[Cite as Citizens to Preserve Agriculture & Green Space v. Miamisburg, 2012-Ohio-727.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

CITIZENS TO PRESERVE : 

AGRICULTURE & GREEN SPACE, et al. : Appellate Case No. 24624 

 : 

: Trial Court No.2009-CV-08922 

Plaintiff-Appellants : 

: 

v. : 

: (Civil Appeal from 

CITY OF MIAMISBURG, et al. : (Common Pleas Court) 

: 

Defendant-Appellees : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 24th day of February, 2012. 

. . . . . . . . . . . 

DON A. LITTLE, Atty. Reg. #0022761, 7501 Paragon Road, Lower Level, Dayton, Ohio 

45459 

Attorney for Plaintiff-Appellants 

 

TERENCE L. FAGUE, Atty. Reg. #0018687, JOHN C. CHAMBERS, Atty. Reg. #0029681, 

and SASHA A.M. VanDeGRIFT, Coolidge Wall Co., L.P.A., 33 West First Street, Suite 600, 

Dayton, Ohio 45402 

Attorney for Defendant-Appellee, Phoenix West, LLC 

K. PHILIP CALLAHAN, Atty. Reg. #0047324, Law Director, City of Miamisburg, 10 North 

First Street, Miamisburg, Ohio 45342 

Attorney for Defendant-Appellee, City of Miamisburg 

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

FAIN, J. 
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{¶ 1} Appellant, Citizens To Preserve Agriculture and Green Space (Citizens) 

appeals from a judgment affirming the decision of the City of Miamisburg Planning 

Commission approving a land development special use application submitted by appellee, 

Phoenix West, L.L.C. (Phoenix). Citizens argues that the Planning Commission and the 

Montgomery County Court of Common Pleas, in determining whether Phoenix had reserved 

enough acreage in its development plan for use as open space as required by the City of 

Miamisburg Planning and Zoning Ordinances (the Code), erred in their interpretations of the 

terms “common open space” and “active open space,” as used in the Code. Citizens further 

contends that the allocation of additional housing units was based upon an incorrect 

calculation. 

{¶ 2} We conclude that the Commission and the Montgomery County Court 

of Common Pleas were correct in their interpretations of the terms set forth in the Code. We 

further conclude that the number of additional housing units awarded to Phoenix is not 

erroneous. 

{¶ 3} Accordingly, the judgment of the common pleas court is Affirmed. 

I. Phoenix Seeks a Special Use Permit for its Development, 

and, on the Third Try, Is Successful.

{¶ 4} In 2007, Phoenix submitted to the City of Miamisburg Planning 

Commission a development plan requesting a special use permit. Phoenix sought to build a 

housing development on 101.62 acres the company owned and that was zoned for 

agricultural use. The Planning Commission approved the plan. 
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{¶ 5} Citizens, a group of interested Miamisburg residents, filed an 

administrative appeal with the Montgomery County Court of Common Pleas. Citizens 

alleged that the plan did not provide for a sufficient amount of acreage to be utilized as 

common open space for the development. 

{¶ 6} The Code allows for the grant of special use permits for land zoned as 

agricultural. These developments are referred to as “Open Space Developments.” Section 

1272.08(d) of the Code provides that the number of dwelling units permitted in an open space 

development is “calculated by multiplying the gross acreage of the development area by 

eight-five hundredths (.85) dwelling units per acre.” That section further provides that “the 

number of residential units may be increased through the granting of Residential Unit Bonuses 

as provided in this Chapter, however the final number of units shall not exceed a gross density 

of 1.7 units per acre.” 

{¶ 7} Section 1272.08(f)(1) of the Code requires a developer of any Open 

Land Development to preserve “at least thirty (30) percent of the gross area of the Open Space 

Development * * * as common open space.” Section 1272.08(f)(2) provides that “a 

minimum of ten (10%) of the required open space shall be active open space and include 

amenities such as parks and playground equipment, pools, club houses, and hard courts and 

ball fields.” 

{¶ 8} Section 1272.08(f) also provides the following definitions: 

Open Space Requirements. Open space shall be located 

on the parcel to: 

(1) preserve distinctive natural features and rural 
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characteristics; (2) preserve farm lands; (3) minimize 

impact from development on wetlands, rivers, areas of 

sharp and other sensitive environmental areas; (4) 

maintain open, rural character along main roads; or (5) 

create greenways and connect wildlife areas. 

For purposes of this section, the following terms shall be defined as 

follows: 

Common Open Space - An opens [sic] space within a 

residential development reserved for the exclusive use of 

residents of the development and their guest. 

Active Open Space - Open space that may be improved 

and set aside, dedicated, designed, or reserved for 

recreational facilities such as swimming polls, play 

equipment for children, ball fields, court games, picnic 

tables, trails, etc. 

Restricted Open Space - Areas under private ownership 

where the property is developed for single family use on 

a lot of two acres or more and the undeveloped portion 

of that lot contributes to the character of the Open Space 

Development as determined by the Planning 

Commission. 

