ex rel. Manos v. Delaware Cty. Bd. of Elections (1998), 83 Ohio St.3d 562, 564, 701 N.E.2d 371, 373.

In most instances, relators’ delay of nearly four months in filing this action from the time city council voted to rescind Ordinance No. 3543-99, would, without justifiable excuse, warrant dismissal of relators’ claims based on laches. However, we cannot ignore respondents’ part in causing this delay. Therefore, after a thorough review of the evidence before the court, we find, for the reasons that follow, that relators did act with the requisite diligence in filing this mandamus action.

On March 6, 2000, two actions were taken by the North Ridgeville City Council relating to the rezoning at issue. Ordinance No. 3543-99 rezoned the affected area from R-l residential district to the zoning classification of Planned Community Development.³ Resolution No. 894-2000 purported to grant preliminary approval for the proposed planned community development. In addition, however, other events surrounding the enactment of Ordinance No. 3543-99 and adoption of Resolution No. 894-2000 and the subsequent attempted repeal by city council of Ordinance No. 3543-99 are relevant to our consideration of this issue.

Prior to city council’s votes on proposed Ordinance No. 3543-99 and proposed Resolution No. 894-2000, the law director for North Ridgeville advised the council members on February 24, 2000, of the need to consider the proposed ordinance and proposed resolution “in the proper sequence,” “in the way that our ordinances require them to do.” (Emphasis added.) According to the law director, under the city’s recently adopted planned community development ordinance,⁴ city council must grant preliminary approval of a proposed community development plan “as a prerequisite to Council approving the changing in the zoning.” (Emphasis added.) The law director further clarified that his intent was to ensure that “Council votes on [proposed Resolution No. 894-2000] which is the legal prerequisite before it considers and votes on [proposed Ordinance No. 3543-99].” He further advised council that “[t]he approval of the Resolution granting the prehminary approval to the PCD plan must be considered by Council first. Then if council approves it, then Council can consider the request to rezone.” (Emphasis added.) Finally, on March 6, 2000, the date of the third and final reading of proposed Ordinance 3543-99, and the same date as the enactment of Ordinance No. 3543-99 and passage of Resolution No. 894-2000, the law director referred to proposed Ordinance No. 3543-99 as the “proposal to rezone” and further stated in relation to the proposed ordinance that “should Council vote to approve the change in zoning as requested from [residential to planned community development] [t]he developer would have one year within which to complete and file a final plan for development of the PCD District.”

At city council meetings subsequent to the enactment of Ordinance No. 3543-99 and the passage of Resolution No. 894-2000, on May 1, May 15, and June 5, the law director advised council that its adoption of Resolution No. 894-2000, which granted preliminary approval of the proposed planned community development, also automatically rezoned the area at issue. In other words, he was now informing council that, in effect, its vote enacting Ordinance No. 3543-99 had been unnecessary, since its previous vote passing Resolution No. 894-2000 accomplished what Ordinance No. 3543-99 purported to do, ie., rezone the land from residential to a planned community development district.

According to the law director, he informed council several times, prior to the votes enacting Ordinance No. 3543-99 and adopting Resolution No. 894-2000, that Resolution No. 894-2000 would automatically rezone the property in question. Contrary to these assertions of the law director, there is nothing in the record before this court that supports that contention. Even assuming, arguendo, that the law director did, in fact, convey that information to council, construing the evidence as a whole, we believe it is unlikely that members of city council understood the rezoning issue in the light that the director suggests.

The need for the city law director to explain to city council the effect of its votes on Ordinance No. 3543-99 and Resolution No. 894-2000 after the passage of those items of legislation is testament to the confusion that existed among council members concerning this rezoning issue. We need not assess responsibility for the creation of the confusion. Suffice it to say that, undoubtedly, confusion also existed among those parties interested in voicing an opinion on the rezoning issue. This confusion, we believe, contributed at least in part to the relators’ delay in filing this action.

