State ex rel. Federle v. Warren Cty. Bd. of Elections (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Federle v. Warren Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-849.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-849
THE STATE EX REL. FEDERLE ET AL. v. WARREN COUNTY BOARD OF
ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Federle v. Warren Cty. Bd. of Elections, Slip
Opinion No. 2019-Ohio-849.]
Prohibition—Writ sought to prevent a board of elections from placing a
referendum on a zoning resolution on the ballot—Mandamus—Writ sought
to order board of elections to sustain property owner’s protest of a
referendum—Property owners failed to show that the board of elections
abused its discretion or clearly disregarded applicable law—Claim that a
petition for referendum was legally insufficient is a claim for declaratory
and injunctive relief, not for an extraordinary writ—Writs denied.
(No. 2019-0104—Submitted February 19, 2019—Decided March 13, 2019.)
IN PROHIBITION and MANDAMUS.
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Per Curiam.
SUPREME COURT OF OHIO
{¶ 1} In this expedited elections case, relators, John A. and Sherry Federle,
seek (1) a writ of prohibition ordering respondent, the Warren County Board of
Elections, to remove from the May 7 ballot a referendum on a 2018 resolution
adopted by the Wayne Township Board of Trustees relating to property on which
the Federles hope to construct a housing development and (2) a writ of mandamus
ordering the board to sustain John Federle’s protest of the referendum. We deny
the writs.
I. FACTS
{¶ 2} R.C. 519.021 grants townships the power to establish planned-unit
developments (“PUDs”) in order to promote the general welfare and to encourage
innovation in planning and building and the efficient use of land resources. Within
a PUD, township zoning regulations “need not be uniform” and may vary to
“accommodate unified development.” Id. PUDs may “integrate residential,
commercial, industrial, or any other use.” Id. The zoning code of Wayne Township
provides that the PUD zoning classification “is intended to provide applicants with
more flexibility in design and development of land by relaxing conventional zoning
district regulations.” Wayne Township Zoning Code 1.309.1. PUD regulations
may apply to property only at the election of the property owner, with the approval
of the township trustees. Id. at 1.309.2; R.C. 519.021.
{¶ 3} Wayne Township’s zoning code permits a PUD to be applied to a
property as an “overlay,” Wayne Township Zoning Code 1.309.1, in which case,
the PUD regulations supplement the underlying zoning district, id. at 1.309.4 and
1.309.5(A)(2). This allows owners to use property “in a manner or intensity not
permitted as-of-right by the current [zoning] district regulations.” Id. at 2.501. The
Wayne Township zoning code provides for two types of PUD overlays: a general
PUD overlay and a village-transition PUD overlay (“VT-PUD overlay”). A general
PUD overlay may be applied to property located anywhere in the township. Id. at
1.309.4(A)(1) and 2.505.1(A). By contrast, a VT-PUD overlay—the type of
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overlay at issue in this case—may be applied only to property located within the
VT-PUD overlay district. Id. at 1.309.5(A)(1) and 2.506.1(A). The VT-PUD
overlay district is a limited area designated on the township’s official zoning map,
roughly encircling the village of Waynesville in the central part of the township.
{¶ 4} Wayne Township has an approval process that applies to both general
PUD overlays and VT-PUD overlays. Id. at 2.504.1. That process has three stages.
Id. at 1.309.7.
 In Stage 1, the “Rezoning Process,” a “PUD rezoning” occurs concurrently
“with approval of a PUD Conceptual Plan and PUD Proposal Document.”
Wayne Township Zoning Code 1.309.7(A). Property owners initiate this
stage by completing a “rezoning application form.” Id. at 1.309.8(A)(1).
This stage culminates in a “legislative decision” by the township trustees
regarding the submitted Stage-1 plans. Id. at 1.309.7(A)(3).
 In Stage 2, the “Preliminary Site Plan Process” a site plan is approved after
a public hearing. Id. at 1.309.7(B). Property owners initiate this stage by
sending a letter to the zoning inspector. Id. at 1.309.8(B). This stage
culminates in an “administrative decision” by the trustees. Id. at
1.309.7(B)(5).
 In Stage 3, the “Final Site Plan Process,” the final plan is certified. Id. at
1.309.7(C). Property owners initiate this stage by sending a letter to the
zoning inspector. Id. at 1.309.8(C). This stage culminates in a “ministerial
certification” by the zoning inspector that allows permits to be issued for
the approved PUD use and development. Id. at 1.309.7(C).