{¶ 9} Section 1272.08(e), which sets forth the method for calculating 
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Residential Unit Bonuses, provides: 

(1) The number of dwelling units may be increased by five (5) percent for every 

one (1) percent of additional open space created above the minimum required 

under Section 1272.08(f)(1). 

(2) An additional unit bonus may be allowed at the discretion of the Planning 

Commission, based upon a demonstration by the applicant of design excellence 

in the Open Space Development. In order to qualify for a density bonus, the 

Open Space Development must be served by public sanitary sewer. Projects 

may qualify for a 5% unit bonus for each of the design elements listed below. 

This additional unit bonus shall be applied to the number of units established in 

subsection (e)(1) above. 

* * * 

iv. 60% of all housing units have direct view upon open space. 

v. High Quality Open Space Development amenities are provided such as a 

trails connecting to and traversing all common open space areas; high quality, 

municipal grade playground equipment, wildlife observation platforms, and 

playfields and courts. 

vi. Adequate roadway and pedestrian connections are provided to create 

integrated neighborhoods. 

{¶ 10} On review, the trial court reversed the decision of the Planning 

Commission upon a finding that the submitted plan did not comport with the requirements of 

the Miamisburg zoning ordinances due to the lack of adequate common open space. 
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{¶ 11} Phoenix then submitted a new special use application for the property. 

The Planning Commission approved the new plan, which provided for more open space. 

{¶ 12} Citizens again filed an administrative appeal from the approval, arguing 

that the plan was deficient with regard to the common open space requirement. Citizens 

argued that the plan improperly counted active open space in the calculation of the necessary 

common open space. Citizens also argued that the Planning Commission improperly 

allocated residential unit bonuses to Phoenix. The court ruled that active open space and 

common open space are not mutually exclusive categories, and that the plan submitted by 

Phoenix therefore provided for adequate open space in its plan. But the court also decided 

that the residential unit bonus was improperly calculated. The court reversed the decision of 

the Planning Commission on the issue of the bonus units. 

{¶ 13} Phoenix filed an amended plan, which the Planning Commission 

approved. Citizens again filed an administrative appeal. The trial court held that the 

amended plan provided the requisite acreage for use as common open space and that the 

residential unit bonus was properly calculated, and affirmed the decision of the Planning 

Commission. 

{¶ 14} From the judgment of the trial court affirming the decision of the 

Planning Commission, Citizens appeals 

II. The Construction of the Planning and Zoning Code Employed by Both the Planning 

Commission and the Trial Court Is Reasonable.

{¶ 15} Citizens states the following as its sole Assignment of Error: 
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THE TRIAL COURT ERRED IN COUNTING “ACTIVE OPEN 

SPACE” AS “COMMON OPEN SPACE” TO DETERMINE WHETHER A 

SUFFICIENT PERCENTAGE OF THE PROPERTY HAD BEEN SET 

ASIDE FOR “COMMON OPEN SPACE.” FURTHER, THE TRIAL 

COURT ERRED IN COMBINING “ACTIVE OPEN SPACE” WITH 

“COMMON OPEN SPACE” TO DETERMINE WHETHER THE 

APPROXIMATE 84 BONUS UNITS WERE PROPERLY ALLOWED. 

BASED ON THIS, THE COURT DENIED APPELLANTS’ APPEAL AND 

COMMITTED LEGAL ERROR IN DOING SO BECAUSE THE COURT’S 

ALLOWANCE OF “ACTIVE OPEN SPACE” TO BE TREATED AS 

“COMMON OPEN SPACE” WAS IN DIRECT VIOLATION OF THE 

MIAMISBURG CITY CODE. 

{¶ 16} Citizens contends that the approved development plan provides for an 

inadequate amount of common open space. It argues that the Planning Commission and the 

trial court erred in finding that “common open space” and “active open space,” as those terms 

are used in the Code, do not refer to mutually exclusive areas. Citizens argues that without 

including active open space as a component of common open space, the proposed 

development does not satisfy the requirement that at least 30% of the area be common open 

space. Citizens also argues that the error in combining common open space with active open 

space resulted in a miscalculation of the number of residential bonus units. 

{¶ 17} Phoenix owns a parcel of land consisting of 101.62 acres. Based upon 

the zoning ordinances, it is required to set aside 30% – 30.486 acres – as common open space, 
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with a minimum of 10% of the common open space being reserved as active open space. 

Phoenix’s development plan provides for the dedication of 27 acres as common open space 

and 19 acres as active open space for a total of 46 acres of open space.1 The issue is whether 

the Planning Commission and the Common Pleas Court erred by permitting the inclusion of 

active open space in satisfaction of the common-open-space requirement. 

{¶ 18} Pursuant to R.C. 2506.04, a common pleas court may determine that 

the decision of an administrative board – the planning commission is an administrative board– 

is “unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the 

preponderance of substantial, reliable and probative evidence on the whole record.” An 

appellate court’s review of the trial court’s decision “is limited to a determination of whether, 

as a matter of law, the decision of the common pleas court is not supported by a 

preponderance of reliable, probative, and substantial evidence.” Bowman v. Butler Twp. Bd. 

