State ex rel. Edwards Land Co., Ltd. v. Delaware Cty. Bd. of Elections , 129 Ohio St. 3d 580 ( 2011 )

[Cite as State ex rel. Edwards Land Co., Ltd. v. Delaware Cty. Bd. of Elections, 129 Ohio St.3d
580, 2011-Ohio-4397.]
THE STATE EX REL. EDWARDS LAND COMPANY, LTD., ET AL. v. DELAWARE
COUNTY BOARD OF ELECTIONS.
[Cite as State ex rel. Edwards Land Co., Ltd. v. Delaware Cty. Bd. of Elections,
129 Ohio St.3d 580, 2011-Ohio-4397.]
Prohibition—R.C. 519.12(H)—Board of Elections abused its discretion in
denying relators’ protest—Referendum petition was not timely filed—Writ
granted.
(No. 2011-1266—Submitted August 23, 2011—Decided August 31, 2011.)
IN PROHIBITION.
__________________
PFEIFER, J.
{¶ 1} This is an original action for a writ of prohibition to prevent
respondent, the Delaware County Board of Elections, from certifying a
referendum petition and submitting a Liberty Township zoning amendment to the
township electorate at the November 8, 2011 general election. Because relators,
who applied for the zoning amendment and protested the referendum petition,
have established their entitlement to the requested extraordinary relief, we grant
the writ.
Statutory Backdrop
{¶ 2} This case arises out of the amendment of a township zoning
resolution and the subsequent attempt by certain township citizens to force a
referendum vote on the amendment. R.C. 519.12 sets out the process for
amending township zoning resolutions and for overturning those amendments.
Pursuant to R.C. 519.12(A)(1), an owner of property within the area proposed for
a zoning change may initiate an amendment to a township zoning resolution by
filing an application with the township zoning commission. R.C. 519.12(A)(2)
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requires a public hearing before the zoning commission on the proposed
amendment. Under R.C. 519.12(E), the zoning commission must solicit a
recommendation on the amendment from county or regional planning authorities.
That recommendation is considered at the zoning commission’s public hearing.
After the public hearing, the zoning commission recommends the approval or
denial of the proposed amendment, or the approval of some modification of it,
and submits that recommendation, the recommendation of the county or regional
planning commission, and the text and map pertaining to the proposed
amendment to the board of township trustees. R.C. 519.12(E).
{¶ 3} The board of township trustees, in turn, must hold a public hearing
on the proposed amendment. R.C. 519.12(E). Pursuant to R.C. 519.12(H), within
20 days of its hearing, the board of trustees must “either adopt or deny the
recommendations of the township zoning commission or adopt some modification
of them.” If the board denies or modifies the commission’s recommendations, a
majority vote of the board is required. If the board adopts the proposed zoning
amendment, with or without modification, the zoning amendment automatically
becomes effective 30 days after the board of trustees’ action, unless a referendum
petition is filed within those 30 days. R.C. 519.12(H).
{¶ 4} The focus of this case is on R.C. 519.12(H), and specifically on
whether the petitioners filed their referendum petition within 30 days of the board
of trustees’ adoption of the zoning amendment at issue. On what date the board
of trustees adopted the zoning amendment is the bone of contention.
Factual and Procedural Background
{¶ 5} In January 2009, relator Valerie Knowlton submitted a zoning-
amendment application to Liberty Township—Rezoning Proposal LTZ 09-01—
that would amend the township zoning resolution to rezone 216.3 acres on three
parcels of township land from Farm Residence District (FR-1) to Planned
Residence District (PR). Knowlton owned the property at that time. Relator
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Edwards Land Company, Ltd. (“Edwards Land”) is a limited-liability company
that will be the developer of the property that is subject to rezoning, and relator
Charles P. Driscoll Jr. is the company’s president.
{¶ 6} In November 2010, Knowlton transferred the property to relator
MRLD Farm, Ltd. (“MRLD”), a limited-liability company of which she is a
member, and in January 2011, Knowlton amended her rezoning application to
reflect that MRLD was the owner of the property. On January 26, 2011, the
Liberty Township Zoning Commission voted to recommend approval of the
rezoning proposal.
