State ex rel. R.L. Hawk, L.L.C. v. Troy Planning Comm.

S
[Cite as State ex rel. R.L. Hawk, L.L.C. v. Troy Planning Comm., 2021-Ohio-327.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                       MIAMI COUNTY

 STATE OF OHIO ex rel. R.L. HAWK,                     :
 LLC                                                  :
                                                      :     Appellate Case No. 2020-CA-11
         Plaintiff-Appellee                           :
                                                      :     Trial Court Case No. 19-495
 v.                                                   :
                                                      :     (Civil Appeal from
 CITY OF TROY, OHIO PLANNING                          :     Common Pleas Court)
 COMMISSION, et al.                                   :
                                                      :
         Defendants-Appellants


                                              ...........

                                              OPINION

                           Rendered on the 5th day of February, 2021.

                                              ...........

PATRICK J. JANIS, Atty. Reg. No. 0012191 and JEREMY M. TOMB, Atty. Reg. No.
0079664, 124 West Main Street, Troy, Ohio 45373
     Attorneys for Plaintiff-Appellee

JARED B. CHAMBERLAIN, Atty. Reg. No. 0090785, 215 West Water Street, Troy, Ohio
45373
      Attorney for Defendants-Appellants

                                              .............



WELBAUM, J.
                                                                                          -2-


         {¶ 1} The trial court held that Defendants-Appellants, City of Troy, Ohio Planning

Commission (“TPC”) and City of Troy, Ohio, failed to comply with R.C. 711.09(C) when

considering the application of Plaintiff-Appellee, R.L. Hawk, LLC (“Hawk”), for a plat plan.1

The court therefore rendered summary judgment in Hawk’s favor, concluding that Hawk

was entitled to relief under the statute.

         {¶ 2} According to TPC, this case is moot because TPC did, in fact, issue a

unanimous recommendation for approval of the plat plan. In addition, TPC argues that

the trial could should have applied doctrines of laches and waiver because Hawk

voluntarily followed TPC’s procedures during three applications, and Hawk only applied

for preliminary plat approval rather than final approval. Finally, TPC contends that the

trial court erred in concluding that the ordinance in question conflicts with R.C. 711.09(C).

         {¶ 3} For the reasons that follow, we find no error on the trial court’s part.

Accordingly, the judgment of the trial court will be affirmed.



                                I. Facts and Course of Proceedings

         {¶ 4} The relevant facts in this case are not disputed. In 2000, the Troy City

Council and TPC approved the Villages of Concord (“VOC”) subdivision, which was laid

out as a private condominium community. Part of the development was completed in

the mid-2000s, including 20 condominiums, a common area (with a 2.565-acre lake), and

a clubhouse.      Of the original 16 acres, slightly more than 10 acres remained for

development. As a result, in 2018, Hawk proposed creating 35 building lots that were to

be developed as single-family residences.


1   For ease of discussion, we will refer to Appellants collectively as TPC.
                                                                                        -3-


       {¶ 5} In March 2018, Hawk submitted a plat plan for VOC to TPC, along with a

written application to the Troy City Engineer for review of the plat. However, TPC tabled

the VOC Plat Plan from March 2018 until August 2018 because it wanted more

information.

       {¶ 6} On August 22, 2018, TPC denied the application because it wanted an

easement across two private properties to permit an ingress and egress road. As a

result, Hawk submitted a revised VOC Plat Plan to TPC in January 2019. Although the

Troy Development Staff concluded that the Plan appeared to comply with the city’s Zoning

Code and Subdivision Regulations, the staff suggested that the application be tabled so

that notice of the preliminary plan proposal could be given to all current unit owners. TPC

then tabled consideration of the application at its February 27, 2019 meeting. At the TPC

meeting on March 13, 2019, the application was again tabled because TPC wished to

seek guidance from the Fire Chief and Troy Law Director based on questions adjoining

property owners had raised about administration of a homeowner’s association on

adjoining property.

       {¶ 7} Subsequently, the Troy Law Director reported that complaints between

property owners were only civil issues between the parties. The issue instead was

whether the VOC Plan satisfied subdivision regulations, and City staff had determined

that the Plan did satisfy the regulations. In a report dated March 13, 2019, the Troy

Development Staff recommended that TPC approve the VOC Plan as submitted.

However, on March 27, 2019, TPC denied the application without providing any grounds

for the denial.

