State ex rel. Donaldson v. Delaware Cty. Bd. of Elections (Slip Opinion) ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Donaldson v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-2943.]
NOTICE
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SLIP OPINION NO. 2021-OHIO-2943THE STATE EX REL. DONALDSON v. DELAWARE COUNTY BOARD OF
ELECTIONS ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Donaldson v. Delaware Cty. Bd. of Elections, Slip
Opinion No. 2021-Ohio-2943.]
Mandamus—Writ of mandamus sought to compel the board of elections to include
a referendum on a zoning amendment on the November 2021 ballot—Brief
summary of contents in a zoning-amendment petition pursuant to R.C.
519.12(H) that fails to summarize the contents of the zoning amendment
passed by the township trustees or otherwise include the location of the
property being rezoned and the zoning change does not fairly and
accurately describe the issue being presented to persons being asked to sign
the petition —Board of elections did not abuse its discretion or disregard
clearly applicable law in sustaining an objection to the referendum
petition—Writ denied.
(No. 2021-0867—Submitted August 23, 2021—Decided August 26, 2021.)
SUPREME COURT OF OHIO
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} Relator, Scott Donaldson, seeks to place a referendum on the
November 2021 ballot asking voters to approve or disapprove an amendment to the
Liberty Township Zoning Resolution. Respondent, Delaware County Board of
Elections, sustained a protest to the referendum petition because the petition did not
include an adequate summary of the zoning amendment as required by R.C.
519.12(H). Donaldson asks this court to issue a writ of mandamus ordering the
board of elections to place the referendum on the ballot. We deny the writ because
the board of elections did not abuse its discretion or disregard clearly applicable
law in sustaining the protest.
I. Factual and Procedural Background
{¶ 2} The zoning amendment at issue in this case would allow a planned
development on 17 parcels of land, totaling approximately 190 acres, in Liberty
Township. Currently, the various parcels are zoned as either planned-residence or
farm-residence districts.
{¶ 3} The various owners of the 17 parcels, including intervening
respondent Clarkshaw Reserve I, L.L.C. (“Clarkshaw”), submitted to the Liberty
Township Board of Trustees (the “township”) an application to establish a “planned
overlay district” known as “POD 18(D)” and to amend the township’s zoning
resolution accordingly. The affected property would be rezoned for a planned-unit
development under R.C. 519.021(C).1 Between October 2020 and January 2021,
the Liberty Township Zoning Commission considered the proposed amendment
and held at least two public hearings on the proposal. On January 27, 2021, the
1. R.C. 519.021(C) provides: “Pursuant to section 519.12 of the Revised Code, the board of
township trustees may adopt planned-unit development regulations and amend the zoning map to
rezone property as planned-unit developments.”
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January Term, 2021
zoning commission adopted a resolution recommending that the proposed
amendment be denied.
{¶ 4} The township held public hearings on February 16 and March 15,
2021, to consider the proposed zoning amendment. See R.C. 519.12(E)(3) (stating
that a board of township trustees shall have a public hearing on the proposed
amendment after receipt of the zoning commission’s recommendation). Clarkshaw
modified the zoning amendment in response to some residents’ concerns and
submitted the modified version to the township on March 12, 2021. Clarkshaw’s
modifications created five subareas with varying permitted uses in the proposed
POD 18(D). The four largest subareas would be rezoned for residential and/or
certain commercial uses, and the fifth subarea would be rezoned to permit hospital
or certain healthcare use.
{¶ 5} At the March 15 meeting, the township approved Clarkshaw’s
amended version of the zoning amendment, along with 36 additional modifications
that were read into the record. Thereafter, Donaldson circulated a petition to subject
the POD 18(D) zoning amendment to a referendum in the November 2 election.