{¶ 7} The proposed amendment then moved to the Liberty Township
Board of Trustees for review. Pursuant to R.C. 519.12(H), it then became the
board of trustees’ duty to “either adopt or deny the recommendations of the
township zoning commission or adopt some modification of them.” Beginning on
March 15, 2011, and continuing on April 4, 2011, the board of trustees conducted
its final public hearing on Rezoning Proposal LTZ 09-01. At the conclusion of
the April 4, 2011 hearing, the board of trustees verbally amended the rezoning
proposal as follows: (1) “Pillion Way be stubbed and not be connected and, if for
any reason it is required to be connected by another authority at a later date, that
the connection be restricted to emergency vehicle access only with gates or like
devices which will be subject to approval by this Board of Trustees and our
Liberty Township Fire Department” and (2) “Red Emerald Way be restricted to
emergency vehicle access only, and that it be gated or has such other device as to
only allow emergency vehicle access, with such device being subject to approval
by the Board of Trustees and the Liberty Township Fire Department.” The board
of trustees then unanimously approved the application for rezoning as amended,
rezoning 216.3 acres on three parcels of township land from Farm Residence
District to Planned Residence District.
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{¶ 8} At the board of trustees’ April 18, 2011 meeting, the board noted
that minutes for its March 15 and April 4 meetings would be approved at the
board’s May 4, 2011 meeting. At the board of trustees’ May 4 meeting, the board
approved its minutes for the April 4, 2011 meeting; those minutes included the
board’s approval of the application as amended by the board. May 4 was thus the
first date upon which there was an approved, written recordation of the board’s
April 4 modification and approval of the zoning amendment.
{¶ 9} On June 3, 2011, a group of petitioners filed a referendum petition
seeking to submit the board’s action approving the rezoning of the property to the
electors of Liberty Township. Their filing date fell 60 days after the board of
township trustees’ April 4 voice-vote adoption of the amended version of
MRLD’s Rezoning Proposal LTZ 09-01 and 30 days after the board’s May 4
approval of the minutes for the April 4 hearing. The petitioners specified that
they sought a referendum “on the proposal to amend the Zoning Map of the
unincorporated area of Liberty Township, Delaware County, Ohio,” that was
“[a]dopted on the 4th day of May, 2011 by the Liberty Township Board of
Trustees, Rezoning Proposal LTZ-09-01 [and that] would permit the rezoning of
216+ acres at the intersection of Home Road and Olentangy River Road from
Farm Residence District (FR-1) to Planned Residence District (PR).”
{¶ 10} With their petition, the petitioners submitted a black-and-white
copy of the official zoning map for all of Liberty Township. The map was not
highlighted or otherwise marked to delineate the 216.3-acre property subject to
the zoning amendment being challenged.
{¶ 11} On June 23, 2011, relators, Edwards Land, Driscoll, MRLD, and
Knowlton, submitted a protest to the Delaware County Board of Elections against
the referendum petition. In their protest, relators specified eight separate grounds,
including the two grounds argued here—that the referendum petition was not
timely filed and that the petitioners did not submit an appropriate map of the area
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affected by the zoning proposal. On June 28, the board of elections certified the
referendum petition and placed the rezoning issue on the November 8, 2011
general-election ballot.
{¶ 12} On July 18, 2011, the board of elections held a hearing on relators’
protest. Relators and the petitioners were represented by counsel at the hearing,
and sworn testimony was submitted. Kathy Melvin, the clerk of the Liberty
Township Board of Trustees, testified that the board of trustees addresses zoning
amendments by motion at a public hearing rather than by written resolution
because the board considers zoning amendments to require only an
“administrative review.” The board of elections voted two-to-one to deny the
relators’ protest and to affirm its prior certification of the referendum to the
November 8 election ballot. The board also issued a document entitled “Findings
of Fact and Conclusion and Decision” in which it gave reasons for rejecting each
of relators’ protest grounds.
{¶ 13} Eight days later, on July 26, 2011, relators filed this action for a
writ of prohibition to prevent the board of elections from certifying to the
November 8 election ballot a referendum on Liberty Township Rezoning Proposal
LTZ 09-01 and a writ of mandamus to compel the board of elections to sustain
relators’ protest against the referendum petition. Relators also filed a motion to
expedite. The board of elections filed an answer and a response to the motion to
expedite.
{¶ 14} On August 11, this court granted an expedited alternative writ on
relators’ prohibition claim and issued an accelerated schedule for the submission
of briefs and evidence. 129 Ohio St.3d 1433, 2011-Ohio-3948, 951 N.E.2d 440.
We also dismissed relators’ mandamus claim. Id.; see, e.g., State ex rel. Phillips
v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 537, 757 N.E.2d 319,
quoting State ex rel. Grendell v. Davidson (1999), 86 Ohio St.3d 629, 634, 716
N.E.2d 704 (“ ‘In general, if the allegations of a complaint for a writ of
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mandamus indicate that the real objects sought are a declaratory judgment and a
prohibitory injunction, the complaint does not state a cause of action in
mandamus and must be dismissed for want of jurisdiction’ ”).
{¶ 15} Although none of the referendum petitioners intervened as parties
in this case, referendum-petition-circulator Robert Cohen filed an amicus curiae
brief in support of the board of elections.
