State ex rel. Kmart Corp. (K-Mart) v. Westlake Planning Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of
Ohio are being transmitted electronically beginning May 27,
1992, pursuant to a pilot project implemented by Chief Justice
Thomas J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010.
Your comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised
to check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions.
The advance sheets to Ohio St.3d will also contain the volume
and page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

The State ex rel. Kmart Corporation v. City of Westlake
Planning Commission et al.
[Cite as State ex rel. Kmart Corp. v. Westlake Planning Comm.
(1994), Ohio St.3d .]
Mandamus to compel planning commission to either approve or
reject development plan -- Writ granted, when.
(No. 93-1350 -- Submitted September 28, 1993 -- Decided
January 12, 1994.)
In Mandamus.
Relator, Kmart Corporation ("Kmart"), plans to build an
expanded retail store, a "Super Kmart," in Westlake, Ohio, and
has purchased property already zoned for this use. Kmart seeks
a writ of mandamus to compel respondents, the city of Westlake,
its planning commission, and Robert M. Parry, Westlake's
Director of Planning and Economic Development, to review and
either approve or reject the development plans proposed for the
project.
Kmart submitted its application for development plan
approval, including an application fee, a letter describing its
project, fourteen copies of its development plan and a January
1992 traffic study, on February 17, 1993. The plan was
distributed to certain city departments for comment that day.
On March 10, Parry prepared a "Box Score Sheet," which
"identified aspects of [the] plan that either did not meet
Westlake Zoning Code or raised other concerns." On March 12,
the planning department received supplementary plans for
"signs, wall details, [and] site cross-section" from Kmart. On
March 15, these plans were submitted for comment to the
pertinent city departments, and comments and recommendations
were returned by March 29. In particular, the city engineer
recommended that Kmart provide storm sewer alternatives, a
dedication plat, an assembly plat, an independent traffic
study, and a plat for widening a road.
Also on March 15, the planning commission met to consider
Kmart's development plan. Toward the end of the meeting, some
local residents voiced concerns about Kmart's project, and
Kmart agreed to withdraw the plan from the commission's agenda
so that it could be discussed further at a "work session" to be

held March 29, 1993.
At the March 29 work session, the planning commission
heard from more residents who opposed Kmart's project, and also
from Westlake Mayor Dennis M. Clough, who shared the
residents' view. (The mayor later advised a constituent that
he had "instructed [the city's] Law Department to take every
legal option available to prevent [the proposed Kmart store]
from going forward.") In addition, Parry submitted a report
describing his concerns about Kmart's proposal, which included
the need for another traffic study that would take
approximately four to six weeks to complete. No action was
taken on the application at the March 29 session.
Thereafter, Kmart and the planning department corresponded
regularly about additional materials necessary for development
plan approval. On April 5, Parry asked if Kmart would help pay
for the new traffic study. On April 8, Kmart resubmitted its
development plan and accompanying materials under protest,
claiming that the documents filed on February 16 were still
pending. On April 14, a title company submitted on Kmart's
behalf a supplemental list of the names of adjacent property
owners who were apparently to be notified of Kmart's proposed
development. On April 16, Parry acknowledged receipt of
Kmart's "new" application, requested additional fees pursuant
to a February 18 revision of the application fee schedule, and
advised Kmart of "missing" data as follows:
"Survey including permanent parcel numbers (note: PP#
cannot be read on copies submitted);
"A plat for the entire development area;
"Location, size, height, use, general design, color and
material of all main and accessory buildings or structures
(plus all appurtenances thereto including but not limited to
HVAC units, vent fans, coolers, compressors, chimneys, etc.
located on the roof or outside the building);
"Location and outline of buildings on adjoining parcels of
land (such as those residential buildings on adjacent parcels
on Dover and Westown);
"The location and layout for all areas of all permitted
storage and displays of any material, vehicle, waste material,
products or container for storage including storage enclosures;
"The location, size, height, design and material of all
signs to be placed on the outside surfaces of all structures or
vehicles on the property[.]"
Kmart's "new" development plans were distributed again to
city departments for comment on April 19, and while Kmart
initially refused to provide more fees and materials, it
forwarded the requested street dedication plat and assembly
plat, with the associated application and fee on June 30. On
July 7, these were submitted to the city engineering and
service departments for comment.
Meanwhile, the Westlake City Council was considering five
proposed ordinances that affected, and Kmart claims restricted,
construction of large retail stores, including the planned
Super Kmart. These proposals, Ordinance Nos. 1993-73, 1993-74,
1993-75, 1993-76 and 1993-77, were introduced on April 1, 1993,
just after the March 29 work session. The ordinances were
passed by the city council on July 15 and apparently became
effective on August 15, 1993.