And on April 13, Donaldson delivered a referendum petition to the township. Each
part-petition contained the following:
The following is a brief summary of the proposed zoning
amendment:
The proposed amendment would add Article 18D to the
Zoning Resolution and create the planned overlay district as a
planned unit development under Ohio Revised Code 519.021(C)
and which would include sections detailing: the purpose and
establishment of the overlay; requirements for the overlay, including
development tract sizes, permitted uses, open space and prohibited
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uses; establishment of a review process and procedure; process for
modification or extension of development plan; basis of approval;
an approval period; process for modification or extension of
development plan; provisions for design standards and minimum
development standards including, but not limited to, access,
setbacks, yard areas, signage, landscaping, parking, loading, and
open space; and provisions for divergences from minimum
development standards. This amendment would also amend Section
5.01 by adding the POD 18D as a zoning district in the Zoning
Resolution and revising the Zoning Map to designate the POD 18D
area. As part of the proposed amendment, the area and parcels
proposed to be rezoned to the POD 18D are shown on the POD 18D
Overlay Zoning District Map which is attached to and made part of
the proposed amendment text.
The “POD18D Overlay Zoning District Map” referred to in the summary was not
attached to the part-petitions that were circulated for signature. According to
Donaldson, the language used in the summary was derived from the public-hearing
notices issued by the zoning commission and the township on the proposed zoning
amendment.
{¶ 6} On April 19, the township adopted a resolution certifying the petition
to the board of elections. Clarkshaw submitted a protest letter to the board of
elections, challenging the validity and sufficiency of the petition’s summary of the
zoning amendment. The board of elections certified the referendum for the
November 2 ballot without addressing the sufficiency and validity of the summary.
{¶ 7} Clarkshaw, joined by two other protesters, resubmitted the protest
letter on May 13. The protest letter alleged three deficiencies in the petition
summary: (1) failure to identify the property subject to the referendum, (2) failure
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January Term, 2021
to adequately describe the township trustees’ zoning resolution, and (3) failure to
include modifications made to the zoning amendment prior to its passage by the
township trustees.
{¶ 8} The board of elections held a protest hearing on June 28. Donaldson
filed a motion to dismiss the protest, arguing that the board of elections lacked
jurisdiction over the protest because the zoning amendment at issue was not
properly initiated under R.C. 519.021(C) and was therefore void. The board of
elections denied the motion and following testimony and the submission of
evidence, voted to sustain the protest and decertify the petition from the November
ballot.
{¶ 9} Donaldson commenced this action on July 14 and filed an amended
complaint on July 19, naming the board of elections, the township, and individual
township trustees as respondents. In his first claim for relief, Donaldson seeks a
writ of mandamus ordering the board of elections to place the referendum petition
on the November 2 ballot. The second through fifth claims sought extraordinary
relief in either mandamus or prohibition against the board and the township
respondents. The court set an expedited schedule ordering respondents to respond
to the amended complaint by July 23. See 163 Ohio St.3d 1503, 2021-Ohio-2453,
170 N.E.3d 893.
{¶ 10} The board of elections and the township timely filed answers and
motions to dismiss the second through fifth claims for relief under Civ.R. 12(B)(6),
and Clarkshaw filed a motion to intervene as a respondent. We granted the motion
to intervene, granted the motions to dismiss counts two through five, and dismissed
the township respondents as parties to this action. See 163 Ohio St.3d 1514, 2021-
Ohio-2627, 171 N.E.3d 337. We also granted an alternative writ as to the first claim
and set an expedited schedule for the submission of evidence and merit briefs. Id.Donaldson, Clarkshaw, and the board of elections have submitted evidence and
merit briefs, and the matter is ripe for our decision.
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II. Analysis
{¶ 11} To obtain a writ of mandamus ordering the board of elections to
place the referendum on the November ballot, Donaldson must establish by clear
and convincing evidence (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide it, and (3) the lack of an adequate
remedy in the ordinary course of the law. See State ex rel. Ebersole v. Powell, 149
Ohio St.3d 501, 2017-Ohio-509, 75 N.E.3d 1245, ¶ 10. Given the proximity of the
November election, Donaldson lacks an adequate remedy in the ordinary course of
the law. See State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d
462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18. As to the remaining elements,
Donaldson must show that the board of elections engaged in fraud or corruption,
abused its discretion, or clearly disregarded applicable law in invalidating the
referendum petition. See State ex rel. Jacquemin v. Union Cty. Bd. of Elections,
147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9. Donaldson does not
claim fraud or corruption on the part of the board of elections; therefore, the
relevant inquiry is whether the board abused its discretion or clearly disregarded
applicable law.