{¶ 5} In June 2018, John Federle (“Federle”) filed an application with the
Wayne Township Zoning Office on a form titled “Application for Zoning Map
Amendment.” The form asked applicants to check one of the following: zoning
change, PUD, variance, conditional use, or temporary zoning permit. Federle
checked “PUD.” He also wrote the following:
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 Under “Legal Description of Property to be Reclassified”—“40.7003 acres
currently owned by John and Sherry Federle, with the addition of 1.29 acres
currently owned by Thomas E. and Lisa Patton will be included in the
Village Transition PUD.”
 Under “Property is Currently Zoned For”—“The property is currently
zoned R-1 (Residence Single Family Zone) with a Village Transition PUD
Overlay District.”
 Under “Request Property to be Changed to Zone”—“The property will
move to the Village Transition PUD.”
 And under “Reason for this Application”—“The current R-1 property will
be rezoned to the Village Transition PUD to help the more dense .30 acre
+/- lots within the Village [of Waynesville], evolve to the minimum 0.50
acre lots provided in the Federle Subdivision.” (Emphasis added.)
Along with the application, Federle submitted a “PUD Proposal Document.”
{¶ 6} In July, the Wayne Township trustees adopted “RESOLUTION 2018-
31 CONCERNING AN APPLICATION FOR A ZONING MAP AMENDMENT
TO REZONE 5615 LYTLE RD. (40.7003 AC) AND SPLIT ZONING 5621
LYTLE RD. (THE REAR 1.29 ACS) FROM R-1 TO VT-PUD.” (Capitalization
and underlining sic; emphasis added.) On August 16, a resident submitted to the
township a petition for a township zoning referendum on resolution No. 2018-31.
The township conveyed the petition to the board of elections to verify the
signatures, and on August 21, that board certified that the petition contained a
sufficient number of valid signatures. That same day, the township trustees
unanimously approved a resolution certifying the petition to the board for
placement on the ballot. The August 21 resolution reiterated that resolution No.
2018-31 had “amend[ed] the current zoning district” for the subject properties
“from Residence Single Family Zone (R-1) * * * to Village Transition PUD.”
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January Term, 2019
{¶ 7} On November 1, Federle submitted to the board of elections a protest
of the referendum, arguing that the township trustees’ denomination of its action as
a rezoning was a mistake because he sought only to develop the property in
accordance with preexisting zoning and that his request should therefore not be
subject to referendum. On November 5, the board certified the referendum to the
ballot, but on December 19, it held a hearing on the protest, at which it heard sworn
testimony from Federle and another township resident. At the conclusion of the
hearing, the board rejected Federle’s protest. The board chairman stated that the
board based its determination on its conclusion that the petition was sufficient and
valid and that the board was “not in a position to second guess or to act as an
appellate court for what the township trustees do.”
{¶ 8} On January 23, 2019, the Federles filed this action seeking a writ of
prohibition and a writ of mandamus. We ordered the case to be briefed on the
expedited schedule set forth in S.Ct.Prac.R. 12.08.
II. ANALYSIS
{¶ 9} The Federles seek a writ of prohibition to prevent the Warren County
Board of Elections from certifying the referendum petition and submitting the issue
to the voters on the May 7 ballot and a writ of mandamus ordering the board to
sustain Federle’s protest. We deny both writs.
A. Prohibition
{¶ 10} The Federles are entitled to a writ of prohibition if they establish that
(1) the board of elections exercised quasi-judicial power, (2) the exercise of that
power was unlawful, and (3) they have no adequate remedy in the ordinary course
of the law. State ex rel. Tam O’Shanter Co. v. Stark Cty. Bd. of Elections, 151 Ohio
St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 14-15. They must prove entitlement
to a writ of prohibition by clear and convincing evidence. State ex rel. Evans v.
McGrath, 153 Ohio St. 3d 287, 2018-Ohio-3018, 104 N.E.3d 779, ¶ 4; State ex rel.
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Kilby v. Summit Cty. Bd. of Elections, 133 Ohio St. 3d 184, 2012-Ohio-4310, 977
N.E.2d 590, ¶ 27.