{¶ 16} This cause is now before the court for our consideration of the
merits.
Law and Analysis
Prohibition
{¶ 17} To be entitled to the writ of prohibition they seek, relators must
establish that (1) the board of elections is about to exercise or has exercised quasi-
judicial power, (2) the exercise of that power is unauthorized by law, and (3)
denying the writ will result in injury for which no other adequate remedy exists in
the ordinary course of law. State ex rel. Eshleman v. Fornshell, 125 Ohio St.3d 1,
2010-Ohio-1175, 925 N.E.2d 609, ¶ 11.
{¶ 18} Relators have satisfied the first requirement for the writ because the
board of elections exercised quasi-judicial authority by denying their protest after
a hearing that included sworn testimony. State ex rel. Knowlton v. Noble Cty. Bd.
of Elections, 126 Ohio St.3d 483, 2010-Ohio-4450, 935 N.E.2d 395, ¶ 33.
{¶ 19} Relators have also established the third requirement for the writ
because of the proximity of the election. Id. The board of elections erroneously
asserts that because S.Ct.Prac.R. 10.9, which governs procedure for expedited
election cases, applies only to actions filed within 90 days of an election, the rule
implies that when an election is more than 90 days away, relators have other legal
remedies available to them. We have never so held, and we have recognized the
propriety of writ actions challenging elections-board decisions in cases that were
not governed by S.Ct.Prac.R. 10.9. See State ex rel. Allen v. Warren Cty. Bd. of
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Elections, 115 Ohio St.3d 186, 2007-Ohio-4752, 874 N.E.2d 507 (mandamus case
filed on July 17, 2007, to challenge July 3, 2007 board decision regarding the
November 6, 2007 election).
{¶ 20} For the remaining requirement, “[i]n extraordinary actions
challenging the decisions of * * * boards of elections, the standard is whether they
engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of
applicable legal provisions.” Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio
St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11.
{¶ 21} Relators claim that the board of elections abused its discretion and
clearly disregarded R.C. 519.12(H) in denying their protest.
R.C. 519.12(H)’s 30-Day Filing Requirement
{¶ 22} R.C. 519.12(H) specifies that a township zoning amendment
becomes effective 30 days after it is adopted by the board of township trustees
unless a referendum petition is filed within the 30 days after it is adopted:
{¶ 23} “The proposed amendment, if adopted by the board, shall become
effective in thirty days after the date of its adoption, unless, within thirty days
after the adoption, there is presented to the board of township trustees a petition,
signed by a number of registered electors residing in the unincorporated area of
the township or part of that unincorporated area included in the zoning plan equal
to not less than eight per cent of the total vote cast for all candidates for governor
in that area at the most recent general election at which a governor was elected,
requesting the board of township trustees to submit the amendment to the electors
of that area for approval or rejection at a special election to be held on the day of
the next primary or general election that occurs at least ninety days after the
petition is filed. Each part of this petition shall contain the number and the full
and correct title, if any, of the zoning amendment resolution, motion, or
application, furnishing the name by which the amendment is known and a brief
summary of its contents.” (Emphasis added.)
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{¶ 24} R.C. 519.12(H) required the referendum petitioners to present their
petition to the board of township trustees within 30 days after the “adoption” by
the board of Rezoning Proposal LTZ 09-01 as amended. The parties disagree
over the meaning of the word “adoption.” Relators argue that the proposal was
adopted when the board of township trustees voted to approve the rezoning on
April 4; the board of elections asserts that the adoption occurred on May 4, when
the board of township trustees approved the minutes recording its prior vote.
{¶ 25} In construing R.C. 519.12(H), our paramount concern is the
legislative intent in its enactment, and we determine this intent by reading
undefined statutory language according to the rules of grammar and common
usage. State ex rel. Wellington v. Mahoning Cty. Bd. of Elections, 120 Ohio St.3d
198, 2008-Ohio-5510, 897 N.E.2d 641, ¶ 29. The word “adoption” is not defined
in the statute. In its pertinent common definition, the word “adopt” means “to
vote to accept.” http://dictionary.reference.com/browse/adopt (accessed Aug. 29,
2011); see also The Oxford English Dictionary (2d Ed.1989) 171, defining
“adopt” as “[t]o approve, to confirm.” According to the uncontroverted testimony
of Kathy Melvin, the clerk of the Liberty Township Board of Trustees, the board
addresses zoning amendments by motion at a public hearing rather than by written
resolution because the board considers zoning amendments to require only an
“administrative review.” Indeed, under R.C. 519.12(H), the board of trustees is
reviewing a recommendation of the zoning commission.