A. The Petition’s Summary
{¶ 12} Each part-petition calling for a referendum on a zoning amendment
“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.” R.C. 519.12(H). A
referendum petition must comply strictly with these requirements. State ex rel.
Quinn v. Delaware Cty. Bd. of Elections, 152 Ohio St.3d 568, 2018-Ohio-966, 99
N.E.3d 362, ¶ 30. The sole issue in this case is whether the summary of POD 18(D)
contained in the referendum petition complied strictly with R.C. 519.12(H).
{¶ 13} The phrase “brief summary of its contents” in R.C. 519.12(H) “refers
to the zoning resolution, motion, or application passed or approved by the board of
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January Term, 2021
township trustees.” E. Ohio Gas Co. v. Wood Cty. Bd. of Elections, 83 Ohio St.3d
298, 300-301, 699 N.E.2d 916 (1998); see also Tam O’Shanter Co. v. Stark Cty.
Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 18
(explaining the three statutory methods—motion, resolution, or application—by
which a township zoning amendment may be initiated). Regardless of the method
by which the zoning amendment is initiated, the petition must summarize the
contents of the zoning amendment passed by the township trustees. Id. at ¶ 19; see
also State ex rel. Barney v. Union Cty. Bd. of Elections, 159 Ohio St.3d 50, 2019-
Ohio-4277, 147 N.E.3d 595, ¶ 31 (R.C. 519.12(H) requires “a brief summary of the
contents of the zoning amendment”); State ex rel. O’Beirne v. Geauga Cty. Bd. of
Elections, 80 Ohio St.3d 176, 179, 685 N.E.2d 502 (1997) (“brief summary of its
contents” refers to the zoning amendment passed by the township trustees). “The
purpose of requiring a summary is ‘to present fairly and accurately the question or
issue to be decided in order to assure a free, intelligent and informed decision by
the persons to whom it is presented.’ ” State ex rel. Hamilton v. Clinton Cty. Bd. of
Elections, 67 Ohio St.3d 556, 559, 621 N.E.2d 391 (1993), quoting Nunneker v.
Murdock, 9 Ohio App.3d 73, 77, 458 N.E.2d 431 (1st Dist.1983). If the summary
contains material omissions that would confuse the average person, the referendum
petition is invalid and may not be submitted to a vote. State ex rel. Gemienhardt v.
Delaware Cty. Bd. of Elections, 109 Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d
1223, ¶ 38; see also S.I. Dev. & Constr., L.L.C. v. Medina Cty. Bd. of Elections,
100 Ohio St.3d 272, 2003-Ohio-5791, 798 N.E.2d 587, ¶ 17 (summary must be
“accurate and unambiguous” to be valid).
{¶ 14} The obligation to briefly summarize a zoning amendment “implicitly
requires a referendum petition to accurately describe property subject to rezoning.”
State ex rel. Rife v. Franklin Cty. Bd. of Elections, 70 Ohio St.3d 632, 635, 640
N.E.2d 522 (1994) (describing the identical “brief summary” requirement in R.C.
303.12(H) applicable to county zoning amendments). In this case, the petition
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summary describes in general terms that POD 18(D) would amend the Liberty
Township Zoning Resolution to add a planned overlay district. But nowhere does
the summary contain any information about where the planned overlay district is
located. The average person reading the summary would not know where the
planned overlay district is located or what property is included within it.
