State ex rel. Pinkston v. Delaware 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. Pinkston v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2023-Ohio-1060.]
NOTICE
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2023-OHIO-1060THE STATE EX REL . PINKSTON ET AL . 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. Pinkston v. Delaware Cty. Bd. of Elections,
Slip Opinion No. 2023-Ohio-1060.]
Elections—Mandamus—R.C. 519.12—Writ granted.
(No. 2023-0332—Submitted March 27, 2023—Decided March 30, 2023.)
IN MANDAMUS.
__________________
Per Curiam Opinion announcing the judgment of the court.
{¶ 1} Relators, Steve Pinkston and Douglas D. Martin (collectively,
“Pinkston”), filed this case after respondent, Delaware County Board of Elections,
sustained a protest to a township-zoning referendum petition. The board determined
that the petition failed to satisfy R.C. 519.12(H), which requires such petitions to
include a “brief summary” of the contents of the zoning amendment. Pinkston seeks
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a writ of mandamus compelling the board to place the referendum on the May 2,
2023 ballot or, alternatively, the November 7, 2023 ballot.
{¶ 2} In addition to defending the board’s determination, the board and
intervening respondent, Highland Realty Development, argue that R.C. 519.12(H)
does not allow the referendum to be placed on the November ballot. The board and
Highland Realty argue that Pinkston waited too long to file this action and that it
should be denied under the doctrine of laches.
{¶ 3} We grant the writ and order the board to place the referendum on the
May ballot.
I. BACKGROUND
{¶ 4} The land at issue consists of 87.7 acres in Berkshire Township,
Delaware County. Highland Realty seeks to develop the land with single-family
homes in a development to be known as “Plumb Creek.”
{¶ 5} In May 2022, Highland Realty applied to the township zoning
commission to rezone the property from “Planned Institutional District” to “Planned
Residential District.” The application proposed the construction of 141 homes, with
a gross density of 1.6 units per acre. As originally proposed, the development would
have required five “divergences” from the township’s zoning code—that is, certain
aspects of the proposal would not have complied with setback and lot-size, lot-width,
and side-yard standards. Over the next several months, Highland Realty submitted
two amended applications. The final application proposed the construction of 91
homes, for a gross density of 1.03 units per acre. As proposed in the final application,
the development would not require any divergences from the zoning code. The
Berkshire Township Board of Trustees approved the final application on October 10,
2022.
{¶ 6} On November 7, a referendum petition consisting of 22 part-petitions
with 249 total signatures was submitted to the township. The petition included the
following “brief summary” of the zoning amendment:
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On October 10, 2022, the Board of Township Trustees for
Berkshire Township approved the rezoning for Application #22-
104—Plumb Creek, a PRD Zoning Application submitted by
Highland Realty Development, 720 East Broad Street, Suite 200,
Columbus, Ohio 43215 to rezone +/- 87.70 acres, Parcel numbers
41733001048000, 4173300106000, and 99999902000000, Dustin
Road and 6269 Plumb Road, Galena, Ohio 43021, from Planned
Institutional District (PIND) to Planned Residential District (PRD) to
permit the development of single-family homes.
{¶ 7} On November 14, the board of trustees passed a resolution certifying
the petition to the board of elections. See R.C. 519.12(H) (fourth paragraph). And
on December 6, the board of elections certified that the petition contained a sufficient
number of valid signatures for placement on the ballot. But on December 22,
Highland Realty filed a protest with the board of elections, arguing that the petition’s
brief summary “is misleading, inaccurate, and contains material omissions which
would confuse the average person.” Among other things, Highland Realty argued
that the brief summary needed to include information about the number of homes to
be built and how that number compared to the number in Highland Realty’s initial
application.
{¶ 8} The board of elections held an evidentiary hearing on the protest on
February 21, 2023. Highland Realty presented evidence that it had modified its
original application by reducing the number of homes and eliminating all divergences
from the township’s zoning code. Highland Realty also presented evidence from two
township residents, one who testified that he had been misled by a petition circulator
who told him that the proposal was a “high-density” development that included “over
100 homes” and another who stated in an affidavit that he had been misled when a
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circulator told him that the property would continue to be used as farmland if voters
rejected the rezoning.
{¶ 9} Pinkston presented testimony from four petition circulators who
collectively circulated ten of the 22 part-petitions. They all testified that a map of the
proposed development was attached to the part-petitions that they had circulated and
that the map provided additional details about the proposed development, including
the number of homes approved, the density of the development, the minimum amount
of undeveloped space, and minimum lot sizes. The evidence showed, however, that
the petition filed with the township included just one map—not separate maps for
each part-petition.
{¶ 10} The board of elections voted three to one to sustain Highland Realty’s
protest, finding that the petition’s brief summary did not satisfy R.C. 519.12(H),
because it “fail[ed] to adequately describe the nature of the requested zoning change
and it omit[ed] the Trustees’ modifications to the application.”
{¶ 11} Pinkston filed this expedited election action on March 7—14 days
after the board of elections’ decision sustaining the protest. In the first claim for
relief, Pinkston seeks a writ of mandamus ordering the board of elections to place the
referendum on the May ballot. The second, alternative claim for relief seeks an order
compelling the board to place the referendum on the November ballot.