       {¶ 8} Hawk again submitted another VOC Plat Plan on September 17, 2019, but
                                                                                       -4-


TPC did not take any action on the plan. Hawk then, through counsel, sent a letter to

TPC and the Troy City Council on November 18, 2019, demanding that TPC issue a

certification that the subdivision plans were approved and appropriate for recording by

operation of law under R.C. 711.09(C) due to TPC’s failure to take action within 30 days

after submission. Neither TPC nor the City of Troy responded. However, on December

2, 2019, the Troy Zoning Inspector sent Hawk a letter indicating that TPC had

recommended approval of the Preliminary Plat for VOC on November 27, 2019, with two

conditions. These conditions were:

             1. All internal streets within this subdivision are private and will be

      maintained by the Home Owners Association and are dedicated as utility

      easements.

             2. Before the final Plat approval, Declaration and Regulations of a

      Home Owners Association shall be created so as to provide a mechanism

      for the maintenance of the private streets and roadways and the

      enforcement of the payment of such expenses equally by all owners of lots

      in the subdivision.

Verified Complaint, ¶ 26. Quoting Ex. 5 attached to the Complaint.

        {¶ 9} On December 16, 2019, Hawk filed a verified complaint against TPC,

 seeking a declaratory judgment and a writ of mandamus. TPC then filed a motion to

 dismiss based on Hawk’s alleged failure to exhaust administrative remedies and on the

 fact that Hawk had an adequate remedy in the ordinary course of law by appealing from

 TPC’s administrative order.

      {¶ 10} On January 16, 2020, Hawk filed a motion to consolidate this action with his
                                                                                        -5-


administrative appeal, which was also pending. Hawk also filed a motion for summary

judgment in February 2020. Subsequently, on March 23, 2020, the trial court overruled

the motion to dismiss in part and sustained it in part, holding that Hawk did not need to

exhaust administrative remedies, but that he had an ordinary remedy and was not entitled

to extraordinary relief in mandamus. The same day, the court also overruled Hawk’s

motion to consolidate the two actions.

      {¶ 11} TPC filed its answer in April 2020 and then filed its own motion for summary

judgment. On August 5, 2020, the trial court granted summary judgment in Hawk’s favor.

The court held that the case was not moot and that TPC’s later conditional approval

conflicted with R.C. 711.09(C) because the Troy Subdivision Regulations theoretically

provided an unlimited consideration period for plat plans. The court therefore held that

Hawk was entitled to the relief provided by R.C. 711.09(C). In addition, the court rejected

the equitable defenses that TPC raised. TPC then timely appealed.



                                          II. Mootness

      {¶ 12} TPC’s First Assignment of Error states that:

             The Trial Court Erred as a Matter of Law in Granting Summary

      Judgment to Plaintiff Where Appellee in This Case Never Requested

      Approval of a Final Plat Plan, and Appellee in This Case Is Not Prejudiced

      and    the    Matter   is   Moot   Where   He   Received     an   Unanimous

      Recommendation for Approval After Submitting His Demand Letter to

      Appellants.

      {¶ 13} Under this assignment of error, TPC argues first that this case is moot
                                                                                         -6-


because Hawk, in fact, received a unanimous recommendation for approval of his

preliminary plat plan application shortly after the November 18, 2019 demand letter. The

trial court found, however, that a justiciable controversy existed because Hawk completed

his plat submission on September 27, 2019, and TPC did not act on it until November 27,

2019, leaving an issue as to whether Hawk was entitled to relief under R.C. 711.09(C).

       {¶ 14} In reviewing summary judgment decisions, we conduct de novo review,

“which means that we apply the same standards as the trial court.” GNFH, Inc. v. W.

Am. Ins. Co., 

172 Ohio App. 3d 127

, 2007-Ohio-2722, 

873 N.E.2d 345

, ¶ 16 (2d Dist.).

“Summary judgment is appropriate if (1) no genuine issue of any material fact remains,

(2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the

evidence that reasonable minds can come to but one conclusion, and construing the

evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the

party against whom the motion for summary judgment is made.” State ex rel. Duncan v.

Mentor City Council, 

105 Ohio St. 3d 372

, 2005-Ohio-2163, 

826 N.E.2d 832

, ¶ 9, citing

Temple v. Wean United, Inc., 

50 Ohio St. 2d 317

, 327, 

364 N.E.2d 267

(1977).