Suspicious that the planning commission was deliberately
delaying action on the development plan until the five
"anti-Kmart ordinances" became law, Kmart filed this action on
July 1, 1993. Kmart's request for an alternative writ was
granted, and Westlake was ordered to show cause by July 29,
1993 why a writ of mandamus should not issue. After briefing
was completed, Westlake asked that this cause be dismissed as
moot because the pertinent ordinances had become effective.

Grendell & Marrer Co., L.P.A., Timothy J. Grendell and
John P. Slagter, for relator.
Rademaker, Matty, McClelland & Greve, Robert C. McClelland
and Bryan P. O'Malley, for respondents.

Per Curiam. This cause presents four issues. First, does
Parry have a clear duty to immediately review Kmart's
development plan and place it on the planning commission's
agenda? Second, does the planning commission have a clear
legal duty to immediately review and act on Kmart's development
plan? Third, does Kmart have an adequate remedy in the
ordinary course of law? Fourth, is this case moot?
For the reasons that follow, we hold that Parry owes the
duty alleged, but that he complied by arranging for commission
review on March 15. We further hold that (1) the planning
commission had a duty under Section 1220.07 of the Westlake
Zoning Code to approve or reject Kmart's development plan
within sixty days after the March 15 meeting, (2) Kmart
consented to an extension of this period until March 29, (3)
the commission was then required to complete review within the
next sixty days, and (4) the commission is now in default of
its duty to approve or reject Kmart's plan. Finally, we hold
that no adequate remedy existed and that the recently effective
legislation did not extinguish Kmart's right to approval or
rejection of its development plan.
The Duties of Parry and the Planning Commission
Kmart argues that Parry has a duty to review and submit
its development plan to the planning commission "as soon as
practicable" under Section 1220.05 of the Westlake Zoning
Code. Section 1220.05 provides, in part:
"After submittal of complete plans and review by the
Planning Department for compliance to the Zoning Code pursuant
to Section 1220.04, the Director of Planning shall place the
development plan application on the Planning Commission agenda
as soon as practicable. The Planning Commission shall review
the plans taking into account the spirit and intent of the
Zoning Code, the location of the proposal, the effect on the
surrounding properties and the relationship of the proposal to
the Guide Plan.
"The Commission, in reviewing the proposed development
plans for conformity to the provisions of the Zoning Code, may
make adjustments to certain yards, area and other dimensioned
requirements based on the performance standards of Section
1220.06. * * * If modifications made by either the Planning
Commission or applicant are subsequently approved by the
Commission the modifications shall be made a part of the
development plans and indicated on revised plans submitted by
the applicant or such modifications shall be affixed to the

