Navigating the Legal Sea of
Zoning Fee Schedules
PRESENTED TO:
OHIO TOWNSHIP ASSOCIATION WINTER CONFERENCE
FEBRUARY 2014
Brad E. Bennett
Associate
[email protected]
ATTORNEYS AT LAW
Leaders in Employment Law and Beyond
FISHELHASS.COM
Fishel Hass Kim Albrecht LLP | 400 S. Fifth Street, Suite 200
Columbus, Ohio 43215 | P (614) 221-1216 | F (614) 221-8769
Navigating the Legal Sea of Zoning Fee Schedules
Brad E. Bennett is an attorney with the law firm of Fishel Hass Kim
Albrecht LLP. Brad received his law degree, cum laude, from Capital
University Law School and received a Bachelor of Science from Ohio
University, with a major in Communications and a minor in Business
Administration. Mr. Bennett handles cases in both Federal and State
courts and administrative agencies. He represents clients in all aspects of
civil litigation, labor and employment law, collective bargaining, civil service law, human
resource compliance and audits, public sector agency administration, construction law, and small
business consulting and formation.
Brad is also a sought after speaker and trainer who
frequently lectures and conducts training and seminars throughout Ohio.
Mr. Bennett is certified as a Specialist in Labor and Employment Law by the Ohio State
Bar Association and is a former recipient of the prestigious Burton Award, rewarding
effectiveness in legal writing. Brad has previous experience in human resources management
and is an adjunct professor of employment law for the Keller Graduate School of Management
and DeVry University. Mr. Bennett is the past Chair of the Columbus Bar Association’s Labor
and Employment Law Committee, is on the board of the Ohio State Bar Association’s Labor and
Employment Section, and is a member of the Ohio and Columbus Bar Associations, as well as a
member of the Society for Human Resources Management (“SHRM”) and Human Resources
Association of Central Ohio (“HRACO”).
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Navigating the Legal Sea of Zoning Fee Schedules
TABLE OF CONTENTS
I.
Sampling the Water..........................................................................................................1
II.
Diving In – Requirements for Zoning Fees .....................................................................1
III.
Staying Afloat Without Sinking the Ship – Other Legal Challenges and Questions
Regarding Zoning Fees ....................................................................................................6
IV.
Recommendations for Legal Zoning Fee Schedules .......................................................11
V.
Zoning Resolution Process ..............................................................................................12
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I.
II.
SAMPLING THE WATER
A.
How does your township establish fees?
B.
What methods do you use to set them?
C.
Are the fees revenue producing or designed to defray zoning expenses incurred?
D.
How often do you update your fee schedules?
E.
Do you consider other townships’ fee structures at all?
F.
Are they specified in your zoning resolution?
G.
Are fees kept/maintained in a separate special fund?
DIVING IN - REQUIREMENTS FOR ZONING FEES
A.
B.
What authority is there to charge zoning fees anyways?
1.
The authority of a township to charge reasonable fees was found to be inherent in
the power to inspect and regulate the use of property. 1979 OAG 79-051.
2.
Where the authority is lodged in a municipality to inspect and regulate, the
further authority to charge a reasonable fee to cover the cost of inspection and
regulation will be implied.
3.
The fee charged must not, however, be grossly out of proportion to the cost of
inspection and regulation; otherwise it will operate as an excise tax, which is
clearly beyond the power of a municipality to impose. Prudential Co-op. Realty
Co. v. City of Youngstown, 118 Ohio St. 204, 214, 160 N.E. 695, 698-99 (1928)
Must the exact amount of the fee be specified in the Resolution itself?
1.
RC Ch 519 does not require that the amount of fees to be charged for zoning
permits be specified in the zoning resolution. If the zoning resolution authorizes
the charging of fees, the township trustees may from time to time set the amount
of the fees. OAG 79-051.
2.
Such fees must, however, bear a reasonable relation to the cost of inspection of