       {¶ 15} As indicated, the action before us was decided on the basis of declaratory

judgment. The elements of a declaratory judgment are: “(1) A real controversy between

the parties; (2) which is justiciable in character; and (3) speedy relief is necessary to

preserve the rights of the parties.” Burger Brewing Co. v. Liquor Control Comm., Dept.

of Liquor Control, 

34 Ohio St. 2d 93

, 97, 

296 N.E.2d 261

(1973).

       {¶ 16} Under the mootness doctrine, “ ‘American courts will not decide * * * cases

in which there is no longer any actual controversy.’ ” In re A.G., 

139 Ohio St. 3d 572

,

2014-Ohio-2597, 

13 N.E.3d 1146

, ¶ 37, quoting Black's Law Dictionary 1100 (9th
                                                                                             -7-


Ed.2009). This is because courts have no duty “to decide purely academic or abstract

questions.” James A. Keller, Inc. v. Flaherty, 

74 Ohio App. 3d 788

, 791, 

600 N.E.2d 736

(10th Dist.1991), citing Miner v. Witt, 

82 Ohio St. 237

, 

92 N.E. 21

(1910). Dismissals on

the basis of mootness present questions of law and are reviewed de novo. Brown v.

Dayton, 2d Dist. Montgomery No. 24900, 2012-Ohio-3493, ¶ 9.

       {¶ 17} This case involves the application of R.C. 711.09. R.C. 711.09(A)(1) states

that “when a city planning commission adopts a plan for the major streets or thoroughfares

and for the parks and other open public grounds of a city or any part of it, or for the

unincorporated territory within three miles of the corporate limits of a city or any part of it,

then no plat of a subdivision of land within that city or territory shall be recorded until it

has been approved by the city planning commission and that approval endorsed in writing

on the plat. * * *”

       {¶ 18} R.C. 711.09(C) further provides, in pertinent part, that:

               The approval of the planning commission * * * required by this

       section, or the refusal to approve, shall be endorsed on the plat within thirty

       days after the submission of the plat for approval or within such further time

       as the applying party may agree to; otherwise that plat is deemed approved,

       and the certificate of the planning commission, * * * as to the date of the

       submission of the plat for approval and the failure to take action on it within

       that time, shall be issued on demand and shall be sufficient in lieu of the

       written endorsement or other evidence of approval required by this section.

       The planning commission, platting commissioner, or legislative authority of

       a village shall not require a person submitting a plat to alter the plat or any
                                                                                        -8-


       part of it as a condition for approval, as long as the plat is in accordance

       with the general rules governing plats and subdivisions of land, adopted as

       provided in this section, in effect at the time the plat was submitted. The

       ground of refusal or approval of any plat submitted, including citation of or

       reference to the rule violated by the plat, shall be stated upon the record of

       the commission, commissioner, or legislative authority.

       {¶ 19} The statute also provides for a right of action by an aggrieved party, who is

to file an action in common pleas court within 60 days after the refusal.

Id. {¶ 20} After

considering the record, we agree with the trial court that the case is

not moot. TPC did not either endorse approval of the plat or refuse to do so within 30

days after Hawk submitted the plat. TPC therefore violated R.C. 711.09(C). The fact

that TPC approved the plat plan later is irrelevant, because TPC did not just approve the

plan; it added conditions.   R.C. 711.09(C) is not ambiguous and does not allow a failure

to comply to be cured by later approval with added conditions. The statute is quite clear:

it indicates that if the planning commission does not either endorse its approval or reject

the plan, the plan is deemed to have been approved.

       {¶ 21} At oral argument, an issue arose concerning whether the Codified

Ordinances of the City of Troy give TPC authority to add conditions as it did here. TPC

contended that they do. With respect to this point, Part 11, Title Three, Ch. 1115, Section

1115.09 of the Codified Ordinances of the City of Troy states, with respect to

“APPROVAL/DISAPPROVAL OF PRELIMINARY PLAT,” that:

              (a) At the scheduled review meeting(s), the Planning Commission

       may take action as follows:
                                                                                        -9-


             (1) Approve. The Commission may approve the Preliminary Plat

      and authorize the subdivider to proceed with preparation of the construction

      drawings and the final plat(s).

             (2) Table. The Commission may table the proposed plat for further

      consideration.

             (3) Deny. The Commission may deny the proposed plat for failure

      to comply with the regulations and standards specified herein.