{¶ 26} The board thus accepted the recommendation of the zoning
commission with modifications at its April 4, 2011 hearing by unanimously
granting a motion to approve the application for rezoning, as amended. The
minutes describe the action as follows:
{¶ 27} “Mr. Mann moved to approve the Application as amended. The
motion was seconded by Mr. Sybert and the roll call vote: Ms. Carducci-yes, Mr.
Sybert-yes, and Mr. Mann-yes. The motion passed with a 3-yes and 0-no vote.”
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{¶ 28} The application was approved upon the vote. There was a motion
to approve the amendment, and the motion passed. Thus, April 4 was the date
that the board approved the application for rezoning by vote, adopting a modified
version of the zoning commission’s recommendation. The common meaning of
“adoption” does not require the further step of recordation of the approval.
{¶ 29} It might be preferable for the board of township trustees to adopt
contemporaneous written resolutions in approving zoning amendments, but in the
absence of any statutory or other legal requirement, the board had no duty to do
so. “We will not add a requirement that does not exist in the statute.” State ex
rel. Columbia Reserve Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167,
2006-Ohio-5019, 855 N.E.2d 815, ¶ 32.
{¶ 30} In contrast, R.C. 519.12(E) sets the time period for the board of
township trustees to have a public hearing on a zoning amendment after the
zoning commission has made its recommendation, and it does require the
recordation of the zoning commission’s recommendation. The zoning
commission must “submit” its recommendation to the board of trustees, and the
board of trustees must hold a public hearing “not * * * more than thirty days from
the date of the receipt of [the zoning commission’s] recommendation.” Thus,
R.C. 519.12 calls for the submission and receipt of a recommendation, which
implies that the zoning commission’s recommendation must be written. The 30-
day clock starts after the board of trustees receives the zoning commission’s
submission. R.C. 519.12(H) requires no submission or receipt of the board of
trustees’ decision in order to start the 30-day referendum clock. It starts once the
decision is made.
{¶ 31} R.C. 121.22(C), which is cited by the board of elections and amicus
curiae, is not relevant in this case. R.C. 519.12(H) need not be read in pari
materia with R.C. 121.22(C), because they are not logically related in this case.
R.C. 121.22(C) is Ohio’s open-meetings statute. It provides:
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{¶ 32} “All meetings of any public body are declared to be public
meetings open to the public at all times. A member of a public body shall be
present in person at a meeting open to the public to be considered present or to
vote at the meeting and for purposes of determining whether a quorum is present
at the meeting.
{¶ 33} “The minutes of a regular or special meeting of any public body
shall be promptly prepared, filed, and maintained and shall be open to public
inspection.”
{¶ 34} No one claims that the board of trustees’ hearing was not public.
No one has complained that the township failed to produce minutes. Nothing in
the record suggests that the petitioners sought and were denied minutes from the
April 4 hearing. If they had been denied those minutes, mandamus would lie to
force their preparation pursuant to R.C. 121.22(C). State ex rel. Cincinnati Post v.
Cincinnati (1996), 76 Ohio St.3d 540, 545, 668 N.E.2d 903. But there is no
language in R.C. 121.22(C) that says that a legislative enactment does not become
official until minutes are approved. “Minutes serve as records of actions, not as
actions themselves.” Davidson v. Hanging Rock (1994), 97 Ohio App.3d 723,
733, 647 N.E.2d 527. In Davidson, the court rejected the proposition that under
R.C. 121.22, a failure to approve meeting minutes renders all actions taken during
the meeting void.
{¶ 35} The board of elections and amicus curiae assert that allowing the
board of township trustees to adopt a zoning amendment by voice vote and
modify that amendment in the process, without requiring the board of township
trustees to incorporate its action contemporaneously in written form to start the
30-day period to file a referendum petition, unduly restricts the right of
referendum under R.C. 519.12(H). As an abstract principle, that assertion may
well have merit. But R.C. 519.12(H) does not require a board of township
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trustees to create a writing noting that it adopted the recommendation of the
zoning commission, even when the board makes modifications.
{¶ 36} And in this case, there is no evidence that the referendum
petitioners either lacked notice of the board of township trustees’ April 4 adoption
of the zoning amendment or were unfairly prejudiced in their ability to submit a
referendum petition because of the lack of a written record on the date that the
board of township trustees adopted the amendment. To the contrary, there is
evidence that the referendum petitioners’ representative at the protest hearing
before the board of elections—a petition circulator named Tony Gioffre—was
present and spoke at the board of township trustees’ April 4 hearing. Similarly,
amicus curiae Robert Cohen, a second petition circulator, was also present at two
board of township trustees’ meetings.
