Wesolowski v. Broadview Hts. Planning Comm.

[Cite as Wesolowski v. Broadview Hts. Planning Comm. , 2018-Ohio-1295.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105697

GLORIA WESOLOWSKI

PLAINTIFF-APPELLEE vs.

PLANNING COMMISSION, CITY OF BROADVIEW HEIGHTS, ET AL.

DEFENDANTS-APPELLANTS

JUDGMENT: AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CV-16-863151 BEFORE: Kilbane, P.J., McCormack, J., and Laster Mays, J. RELEASED AND JOURNALIZED: April 5, 2018

ATTORNEYS FOR APPELLANTS

R. Todd Hunt Aimee W. Lane Walter & Haverfield, L.L.P. The Tower at Erieview 1301 East 9th Street - Suite 3500 Cleveland, Ohio 44114

Vince Ruffa Director of Law City of Broadview Heights Richard Pignatiello Joseph Grandinetti Assistant Directors of Law 9543 Broadview Road Broadview Heights, Ohio 44146

ATTORNEYS FOR APPELLEE

Benjamin J. Ockner Majeed G. Makhlouf Berns, Ocknew & Greenberger, L.L.C. 3733 Park East Drive - Suite 200 Beachwood, Ohio 44122

ALSO LISTED

For Cuyahoga County Fiscal Officer

Robert J. Triozzi Cuyahoga County Director of Law BY: Robin M. Wilson Assistant Director of Law 2079 East 9th Street, 7th Floor Cleveland, Ohio 44115

MARY EILEEN KILBANE, P.J.: {?1} Defendants-appellants, the city of Broadview Heights Planning

Commission and the city of Broadview Heights (collectively referred to as "the City"), appeal from the trial court's decision granting partial summary judgment in favor of plaintiff-appellee, Gloria Wesolowski ("Wesolowski"), on her claim for declaratory judgment. For the reasons set forth below, we affirm.

{?2} This instant appeal arises from the City's denial of Wesolowski's plan to subdivide her approximately 3.42 acres of land into three additional residential lots. Wesolowski has owned the property, which is located in Broadview Heights, since 2006.1 Between 1988 and 2007, the City levied a special assessment on the property for sanitary sewer improvements on the determination that the assessment would benefit the houses that could be built on the rectangular-shaped property.

{?3} Currently, the property has one single-family home on its eastern end toward Broadview Road. The new homes were proposed to be built on the portion extending westward behind the existing home. In early 2015, Wesolowski submitted the first of three applications for approval to create additional lots on her property. The plan included additional land adjacent to one of Wesolowski's parcels that she was going to purchase from her neighbor, Andrew Alai ("Alai"). The City conditionally approved her first proposed subdivision layout in May 2015. The approval was conditioned on

1 From 2006-2010 Wesolowski owned the property with her brother. Wesolowski became the sole owner of the property in 2010.

Wesolowski's agreement to donate one of the newly subdivided lots to the City for use in managing area storm water. Ultimately, the City denied approval in January 2016.

{?4} In February 2016, Wesolowski reapplied for approval with an amendment to her initial proposal. The amended proposal contained a total of four lots, with no donation to the City. The second proposal also incorporated the area of property Wesolowski had under contract with Alai. With this additional land, the three newly created lots would be 30,000 square feet, which was the City's minimum lot size. Alai rescinded the purchase offer on March 9, 2016, the same day of the Planning Commission's meeting. The Planning Commission then determined that Wesolowski's plan needed to be corrected and resubmitted before it could be considered.

{?5} On March 30, 2016, Wesolowski submitted a revised third version of the proposed subdivision. The third revision contained redrawn property lines and additional information addressing comments from the City and neighboring residents (the size, style, and values of the proposed new homes along with those in the neighborhood). This amended proposal was denied at the April 13, 2016 Planning Commission meeting.

{?6} On May 17, 2016, Wesolowski's counsel made a formal written demand to the Planning Commission under R.C. 711.09(C) for a "certificate in lieu of endorsement of approval" of her proposed subdivision.2 On May 31, 2016, the City's Assistant Law

2R.C. 711.09(C) provides in relevant part: The approval of the planning commission, the platting commissioner, or the legislative authority of a village required by this section, or the refusal to approve, shall be endorsed on the plat within thirty days

Director replied to Wesolowski in a letter in which he stated that he was just recently able to compile a summary of reasons for the Planning Commission's denial of her minor subdivision because the meeting minutes did not become available until May 18, 2016. The Planning Commission denied the proposed subdivision because the layout is unsatisfactory and the proposal did not comply with the City's Zoning Code, including Section 1246.05 -- Lot Design. The letter goes on to state that Wesolowski does not have enough property to have an approvable subdivision.