      {¶ 22} Thus, TPC had the ability to choose one of these three options; it did not

have the option to issue approval with added conditions. Section 1115.09(b) does state

that “If a Preliminary Plat is tabled or denied, the subdivider and his consulting engineer

may resubmit a new revised Preliminary Plat. All required revisions stipulated by the

Planning Commission must be satisfied by the subdivider before the Preliminary Plat can

be resubmitted and reconsidered for approval.”

        {¶ 23} Thus, while TPC is not precluded from requesting revisions to a plan after

 denying approval, TPC did not follow the procedures under its ordinance. Specifically,

 if TPC wanted to add additional conditions, it could have denied the application on a

 timely basis, with specific reasons, and could have asked Hawk to revise the plan.

      {¶ 24} At oral argument, TPC also advocated that this case is moot because the

conditions were merely used to assure compliance with regulations that were already in

existence. However, TCP did not point to any such regulations during oral argument or

in its brief. We note that in making a related argument to the trial court, TPC referenced

the preliminary plan, which contained additional covenants including: “Property owners

are responsible for the maintenance of the privately owned roads and public access
                                                                                        -10-


easements” and dedication of utility easements. TCP Reply Brief, p. 5, fn. 24, referencing

Exhibit 3 to the Verified Complaint., p. 12. While it may be true that the conditions were

merely intended to assure compliance with the additional covenants contained in the

preliminary plan, they were not redundant.

       {¶ 25} In support of its contention that the case is moot, TPC relies primarily on

two cases: Keller, 

74 Ohio App. 3d 788

, 791, 

600 N.E.2d 736

, and C & D Partnership v.

City of Gahanna, 10th Dist. Franklin No. 82AP-919, 

1983 WL 3718

(Oct. 6, 1983), aff’d,

15 Ohio St. 3d 359

, 

474 N.E.2d 303

(1984). However, these cases are distinguishable.

       {¶ 26} In Keller, a company sued the Director of the Ohio Department of

Administrative Services, alleging that he had given a contract bidder an unfair competitive

advantage.

Id. at 790.

      The trial court agreed and voided the bids on the items in

question. However, the Director then awarded the contract to the plaintiff while the

appeal of the trial court’s decision was still pending.

Id. Because the court

of appeals

could not afford further relief, it dismissed the appeal as moot.

Id. at 791.

Such is not

the case here. As indicated, TPC added additional conditions to Hawk’s plat plan.

       {¶ 27} In contrast to the case before us, C&D Partnership was brought under 42

U.S.C. 1983 and sought compensatory damages against a city for delay in approving a

final plat.

Id. at *2.

  The case did not involve R.C. 711.09; instead, a local ordinance

required council to take action within 30 days after a final plat was submitted.

Id. at *3.

The trial court agreed that “[t]he city had no authority to delay action” but also observed

that “plaintiffs actually benefited from the delay, since the plat would have been

disapproved had they not acquiesced.”

Id. at *4.

TPC likewise argues here that Hawk

was not prejudiced because TPC “likely” would have denied the application if it had timely
                                                                                       -11-


acted. Appellant’s Brief, p. 7.

      {¶ 28} The court’s observation in C&D Partnership was based on the facts in the

case, which indicated that “C&D acquiesced to such postponement [of acceptance of the

plat], but only because the Council and its members made it clear to C&D that if C&D did

not acquiesce to such postponement, Ordinance No. 105-79 [approving the plat] would

be defeated.”

Id. at *2.

These are not the facts in the case before us.      Accordingly,

the authority cited by TPC does not provide a basis for concluding that this case is moot.

      {¶ 29} Based on the preceding discussion, the First Assignment of Error is

overruled.



                                          III.   Waiver

      {¶ 30} TPC’s Second Assignment of Error states that:

             The Trial Court Erred When It Overruled Respondent's Equitable

      Defenses of Waiver and Laches Where Relator/Appellee Voluntarily

      Followed Appellants' Zoning and Planning Procedures Through Three

      Separate Applications, Thus Waiving and Unreasonably Delaying in His

      Assertion of Any Statutory Rights, and Where Appellants Cooperated With

      Appellee in Good Faith and in Reliance on His Request for a Preliminary

      Plat Approval.

      {¶ 31} Under this assignment of error, TPC invokes the doctrines or defenses of

laches and waiver, insofar as Hawk participated in the preliminary plan process for an

extended period of time when he had constructive knowledge of his rights under R.C.