{¶ 37} In addition, interested citizens could have asked to see the
unofficial meeting minutes of the board of township trustees, which were
completed within a week or a week and a half after the April 4 hearing. Or they
could have requested to listen to the audio record of that hearing. The
introduction to the April 4, 2011 minutes even states: “The audio recording,
resolutions passed, and any attachments constitutes an accurate record of the
Liberty Township Trustee Proceedings at the above dated meeting as determined
by the Fiscal Officer. The following summary is provided as an overview of the
meeting and a road map to the audio recording.”
{¶ 38} And although the board of township trustees did, in fact, amend the
proposed zoning amendment, these amendments were not material to the
referendum petitioners’ challenge, because the petition itself did not even mention
these amendments. The language ultimately used by the petitioners in their
petition could have been taken from MRLD’s amended zoning application. The
application and maps related to it must be available for viewing by the public ten
days before the zoning-commission hearing and ten days before the board of
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township trustees’ hearing. R.C. 519.12(C)(5) and (F)(5). Thus, the petitioners
here did not—as the board of elections claims—“lack the details necessary to
prepare a valid referendum petition” because of the absence of written minutes or
a resolution.
{¶ 39} Finally, a contrary ruling would engender unreasonable results.
Leaving the citizens of Liberty Township unable to vote on an important
community issue is unfortunate, but the board of elections’ advocated
construction of R.C. 519.12(H)—that the zoning amendment in this case was not
adopted until written minutes of its adoption were adopted—is untenable. This
new definition of the word “adoption” would elevate hearing minutes to the status
of legislation and invite confusion in any number of future cases, suggesting to
Ohioans that no governing body—county commissioners, city council, or school
board—or any other public board, local or state, performs any official act until a
written record of the act is prepared and approved. Every legislative act at every
level of government would be held in abeyance until the preparation and approval
of minutes. Government cannot work that way.
{¶ 40} Therefore, based on the plain language of R.C. 519.12(H) as well
as the uncontroverted evidence adduced at the protest hearing, the referendum
petition, which was filed 60 days after the board of township trustees’ adoption of
the amendment, was 30 days too late to prevent the amendment from taking
effect. The board of elections should have thus sustained relators’ protest on this
ground.
Conclusion
{¶ 41} Based on the foregoing, the board of elections abused its discretion
and clearly disregarded R.C. 519.12(H) by denying relators’ protest, certifying the
referendum petition, and submitting the zoning amendment to the Liberty
Township electorate at the November 8, 2011 election ballot. The 30-day filing
period to submit a timely referendum petition demands strict compliance; “the
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settled rule is that election laws are mandatory and require strict compliance and
that substantial compliance is acceptable only when an election provision
expressly states that it is.” State ex rel. Ditmars v. McSweeney (2002), 94 Ohio
St.3d 472, 476, 764 N.E.2d 971 (plurality opinion). And “[a]lthough we liberally
construe R.C. 519.12(H) in favor of the right of referendum, that statute’s
requirements were not followed here.” State ex rel. Stoll v. Logan Cty. Bd. of
Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 47. Because
the applicable provisions of R.C. 519.12(H) are unambiguous, we must apply
them rather than construe them.
{¶ 42} Therefore, because relators have established their entitlement to the
requested extraordinary relief, we grant the writ of prohibition. By so holding, we
need not address relators’ remaining contention that the board of elections abused
its discretion and clearly disregarded applicable law by not sustaining their protest
against the referendum petition based on the appropriate-map requirement of R.C.
519.12(H).
Writ granted.
LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., concur.
O’CONNOR, C.J., and LANZINGER and MCGEE BROWN, JJ., dissent.
__________________
CUPP, J., concurring.
{¶ 43} I concur in the foregoing opinion, but with reservations.
{¶ 44} It concerns me that an official action of a board of township
trustees as significant as approving a change in the township zoning resolution
relating to a specific parcel of real estate does not have to be in writing in either
the form of a resolution or a written motion acting as a substitute for a formal
resolution.
{¶ 45} Written documents are often required to make governmental
actions official: a court “speaks” only through its written journal entries, a
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legislature “speaks” only through its written statutes and resolutions, and a city
“speaks” only through its written ordinances. Analogously, if a board of township
trustees can speak only through its written resolutions, this board has not “said”
anything official even yet.
{¶ 46} However, as the opinion notes, there is no statutory requirement
that a board of township trustees take its action in writing. Moreover, these
foregoing concerns were not directly raised or argued by the parties and,
therefore, are not presently before this court. Consequently, I must concur.
__________________
O’CONNOR, C.J., dissenting.
