Posted by: Patricia Salkin | November 12, 2019

OH Appeals Court Holds That Adoption of Planning Measures Controlling Subdivision Regulations Is an Exercise of Police Power, Pre-Empted by State Statute

This post was authored by Beth Gazes ’20, Touro Law Center

In an action brought by a landowner seeking declaration of entitlement to approval of a subdivision pursuant to state statute R.C. 711.09(C) (the “Statute”), the Court, in affirming the Eighth District Court of Appeals, held that the Statute pre-empts the land use and zoning decision-making authority of the City of Broadview Heights (the “City”) since, under Kearns, where a city’s ordinance is enacted by virtue of police power the Statute must prevail.

The issue arose from a subdivision plan submitted to the City which, as contended by the landowner, was approved pursuant to the Statute as a result of the thirty-day lapse without a response from the City. The City argued that the Statute does not apply to it since, as compared to subsection A of 711.09, it does not utilize the word “city”.

R.C. 711.09 promulgates, among other things, the administrative standards of local governments and subdivision applications, and deems an application approved once thirty days lapse without a response. While subsections A and B apply specifically to a city and village, respectively, the Statute, according the Court, applies to both types of municipalities despite the absence of the word “city”.

As to whether the Statute is subordinate to the City ordinance, B.H.C.O Chapter 24 (the “Ordinance”), the Court held in favor of the landowner since the Ordinance was passed not under the auspices of self-governing power as the City contends, but instead by virtue of its police power. Measuring the facts under the three prong test of Canton, the Court determined that since the Ordinance “does not relate to a matter of internal city governance” but instead regulates the conduct of its citizens when seeking to subdivide real property, the Ordinance must “give way” to the Statute.

The City’s argument in support of distinguishing this case from Kearns rested on two propositions.  First, argued the City, the Court should consider a municipality’s procedural planning regulation – such as administrative procedure – as a self-governing act, in contrast with a substantive regulation which, concedingly, is a police power.  That argument, according to the Court, is not only unprecedented, but would create excessive litigation in differentiating between the two where regulations might “might appear to be procedural on their face but would actually be substantive in their effect.”  As for the City’s second point, the Court was not persuaded by the City’s attempt to distinguish this case from Kearns on grounds that the entity types are different, i.e., a regular planning commission versus a city.  “Which government entity acted does not affect the determination that the action is an exercise of local police powers.”

Wesolowski v. City of Broadview Heights Planning Comm’n, 2019 WL 4418981 (OH 9/17/2019)

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