{¶ 15} Equally problematic is the petition’s failure to describe the nature of
the zoning amendment. This court has found a referendum petition’s summary to
be “ambiguous and misleading” when it “failed to apprise the reader of the present
zoning status of the land and of the precise nature of the requested change.” Shelly
& Sands, Inc. v. Franklin Cty. Bd. of Elections, 12 Ohio St.3d 140, 142, 465 N.E.2d
883 (1984); see also O’Beirne at 181 (present use and zoning of the property at
issue was “material information” and its omission rendered the petition summary
deficient). The petition summary in this case did not describe either the current use
of the property or the uses that the zoning amendment would permit. The summary
stated that the zoning amendment would “include sections detailing * * * permitted
uses, open space and prohibited uses” and that the zoning resolution and map would
be amended to designate the POD 18(D) area.
{¶ 16} Accordingly, the board of elections did not abuse its discretion or
disregard applicable law in deciding that the petition summary was deficient for
failing to provide material information to those who were asked to sign it. At a
minimum, the summary should have identified the location of the land being
rezoned and explained the proposed zoning change. Without this minimum
information, a petition summary does not present the issue fairly and accurately to
those being asked to sign the petition. Indeed, even in cases relied upon by
Donaldson in which we upheld the validity of the petition, the summary at issue
contained at least this information. See State ex rel. C.V. Perry & Co. v. Licking
Cty. Bd. of Elections, 94 Ohio St.3d 442, 445, 764 N.E.2d 411 (2002) (summary
specified address of property and the zoning change “from AG to PUD” use); Rife,
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January Term, 2021
70 Ohio St.3d at 632-633, 640 N.E.2d 522 (summary specified address and acreage
of the property and the zoning change to “general industrial”). The board of
elections therefore did not err in finding the petition invalid in this case.
B. Donaldson’s Reliance on Public-Hearing Notice and Zoning-Commission
Language
{¶ 17} Despite the omissions described above, Donaldson argues that the
petition’s summary was sufficient as a matter of law because it was the same as the
summary used (1) by the zoning commission in its notices of public hearings on the
proposed amendment, (2) by the zoning commission in its resolution
recommending disapproval of the amendment, and (3) by the township in its notices
of public hearings in February and March 2021. Donaldson argues that the board
of elections abused its discretion and disregarded applicable law by requiring the
petition summary to include information that was not in the township’s description
of the zoning amendment. Donaldson’s argument is unpersuasive.
{¶ 18} Donaldson ignores that it is the zoning amendment as adopted by the
township that must be summarized in the petition. See Barney, 159 Ohio St.3d 50,
2019-Ohio-4277, 147 N.E.3d 595, at ¶ 31; Tam O’Shanter Co., 151 Ohio St.3d 134,
2017-Ohio-8167, 86 N.E.3d 332, at ¶ 19. It is irrelevant that the petition summary’s
text was identical to the public-hearing notices used by the township because those
notices did not summarize the zoning amendment passed by the township. Those
notices simply informed the public of hearings that were scheduled to take place on
the proposed amendment (prior to its enactment). And unlike the petition summary
required by R.C. 519.12(H), notices for hearings before the zoning commission or
the township trustees are not required to contain a summary of the proposed zoning
amendment. Rather, if (as in this case) an amendment rezones more than ten
parcels of land, the hearing notice must specify the time and place where the text
and maps of the proposed amendment will be available for examination for a period
of at least ten days prior to the hearing. See R.C. 519.12(D)(3) and (G)(3).
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{¶ 19} Nor does it matter that the language in the petition summary was the
same as that used in the zoning commission’s resolution recommending denial of
the proposed zoning amendment. Again, the relevant inquiry is whether the petition
adequately summarizes the zoning amendment passed by the township. Barney at
¶ 31; Tam O’Shanter Co. at ¶ 19. The zoning commission’s resolution was a
recommendation to the township, not a summary of the zoning amendment.
Moreover, the zoning commission’s resolution related to a previous version of POD
18(D), not the one that was ultimately passed by the township.
