Buckeye and Ballot Box Zoning: When Democracy is a Dangerous Thing

Abstract For the second time in a quarter of a century, the U.S. Supreme Court has reversed the Ohio Supreme Court in a ballot box zoning case. In the first, City of Eastlake v. Forest City Enterprises, the Court held that exercising the referendum power to return a parcel zoned multifamily by the Eastlake city council to its previous commercial classification was not a denial of due process by means of a standardless delegation of power from the state legislature to the people of Eastlake. This was because the people retained in the Ohio State Constitution the power to zone through the ballot box. So there was no delegation at all—standardless or otherwise. Twenty-seven years later, in City of Cuyahoga Falls v. Buckeye Community Hope Foundation, the Court finds that a referendum on a specific project site plan likewise passes due process scrutiny: “The subjection of the site-plan ordinance to the City's referendum process, regardless of whether that ordinance reflected an administrative or legislative decision, did not constitute per se arbitrary government conduct in violation of due process.”