the site and issuance of the permits. A larger fee may be charged applicants who
apply for a permit after construction has commenced if the increased amount
bears a reasonable relation to the extra costs involved. OAG 79-051.
3.
Township trustees may provide in zoning regulations for fees for inspecting
buildings and issuing permits for buildings in the zoned area, but such fees may
be imposed only by the zoning regulations. 1956 OAG 7111; Ohio Rev. Code
Ann. § 519.02
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4.
C.
A board of township trustees may require that reasonable fees accompany
applications made to the zoning inspector or other administrative official for
zoning variances or special exceptions, to cover the costs of processing such
applications. 1963 OAG 218.
What is a “reasonable” fee?
Blower v. Alside Homes Corp., 187 N.E.2d 636 (Summit County, Ohio 1963). In Blower,
the trustees of Northhampton Township brought an action for a declaratory judgment in
order for the court to determine whether the fee schedule determined by Northhampton
Township Zoning Resolution was valid under Ohio law.
Alside Homes Corporation applied for a zoning certificate to erect a single story
manufacturing structure of 312,000 feet. The Zoning Inspector issued the certificate to
permit the building of the structure but did not collect the fees at that time because he had
not calculated what the exact fee would be. The corporation constructed the building and
then refused to pay the zoning permit fees after the cost was made known to it. The
corporation argued that the fees were “unreasonable and excessive,” amounting to “a
revenue producing ordinance rather than a fee to defray expenses incurred.” The fees
totaled $1,840.00.
The Township Zoning Resolution at issue provided the following:
“Structures or additions having a foundation area of 1000 square feet or
less shall be charged a fee of $35.00 —additional area up to 50,000
square feet, shall be charged at the rate of $10 per 1,000 square feet, all
additional area above 50,000 square feet shall be charged at the rate of
$5.00 per 1,000.”
The court reviewed the expenses and revenue incidental to zoning for the four (4) years
preceding 1962 (the year in question). The court observed that the expenses for the
previous four years combined totaled $8, 070.13 and the revenue for those years totaled
$7, 482.19. The court acknowledged that the fee in this isolated case was huge in
comparison to the total revenue and expenses of the Township over the previous years.
However, the court noted that, with the exception of 1961, the zoning department had a
deficit each year that had to be paid from the general fund at the end of the fiscal year.
The Township attempted to present evidence of zoning fees charged by other townships
in the County to show that their fee schedule was “reasonable.” However, the court did
not allow this to factor into whether the fees charged by Northhampton Township were
reasonable. The judge found that information was wholly irrelevant and immaterial.
The court acknowledged that “reasonableness” cannot be determined by a “hard and
fast rule of law.”
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The court, instead, noted that, “it is not necessary that the fees charged exactly balance
the expenses incurred and whether or the not the surplus of fees over expenses is
insufficient to render the regulations under which such fees were established, invalid, is a
mixed question of law and fact and where no abnormal excess is shown the court cannot
substitute its judgment as to the expenditures and estimates for that of the board.”
However, “if the amount of the fee is wholly out of proportion to the expense involved, it
will be declared a tax and invalid.” Therefore, the issue here was whether the ordinance
was a revenue generator (“tax”) or whether it was passed to defray the expenses incurred
in zoning.
The court ultimately found that the fee was reasonable and necessary and not considered
a tax. In reaching this decision, the court found that the zoning department should be
self-sufficient, and that the fees charged should cover the cost to run the department. The
fees should not, however, be used to offset the costs of other departments.
The court identified the following list of expenditures that could be included in
determining what reasonable fees to charge:
D.