II. ANALYSIS
A. Eligibility for the November ballot
{¶ 12} The fifth paragraph of R.C. 519.12(H) provides:
If the board of elections determines that a petition is sufficient and
valid, the question shall be voted upon 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 date the petition is filed with the board of
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township trustees, regardless of whether any election will be held to
nominate or elect candidates on that day.
{¶ 13} Under this statute, the filing of the referendum petition with the
township on November 7, 2022, was the event that determined the referendum’s
election date. The referendum election must be held “on the day of the next primary
or general election that occurs at least ninety days after” that date, R.C. 519.12(H)
(fifth paragraph). The next primary or general election occurring at least 90 days
after November 7, 2022, is the May 2, 2023 primary election. Placement on the
November ballot, therefore, is not an option under R.C. 519.12(H).
{¶ 14} Pinkston argues that placement on the November ballot would be
permissible if we were to issue a writ of mandamus against the board after the May
2 primary election. Because we are issuing a decision before May 2, we need not
address this argument.
B. Laches
{¶ 15} The board of elections and Highland Realty argue that Pinkston’s
claim should be denied under the doctrine of laches. For laches to apply, Pinkston
must have unreasonably delayed without excuse commencing this action and he must
have had actual or constructive knowledge that the delay would prejudice other
parties. State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145,
656 N.E.2d 1277 (1995). This court has applied laches in election cases because such
cases require relators to exhibit “[e]xtreme diligence and promptness.” State ex rel.
Ryant Commt. v. Lorain Cty. Bd. of Elections, 86 Ohio St.3d 107, 113, 712 N.E.2d
696 (1999). But “a laches defense rarely prevails in elections cases.” State ex rel.
Duclos v. Hamilton Cty. Bd. of Elections, 145 Ohio St.3d 254, 2016-Ohio-367, 48
N.E.3d 543, ¶ 8.
{¶ 16} Pinkston unreasonably delayed filing this action. Pinkston waited 14
days after the board of elections sustained Highland Realty’s protest to file the
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complaint for a writ of mandamus and he did not present a valid excuse for the delay.
See Paschal v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 141, 142, 656 N.E.2d
1276 (1995) (applying laches based on a 9-day delay); Polo at 145 (17-day delay);
see also State ex rel. Vickers v. Summit Cty. Council, 97 Ohio St.3d 204, 2002-Ohio-
5583, 777 N.E.2d 830, ¶ 13 (“relators have the burden of proving that they acted with
the requisite diligence”).
{¶ 17} For laches to apply, however, the party asserting the defense must
show that it was harmed by the delay. State ex rel. Davis v. Summit Cty. Bd. of
Elections, 137 Ohio St.3d 222, 2013-Ohio-4616, 998 N.E.2d 1093, ¶ 10. “[T]he
prejudice must be material before laches will bar relief.” State ex rel. Pennington v.
Bivens, 166 Ohio St.3d 241, 2021-Ohio-3134, 185 N.E.3d 41, ¶ 26.
{¶ 18} “[C]ases in which laches is dispositive generally involve prejudice to
the respondents in their statutory obligation to absentee voters to have absentee
ballots printed and ready for use.” State ex rel. Steele v. Morrissey, 103 Ohio St.3d
355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 14. The deadline for preparing absentee
ballots for the May election, as required by the Uniformed and Overseas Citizens
Absentee Voting Act, 52 U.S.C. 20302(a), was March 17. See R.C. 3511.04(B).
Although that deadline has passed, it likely would have passed even if Pinkston had
filed this case within a week of the board of elections’ February 21 decision. See
State ex rel. Brinda v. Lorain Cty. Bd. of Elections, 115 Ohio St.3d 299, 2007-Ohio-
5228, 874 N.E.2d 1205, ¶ 13; compare State ex rel. Richardson v. Gowdy, __ Ohio
St.3d __, 2023-Ohio-976, __ N.E.3d __ (the complaint was filed on February 28 and
this court issued a decision on March 24). Pinkston’s delay, therefore, did not cause
the board of elections to miss the March 17 deadline.
{¶ 19} The board of elections argues that it has been harmed in another way.
In an affidavit that the board submitted as evidence, the board’s director, Karla
Herron, explained that there are no candidates or issues for the May 2, 2023 primary-
election ballot in Delaware County and that the board therefore has not undertaken
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any steps to hold an election that day. Herron stated that the board has not prepared
ballots, hired or trained poll workers, secured polling locations, or conducted pre-
election programming and testing of voting machines.
{¶ 20} The board’s inaction and resulting unpreparedness for an election in
May, standing alone, do not demonstrate the prejudice that is necessary for the
defense of laches. The board may be facing significant challenges as a result of this
action, but it does not necessarily follow that Pinkston’s delay in filing his complaint
caused those challenges. See State ex rel. Halstead v. Jackson, __ Ohio St.3d __,
2022-Ohio-3205, __ N.E.3d __, ¶ 19 (there must be a causal link between the delay
by the relator and any harm to the respondent).