development plans approved and signed by the applicant and
chairman of the Commission. * * *"
Kmart further contends that it has submitted final plans
and undergone the requisite review process up to the point
where submission of its plan to and action by the planning
commission must come next. The penultimate step before
placement on the commission agenda is described in Section
1220.04, which states:
"After the preparation of preliminary and final plans
pursuant to Sections 1220.01 through 1220.03, fourteen complete
sets of the final development plans shall be submitted to the
Department of Planning accompanied by an application form,
application fee and a letter describing the proposal. The
Director of Planning or his assignees shall review the plans
for completeness to [sic, compliance with] the Zoning Code
requirements. Within thirty days of submittal, the Director
shall notify the applicant if the submitted plans are complete
and accepted by the Department for Planning Commission review
and action. Acceptance of the plan does not waive the right of
the Planning Department or Planning Commission to request
additional documentation, information or detail during their
review. Development plans shall be distributed to applicable
departments as determined by the Director for review and
comment. Upon completion of Department review, the applicant
shall be requested to attend a post submission of department
heads as he deems necessary. The Director of Planning shall
notify the applicant of deficiencies in the submitted plan,
compliance to the Zoning Code or other codes of the City, other
department concerns and make recommendations which would
improve the development plan. Recommendations by the Director
of Planning are not exclusive or final. The Planning
Commission may make additional recommendations or modifications
as provided in Section 1220.05. After department review, the
applicant may submit revised or amended plans to the Department
for submission to the Planning Commission."
Westlake responds that Kmart has yet to comply with the
requirements listed in Parry's April 16 letter and that review
of Kmart's development plan is therefore still in the early
correction and resubmittal stage described in Section 1220.02.
This section provides that the director of planning shall,
within thirty days after "seven preliminary copies of the
development plans" are submitted, review such plans for
"general conformance" to the requirements of Section 1220.03.
Also during this period, the director of planning is to arrange
a "presubmission conference" to discuss the application.
Thereafter, the applicant shall make all necessary
"corrections, amendments or revisions and resubmit the complete
development plans * * * according to Section 1220.04."
Kmart's application for development plan approval,
however, has progressed well beyond the review afforded by
Section 1220.02. Final development plans, which are apparently
preliminary plans that contain all the materials listed in
Section 1220.03,1 are to be submitted to the planning
department in fourteen complete sets. Section 1220.04. Kmart
did this last February, and the plans were circulated for
comment, as provided by Section 1220.04. The plans were also
returned by all departments, apparently in preparation for the

planning commission meeting on March 15. The plan was
acceptable enough at that time for Parry to put it on the
commission agenda pursuant to Section 1220.05.
Section 1220.07 requires the planning commission to
approve a submitted development plan, to approve a modification
of the plan, or to reject the plan "[w]ithin sixty days from
the date of the Commission meeting at which all required plans
and data were first considered by the Planning Commission, * *
* unless the applicant shall consent to an extension of the
time limitation." The section next states:
"In the event the applicant chooses to withdraw the
application, the time limitations of this section shall only
apply if such application is later presented to the Planning
Commission as required herein."
Citing this section, Westlake also argues that Kmart
withdrew its plan from the review process entirely during the
meeting on March 15 and, therefore, the sixty-day deadline
applied only if Kmart's plan was presented a second time to the
planning commission, presumably after reapplication.2 We
disagree.
Consent to an extension of the sixty-day deadline is not
the same under Section 1220.07 as withdrawing an application
for development plan approval, and in our view, Kmart merely
agreed to extend the commission's review period. We draw this
conclusion first from the minutes of the March 15 meeting,
which state that Kmart's plan was being "withdrawn from the
[commission's] Agenda" and that the plan is "to be discussed at
the March 29, 1993 Work Session." A letter accompanying
Kmart's resubmission of its application on April 8 corroborates
this, stating:
"We contest this payment [of further application fees] as
we have previously paid this on February 16, 1993, the original
date of the filing. We were forced to withdraw the original
Development Plan submission in order to accommodate the City of
Westlake to hold a workshop on March 29, 1993. We contend that
our filing of February 16, 1993 remains valid and, therefore,
pay this fee under protest."
Moreover, Westlake's position is inconsistent with the
planning department's continued review of Kmart's original
application after the March 15 meeting.
Accordingly, we find that Parry has already fulfilled his
duty under Section 1220.05 to place Kmart's development plan on
the planning commission's agenda. We further find that the
sixty-day deadline for approving or rejecting the plan
commenced, by agreed extension, on March 29. The commission,
therefore, had until May 28 to act and, those sixty days having
passed, is now in default of the duty imposed by Section
1220.07.
Westlake alternatively claims that some of the documents
needed for Kmart's second application are missing, that Kmart's
initial application also did not sufficiently comply with the
zoning code, and that a second traffic study must be
completed. From this, the city argues that the sixty-day
deadline in Section 1220.07 never commenced because the
commission has yet to consider "all required plans and data" at
any meeting.
Westlake reads this phrase too broadly. The sixty-day