Department expenditures

Zoning inspector’s fee

Clerk’s salary

The cost of maintenance of board of appeals

Other administrative and regulative costs

Supplies
How do I know if my “reasonable fee” may constitute an unlawful tax?
Drees Co. et al v. Hamilton Township, 132 Ohio St.3d 186 (Ohio Sup. Ct., 2012). In
Drees, the Supreme Court of Ohio found that impact fees imposed upon an application
for zoning certificates were operating as impermissible taxes as opposed to reasonable
fees and were invalid and unauthorized.
In 2007, the township passed an amendment to its zoning resolution. The resolution
adopted a schedule of fees to be charged to applicants for zoning certificates for new
construction or redevelopment. There were four categories of fees: road-impact, fireprotection-impact, police-protection impact, and park-impact.
The Township Resolution stated that the, “purpose of the impact fee is to benefit the
property by providing the township with adequate funds to provide the same level of
service to that property that township currently affords previously developed properties.”
The fees varied depending upon land use. For example:
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
For the owner of a single-family detached dwelling, the total assessment was
$6,153:
o
$3,964 for roads;
o
$335 for fire;
o
$206 for police;
o
$1,648 for parks.

For the owner of property to be used for retail/commercial purposes the total
assessment, per 1,000 square feet, was $7,962:
o
$7,265 for roads;
o
$432 for fire;
o
$265 for police.
The township deposited all fees collected into an impact-fee account, rather than the
general fund. The account was further divided into one of the four different types of
impact fee. Money could only be used for the purpose of each account and was spent on
a “first in/first out” basis. Money not spent within 7 years of its collection was to be
refunded to the current property owner.
The township would not issue a zoning certificate until the applicant paid the applicable
impact fee. The Drees Co paid the impact fees (totaling $2,030.16) under protest and then
sued alleging that the impact fees were unconstitutional and contrary to Ohio law.
The trial court and the 12th District Court of Appeals held that the fees charged were not
an impermissible tax. The Ohio Supreme Court disagreed, finding that the impact-fees
did constitute a tax and that the township was unauthorized to impose such a tax. Per
R.C. 504.04(A)(1), a limited-home-rule township may, by resolution, exercise powers of
local self-government but “shall enact no other taxes other than those authorized by
general law.”
The question here was whether the impact fees were taxes “other than those authorized
by general law.” The court noted that general Ohio law provides specific methods of
taxation for townships to raise revenue in order to pay for police and fire, parks, and
roads. There was no dispute that the impact fees here did not meet the requirements of
those methods of taxation. As a result, the court stated that if the impact fees were found
to be taxes, they violated RC 504.04.
The Court, relying on State ex rel. Petroleum Underground Storage Tank Release Comp.
Bd. v. Withrow, 62 Ohio St.3d 111 (1991), analyzed whether the assessments were taxes.
The Court weighed the following four Withrow factors:

Are the fees imposed in furtherance of regulatory measures “designed to address
the . . . problems”?

Are the assessments kept separate from the general fund and used for “narrow and
specific purposes”?
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
Are fees imposed in return for a service the government provides to the party?

When the “unobligated balance in the fund exceeded a certain amount, there
would be no assessment for that year.” Similarly, if the fund dipped below a
certain amount, the authority was permitted to charge a “supplemental
assessment”
In applying Withrow to Hamilton Township, the Court found that the impact fees lacked
a regulatory aspect as required by the first Withrow factor. The fees were revenue
generators imposed to guarantee consistent levels of service, not to protect the public
from certain industry harms. The Court found that although Hamilton Township placed
the funds into a separate account, the use of the funds was very general in nature and all
towards the normal expenditures of government. Moreover, the entire community
benefited from the fees, not just the assessed parties. The Court found it persuasive that
no specific services were provided in exchange for the fees, and therefore, the assessed
party reaped no additional benefit from the fees. As taxpayers, they were already taxed
for, and entitled to use, police and fire protection, the use of parks and roadways. Finally,
Hamilton Township refunded fees only if the township decided not to spend the money
instead of being tied to certain events like in Withrow.
The Supreme Court also applied a three-factor test that was used by the Sixth Circuit in
Am. Landfill v. Stark Solid Waste District, 166 F.3d 835 (6th Cir., 1999), and considered:
1) the entity that imposes the assessment; 2) the parties upon whom the assessment was
imposed; and 3) whether the assessment is expended for general public purpose, or used
for the regulation or benefit of the parties upon whom the assessment is imposed.
According to the Court, the predominant factor in this analysis is the use of the funds.
Under this analysis the Court found that the assessment was imposed by a legislative
body, which made it more like a tax. Further, the parties upon which the assessment was
imposed was not a specific group or industry, which made it more like a tax. The third
factor, use of revenue, also made the impact fees a tax since they were used for public
benefit (the Resolution stated that it’s “purpose” was to benefit the property to ensure the
same level of service provided to that property that the township already provides to
developed property. Essentially, the impact fees were intended to prevent any
diminishment of services to anyone in the township.
Ultimately, citing Home Builders Assn. of Mississipi Inc. v. Madison, 143 F.3d 1006 (5th
Cir. 1998), the Supreme Court noted, “[I]t is difficult to imagine that an ordinance
designed to protect and promote the public health, safety and welfare of an entire
community could be characterized as anything but a tax.” Since the taxes were not
authorized by general law, the township was not authorized to impose them under R.C.
504.04(A)(1).
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E.
How do I distinguish between proper zoning fees and improper taxes?
According to the Ohio Supreme Court, in Drees Co. et al v. Hamilton Township, 132
Ohio St.3d 186 (Ohio Sup. Ct., 2012) citing San Juan Cellular Tel. Co. v. Pub. Serrv.
Comm. Of Puerto Rico, 967 F.2d 683, 685 (1st Cir. 1992) :
The classic “tax” is imposed by a legislature upon many, or all, citizens. It raises
money, contributed to a general fund, and spent for the benefit of the entire
community . . . The classic “regulatory fee” is imposed by an agency upon those
subject to its regulation . . . It may serve regulatory purposes directly by, for
example, deliberately discouraging particular conduct by making it more expensive .
. .Or, it may serve such purposes indirectly by, for example, raising money placed in
a special fund to help defray the agency’s regulation-related expenses.
Questions to ask in determining fees from taxes:

Are fees imposed in furtherance of regulatory measures?
o Is it imposed in furtherance of statutes designed to protect public from harms?
o Does it encourage the assessed parties’ compliance with certain statutory
obligations or protect the public from specific threats?
III.

Are funds placed in separates account and used only for narrow and specific
purposes?
o Does it inure benefit to the entire community instead of to the assessed party?
o Is the use of money general in nature?

Is the fee charged in return for a service the government/municipality provides?
o Does the assessed party get any particular service that other non-assessed
parties do not receive?
o Do the targets of the assessment receive greater benefits?

Is there private or public benefit?
STAYING AFLOAT WITHOUT SINKING THE SHIP –
CHALLENGES AND QUESTIONS REGARDING ZONING FEES
A.
OTHER
LEGAL
What if I Don’t Comply with the Ohio Public Records and Open Meetings Act?

Ohio’s Public Records and Open Meetings laws, collectively known as the
“Sunshine Laws,” give Ohioans access to government meetings and records.

The Open Meetings Act requires public bodies in Ohio to take official action and
conduct all deliberations upon official business only in open meetings where the
public may attend and observe.
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B.

Must provide: Openness; Notice; Minutes

Executive Sessions
o No vote or other decision-making may take place during executive session.

Consequences for not adhering to them
o If an injunction is issued, the public body must correct its actions and pay
court costs, a fine of $500, and reasonable attorney fees subject to possible
reduction by the court.
o Any action taken by a public body while that body is in violation of the Open
Meetings Act is invalidated.
o A member of a public body who violates an injunction imposed for a violation
of the Open Meetings Act may be subject to removal from office.
Can Zoning Fees Constitute a “Takings” Under the U.S. Constitution?
Village of Maineville Ohio LLC v. Hamilton Township Boards of Trustees, (6th Circuit,
2013)
A company, Salt Run LLC, sought to avoid new impact fees imposed on developers by
Hamilton Township by convincing the Village of Maineville to annex the land owned by
the company. The impact fees would amount to $2,100 per lot that Salt Run sold to a
builder once the builder applied for a zoning certificate. The zoning regulations placed
significant economic pressures on Salt Run. The Village of Maineville ultimately agreed
and annexed the land.
When Hamilton Township was unable to stop the annexation in state court, it countered
by asserting a lien on the property for payment of the impact fees. Salt Run then sued
Hamilton Township for several state law claims as well as federal Section 1983 claim
that the lien constituted an unconstitutional “taking.” The district court denied Salt Run’s
takings claim to which it appealed to the 6th Circuit.
After the annexation, the properties remained in Hamilton Township but became subject
to Maineville’s control, subjecting the properties to some regulations from the former and
others from the latter under O.R.C. 709.023. Essentially, Mainesville took over zoning
authority and police services while Hamilton Township handled fire and parks services.
The 5th Amendment, through the 14th Amendment, prevents the States from “taking
private property for public use, without just compensation.” A takings claim can include
the regulatory taking to which Hamilton Township allegedly subjected Salt Run through
its lien and impact fees. However, if a government’s appropriation of property is directed
to a public use and the government pays fair value, it has not offended the 5 th
Amendment.
The 6th Circuit, citing to Coles v. Granville, 448 F.3d 853 (6th Cir. 2006), noted that Ohio
provides an adequate procedure for owners to request compensation for regulatory
takings - through seeking a writ of mandamus. However, Salt Run did not invoke this
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procedure. The Court stated that a takings claim is generally not ripe for review unless
the owner has “used the procedure and been denied just compensation.” Salt Run
attempted to save its argument by stating that the procedure only applies to “as-applied”
challenges, not the facial challenge it was making. An “as-applied” challenge claims that
the particular impact of government action on a specific piece of property requires
payment of just compensation. However, a “facial challenge” argues that the mere
enactment of a statute constitutes a taking.
The court rejected this argument stating that Salt Run was challenging a specific lien that