{¶ 11} The Federles have established the first element, because the board of
elections exercised quasi-judicial power by denying Federle’s protest and placing
the referendum on the ballot after an R.C. 3501.39 hearing that included sworn
testimony. State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St. 3d
346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 28. And they have established the third
element, because the proximity of the election renders them without an adequate
remedy at law, as “any appellate process would last well past the election.” Id. at
¶ 29.
{¶ 12} The Federles have, however, failed to establish the second element
required for a writ of prohibition—that the board’s exercise of its quasi-judicial
power was unlawful. To establish this element, the Federles must show that the
board engaged in fraud or corruption, abused its discretion, or clearly disregarded
applicable legal provisions. McCord at ¶ 30. There is no allegation of fraud or
corruption here; the Federles argue that the board abused its discretion and clearly
disregarded applicable law by failing to keep the referendum off the ballot because,
they assert, resolution No. 2018-31 was not a rezoning and was therefore not subject
to referendum. But Federle failed to provide the board of elections with sufficient
evidence of a 2015 rezoning for us to conclude by clear and convincing evidence
that the board abused its discretion by denying the protest.
1. Rezoning and Referenda
{¶ 13} A township’s action that effects a rezoning of property is a
legislative act that is subject to referendum under R.C. 519.12(H), but an action that
merely approves development as being in compliance with existing zoning
standards is an administrative act that is not subject to referendum. State ex rel.
Zonders v. Delaware Cty. Bd. of Elections, 69 Ohio St. 3d 5, 13, 630 N.E.2d 313
(1994); see also R.C. 519.021. If an act is administrative and therefore not subject
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January Term, 2019
to referendum, “the board of elections is ‘required to withhold the * * * referendum
from the ballot.’ ” State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, 140
Ohio St. 3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 30, quoting State ex rel. Oberlin
Citizens for Responsible Dev. v. Talarico, 106 Ohio St. 3d 481, 2005-Ohio-5061,
836 N.E.2d 529, ¶ 17; see also State ex rel. Sensible Norwood v. Hamilton Cty. Bd.
of Elections, 148 Ohio St. 3d 176, 2016-Ohio-5919, 69 N.E.3d 696, ¶ 19; R.C.
519.12(H); R.C. 3501.11(K)(1); R.C. 3501.39(A)(1) and (2).
{¶ 14} “[T]he application of preexisting PUD regulations to a specific piece
of property which is zoned under a non-PUD classification * * * effects a rezoning
of the property and is thus a legislative act subject to referendum.” Zonders at 13.
“However, where specific property is already zoned as a PUD area, approval of
subsequent development as being in compliance with the existing PUD standards
is an administrative act which is not subject to referendum.” Id., citing R.C.
519.021. While this court decided Zonders under a prior version of R.C. 519.021,
our holding in Zonders is consistent with the current version of the statute:
Property owners who wish to have planned-unit development
regulations apply to their property may apply to have the zoning map
amended pursuant to section 519.12 of the Revised Code to rezone
their property as a planned-unit development and no longer subject
to any previously applicable zoning regulations. * * * After the
designation of the property as a planned-unit development on the
zoning map, any approval or disapproval of subsequent use or
development of property in a planned-unit development as being in
compliance with regulations established as authorized by this
division shall not be considered to be an amendment or supplement
to a township zoning resolution for the purpose of section 519.12 of
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the Revised Code, but may be appealed pursuant to Chapter 2506 of
the Revised Code.
R.C. 519.021(A); see also R.C. 519.021(B) and (C). Accordingly, if resolution No.
2018-31 rezoned the property at issue, it is subject to referendum. If it merely
approved development as being in compliance with already applicable PUD
zoning, it is not.
2. Arguments and Evidence
{¶ 15} The Federles claim that the board of elections abused its discretion
and clearly disregarded applicable law by failing to sustain Federle’s protest. In
the protest, Federle asserted that when the township created the VT-PUD overlay
district in 2015, it rezoned the entire district (including the subject property) as a
PUD, so the subject property was therefore not rezoned as a PUD in 2018. That is
possible under R.C. 519.021, which provides three procedures through which PUDs
may be included in a township’s zoning resolution.
 Under R.C. 519.021(A), the township trustees may adopt PUD regulations
without rezoning any property; property owners who wish to have the PUD
regulations apply to their properties must then apply to have their properties
rezoned as a PUD.