In addition to the foregoing, in response to relators’ demand to compel respondents to submit Ordinance No. 3543-99 to the Lorain County Board of Elections for placement on the November 7 ballot, the law director raised'an entirely new argument challenging the sufficiency of relators’ referendum petition. This contention, questioning the number of valid signatures, was raised more than two months after the clerk of city council certified that the referendum petition was legally sufficient. In addition, there was an attempt to introduce two new ordinances seeking to repeal approval of the preliminary plan for the proposed planned community development and subsequent alleged rezoning. Granted, introduction of these ordinances was untimely according to the North Ridgeville Charter. This, however, could be attributed, at least in part, to the changing legal positions of the city’s law director. Relators’ persistent attempts to undo the actions of city council should not be strictly construed against them when city council itself was not fully aware of the ramifications concerning its approval of Ordinance No. 3543-99 and adoption of Resolution No. 894-2000.

The cumulative effect of the respondents’ actions clearly contributed to relators’ delay in filing this action. Although laches is not an affirmative defense in an election matter, i.e., respondents are not required to raise the defense, laches is still an equitable doctrine. Respondents cannot be afforded the benefit of the doctrine when they come to the court having substantially contributed to the delay in question. Christman v. Christman (1960), 171 Ohio St. 152, 154, 12 O.O.2d 172, 173, 168 N.E.2d 153, 155. Respondents’ claims of delay and alleged prejudice cannot stand the light of day in view of the record before us. Accordingly, laches does not bar relators’ claims.

The primary issue for our consideration is whether Section 13.2 of the North Ridgeville City Charter authorized city council to repeal Ordinance No. 3543-99 based only upon an oral motion without any underlying written document, to wit, an “ordinance.” After considering all of the relevant charter provisions, we conclude that the North Ridgeville City Charter required city council to enact a new ordinance to repeal Ordinance No. 3543-99.

Section 3.12 (three point twelve) of the North Ridgeville City Charter provides that “[a]ll legislative action shall be by ordinance or resolution except when otherwise required by the Constitution or the laws of the state of Ohio.” Section 13.2 (thirteen point two) of the charter sets forth city council’s authority after the clerk of city council determines that a referendum petition is sufficient. Section 13.2 provides:

“Within thirty (30) days after the enactment by Council, of any ordinance or resolution which may be subject to a referendum under the laws of the State of Ohio, a petition signed by no less than ten percent (10%) of the total electors voting at the last preceding November election, may be filed with Council * * * by personally handing said petition to the Clerk of Council, requesting the ordinance or resolution be repealed or submitted to the vote of the electors. When said petition is filed, the Clerk of Council, shall within fourteen (14) days ascertain the sufficiency of the petition, and if found sufficient, the Council shall, within thirty (30) days after sufficiency has been established, reconsider such ordinance or resolution. If Council fails to repeal said ordinance or resolution within such thirty (30) day period, the Council shall submit it to a vote of the electors at the next regular election occurring more than seventy-five (75) days after the filing of such petition. If such petition is signed by at least twenty percent (20%) of such electors, the date of the election may be fixed therein, which may be a special election to be held at any time more than seventy-five (75) days after the filing of such petition.”

Relators assert that under Section 3.12 of the charter, which prescribes general procedure for municipal legislation, city council, if it desired to repeal Ordinance No. 3543-99, had to enact a new ordinance to repeal Ordinance No. 3543-99 and that that action had to be taken by city council within thirty days of the clerk’s determination of sufficiency. Since no new ordinance was enacted, relators contend that city council’s April 17 vote to rescind Ordinance No. 3543-99 was ineffective. As a consequence, the referendum on the ordinance must, relators contend, be voted on at the November 7 general election. We agree.

Relators correctly observe that a new ordinance is generally required to expressly repeal an existing ordinance. Reiff v. Hamilton City Council (1972), 32 Ohio App.2d 224, 225, 61 O.O.2d 248, 249, 289 N.E.2d 358, 359; see, also, Bittinger v. Bolivar (1990), 183 W.Va. 310, 314, 395 S.E.2d 554, 558; St. Paul Citizens for Human Rights v. St. Paul City Council (Minn.1979), 289 N.W.2d 402, 405. The general rule is supported by the rationale that “[t]he repeal of legislation has similar widespread effect upon the community and, consistent with sound legislative operation, must be subject to the same procedural requirements as positive enactments.” (Emphasis added.) Reiff, 32 Ohio App.2d at 226, 61 O.O.2d at 249-250, 289 N.E.2d at 360.