applied only to it and that was never duplicated against another developer. Therefore, it
was clearly an “as-applied” challenge that was forfeited when Salt Run failed to follow
the mandamus procedure. The Court acknowledged, in dicta, that Salt Run’s chances
would have been different if it would have challenged Hamilton’s ability to assert liens at
all and sought an invalidation of ORC 5301.252 which allows any “person” to record an
affidavit of lien.
While this case was advancing, the Ohio Supreme Court ultimately ruled that Hamilton
Township’s fees were invalid and that it lacked authority to collect the fees. See
elsewhere in this outline - Drees Co. v. Hamilton Twp., 132 Ohio St.3d 186 (Ohio 2012)
C.
Can Zoning Fees be Challenged Under the Due Process Clause of the U.S.
Constitution?
The due process clause of the U.S. Constitution guarantees that people will not be
deprived of their liberty interests with both procedural and substantive due process of
law.
1.
Procedural: requires notice and a right to be heard.
2.
Substantive: zoning decisions cannot be arbitrary or irrational.
instead, be rationally related to a legitimate governmental interest.
a.
b.
They must,
May violates substantive due process “on its face” (as written) or:
“As applied” to a particular parcel of land.
Procedural due process challenges tend to be avoidable by permitting variances to be
requested and through the provision of an appeal to the BZA. See Richardson v.
Township of Brady, 2000 WL 875402 (6th Cir., 2000)
For substantive due process purposes, it is important that any ordinance or resolution
providing for fees carefully set forth the “objective” of the fees so as to avoid any “on its
face” challenges. Id. Is the rationale set forth rationally related to government’s interest
in zoning? If so, it will likely survive a substantive due process challenge.
For “as applied” substantive due process challenges, it is crucial that the Township utilize
some method in establishing the fee structure so as to show that the fees were not arrived
at arbitrarily. Id. If the method used is rationally related to the stated zoning goals, then
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it should comply with legal precedent that, “a legislate e body need not even select the
best or least restrictive method of attaining its goals so long as the means selected are
rationally related to those goals.” Id.
D.
Can a Municipality Require a County to Pay a Fee for a Zoning Permit?
City of E. Cleveland v. Bd. of Cnty. Comm'rs of Cuyahoga Cnty., 23 O.O.3d 46, 430
N.E.2d 456, 458 (1982). The Cuyahoga County Board of Commissions along with the
Cuyahoga County Board of Mental Retardation decided to build a school for the mentally
handicapped on a parcel of land that had been originally zoned for single and two-family
dwelling units by the City of East Cleveland. The City of East Cleveland filed for a
restraining order and preliminary injunction contending that the county needed to obtain
the appropriate zoning permit and pay the required zoning fees. The county countered
that, through the power of eminent domain, it cannot be limited by a municipality in
using land for a public purpose.
The trial court reasoned that the Cuyahoga County Board of County Commissioners,
because it possessed the power of eminent domain, was not restricted by local zoning
ordinances and therefore did not have to obtain a conditional zoning use permit before
applying to the East Cleveland Building Department; nor could the city impose a fee on
the county for the issuance of the building permit.
The Court of Appeals and the Ohio Supreme Court reversed. The Supreme Court rejected
the concept of absolute governmental immunity from local zoning requirements based
upon eminent domain powers. Instead, the Ohio Supreme Court instituted a balancing
test for courts to consider in such situations. The Supreme Court stated:
* * * Where compliance with zoning regulations would frustrate or
significantly hinder the public purpose underlying the acquisition of
property, a court should consider, inter alia [1] the essential nature of the
government-owned facility, [2] the impact of the facility upon surrounding
property, and [3] the alternative locations available for the facility, in
determining whether the proposed use should be immune from zoning
laws.
The last issue was whether a municipality had the authority to charge a county a fee for
the review of plans and specifications by the municipality's building department for the
construction of a county project. The Ohio Supreme Court held:
The General Assembly has not expressly granted a municipality the right
to charge a fee. In R.C. 3791.07, however, the state Board of Building
