Agenda - Planning Commission - 12/04/2014

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Zoning Bulletin November 10, 2014 I Volume 8 I Issue 21 CALIFORNIA (09/19/14)—This case addressed the issue of whether an ordinance approving a development plan was subject to referendum. The Background/Facts: Powell Crossing, LLC ("Powell Crossing") owned property in the City of Powell, Ohio (the "City") in Delaware County (the "County"). The property was located in a "Downtown Business District," which permitted uses including retail shops, office facilities, and multifamily dwellings. Powell Crossing proposed a new construction on the property that would include 14,000 square feet of retail space and 64 residential units. In furtherance of its proposed construction, Powell Crossing submitted a final - development -plan application with the City. On June 17, 2014, the City Council approved the development plan by adopting Ordinance 2014-10 (the "Ordinance"). On the same day the Ordinance was adopted, several City citizens (the "Citizens") filed petitions to place on the ballot of the next election a referen- dum to block the Ordinance from taking effect and an initiative to repeal the Ordinance. The City Council approved the referendum and initiative for placement on the ballot. Powell Crossing filed a notice of protest with the County Board of Elec- tions (the `BOE"). The BOE sustained the protest and refused to place the ref- erendum and initiative on the ballot. The Citizens then sought a writ of mandamus to compel the BOE to place the referendum and initiative on the ballot. DECISION: Writ denied. Concluding that the Ordinance approving Powell Crossing's development plan was an administrative act, and therefore not subject to referendum, the Supreme Court of Ohio denied the Citizens' writ of mandamus. In so holding, the court explained that to be entitled to the writ of mandamus, the Citizens must have established that: (1) they had a clear legal right to have their ballot measure(s) presented to the voters; (2) the BOE had a corresponding legal duty to submit the ballot measure(s) to the electors of the City; and (3) the Citizens possessed no adequate remedy in the ordinary course of the law. The court determined that the Citizens failed to meet the first of that three- part test. The court noted that, pursuant to the Ohio Constitution, Article II, § lf, the referendum and initiative power is limited to "questions the municipality is `authorized by law to control by legislative act.' " The test for determining whether an action is legislative or administrative is, said the court: "whether the action taken is one enacting a law, ordinance, regulation, or exe- cuting a law ordinance or regulation already in existence." Thus, said the court, "city ordinances that adopt final development plans pursuant to preexist- ing planned community development, without changing the zoning, are not subject to referendum." The Citizens had argued that because the City had not required Powell Crossing provide evidence of financing for the proposed development project, as required by the City Zoning Code, there was a failure of strict compliance with the Zoning Code. Strict compliance with the Zoning Code was necessary ©2014 Thomson Reuters 3