{¶ 47} This case involves the interplay between the people’s paramount
right of referendum, the limited 30-day period in R.C. 519.12(H) to exercise that
preeminent right to challenge a township zoning amendment, and the duty of the
board of township trustees to promptly prepare, file, and maintain minutes of its
meetings in the seemingly unique circumstance in which the board chooses not to
issue written resolutions or ordinances for these zoning amendments. Because the
majority misunderstands the interaction between the people’s right and the
township’s duty, grants the requested extraordinary relief in prohibition, and
thereby unreasonably divests the township citizens of their important right of
referendum, I respectfully dissent.
Right of Referendum
{¶ 48} The people’s right of referendum to challenge legislation “is a
means for direct political participation, allowing the people the final decision,
amounting to a veto power, over enactments of representative bodies.” Eastlake
v. Forest City Ents., Inc. (1976), 426 U.S. 668, 673, 96 S.Ct. 2358, 49 L.Ed.2d
132. It is “ ‘one of the most essential safeguards to representative government.’ ”
State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900,
916 N.E.2d 462, ¶ 20, quoting State ex rel. Nolan v. ClenDening (1915), 93 Ohio
14January Term, 2011
St. 264, 277, 112 N.E. 1029. Although Section 1f, Article II of the Ohio
Constitution “does not confer any constitutional right of referendum on township
electors challenging township resolutions,” R.C. 519.12(H) provides a statutory
right of referendum for township zoning amendments. State ex rel. McCord v.
Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758, 835
N.E.2d 336, ¶ 33, 37.
{¶ 49} We have held that “R.C. 519.12(H) should be liberally construed to
permit the exercise of the power of referendum by township electors even without
a constitutional provision applicable to townships comparable to that applicable to
municipalities in Section 1f, Article II, Ohio Constitution.” Id. at ¶ 37; see also
State ex rel. Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd. of Elections,
123 Ohio St.3d 260, 2009-Ohio-4980, 915 N.E.2d 1187, ¶ 36. Yet with little
consideration of the vital right of referendum, the majority readily discounts our
duty to liberally construe R.C. 519.12(H).
R.C. 519.12(H)’s 30-Day Filing Requirement
{¶ 50} As the majority acknowledges, R.C. 519.12(H) specifies that to
prevent a township zoning amendment from becoming effective 30 days after the
date it was adopted, a referendum petition must be filed within that 30 days. I am
mindful that the ordinary definition of the word “adoption” does not generally
require the further step of recordation of the approval by vote on a motion, as the
majority observes. As a general precept, in the vast majority of circumstances,
this is appropriate.
{¶ 51} However, R.C. 519.12(H) cannot be construed in a vacuum. And I
disagree with the majority’s dismissal of R.C. 121.22(C) as irrelevant. R.C.
121.22(C) provides that “[t]he minutes of a regular or special meeting of any
public body shall be promptly prepared, filed, and maintained and shall be open
to public inspection.” (Emphasis added.) See State ex rel. Colvin v. Brunner, 120
Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 46 (“statutes that relate to
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the same subject matter must be construed in pari materia so as to give full effect
to the provisions”). The minutes compelled by R.C. 121.22(C) are a necessary
component that facilitates a citizen’s right of referendum, especially when the
township does not adopt written resolutions for its zoning amendments. Because
of the unquestioned importance of the right of referendum as well as the fact that
the Liberty Township Board of Trustees does not adopt written resolutions for its
zoning amendments, the majority should have liberally construed R.C. 519.12(H)
in pari materia with R.C. 121.22(C).
{¶ 52} Allowing the board of township trustees to adopt a zoning
amendment by voice vote and to modify that amendment in the process with
detailed oral amendments to the proposal, without requiring the board to
incorporate its action contemporaneously in written form to start the critical 30-
day period to file a referendum petition, unduly restricts the township electors’
right of referendum under R.C. 519.12(H). “One of the strengths of American
government is the right of the public to know and understand the actions of their
elected representatives. This includes not merely the right to know a government
body’s final decision on a matter, but the ways and means by which those
decisions were reached.” White v. Clinton Cty. Bd. of Commrs. (1996), 76 Ohio
St.3d 416, 419, 667 N.E.2d 1223.
{¶ 53} The Liberty Township Board of Trustees does not enact written
resolutions memorializing their zoning amendments, because they consider
zoning-amendment proposals to require only an “administrative review.” But the
zoning amendment here is manifestly a legislative act subject to referendum. See
State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio St.3d 5,
11, 630 N.E.2d 313 (“Generally, the adoption of a zoning amendment, like the
enactment of the original zoning ordinance, is a legislative act which is subject to
referendum”); Tuber v. Perkins (1966), 6 Ohio St.2d 155, 157, 35 O.O.2d 255,
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216 N.E.2d 877 (“the action of a Board of Township Trustees in adopting or
amending a zoning regulation is a legislative action”).