 Under R.C. 519.021(B), in the absence of any township-established PUD
regulations, property owners may apply to establish a new PUD for their
property and to rezone their property.
 Under R.C. 519.021(C), the township trustees may adopt PUD regulations
and rezone property as PUDs; property owners who wish to have the PUD
regulations apply to their property must apply to have their development
plan approved as in compliance with the PUD regulations.
Under the procedure set forth in R.C. 519.021(C), the township could have rezoned
the subject property as a PUD when it created the applicable PUD regulations in
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2015. However, the Federles’ argument that the board of elections abused its
discretion depends on Federle having established before the board that the property
was indeed rezoned as a PUD in 2015. And the Federles have not established by
clear and convincing evidence that they provided the board of elections with
evidence sufficient to establish that fact.
{¶ 16} Much of the evidence is inconsistent with the claim that the township
rezoned all of the property within the VT-PUD overlay district as PUDs in 2015.
{¶ 17} First, Wayne Township Zoning Code 2.504.1 and 1.309.7(A) subject
applications to approve a PUD in the VT-PUD overlay district to a three-stage
approval process, and the first stage is a rezoning. However, if the entire VT-PUD
overlay district was rezoned at the time the district was defined, the first stage in
the application to approve a PUD would be unnecessary.
{¶ 18} Second, the township’s VT-PUD overlay regulations refer to a PUD
overlay rezoning process. Wayne Township Zoning Code 2.506.1(C) notes that
only properties with an underlying zone of R-1 can qualify for a VT-PUD overlay
and that properties with an underlying zone other than R-1 require rezoning to R-1
to qualify. It then provides that “[a] rezoning of the underlying zoning district of
one (1) or more of the properties involved may run concurrently with the PUD
Overlay rezoning process.” (Emphasis added.) And Wayne Township Zoning
Code 2.506.1(A) describes the process for applying a VT-PUD overlay to property
outside of but contiguous to the VT-PUD overlay district. It says that owners of
such property may “apply concurrently for both an expansion of the [VT-PUD
overlay] district to include such property and a rezoning of the property to a [VT-
PUD overlay]”—implying that the inclusion of property in the VT-PUD overlay
district and the rezoning of property as a VT-PUD overlay are two distinct actions.
{¶ 19} Third, Federle testified that he met with the township zoning
inspector, shared with her his plans and his desire to apply the VT-PUD overlay to
the property, and was instructed to complete an application form. An application
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form is required for Stage 1 of Wayne Township’s PUD approval process—which
is a rezoning. Wayne Township Zoning Code 1.309.7(A), 1.309.8(A)(1). Stage 2,
the site-plan approval, begins with a letter, not an application. Id. at 1.309.7(B),
1.309.8(B). And Federle submitted an application form, not a letter.
{¶ 20} Fourth, in his application, Federle stated that “[t]he current R-1
property will be rezoned to the Village Transition PUD.” (Emphasis added.)
{¶ 21} Fifth, the trustees’ resolution certifying the petition for a referendum
to the board of elections states that resolution No. 2018-31 approved a rezoning of
the subject property.
{¶ 22} Sixth, the key to the Wayne Township zoning map indicates that the
VT-PUD overlay district is identified by blue slanted lines within a solid blue
border. But the map has a separate identification for PUD overlays, including both
general PUD overlays and VT-PUD overlays: a solid blue border with the letters
“PUD” inside, in blue. And within the VT-PUD overlay district shown on the map,
some property is identified with that PUD identification, but most of the VT-PUD
overlay district—including the subject property—is not identified as a PUD.
{¶ 23} As the board of elections notes, it seems apparent that the township
trustees believed that resolution No. 2018-31 effected a rezoning.
{¶ 24} By contrast, the evidence that the Federles point to in support of their
argument here that the subject property, along with the entire VT-PUD overlay
district, was rezoned as a VT-PUD overlay in 2015 consists of (1) Federle’s
statements in his testimony before the board and in an affidavit explaining that his
“understanding” is that his property was rezoned in 2015, (2) Federle’s having
checked the “PUD” box as opposed to the “zoning change” box on the first page of
his application to the trustees, (3) the minutes from a 2015 Wayne Township
trustees meeting reflecting the passage of “RESOLUTION 2015-34 APPROVING
A ZONING TEXT AND MAP AMENDMENT CREATING A VILLAGE
TRANSITION PLANNED UNIT DEVELOPMENT OVERLAY DISTRICT,”
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(capitalization and underlining sic), and (4) a copy of the zoning map showing that
the subject property is inside the VT-PUD overlay district. Aside from Federle’s
affidavit submitted to this court, which echoes his hearing testimony, this is the
same evidence that Federle presented to the board of elections.