Standards is expressly authorized to charge a fee for review of plans and
specifications. In the absence of such a provision for municipalities, . . .
municipalities shall not charge a fee [to the County] for review of plans
and specifications.
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The Ohio Supreme Court concluded that the City, by not being provided with
express power, could not charge the county a fee for reviewing plans and specs.
See also Nieaus v. State, 111 Ohio St. 47 (1924) – holding that a board of
education, taking on the sovereign power of the state, cannot be required to secure
a zoning permit for the erection of a public school building from a township. In
the absence of a statute authorizing a township to regulate the location or type of
building that a school may erect, it has no power to do so.
E.
Are there any limits on the fees that can be reimbursed for zoning hearings?
Jewish Reconstructionist Synagogue of N. Shore, Inc. v. Inc. Vill. of Roslyn Harbor, 40
N.Y.2d 158, 352 N.E.2d 115 (1976) In this New York case, a religion corporation sought
a permit for a religion house of worship. The corporation’s application provoked strong
opposition from prospective neighbors. Instead of holding a hearing in its customary
fashion (by holding it at a member’s home, taping the hearing, etc.), the Board decided to
hire a hall to host the hearing, retained counsel, and hired a stenographer to transcribe the
meeting. The corporation was charged $2,561.00 for expenses other than the stenography
in connection with the hearing.
The village's Ordinance specified that any applicant applying for a variance or a special
use permit, other than one seeking a variance in connection with a single-family
residence, in addition to the fees for the variance and permit, would have to pay the actual
costs incurred by the board in passing on the matter. “Section 1 of the ordinance
specifically states that such costs may include: ‘(a) Advertising (b) Stenographic minutes
of meetings (c) Engineering costs (d) Inspection costs (e) Legal fees (f) Recording fees.’
No precise amounts or ceilings are spelled out.”
The reasonableness of the fees was not questioned; however, the Board’s authority to
impose such open-ended fees upon an application was challenged. The question to the
court was whether a local government may require applicants for variances and special
use permits before its board of zoning appeals to pay certain costs incurred by the board
in the course of reaching its determination.
The New York Court of Appeals held that the village could not, pursuant to the
ordinance, require applicants for variances and special use permits to pay costs of legal
fees, meeting hall rentals and costs of transcription and copying of minutes incurred by
the board of zoning appeals.
“The charges for legal fees, those for transcribing the record of the proceedings and
supplying copies of it to each board member, and those for the rental of a capacious
auditorium in which large numbers of spectators could be accommodated at each of the
board's sessions, stand on a different footing. They did not represent necessary
expenditures but rather conveniences to the board for fulfillment of what in the end was
its own decision-making responsibility.”
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While not an Ohio decision, the holding is good, solid advice for Ohio public entities to
follow when establishing reasonable (and legal) fees.
F.
Cost Details Matter
Cassell v. Lexington Twp. Bd. of Zoning Appeals, 163 Ohio St. 340, 127 N.E.2d 11
(1955) In this case, the Ohio Supreme Court held that a township regulation providing
only that a certain area be zoned for farming, residential, commercial, and recreation
uses, but which does not specify which portions of the area may be used for which use,
will be invalidated.
‘The zoning board of appeals was of the opinion that upon the basis of the declared
purpose of zoning laws as contained in the Ohio statute, it is their proper function to deny
or refuse permits in instances when it is felt that the property proposed to be built does
not match the character of the improvements in the area in which the building is to be
done and would have the effect of depressing property values on existing improvements.’
“Where zoning resolutions did not specify any regulation as to cost and nature of
dwellings, size of lots or effect on property values, action of boards in refusing to issue
building permit because of cost and nature of proposed dwelling, inadequacy of lot size
and depressing of property values was arbitrary and unreasonable.”
IV.
RECOMMENDATIONS FOR LEGAL ZONING FEE SCHEDULES
A.