711.09. The trial court rejected both defenses, noting that TPC’s argument consisted of
                                                                                        -12-


“little more than conjecture borne of frustration.” Aug. 5, 2020 Decision and Judgment

Entry, p. 19. The court further commented that Hawk was entitled to demand certification

under the statute, and that this result would not have occurred but for TPC’s inaction.

Id. {¶ 32} “The

elements of a laches defense are (1) unreasonable delay or lapse of

time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or

constructive, of the injury or wrong, and (4) prejudice to the other party.” State ex rel.

Citizens for Responsible Green Govt. v. City of Green, 

155 Ohio St. 3d 28

, 2018-Ohio-

3489, 

118 N.E.3d 236

, ¶ 16.

      {¶ 33} “Waiver is a voluntary relinquishment of a known right and is generally

applicable to all personal rights and privileges, whether contractual, statutory, or

constitutional.” Glidden Co. v. Lumbermens Mut. Cas. Co., 

112 Ohio St. 3d 470

, 2006-

Ohio-6553, 

861 N.E.2d 109

, ¶ 49. “A waiver may be enforced by the person who had a

duty to perform and who changed his or her position as a result of the waiver.” Chubb

v. Ohio Bur. of Workers' Comp., 

81 Ohio St. 3d 275

, 278-279, 

690 N.E.2d 1267

(1998),

citing Andrews v. State Teachers Retirement Sys. Bd., 

62 Ohio St. 2d 202

, 205, 

404 N.E.2d 747

(1980).

      {¶ 34} After considering the record and the applicable law, we agree with the trial

court that neither equitable defense applies here. R.C. 711.09 has existed in its current

form since 1997, and TPC would have been aware of the laws governing planning

commissions. See H.B. 22, 1997 Ohio Laws File 51. There is no indication that Hawk

misled TPC in any way or caused it to change its position. TPC could easily have

avoided any problem by acting in a timely manner.

      {¶ 35} In interpreting a very similar statute, the Supreme Court of Ohio stressed
                                                                                          -13-


that “the 30-day limitation * * * is designed to ensure prompt action to protect the

developer from bureaucratic obstructionism. If the commission fails to act within that

time, the plat is deemed approved [a]nd prime for recordation.” P. H. English, Inc. v.

Koster, 

61 Ohio St. 2d 17

, 19-20, 

399 N.E.2d 72

(1980), discussing R.C. 711.10.2

       {¶ 36} Furthermore, in Wesolowski v. Planning Comm., 2018-Ohio-1295, 

110 N.E.3d 705

(8th Dist.), the applicant followed a similar course as Hawk, submitting three

applications for approval to create additional lots.

Id. at ¶ 3.

The first application was

submitted in early 2015, was conditionally approved months later in May 2015, and was

then denied in January 2016.

Id. A second application

was submitted in February

2016, but needed to be corrected, and a third revised application was submitted in March

2016.

Id. at ¶ 4-5.

When the third application was not timely acted upon, the applicant’s

counsel made a formal written demand for a “ ‘certificate in lieu of endorsement of

approval’ ” under R.C. 711.09(C).

Id. at ¶ 6.

  After the demand was rejected, the

applicant filed suit.

Id. at ¶ 6-7.

       {¶ 37} The trial court granted a declaratory judgment, finding that the planning

commission had failed to comply with the time limit in R.C. 711.09(C) and that the

applicant was entitled to a certificate of approval as stated in the statute.

Id. at ¶ 10.

On

further appeal, the Eighth District Court of Appeals agreed.

       {¶ 38} At issue on appeal was whether R.C. 711.09(C) applied only to village

planning commissions rather than city planning commissions, and if not, whether the city’s


2 R.C. 711.10 applies to county and regional planning commissions. R.C. 711.10(C) is
similar to R.C. 711.09(C) in imposing a 30-day time-limit for endorsing approval or
refusing to approve a plat. The difference is that, under R.C. 711.10(C), regional and
county planning commissions are allowed to grant “conditional approval” – a choice not
specifically given to city planning commissions by R.C. 711.09(C).
                                                                                         -14-


subdivision regulations prevailed by virtue of home rule.

Id. at ¶ 17.

The court of

appeals first found that, under a plain reading of the statute, “the remedial provisions of

R.C. 711.09(C) apply to both cities and villages.”

Id. at ¶ 22,

citing C & D Partnership,

10th Dist. Franklin No. 82AP-919, 

1983 WL 3718

, at *5, fn.1 (Whiteside, P.J., concurring).