{¶ 20} Donaldson relies on a line of cases in which this court has held that
“when a referendum petition’s summary of a resolution contains substantially the
same wording as the resolution itself, * * * the summary complies with the statutory
requirement, even when the summary fails to include a statement regarding the
meaning of the zoning classifications, the purpose of the zoning change, or the uses
specified in the development plan approved by the resolution.” State ex rel.
McCord v. Delaware Cty. Bd of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758,
835 N.E.2d 336, ¶ 43, citing C.V. Perry & Co., 94 Ohio St.3d at 445, 764 N.E.2d
411 and Rife, 70 Ohio St.3d at 634, 640 N.E.2d 522. But these cases are of no help
to Donaldson. The petition summary in this case did not summarize a zoning
resolution that was passed or approved by the township. As detailed above, the
petition summary borrowed from language contained in the public-hearing notices
and in a resolution of the zoning commission, not from any resolution or other
legislative act of the township passing the zoning amendment at issue.
{¶ 21} Donaldson also argues that the board of elections abused its
discretion because it “apparently wanted a map to be included with each part-
petition.” Donaldson bases his argument on a board member’s observation at the
protest hearing that there was no map attached to the petition that was circulated
for signature. As this court held in 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,
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January Term, 2021
there is no statutory requirement that a map of the affected area of a zoning
amendment be attached to a referendum petition.
{¶ 22} But here, the board did not find the petition deficient for want of a
map. On the contrary, a board member mentioned the inclusion of a map as one of
several ways in which the petition could have described the location of the property
to which the zoning amendment applied. In other words, the board member
suggested that a map attached to the petition could have provided material
information that was missing from the petition’s printed summary. See Barney,
159 Ohio St.3d 50, 2019-Ohio-4277, 147 N.E.3d 595, at ¶ 33-34 (material
information provided in an attachment to the petition but not in the printed summary
satisfied the summary requirement).
C. Alleged Voidness of Zoning Amendment
{¶ 23} Donaldson also argues that the zoning amendment at issue was not
properly initiated under R.C. 519.021 or enacted by the township under R.C.
519.12. He also asserts that the property owners’ application for POD 18(D) was
“defective at best and fraud at worst” because of alleged discrepancies between the
version of the application that the protesters filed with the board of elections and
the version maintained in the township’s records. Because of these alleged defects,
Donaldson argues that the application and the zoning amendment passed by the
township are nullities.
{¶ 24} Under R.C. 3501.11(K)(1), a board of elections has the authority to
determine the validity of a referendum petition. But alleged defects in a township’s
enactment of a zoning amendment are not a proper basis for granting mandamus
relief against a board of elections that has sustained a protest to a referendum
petition. While a board of elections’ authority to determine the validity of a
referendum petition may include the power to determine whether a ballot measure
is a proper subject of a referendum, boards do not sit as arbiters of the legality of
the underlying local legislation that is the subject of the referendum. See State ex
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rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-
Ohio-3761, 41 N.E.3d 1229, ¶ 11.
III. Conclusion
{¶ 25} For the foregoing reasons, Donaldson has failed to demonstrate by
clear and convincing evidence that the board of elections abused its discretion or
disregarded clearly applicable law in sustaining the protest to the referendum
petition. We therefore deny the writ.
Writ denied.
O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, and STEWART, JJ.,
concur.
FISCHER, J., concurs in judgment only.
BRUNNER, J., dissents and would grant the petition for a writ of mandamus
ordering the Delaware County Board of Elections to place the referendum issue on
the November 2, 2021 ballot.
_________________
Guzzo Law Office, L.L.C., and Peggy S. Guzzo, for relator.
Melissa A. Schiffel, Delaware County Prosecuting Attorney, and Mark W.
Fowler and Vince J. Villio, Assistant Prosecuting Attorneys, for respondent.
Vorys, Sater, Seymour and Pease L.L.P., and Joseph R. Miller, Christopher
L. Ingram, Elizabeth S. Alexander, and Muna Abdallah, for intervening respondent.
_________________
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