While it may well be that the fees will not, in each case, exactly reflect the Township’s
cost of administering the ordinance as to any particular developer, they may be fixed in
such manner as, over the long run, to recover in the aggregate approximately the total
cost of administration of the ordinance. 4 Rathkopf's The Law of Zoning and Planning §
69:23 (4th ed.)
B.
Tie fees to actual costs (cost analysis)
1.
Conduct periodic audits/review
2.
Track costs of each component of zoning to have understanding of impact (use
averages as guide)
3.
EX: variance fees should cover legal and public notice costs, prorated costs of the
hearing (staff, material, site visits, packet delivery, etc.)
C.
Place revenue from zoning fees in separate, limited fund?
1.
See Dree v. Hamilton
2.
Easier to track and determine if “reasonable”
D.
While the fees charged by other Townships may not be relevant in a legal challenge,
comparable jurisdictions (size, growth, makeup, etc…) may be helpful for trustees to
review as an internal guide/compass when compiling your own fee schedule.
E.
What has been the community impact of your fees? (increase/decrease development?)
1.
Are commercial fees too high? (pushing away development)
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2.
3.
4.
V.
Have they been a factor for annexation decisions? (should not result in that)
Are variance fees too low? (are people asking for everything?)
Track costs of each component of zoning to have understanding of impact (use
averages as guide)
ZONING RESOLUTION PROCESS
A.
Adopting the Plan
1.
“Except as otherwise provided in this section, in the interest of the public health
and safety, the board of township trustees may regulate by resolution, in
accordance with a comprehensive plan, the location, height, bulk, number of
stories, and size of buildings and other structures, including tents, cabins, and
trailer coaches, percentages of lot areas that may be occupied, set back building
lines, sizes of yards, courts, and other open spaces, the density of population, the
uses of buildings and other structures, including tents, cabins, and trailer coaches,
and the uses of land for trade, industry, residence, recreation, or other purposes in
the unincorporated territory of the township.” Ohio Rev. Code Ann. § 519.02
2.
Before availing itself of the powers conferred by section 519.02 of the Revised
Code, the board of township trustees shall pass a resolution declaring its intention
to proceed under sections 519.02 to 519.25 of the Revised Code. The board may
act in the following manner:
a.
It may adopt such a resolution upon its own initiative.
b.
It shall adopt such a resolution if there is presented to it a petition, signed
by a number of qualified voters residing in the unincorporated area of the
township or part thereof to be included in the zoning plan equal to not less
than eight per cent of the total vote cast for all candidates for governor in
such area at the most recent general election at which a governor was
elected, requesting the board to proceed with township zoning under such
sections. Ohio Rev. Code Ann. § 519.03
3.
The board of township trustees of any township proceeding under sections 519.01
to 519.99 of the Revised Code, shall create and establish a township zoning
commission. The commission shall be composed of five members who reside in
the unincorporated area of the township, to be appointed by the board. Ohio Rev.
Code Ann. § 519.04
4.
Before certifying its recommendations of a zoning plan to the board of township
trustees, the township zoning commission shall hold at least one public hearing,
notice of which shall be given by one publication in one or more newspapers of
general circulation in the township at least thirty days before the date of such
hearing. The notice shall state the place and time at which the text and maps of
the proposed zoning resolution may be examined Ohio Rev. Code Ann. § 519.06
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5.
Following the hearing provided for in section 519.06 of the Revised Code the
township zoning commission shall submit the proposed zoning resolution,
including text and maps, to the county or regional planning commission of the
county or district in which the township is located, if there is such a commission,
for approval, disapproval, or suggestions.
The approval of the planning commission shall be conclusively presumed unless,
within twenty days after receiving the proposed zoning resolution, it notifies the
zoning commission to the contrary.
In the event the planning commission disapproves of the proposed zoning
resolution or suggests any material change, the zoning commission shall hold a