This reference to the statute’s remedial nature weighs against applying equitable

defenses in favor of planning commissions. As indicated, these planning statutes are

intended to protect developers from “bureaucratic obstructionism.” P. H. 

English, 61 Ohio St. 2d at 19

, 

399 N.E.2d 72

.

       {¶ 39} In Wesolowski, the city’s subdivision rule did not specify a time limit for

acting on applications; instead, it was silent. Wesolowski, 2018-Ohio-1295, 

110 N.E.3d 705

, at ¶ 28-29. This clearly differs from the 30-day time limit in R.C. 711.09(C). After

considering whether the city’s “home rule” regulation was nonetheless valid, the court of

appeals held that the subdivision rules did not prevail over R.C. 711.09(C).

Id. at ¶ 23- 31.

       {¶ 40} “A state statute takes precedence over a local ordinance when (1) the

ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police

power, rather than of local self-government, and (3) the statute is a general law.” Canton

v. State, 

95 Ohio St. 3d 149

, 2002-Ohio-2005, 

766 N.E.2d 963

, ¶ 9. Applying these

principles, the court of appeals first noted that city planning has long been considered an

exercise of police power. Wesolowski at ¶ 25-26, citing State ex rel. Kearns v. Ohio

Power Co., 

163 Ohio St. 451

, 460, 

127 N.E.2d 394

(1955).

       {¶ 41} The court of appeals further held that R.C. 711.09 is a general law, and that,

while the city’s rule was silent as to time, it conflicted with R.C. 711.09(C) based on the
                                                                                         -15-


“ ‘conflict-by-implication test.’ ”

Id. at ¶ 27,

quoting Am. Fin. Servs. Assn. v. Cleveland,

112 Ohio St. 3d 170

, 2006-Ohio-6043, 

858 N.E.2d 776

. “This ‘test considers whether an

ordinance prohibits that which a statute implicitly permits or, presumably, whether an

ordinance allows that which a statute implicitly prohibits.’ ”

Id., quoting Viola Park,

LTD

v. Pickerington, 5th Dist. Fairfield Nos. 2006 CA 00017, 2006 CA 00030, 2007-Ohio-2900,

¶ 41. Having found that the ordinance did not prevail, the court upheld the summary

judgment in the applicant’s favor.

Id. at ¶ 38.

       {¶ 42} On further appeal, the Supreme Court of Ohio affirmed the judgment. The

court agreed that R.C. 711.09 applies to cities as well as villages.        Wesolowski v.

Broadview Hts. Planning Commission, 

158 Ohio St. 3d 58

, 2019-Ohio-3713, 

140 N.E.3d 545

, ¶ 13. In addition, the court concluded that:

       The ordinance conflicts with the statute because it permits what the statute

       forbids – a response later than 30 days after the submission of a subdivision

       request. Because the city's ordinance is an exercise of police power that

       conflicts with a state law, the ordinance must give way to the requirements

       in R.C. 711.09(C).

Id. at ¶ 20,

citing Canton, 

95 Ohio St. 3d 149

, 2002-Ohio-2005, 

766 N.E.2d 963

, at ¶ 9.

       {¶ 43} We note that neither decision in Wesolowski discussed waiver or laches.

However, in light of Wesolowski’s factual circumstances and the remedial purpose of R.C.

711.09(C), we would be remiss in finding that these doctrines apply here.

       {¶ 44} As a final matter, we also note TPC’s contention that Hawk is not entitled to

relief because Hawk submitted only a preliminary plan and only paid for such. However,

R.C. 711.09(C) does not distinguish between preliminary or final plats. It refers only to
                                                                                          -16-


“the plat.” See P. H. English, Inc. v. Koster, 11th Dist. Geauga No. 795, 

1979 WL 208008

, *1 (Jan. 8, 1979), aff’d, 

61 Ohio St. 2d 17

, 

399 N.E.2d 72

(“The Code does not

speak of preliminary or of final plats. It speaks only of plat. It would appear that the

requirement for submission of a preliminary plat as a condition precedent to a final plat

constitutes permission or license to barter, haggle, or dicker on the terms * * *.”).

       {¶ 45} In this context, TCP also argued that since Hawk submitted fees for a

preliminary plan, it was not entitled to approval of a final plan. However under R.C.

711.09(C), TCP waived any deficiencies in the application by failing to raise them during

the 30-day limit for approval.

