Posted by: Patricia Salkin | September 13, 2011

6th Circuit Court of Appeals Holds No Right to Referendum in Ohio on Administrative, as Opposed to Legislative, Zoning Determination

The Sixth Circuit Court of Appeals ruled that a city council did not violate citizens’ state-given right to public referendum on legislative actions when it acted administratively, without a referendum, to modify a local zoning ordinance in order to allow for the expansion of an existing Wal-Mart store. 

When the Wal-Mart store was first proposed in 1991, the city council agreed to change the zoning designation on the 47-acre parcel from agricultural to commercial, provided developers agreed to several restrictions on the property.  The total square footage of the buildings constructed there was not to exceed 232,000 square feet in the initial stage of development and, pending acceptable modifications to roadway access to the location, a total of 204,600 square feet of additional building space would be allowed in the second stage of development.  Site plans for the first stage of development were approved in 1992 and a Wal-Mart and Sam’s Club were constructed to conform to the size limitations set by the city council.

In 1999, Wal-Mart requested permission from the city to expand the store to offer groceries.  The request was rejected by the city council since the addition would exceed the original size restrictions set for the property.  The retailer renewed its request to expand in 2006, hoping to add 56,841 square feet of space to the Wal-Mart building and 4,021 square feet of space to the Sam’s Club building.  At that time, the city’s attorney advised the council that, since the roadway access issues included in the original zoning restrictions had been resolved, the original square footage restrictions were no longer controlling and “the matter could be handled administratively.”  The planning commission recommended approval of Wal-Mart’s request and scheduled a public hearing on the matter.  At the hearing, the city council opted to use an administrative, rather than legislative, process to handle the request, and the matter was approved by vote.

Plaintiffs, a group of concerned citizens, claimed their rights under the First and Fourteenth Amendments were violated because the city council had denied them the right to a public referendum on the proposed zoning change.  The plaintiffs argued that because Ohio law guarantees them a right to public referendum on legislative actions, they had a constitutionally-protected liberty interest in a referendum. The trial court granted defendant’s motion for summary judgment, and dismissed plaintiffs’ claims without prejudice.

On appeal, the court ruled the plaintiffs’ due process and free speech rights had not been violated because plaintiffs had no constitutionally-protected right to a referendum on an administrative action.  The court agreed that the plaintiffs would have had a right to a referendum had the council approved the zoning change through legislative action.  But because the board acted administratively, not legislatively, the plaintiffs’ rights to a referendum were never triggered and their rights to speak without impermissible burdens at that referendum were never implicated.  Further, the court held the council did not act in a manner that shocked the conscience, so there was no violation of substantive due process.  Since the council had debated the issue of having a public referendum during the scheduled hearing, the court also held there was adequate notice and an opportunity for plaintiffs to be heard and hence no violation of procedural due process.  The trial court’s ruling on the motion for summary judgment in favor of the city council was affirmed.

Marderosian v. City of Beavercreek, 2011 WL 1837590 (6th Cir (Ohio) 5/16/11)

The opinion can be accessed at:

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