period in Section 1220.07 is intended to limit the time for
considering development plans already determined "complete" on
review by the planning department, Section 1220.05, and to
force a decision from the commission. If "all required plans
and data" is construed to include every study and specification
required by the zoning code, plus all the "additional
documentation, information or detail" that the commission can
demand under Section 1220.04, the sixty-day period could
conceivably be put off forever. Moreover, if "all required
plans and data" means, in effect, everything needed before the
commission will approve a proposed development plan, the
commission would never have reason to modify or reject a plan
in advance of the sixty-day deadline.
Westlake raises one other argument related to the zoning
code -- that even if Kmart's development plan is considered
final for the purpose of Section 1220.04 as of June 30, Parry
still had, under that section, thirty days left, or until July
30, to notify Kmart "if the submitted plans are complete and
accepted" by the planning department.
We reject this argument due to our conclusion that Kmart
consented to an extension of the commission's review pursuant
to Section 1220.07 and did not completely withdraw its
application. The object of planning department review under
Section 1220.04 is to place complete development plans on the
planning commission agenda, and Parry has already done this.
Finally, Westlake argues that Kmart has no right to
planning commission review because it is in violation of
federal law regulating the deposit of fill in wetland areas.
The city cites a letter from the U.S. Army Corps of Engineers,
in which the Army rejected Kmart's application for permission
to grade and fill approximately one acre of wetlands. Since
that letter, however, the Army has advised Kmart that (1) its
application had been rejected by mistake, (2) its application
was now considered active, and (3) no current violation of
pertinent federal Clean Water Act standards existed on its
property.
Accordingly, we hold that Parry has already complied with
Section 1220.05 of the zoning code because he placed Kmart's
development plan on the planning commission's agenda for March
15. We further hold that Kmart consented to extend the period
in Section 1220.07 to March 29, but that the planning
commission thereafter had a duty to approve, reject or approve
a modification of Kmart's development plan within sixty days.
Kmart, therefore, has shown the first prerequisite for a writ
of mandamus to issue.
Adequate Remedy
Before a writ of mandamus may be granted, we must also
find that Kmart has no adequate remedy in the ordinary course
of law. Westlake proposes the existence of only one such
remedy -- an action for declaratory judgment.
State ex rel. Fenske v. McGovern (1984), 11 Ohio St.3d
129, 11 OBR 426, 464 N.E.2d 525, paragraph two of the syllabus,
states:
"The availability of an action for declaratory judgment
does not bar the issuance of a writ of mandamus if the relator
demonstrates a clear legal right thereto, although the
availability of declaratory judgment may be considered by the

court as an element in exercising its discretion whether a writ
should issue. However, where declaratory judgment would not be
a complete remedy unless coupled with ancillary relief in the
nature of mandatory injunction, the availability of declaratory
injunction [sic, judgment] is not an appropriate basis to deny
a writ to which the relator is otherwise entitled."
As discussed, Kmart has shown a clear legal right to
relief. Moreover, the declaratory judgment action Westlake
suggests would not afford Kmart complete relief absent a
mandatory injunction ordering the planning commission to
approve or reject the instant development plan. Declaratory
judgment, therefore, is not an adequate remedy.
Accordingly, we hold that Kmart has also shown the absence
of an adequate remedy.
Mootness
Westlake claims that this action is moot because the city
has passed the five ordinances, discussed supra, adding or
amending certain definitions and technical requirements
applicable to large retail stores like the proposed Super
Kmart. The city submits that on August 23, 1993, Parry
returned Kmart's application and refunded its application fees
pursuant to Section 1220.10 of the zoning code. Section
1220.10 provides, in part:
"The Department of Planning shall not process beyond
initial review, a submission of any development plan concerning
property, which, prior to the submission, in whole or in part,
becomes the subject of legislation introduced by Council or
submitted to the Clerk of Council by initiative petition, and
which legislation if passed, and on its effective date, would
change the classification of the zoning district in which such
property is located so as to make the proposed development or
use nonconforming or not permitted. In such a case, the
Director of Planning after preserving a copy of same shall
return the application together with a refund of any fees paid
or deposited and advise the applicant of the proposed
legislation and the provisions for later submittal. If the
proposed legislation has not been passed or is not effective
following the expiration of four months from the date the
development plan was first presented for submittal, then the
applicant, subject to the provisions of the following sentence,
shall be permitted to submit the development plan provided it
is identical in all respects to the development plan first
presented. * * *" (Emphasis added.)
Section 1220.10, however, does not apply here. As Kmart
points out, no legislation concerning its property or
application for development plan approval was pending "prior to
the submission" of its February 17 application. Further, none
of the five ordinances "change[s] the classification of the
zoning district" where Kmart's property is located, "so as to
make the proposed development or use nonconforming or not
permitted." Finally, the five ordinances were not effective
within four months of Kmart's initial February 17 application.
Kmart also assails the constitutionality of applying these
ordinances to its applications for development plan approval
and asserts a right to have its plan reviewed for conformity
with the zoning code as it existed when the applications were
filed. Westlake does not defend the constitutionality of

