Agenda - Planning Commission - 12/04/2014

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November 10, 2014 I Volume 8 I Issue 21 Zoning Bulletin to trigger the jurisdiction of the City's Planning and Zoning Commission, said the Citizens. The Citizens argued that because the City Council approved Powell Crossing's development plan without properly invoking the jurisdic- tion of the City's Planning and Zoning Commission, then it necessarily acted legislatively in adopting the Ordinance. Thus, concluded the Citizens' argu- ment, since the adoption of the Ordinance was a legislative act, it was subject to referendum. The court rejected this argument, finding it rested on "faulty logic." The court found that the Citizens' argument "erase[d] the distinction between when a legislature changes its zoning code and when a legislature misapplies or misconstrues its zoning code. In the former case, the amendment is a legisla- tive act subject to referendum. The latter is an error that the administrative ap- peal process in R.C. Chapter 2506 exists to correct." The court noted that, adopting the Citizens' argument "would make every alleged zoning error subject to referendum and wipe out the well -established distinction between municipal legislative and administrative activity." The court concluded that because the 'Ordinance approved the proposed development within the contours of a preexisting zoning code, it was not subject to referendum. In sum, the court held that the subject matter of the proposed referendum and initiative was not proper for the ballot. See also: Morris v. Macedonia City Council, 71 Ohio St. 3d 52, 641 N.E.2d 1075 (1994) (required elements for mandamus). See also: Buckeye Community Hope Found. v. Cuyahoga Falls, 82 Ohio St. 3d 539, 697 N.E.2d 181 (1998). Case Note: The Citizens had also argued that a different rule should apply to charter municipali- ties, allowing them unlimited discretion to fashion whatever form of government they chose with no substantive limitations on that power by the Ohio Constitution, Article II, § 1f Essentially, the Citizens argued that the City Charter, which provided that "[a]ny ordinance passed by the [City] Council shall be subject to referendum. . . " should override the state Constitution's provision that only legislative actions are subject to referendum. The court rejected that argument, saying if it was adopted, the scope of referendum power would vary from municipality to municipality, depending on whether or not the city had a charter, and, if so, what referendum powers that charter provided. 4 2014 Thomson Reuters