Of Trustees, 185 Ohio App.3d 180, 2009-Ohio-6128, 923 N.E.2d 663, ¶ 14 (2d Dist.). “In 

other words, in reviewing questions of law, the appellate court considers whether the trial 

court abused its discretion.” Id. 

{¶ 19} As defined in Section 1272.08(f), common open space and active open 

space are both considered open space. Citizens is correct that Section 1272.08(f)(1) of the 

Zoning Code provides that a minimum of 30% of the total development must be preserved as 

common open space. However, that provision is modified by Section (f)(2) which provides 

that a “minimum of ten (10%) percent of the required open space shall be active open space 

 1

These acreage numbers have been rounded. The differences between the round numbers and the actual numbers are not 

material to this appeal. 
9

and include amenities such as parks and playground equipment, pools, club houses, and hard 

courts and ball fields.” A reasonable construction of the intent of the modifying section is 

that active open space be considered a sub-set of common open space. In the 10% restriction 

quoted above, the 10%-of-required-open-space requirement likely refers to an open-space 

requirement external to itself. Otherwise, this requirement would be confusingly 

self-referential. And the only open-space requirement external to the 10% requirement set 

forth in Section (f)(2) is the 30% common-open-space requirement in Section (f)(1). 

Therefore, the most reasonable interpretation of Section (f)(2) is that of the 30% of acreage 

required to be common open space, at least 10% of that acreage must be active open space. 

{¶ 20} Furthermore, by requiring a minimum of 10%, Section (f)(2) permits a 

developer to reserve more than 10% of the common open space for use as active open space. 

The Code contains no explicit requirement that the required amount of common open space is 

more if the amount of active open space exceeds the 10% minimum. 

{¶ 21} Under the construction urged by Citizens, Phoenix would be required to 

maintain a little over 30 acres of land as common open space, with an additional amount of 

land set aside as active open space. In our view, this is a less plausible construction of the 

Code. In any event, the construction of the Code employed by both the Planning Commission 

– which drafted the Code and proposed it to the Miamisburg City Council – and by the trial 

court is reasonable. 

{¶ 22} We conclude that the court did not abuse its discretion in affirming the 

decision of the Planning Commission with regard to this issue. 

{¶ 23} Citizens also contends that the Planning Commission and the trial court 
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erred in combining the common open space and active open space when determining whether 

the amount of residential unit bonuses were properly calculated. In support of this 

contention, Citizens has not set forth any argument beyond its argument that the Code treats 

common open space and active open space as mutually exclusive areas. Given our 

conclusion that the construction of the Code employed by both the Planning Commission and 

the trial court – that active open space is a sub-set of common open space – is a reasonable 

construction, it follows the active open space was properly included for this purpose, as well. 

{¶ 24} We have reviewed the calculation of the extra units and find no 

deficiency. Phoenix has set aside more than the required amount of open space by providing 

for 46 acres of open space in a development that required only a little over 30 acres of open 

space. We find no error in the calculations determining the number of additional residential 

units as set forth in the Planning Commission records and as approved by the trial court. 

{¶ 25} Under the terms of the Code, Phoenix is permitted a base unit number 

of 86 units. Code Section 1272.08(d). In addition, Phoenix has exceeded the 

30%-common-open-space requirement by more than 15%, Therefore, pursuant to Code 

Section 1272.08(e)(2), it is permitted 67 additional units based upon the amount of reserved 

open space in excess of the 30% minimum requirement. . 

{¶ 26} Finally, the Planning Commission awarded Phoenix 23 additional 

bonus units for meeting the requirements of Code Section 1272.08(e)(2)(iv), (v) and (vi). 

Again, we find no calculation errors. Phoenix is limited to a ceiling of 172 units. It 

requested, and was allowed, a total of 170 units. 

{¶ 27} Both Phoenix and the City of Miamisburg, in their answer briefs in this 
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appeal, argue that Citizens is precluded by the doctrine of res judicata from re-litigating the 

proper construction of the Code requirements for common open space and for active open 

space by virtue of the judgment of the Montgomery County Common Pleas Court in Citizens’ 

second administrative appeal. In view of our conclusion that the trial court employed a 

reasonable construction of the Code in arriving at the judgment from which this appeal is 

taken, we find it unnecessary to decide whether the doctrine of res judicata applies. 

{¶ 28} Citizens’ sole assignment of error is overruled. 

III. Conclusion.

{¶ 29} Citizens’ sole assignment of error having been overruled, the judgment 

of the trial court is Affirmed. 

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

DONOVAN and HALL, JJ., concur. 

Copies mailed to: 

Don A. Little 

Terence L. Fague 

John C. Chambers 

Sasha A.M. VanDeGrift 

K. Philip Callahan 

Hon. Timothy N. O’Connell