       {¶ 46} Accordingly, we find no merit in TPC’s Second Assignment of Error, and it

is overruled.



                      IV. Conflict Between Ordinances and R.C. 711.09(C)

       {¶ 47} TPC’s Third Assignment of Error states that:

                The Trial Court Erred as a Matter of Law in Granting Summary

       Judgment to Appellees by Determining the Applicable Ordinances Are in

       Conflict With R.C. 711.09(C) Where They Further Legitimate Planning

       Purposes.

       {¶ 48} Under this assignment of error, TPC argues that its codified ordinances do

not conflict with R.C. 711.09, but merely supplement it, and therefore are permissible

exercises of its rule-making ability. The trial court held that Troy’s subdivision regulations

conflicted with R.C. 711.09(C) because they failed to impose a deadline for action and

theoretically excluded TPC from following any time constraints.
                                                                                          -17-


       {¶ 49} As TPC notes, regulations of a home-rule city may be upheld if they

supplement a state law, rather than conflict with it. See Mendenhall v. Akron, 117 Ohio

St.3d 33, 2008-Ohio-270, 

881 N.E.2d 255

, ¶ 37; Cleveland v. State, 

138 Ohio St. 3d 232

,

2014-Ohio-86, 

5 N.E.3d 644

, ¶ 16.

       {¶ 50} R.C. 711.09(C) gives planning commissions the power to “adopt general

rules governing plats and subdivisions of land falling within its jurisdiction in order to

secure and provide for the coordination of the streets within the subdivision with existing

streets and roads or with the plan or plats of the municipal corporation, for the proper

amount of open spaces for traffic, circulation, and utilities, and for the avoidance of future

congestion of population detrimental to the public health or safety * * *.” Consistent with

this power, TPC adopted Chap. 1115 of its Codified Ordinances, which pertains to

“Subdivision Procedures.”

       {¶ 51} Under these procedures, TPC has a two-tiered system covering both

approval/disapproval of preliminary plats (Section 1115.09) and approval/disapproval of

final plats (Section 1115.19). Section 1115.09(c) provides that:

              There shall be no automatic approval of Preliminary Plats,

       construction plans or final plats due to the passage of time after submittal.

       Recognizing that there can be many surrounding facts and circumstances

       influencing the pace at which review and approval may be achieved, the

       Planning Commission shall process all such applications with diligence and

       reasonable speed.

       {¶ 52} There is no question that this provision conflicts with R.C. 711.09(C),

because it bars exactly the scenario the statute contemplates, i.e., that if a planning
                                                                                        -18-


commission does not approve or disapprove a plat, it is deemed to have been approved

and entitled to recordation.     Contrary to TPC’s claim, Section 1115.09(c) does not

supplement R.C. 711.09(C); it directly conflicts.       As a result, we agree that an

impermissible conflict exists.

       {¶ 53} Furthermore, the fact that TPC has a two-tier system makes no difference.

In P. H. English, the Supreme Court of Ohio specifically considered such a two-tier system

and found that allowing separate 30-day time periods for considering preliminary and final

plat plans conflicted with R.C. 711.10. P.H. 

English, 61 Ohio St. 2d at 19

-20, 

399 N.E.2d 72

. As previously indicated, R.C. 711.10 and R.C. 711.09 are essentially the same in

this regard. The court also stressed that “adoption of a two-step process is not itself

unlawful under this statute. The planning commission may still require preliminary and

final submissions, as long as the entire process, from filing of the preliminary plat to

approval or disapproval of the final plat, is completed within 30 days.”

Id. at 20.

Accord

Wesolowski, 2018-Ohio-1295, 

110 N.E.3d 705

, at ¶ 30, aff’d, 

158 Ohio St. 3d 58

, 2019-

Ohio-3713, 

140 N.E.3d 545

.

       {¶ 54} In light of clear authority from the Supreme Court of Ohio, we agree with the

trial court that Section 1115.09(c) impermissibly conflicts with R.C. 711.09(C). The Third

Assignment of Error, therefore, is overruled.



                                         V. Conclusion

       {¶ 55} All of TPC’s assignments of error having been overruled, the judgment of

the trial court is affirmed.
                                                 -19-


                                 .............



TUCKER, P.J. and HALL, J., concur.




Copies sent to:

Patrick J. Janis
Jeremy M. Tomb
Jared B. Chamberlain
Hon. Stacy M. Wall

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