applying the instant ordinances to Kmart, but Kmart's challenge
is premature. It assumes the planning commission (or
ultimately the city council, which reviews plans approved by
the commission under Section 1220.07) will rely on these
ordinances to disapprove Kmart's development plan. In effect,
Kmart asks us for a decision that precludes such reliance in
advance.
However, if Kmart's plan is eventually rejected because of
the recently effective zoning ordinances, such disapproval
should produce a final order from which Kmart could appeal
pursuant to R.C. 2506.01. Cf. State ex rel. Harpley Builders,
Inc. v. Akron (1992), 62 Ohio St.3d 533, 584 N.E.2d 724
(planning commission's preliminary approval of development plan
is not a final order and cannot be appealed pursuant to R.C.
2506.01). The constitutionality of zoning ordinances is more
appropriately a subject for that appeal. Karches v. Cincinnati
(1988), 38 Ohio St.3d 12, 526 N.E.2d 1350, paragraph one of the
syllabus. Moreover, we are mindful that Kmart's purpose here
is to compel the planning commission to exercise its
discretion, not to control it. Accordingly, we do not resolve
whether these ordinances may be constitutionally applied to
Kmart's development plan.
Conclusion
Based on the foregoing, we find that Kmart has a clear
legal right to the planning commission's approval or rejection
of its development plan, that Kmart has no adequate remedy in
the ordinary course of law, and that this matter is not moot.
We, therefore, grant the requested writ of mandamus and order
the planning commission to either approve or reject Kmart's
development plan.

Writ granted.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick and
Pfeifer, JJ., concur.
F.E. Sweeney, J., dissents.

FOOTNOTES
1 Section 1220.03 provides:
"All development plans or parts thereof shall be prepared
and submitted by a State licensed/registered professional such
as an engineer, surveyor or architect. Development plans shall
be drawn at a scale of not less than fifty feet to the inch and
a plan for a division of a development of a group of lots and
[sic] shall be drawn at a scale of not less than one hundred
feet to the inch. The development plans shall include all of
the following items, unless waived by the Director of Planning.
"(a) Survey. A survey of the property including the
permanent parcel numbers, land ownership and existing and
proposed topography. Development plans shall also include a
plat for the entire development area showing the street rights
of way, easements, watercourses, retention basins, property
line dimensions and bearings; surrounding streets and adjoining
lots.
"(b) Buildings and Structures. The location, size,
height, use, general design, color and exterior facade material
of all main and accessory buildings or structures and proposed
fences or walls. The plans shall also indicate the location