public hearing on the resolution, due notice of which shall be given as provided in
section 519.06 of the Revised Code. Ohio Rev. Code Ann. § 519.07
B.
6.
After receiving the certification of a zoning plan from the township zoning
commission, and before adoption of any zoning resolution, the board of township
trustees shall hold a public hearing on the resolution, at least thirty days' notice of
the time and place of which shall be given by one publication in a newspaper of
general circulation in the township. Ohio Rev. Code Ann. § 519.08
7.
No change in or departure from the text or maps, as certified by the township
zoning commission, shall be made by the board of township trustees unless it is
first resubmitted to the commission for approval, disapproval, or suggestions.
Upon receipt of the recommendations of the township rural zoning commission
regarding the proposed changes, the board of township trustees shall hold a
second public hearing, at least ten days notice of the time and place of which shall
be given by one publication in one or more newspapers of general circulation in
the township affected. If such changes are disapproved by the zoning commission,
the provision so disapproved must receive the favorable vote of the entire
membership of the board of township trustees in order to be adopted. Ohio Rev.
Code Ann. § 519.09
8.
After receiving the recommended zoning plan from the township zoning
commission and holding the public hearing provided for by section 519.08 of the
Revised Code, the board of township trustees shall consider such
recommendations and vote upon the adoption of the zoning resolution Ohio Rev.
Code Ann. § 519.10
Appeals
1.
The board of township trustees may require that the owner or lessee of property
filing an application to amend the zoning resolution pay a fee to defray the cost of
advertising, mailing, filing with the county recorder, and other expenses. If the
board of township trustees requires such a fee, it shall be required generally, for
each application. The board of township trustees, upon the passage of such a
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resolution, shall certify it to the township zoning commission. Ohio Rev. Code
Ann. § 519.12
2.
In any township which adopts zoning regulations the board of township trustees
shall appoint a township board of zoning appeals composed of five members who
shall be residents of the unincorporated territory in the township included in the
area zoned. Ohio Rev. Code Ann. § 519.13 (West)
3.
The township board of zoning appeals may:
a.
Hear and decide appeals where it is alleged there is error in any order,
requirement, decision, or determination made by an administrative official
in the enforcement of sections 519.02 to 519.25 of the Revised Code, or of
any resolution adopted pursuant thereto;
b.
Authorize, upon appeal, in specific cases, such variance from the terms of
the zoning resolution as will not be contrary to the public interest, where,
owing to special conditions, a literal enforcement of the resolution will
result in unnecessary hardship, and so that the spirit of the resolution shall
be observed and substantial justice done;
c.
Grant conditional zoning certificates for the use of land, buildings, or
other structures if such certificates for specific uses are provided for in the
zoning resolution. If the board considers conditional zoning certificates for
activities that are permitted and regulated under Chapter 1514. of the
Revised Code or activities that are related to making finished aggregate
products, the board shall proceed in accordance with section 519.141 of
the Revised Code.
d.
Revoke an authorized variance or conditional zoning certificate granted
for the extraction of minerals, if any condition of the variance or
certificate is violated. Ohio Rev. Code Ann. § 519.14
4.
Such appeal shall be taken within twenty days after the decision by filing, with
the officer from whom the appeal is taken and with the board of zoning appeals, a
notice of appeal specifying the grounds. The officer from whom the appeal is
taken shall transmit to the board of zoning appeals all the papers constituting the
record upon which the action appealed from was taken. Ohio Rev. Code Ann. §
519.15
5.
No person shall locate, erect, construct, reconstruct, enlarge, or structurally alter
any building or structure within the territory included in a zoning resolution
without obtaining a zoning certificate, if required under section 519.16 of the
Revised Code, and no such zoning certificate shall be issued unless the plans for
the proposed building or structure fully comply with the zoning regulations then
in effect.
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