{¶ 54} Without a written record of the zoning amendment’s approval by
the board of township trustees, citizens are hampered in exercising their time-
sensitive right to referendum. See Bd. of Twp. Trustees v. Spring Creek Gravel
Co., Inc. (1975), 45 Ohio App.2d 288, 289-290, 74 O.O.2d 409, 344 N.E.2d 156(“The failure to record the adoption of [a township zoning] amendment
substantially affects the right to request a referendum”); see also Crates v.
Garlock Bros. Constr., Hancock App. No. 5-91-8, 1991 WL 229216, *3 (rezoning
by township trustees is legislative in nature, and in the absence of a record, a
rezoning cannot be presumed).
{¶ 55} By way of example, citizens challenging a zoning amendment need
a written record of the amendment to accurately summarize it for purposes of
properly invoking their statutory right of referendum. See R.C. 519.12(H); State
ex rel. Gemienhardt v. Delaware Cty. Bd. of Elections, 109 Ohio St.3d 212, 2006-
Ohio-1666, 846 N.E.2d 1223, ¶ 57 (referendum petitioners must strictly comply
with R.C. 519.12(H)’s brief-summary requirement). As noted by the board of
elections, “[w]here strict compliance is required, it is unreasonable to require a
referendum petition to be prepared from memory or mere notes.”
{¶ 56} Without any evidentiary support, the majority admonishes that
“interested citizens” could have requested to listen to audio recordings of the
meeting. Majority opinion at ¶ 37. However, the majority overlooks the lack of
any sworn testimony concerning whether the recordings or the meeting minutes
were actually available to citizens before the board’s approval of the minutes.
Relators, as the protestors against the referendum petition, manifestly had the
burden of establishing that the referendum petition violated the R.C. 519.12(H)
30-day requirement, but much of the so-called evidence they—and the majority—
rely on here was not properly submitted as sworn evidence at the board’s protest
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hearing. Instead, it is little more than mere supposition and baseless speculation.
“[A] claim that the board of elections abused its discretion * * * [can]not be based
on evidence that was never presented to it.” State ex rel. Stoll v. Logan Cty. Bd.
of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881 N.E.2d 1214, ¶ 40.
{¶ 57} Therefore, after construing R.C. 519.12(H) in pari materia with
R.C. 121.22(C) and abiding by the court’s duty to liberally construe the statutory
right of referendum in favor of its exercise, I would hold that the word “adoption”
for purposes of the critical 30-day deadline to submit a referendum petition refers
to the written recordation of the zoning amendment, either by resolution or by
detailed minutes. This result is particularly justified under the circumstances
present in this case, which include the absence of a written resolution and the 30-
day delay in recording the verbal approval of the board, including its verbal
amendments to relators’ zoning proposal.
{¶ 58} The majority’s narrow construction of the pertinent provisions will
harshly and unduly restrict—and in some cases, unfairly eliminate— citizens’
paramount right of referendum, particularly the rights of those citizens who may
not have the ability to attend the board of township trustees’ meetings. See White,
76 Ohio St.3d at 420, 667 N.E.2d 1223 (“keeping full minutes [of board of county
commissioners’ meetings] allows members of the public who are unable to attend
the meetings in person to obtain complete and accurate information about the
decision-making process of their government. * * * Most people’s day-to-day
schedule leaves them with far too little time to attend government meetings”).
{¶ 59} Moreover, the majority’s decision will allow a board of township
trustees to thwart the township citizens’ right of referendum by intentionally
delaying the preparation of a written record of the approval of a zoning
amendment. By narrowly construing R.C. 519.12(H) without deference to the
right of referendum, the majority has engendered this unreasonable result. Colvin,
120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 58 (courts have duty to
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construe constitutional and legislative provisions to avoid unreasonable or absurd
results).
{¶ 60} Insofar as the majority opinion cites a veritable parade of horribles
to suggest that its holding, which usurps the township electors’ critical right to
approve or reject a zoning amendment that directly affects them, is somehow
warranted, suffice it to say that none of those particular circumstances are before
the court in this case. That is, the court could deny relators’ request for
extraordinary relief in prohibition without “suggesting to Ohioans that no
governing body—county commissioners, city council, or school board—or any
other public board, local or state, performs any official act until a written record
of the act is prepared and approved” or holding that “[e]very legislative act at
every level of government would be held in abeyance until the preparation and
approval of minutes.” Majority opinion at ¶ 39. Not every legislative act
involves the unique circumstances of this case, i.e., the important right of
referendum, an abbreviated statutory time period in which citizens can assert that
right, and the practice of a board of township trustees not to adopt zoning
amendments by a contemporaneous written resolution. Therefore, upholding the
board of elections’ denial of relators’ protest and recognizing the township
citizens’ right to referendum here would not have drastic consequences in other
unrelated contexts as the majority portends.
