Posted by: Patricia Salkin | September 18, 2019

OH Supreme Court Holds Zoning Ordinance Failed to State an Emergency and Hence Not Properly Adopted

This post was authored by Matthew Loeser, Esq.

In 2019, Fremont City Council passed an ordinance that rezoned a parcel from “single-family residential” to “multi-family residential.” The parcel was owned by intervening respondent, Fremont Rental, Ltd, which sought a zoning change in order to construct apartments on the parcel. Petitioners Dennis Hasselbach and Marilyn Moore, electors of the city of Fremont, sought a writ of mandamus to compel respondent, the Sandusky County Board of Elections, to place a referendum petition concerning the city zoning ordinance on the November 2019 general election ballot. The board excluded the petition from the ballot after finding that the ordinance was properly passed as an emergency measure and was therefore not subject to referendum.

In this case, Fremont Rental first contended the court lacked jurisdiction under the jurisdictional-priority rule, as a similar action challenging the validity of the zoning ordinance was pending in the court of common pleas. The rejected this claim, finding the common-pleas action and this action involved different causes of action and different parties. Specifically, while plaintiffs in the common-pleas action sued the city of Fremont seeking a declaration that the zoning ordinance was invalid because it was not properly enacted, petitioners in this case sued the board seeking mandamus relief, assuming that the ordinance was valid yet subject to referendum. Thus, Fremont Rental failed to show that the common-pleas action and this action overlapped to such a degree that they fit within the exception to the general rule. Accordingly, the court denied Fremont Rental’s claim that lacked jurisdiction due to the jurisdictional-priority rule.

Fremont Rental next argued that petitioners’ claim was barred under the doctrine of laches. Fremont Rental alleged that petitioners unreasonably delayed by bringing this action on August 26, which was 11 days after the board’s decision. While the court found this delay could be viewed as unreasonable, as to prejudice, Fremont Rental merely argued petitioners’ delay caused “extended uncertainty respecting the goal of the underlying ordinance and whether there’d be a referendum or not.” As such, Fremont Rental failed to show that uncertainty regarding the outcome of pending litigation constituted material prejudice for purposes of applying laches. Moreover, the court reasoned, even had petitioners filed this action several days earlier, Fremont Rental would still likely be in the same position.  The court therefore denied Fremont Rental’s laches argument.

Lastly, the court noted that to be entitled to a writ of mandamus, petitioners must prove, by clear and convincing evidence, a clear legal right to the requested relief, a clear legal duty on the part of the board to provide it, and the lack of an adequate remedy in the ordinary course of the law. Here, if there was a connection between Fremont’s “public peace, health, or safety” and Fremont Rental’s project costs, it was city council’s duty under R.C. 731.30 to provide some explanation of that connection, so Fremont electors could have a “meaningful opportunity to determine whether their representatives did have valid reasons for the necessity of declaring that the ordinance was an emergency.” Since the ordinance at issue did not connect Fremont Rental’s project costs to the city’s “public peace, health, or safety” in any way, the emergency declaration was found to be “purely conclusory,” and therefore insufficient under R.C. 731.30. Since the ordinance was not properly enacted as an emergency measure and was subject to referendum, the court granted the writ.

State ex rel. Hasselbach v. Sandusky County Board of Elections, 2019 WL 4464762 (OH 9/18/2019)

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