and outline of buildings on adjoining parcels of land.
"(c) Floor Plans. Floor plans drawn to scale,
dimensioned and labeled indicating the proposed uses of all
building areas.
"(d) Streets and Sidewalks. The proposed public and
private system of circulation including: automobiles, delivery
trucks, emergency vehicles and pedestrian details for
connection to existing streets and rights of way; methods to
control traffic, size and type of pavement, estimate of traffic
volume and proposed names of any street.
"(e) Parking and Loading Areas. The layout, location,
dimensions and estimate of number of spaces, type of pavement,
curbing, design features and landscaping.
"(f) Utilities. Preliminary on-site utilities including
water lines, fire hydrants, sanitary sewers and storm sewers,
including easements and connection to existing or proposed
utility service to the project.
"(g) Outdoor Storage. The location and layout for all
areas of all permitted storage or displays of any material,
vehicle, waste material, products or container for storage
including storage enclosures.
"(h) Signs. The location, size, height, design and
material for all signs to be placed on the property or the
outside surfaces of all structures or vehicles on the property.
"(i) Landscaping and Lighting. The design and location
of all existing vegetation and proposed landscaping areas, open
spaces, retention areas, yards including taxonomic names and
sizes of all proposed plant material; the location, height,
design and specifications of exterior lighting.
"(j) Buffering. The location, size, height and type of
plantings and/or screening to be used in compliance with
Chapter 1130 and/or plantings as may be required to satisfy the
directives of the Planning Commission to separate, screen
and/or protect adjoining property.
"(k) Grading; Drainage. A topographic plan indicating
existing and proposed grading, drainage, drainage structures,
retention systems, ditches, drain sizes, easements and, if
required, engineering documents and drainage calculations
pursuant to Chapter 1111.
"(l) The applicant shall also submit a list of names and
addresses of all property owners within 500 feet of the
perimeter of the premises to be developed, prepared and
certified correct by a title company doing business within
Cuyahoga County."
2 Indeed, when Kmart resubmitted its application, the city
apparently started the review process over again.
Douglas, J., concurring. While I agree with the
majority that the time has come to have the planning commission
finally consider relator's application for development plan
approval, such concurrence should not be misconstrued. The
planning commission retains, in any way and fully, the right to
review the application for completeness and to accept or reject
the development based on that review.
Traffic surveys are essential in determining impact on
neighboring development. Here, a second traffic survey
commissioned by the city council has not been completed. Such
surveys are always an integral part of any large-scale proposed

development and the planning commission is entitled to take
this and other urged deficiencies (other, maybe, than the new
city ordinances pertaining to such developments) into
consideration in deciding whether to approve or disapprove the
application. This then sets in motion the further
administrative and legal reviews available to the parties. The
mayor, the city council and the planning commission have
responsibility to all the citizens of the city of Westlake --
not just to a proposed developer. Their deliberations and
judgment should not be constricted, absent actions that are
clearly arbitrary, capricious, unreasonable or unlawful.
A.W. Sweeney, J., concurs in the foregiong concurring
opinion.
Francis E. Sweeney, Sr., J., dissenting. I respectfully
dissent. To prevail in mandamus, the relator must demonstrate
a clear legal right to the performance of an act which is
enjoined by a corresponding clear legal duty. State ex. rel.
Hodges v. Taft (1992), 64 Ohio St.3d 1, 3, 591 N.E.2d 1186,
1188. Absent an abuse of discretion, the extraordinary writ of
mandamus cannot be used to compel a public body or official to
act in a certain way on a discretionary matter. State ex rel.
Dublin v. Delaware Cty. Bd. of Commrs. (1991), 62 Ohio St.3d
55, 60, 577 N.E.2d 1088, 1093; State ex rel. Veterans Serv.
Office v. Pickaway Cty. Bd. of Commrs. (1991), 61 Ohio St.3d
461, 463, 575 N.E.2d 206, 207.
Westlake Planning and Platting Code 1109.02(a) and (b)
require the police chief and the city engineer to review and
comment upon shopping center development plans. Pursuant to
this authority, they requested a traffic impact analysis be
performed prior to their respective recommendations to the
planning commission. After the planning commission reviews the
matter, it makes its recommendation to the city council, which
is vested with discretionary authority to review and approve
all development plans. Section 9, Article IV, Westlake City
Charter.
As recognized by Justice Douglas in his concurring
opinion, traffic surveys are essential in determining impact on
neighboring development and are always an integral part of any
large-scale proposed development. Therefore, the results of
the traffic survey requested by the city engineer and the
police chief and recommended by the planning commission are
vital to the exercise of the administrative discretion vested
in the planning commission and must be completed prior to its
review of the development plan and recommendation to city
council.
Thus, relator is unable to establish a clear legal right
to compel the planning commission to perform an administrative
review of its development plan, which ultimately requires the
administrative approval of the city council, until the traffic
survey has been completed and reviewed by the planning
commission. Moreover, until this review process has been
completed, respondents have no clear legal duty to exercise
their discretion over relator's application.
Finding that Westlake's actions are not arbitrary,
capricious, unreasonable or unlawful, I believe the writ of
mandamus should be denied.