{¶ 61} I would therefore hold that the board of elections did not act in an
arbitrary, unconscionable, or unreasonable manner in determining that the
referendum petition was timely filed. In my view, the board of elections properly
rejected relators’ protest on this ground.
R.C. 519.12(H)’s Appropriate-Map Requirement
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SUPREME COURT OF OHIO
{¶ 62} I would further hold that the board of elections did not abuse its
discretion or clearly disregard R.C. 519.12(H) by determining that the map
submitted by the referendum petitioners was appropriate.1
{¶ 63} R.C. 519.12(H) requires that the referendum petition “be
accompanied by an appropriate map of the area affected by the zoning proposal.”
A “map accompanying a referendum petition [is] appropriate * * * for purposes
of R.C. 519.12(H) if it does not mislead the average person about the area
affected by the zoning resolution.” McCord, 106 Ohio St.3d 346, 2005-Ohio-
4758, 835 N.E.2d 336, ¶ 63. An objective rather than a subjective test is used to
determine whether a referendum-petition map is appropriate. State ex rel.
Columbia Reserve Ltd. v. Lorain Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-
Ohio-5019, 855 N.E.2d 815, ¶ 34.
{¶ 64} The board of elections determined that “[t]he map is appropriate
under the facts and circumstances of this case.”
{¶ 65} Relators assert that the board abused its discretion and clearly
disregarded applicable law in so holding based on our decision in Columbia
Reserve, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815. In that case, this
court held that the map filed by the referendum petitioners was not appropriate,
because it was a drawing that had been previously submitted with a different
township zoning resolution than the one that was the subject of the referendum, it
did not include all the area affected by the resolution and did not highlight the
area, and the referendum petitioners could have easily avoided any defect by
filing the map that had been previously approved by the board of township
trustees and that was attached to the resolution that was the subject of the
referendum. Id. at ¶ 35, 37.
1. Because the majority found relators’ first argument persuasive, it did not address this remaining
claim.
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January Term, 2011
{¶ 66} Columbia Reserve, however, is distinguishable in significant
particulars from this case. First, the referendum petitioners here did not submit a
map relating to a different zoning resolution. Second, the Liberty Township
Board of Trustees did not approve a map that it determined accurately reflected
the rezoning. Third, the referendum petitioners submitted a map that included all
of the area affected by the zoning amendment. Although it is true that the map
included the entire township and the petitioners did not highlight the smaller area
subject to the rezoning, the text of the petition together with the map would not
have misled the average person about the area affected by the amendment. The
text of the petition specified the area and location of the property—“216+ acres at
the intersection of Home Road and Olentangy River Road”—as well as the
specific parcels involved. Fourth, the referendum petitioners here could not have
easily avoided any perceived defect by filing one of the alternate maps submitted
by relators in the zoning process. None of the maps submitted by relators in the
zoning process included the board of township trustees’ amendments regarding
road restrictions, and the maps appear to either contain property outside the
affected area or depict less than the entire affected area. That is, if the referendum
petitioners had done as relators now claim they should have—submitted one of
relators’ zoning maps with the referendum petition—it is likely that relators
would claim that that map was likewise defective.
{¶ 67} Consequently, Columbia Reserve does not require a finding that the
referendum petitioners violated the appropriate-map requirement of R.C.
519.12(H). The board of elections did not abuse its discretion or clearly disregard
R.C. 519.12(H) by determining that the map submitted by the referendum
petitioners was appropriate.
{¶ 68} Therefore, I would hold that the board of elections properly
rejected relators’ protest on this ground as well.
Conclusion
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SUPREME COURT OF OHIO
{¶ 69} The board of elections neither abused its discretion nor clearly
disregarded R.C. 519.12(H) by denying relators’ protest, certifying the
referendum petition, and submitting the zoning amendment to the Liberty
Township electorate on the November 8, 2011 election ballot. The referendum
petitioners complied with the requirements of R.C. 519.12(H). Therefore, relators
have not established their entitlement to the requested extraordinary relief, and
this court should deny the writ of prohibition. Because the majority fails to
correctly apply the applicable law and thereby cripples the township electors’
critical right of referendum, I respectfully, but vigorously, dissent.
LANZINGER and MCGEE BROWN, JJ., concur in the foregoing opinion.
__________________
McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis,
and J. Corey Colombo; and Crabbe, Brown & James, L.L.P., Larry H. James,
Andy Douglas, and Laura M. Comek, for relators.
Carol Hamilton O’Brien, Delaware County Prosecuting Attorney, and
Christopher D. Betts, Assistant Prosecuting Attorney, for respondent.
Robert G. Cohen, pro se, urging denial of the writ as amicus curiae.
______________________
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