Nevertheless, respondents urge this court to find that city council was not required to enact a new ordinance to repeal Ordinance No. 3543-99, but instead was authorized, pursuant to Section 13.2, to repeal the ordinance simply by passing a motion to rescind. However, the language of Section 13.2 simply does not support respondents’ position. Nowhere in Section 13.2 is city council authorized to repeal an ordinance -without enacting a new ordinance. Section 13.2 simply provides the mechanism for challenging a legislative enactment of city council by referendum. Contrary to the respondents’ assertions, Section 13.2 does not authorize, in contravention of Section 3.12, repeal of an ordinance or resolution simply by passing a motion to rescind.

Further, we reject respondents’ contention that it would be impractical and render Section 13.2 nugatory if Section 3.12 and other general charter provisions required that city council enact a new ordinance in order to repeal an existing zoning ordinance. Respondents ignore the clear language of Sections 3.12 and 13.2 and misconstrue the purpose of other charter provisions.

Respondents’ assertion that Section 3.12 must yield to the special thirty-day-repeal provision of Section 13.2 in order to avoid going through the entire legislative process a second time is misguided. In proposing an ordinance to repeal a newly enacted zoning ordinance, there would be no need, as respondents suggest, to hold another public hearing (Section 9.1), submit a proposed zoning ordinance to the planning commission (Section 8.8), or comply with the three-reading rule (Section 3.12), when those processes have been completed prior to the passage of the zoning ordinance. As we indicated in In re Election Contest of Democratic Primary Election Held May 4, 1999 for Nomination to the Office of Clerk, Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 266, 725 N.E.2d 271, 278, it is our duty to construe legislation to avoid unreasonable or absurd results. Respondents’ arguments, if accepted, would turn Section 13.2 on its head.

The North Ridgeville City Charter speaks to the question before the court, and, consequently, it is a closed issue. The charter is the preeminent authority in this matter, and it is clear and unequivocal. Moreover, upon-reflection, would anyone seriously contend that municipal governmental bodies should be able to repeal sections of their city code simply by using the vehicle of a motion and voice vote of the city council? The mischief that that could entail should be obvious even to a casual observer. Such a procedure is ftightening to contemplate and would be questionable at best and dangerous at its worst. Therefore, we find that city council’s April 17 action attempting to repeal Ordinance No. 3543-99 was not authorized and that, pursuant to Sections 3.12 and 13.2 of the North Ridgeville Charter, city council was required to enact a new ordinance to repeal the ordinance.

Accordingly, we hold that the same procedural requirements that must be followed to enact an ordinance must be followed to repeal an ordinance. We therefore grant relators’ requested writ of mandamus and order respondents to submit Ordinance No. 3543-99 to the electors of the city of North Ridgeville at the November 7, 2000 general election.

Writ granted.

Resnick, F.E. Sweeney and Lundberg Stratton, JJ., concur. Moyer, C.J., Pfeifer and Cook, JJ., dissent.

3 . On September 20, 1999, Council of the City of North Ridgeville adopted Ordinance No. 3491-99. That ordinance is entitled “An Ordinance Adding Planned Community Development District As a New Zoning‘ Classification." (Emphasis added.) The first paragraph provides that “the City Council has determined that Planned Community Development (P.C.D.) District needs to be added to the City of North Ridgeville Ordinances as a new zoning classification,” and the third paragraph of the ordinance, designated as “Section 1,” ordains that “P.C.D. District be added to the Ordinances of the City as [a] new zoning classification.” (Emphasis added.) Thus, there can be no question that where a party seeks to create and construct a PCD, a zoning classification of PCD must exist or existing zoning must be changed to that classification by action of the city council.

4 . See footnote 3.