{?7} Also in May 2016, Wesolowski filed two separate cases in the Cuyahoga County Court of Common Pleas. In Cuyahoga C.P. No. CV-16-863151, she filed a petition for approval of lot-split under R.C. 711.09(C). In Cuyahoga C.P. No. CV-16-863175, she filed an administrative appeal from the Planning Commission's April 13, 2016 decision. The trial court consolidated the two cases in July 2016.

{?8} In August 2016, Wesolowski filed an amended petition. In her amended petition, Wesolowski sought approval of her amended subdivision plan under R.C. 711.09 and a peremptory or alternative writ of mandamus, or in the alternative, a complaint for declaratory relief. Wesolowski alleges that she has no administrative remedy to compel

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, the platting commissioner, or the clerk of the legislative authority, 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 City to perform the duty R.C. 711.09(C) imposes on the Planning Commission to issue the demanded certificate in lieu of a written endorsement of approval for the amended subdivision plan.

{?9} More specifically, she alleges that the City failed to comply with R.C. 711.09(C) and the Broadview Heights Codified Ordinances 1244.03(d) ("B.H.C.O. 1244.03(d)"), which provides:

Rejection. If the Commission determines that [the sketch plan] is a major subdivision, or the sketch plan is not approved for other reasons, the Commission shall state the conditions to be complied with before it will be approved and return the sketch to the developer with reasons specified. R.C. 711.09(C) imposes a 30-day time frame to deny an application for plat approval. She alleges that as of May 2, 2016, the 33rd day following her March 30, 2016 sketch plan, the City failed to: (1) return the plan; (2) provide an endorsement reflecting its refusal to approve it; (3) adopt a statement of the grounds for refusing the sketch plan; and (4) provide a statement of the conditions to be complied with before the sketch plan would be approved. She further alleges that on May 17, 2016, 48 days after the submission of her sketch plan, she sent the City a formal demand under R.C. 711.09(C) for the required "certificate in lieu of endorsement of approval," which the City never issued. As a result, Wesolowski contends she is entitled to a declaratory judgment that her amended sketch plan is deemed approved, and the City must issue her the certificate in lieu of written endorsement of approval. {?10} In September 2016, Wesolowski filed a motion for partial summary judgment as to the mandamus and declaratory judgment claims. The City opposed,

arguing that: (1) R.C. 711.09(C) does not apply because, by its plain language, the

statute only applies to village planning commissions; (2) the City has its own subdivision

regulations under its home rule powers; and (3) Wesolowski has an adequate

administrative remedy at law -- her R.C. Chapter 2506 appeal. The trial court denied

Wesolowski's motion with respect to her mandamus claim, but granted Wesolowski's

summary judgment as to the declaratory judgment claim. The trial court stated:

[Wesolowski] is hereby granted a declaratory judgment pursuant to [R.C. 2721.03]. The [R.C. 711.09(C)] conditions to [Wesolowski's] entitlement to the demanded certificate of approval have been satisfied, and the City is required by the statute to issue that certificate to [Wesolowski] forthwith. [The City] has not complied with the procedural standards and timeframes of [R.C. 711.09(C)] and [Wesolowski's] right to a certificate of approval as provided for in [R.C. 711.09(C)] has matured. [Wesolowski's] R.C. Chapter 2506 appeal and all other pending claims are hereby stayed. Pursuant to Civ.R. 54(B) there is no just reason for delay.

{?11} It is from this order that the City appeals, raising the following single

assignment of error for review:

Assignment of Error

The trial court erred in granting summary judgment to [Wesolowski] with respect to her declaratory judgment claim and ordering [the City] to issue a certificate to [Wesolowski] pursuant to the subdivision procedures set forth in R.C. 711.09(C) because being a city planning commission, rather than a village commission, this statute does not apply to [the City] and the subdivision of property in the City is governed by the subdivision regulations adopted by City Council pursuant to the home rule powers granted to municipal corporations by Article XVIII, Section 3 of the Ohio Constitution.

Standard of Review -- Summary Judgment

{?12} We review an appeal from summary judgment under a de novo standard of

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671

N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706

N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367,

369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the

appropriate test as follows:

Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264.

{?13} Once the moving party satisfies its burden, the nonmoving party "may not

rest upon the mere allegations or denials of the party's pleadings, but the party's response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial." Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of

the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359,

1992-Ohio-95, 604 N.E.2d 138.

Declaratory Judgment

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