{¶ 25} On this record, the Federles have failed to establish by clear and
convincing evidence that the 2015 resolution rezoned the subject property and that
Federle presented sufficient evidence to the board of elections such that the board
abused its discretion or clearly disregarded applicable law by failing to so find. The
evidence upon which the Federles rely before this court and on which Federle relied
before the board of elections shows that Wayne Township amended its zoning
regulations in 2015 to create a VT-PUD overlay district, that on an undated map
(which may or may not reflect the boundaries of the VT-PUD overlay district upon
its creation in 2015 or at the time of Federle’s application in 2018), the subject
property is within the VT-PUD overlay district, and that the Federles believe that
the subject property was zoned as a PUD in 2015. This does not, however, establish
that the creation of the VT-PUD overlay district rezoned all the property within the
district.
{¶ 26} The Federles’ argument relies on the assumption that the creation of
the VT-PUD overlay district rezoned the property within that district as PUDs. But
while R.C. 519.021(C) would permit this, R.C. 519.021(A) allows a township to
adopt PUD regulations that “do not automatically apply to any property in the
township” and that do not rezone any property upon their adoption. R.C.
519.021(A) neither expressly permits nor forbids a rule that such regulations may
be applied only within a designated portion of the township. Regulations
established under R.C. 519.021(A) apply to property only if its owners seek a
rezoning. Notably, the Federles did not specifically cite—let alone attempt to
explain—either R.C. 519.021(A) or (C) before the board of elections or this court.
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{¶ 27} As the board of elections points out, the record before it indicated
that Federle requested—and the township trustees approved in their 2018
resolution—a zoning change from R-1 to VT-PUD overlay. The board argues that
while it was cognizant of the issue raised by Federle at the protest hearing, it was
not in a position to second guess the appropriateness of the township’s action.
While the board had an obligation to sustain the protest if Federle established that
resolution No. 2018-31 was administrative and therefore not subject to referendum,
Ebersole, 140 Ohio St. 3d 487, 2014-Ohio-4077, 20 N.E.3d 678, at ¶ 30, Federle
failed to present the board with sufficient evidence and argument for this court to
find by clear and convincing evidence that the board of elections abused its
discretion or clearly disregarded applicable law by failing to sustain the protest.
{¶ 28} A contrary holding would require us to find that the board of
elections should not only have relied on Federle’s insufficient evidence but should
also have analyzed and applied R.C. 519.021(A) and (C), which Federle did not
cite to the board, and which, as noted above, do not clearly eliminate the possibility
that the 2018 resolution was a rezoning. However, “the board [of elections] does
not abuse its discretion by limiting the scope of a protest hearing to the specific
objections raised by the written protest necessitating the hearing.” State ex rel.
Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections, 80 Ohio St. 3d 302,
308, 686 N.E.2d 238 (1997). Under the circumstances of this case, the Federles
have not shown by clear and convincing evidence that the board of elections abused
its discretion or clearly disregarded applicable law.
B. Mandamus
{¶ 29} The Federles also seek a writ of mandamus ordering the board of
elections to sustain the protest, i.e., to find that the petition is legally insufficient
and to therefore keep the referendum off the ballot. This is a claim for declaratory
and injunctive relief over which this court lacks jurisdiction. Tam O’Shanter, 151
Ohio St. 3d 134, 2017-Ohio-8167, 86 N.E.3d 332, at ¶ 13.
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III. CONCLUSION
{¶ 30} Because the Federles are not entitled to a writ of prohibition or a writ
of mandamus, we deny both writs.
Writs denied.
O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
_________________
George & Underwood, L.L.C., Andrew P. George, and Tyler J. Hoffer, for
relators.
David P. Fornshell, Warren County Prosecuting Attorney, and Keith W.
Anderson, Assistant Prosecuting Attorney, for respondent.
_________________
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