{¶ 21} But according to Herron, the board would have prepared to hold an
election in May if this lawsuit had been filed sooner. Herron explained that two
school districts primarily located in Licking County have levy issues on the May
ballot affecting around 109 Delaware County voters. After the board sustained
Highland Realty’s protest on February 21, it held a regular meeting at which it
considered whether to administer the election for that small group of voters or instead
allow Licking County to accommodate them under R.C. 3503.01(B) (“When only a
portion of a precinct is included within the boundaries of an election district, the
board of elections may assign the electors residing in such portion of a precinct to the
nearest precinct or portion of a precinct within the boundaries of such election district
for the purpose of voting at any special election held in such district”). In her
affidavit, Herron avers that a “major consideration for the [board] in sending their
voters to Licking County was whether there were any other candidates or issues on
the ballot in Delaware County, as well as the expense involved in conducting an
election for so few voters.” Herron further avers that “[a]t that meeting, the [board]
decided to wait before sending their voters to Licking County to determine if their
just-rendered decision in the Berkshire Township zoning referendum protest would
be subject to a mandamus action.”
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{¶ 22} When no lawsuit was filed challenging the board’s decision by the
time of the board’s next meeting—which was held nine days later, on March 2—the
board passed a resolution asking that Licking County accommodate the Delaware
County voters, thus leaving no candidates or issues on the May 2 ballot in Delaware
County. Pinkston argues that this does not constitute prejudice to the board, because
the board simply made “its own discretionary decision.” But the board’s evidence
shows a causal link between the board’s decision and Pinkston’s delay—but for the
delay, the board says it would have prepared to hold an election on May 2.
{¶ 23} Although the board has presented evidence identifying several things
that must be accomplished before voting can begin, we note that Herron’s affidavit
does not state that the board cannot accomplish what it needs to for early in-person
absentee voting to begin April 4. See R.C. 3509.01. Regardless, this court need not
decide whether the situation the board finds itself in constitutes material prejudice.
For laches to apply, Pinkston must have had actual or constructive knowledge that
his delay would cause the alleged harm. See Polo, 74 Ohio St.3d at 145, 656 N.E.2d
1277. There is no evidence that Pinkston actually knew that a two-week delay in
filing this lawsuit would cause the board not to prepare to hold an election in May.
Nor is there sufficient evidence justifying the imputation of such knowledge to
Pinkston. See Black’s Law Dictionary 1004 (10th Ed.2014) (“Constructive
knowledge” is “[k]nowledge that one using reasonable care or diligence should have,
and therefore that is attributed by law to a given person”). Laches, therefore, does
not bar Pinkston’s claim.
C. Mandamus claim
{¶ 24} To be entitled to a writ of mandamus, Pinkston must prove by clear
and convincing evidence that he has a clear legal right to the requested relief, that the
board has a clear legal duty to provide that relief, and that he lacks an adequate
remedy in the ordinary course of the law. See State ex rel. Waters v. Spaeth, 131
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Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. Given the proximity of the
May election, Pinkston 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.
{¶ 25} As to the remaining elements, this court must find that the board of
elections engaged in fraud or corruption, abused its discretion, or clearly disregarded
applicable legal provisions in rejecting 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. Pinkston argues that the board abused its discretion and clearly
disregarded the law when it sustained Highland Realty’s protest on February 21,
2023.
1. Statutory requirements
{¶ 26} Under R.C. 519.12(H), the referendum petition had to (1) contain the
number and title of the zoning-amendment application, (2) provide “the name by
which the amendment is known,” and (3) “furnish[] * * * a brief summary of” the
contents of the zoning amendment. Accord 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, ¶ 19.
Only the brief-summary requirement is at issue in this case.
{¶ 27} A brief summary is required to ensure that a referendum of a zoning
amendment fairly and accurately presents the issue to voters. State ex rel. Hamilton
v. Clinton Cty. Bd. of Elections, 67 Ohio St.3d 556, 559, 621 N.E.2d 391 (1993)
(involving identical language in R.C. 303.12(H)). The petition’s summary therefore
must identify the property’s location and apprise the reader of the property’s current
zoning status and the nature of the requested change. State ex rel. T-Bill Dev. Co.,
L.L.C. v. Union Cty. Bd. of Elections, 166 Ohio St.3d 250, 2021-Ohio-3535, 185
N.E.3d 50, ¶ 16. A summary that “contains material omissions that would confuse
the average person” does not comply with R.C. 519.12(H). State ex rel. Donaldson
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v. Delaware Cty. Bd. of Elections, 166 Ohio St.3d 55, 2021-Ohio-2943, 182 N.E.3d
1135, ¶ 13.
2. Evidence does not show that maps were attached to the part-petitions
{¶ 28} At the hearing before the board of elections, Pinkston presented
evidence attempting to show that a map specifying several details about the proposed
development was attached to each part-petition. If each part-petition had included
such a map, Highland Realty’s concerns might be obviated. See State ex rel. Barney
v. Union Cty. Bd. of Elections, 159 Ohio St.3d 50, 2019-Ohio-4277, 147 N.E.3d 595,
¶ 33-34 (material information provided in an attachment but not in the petition’s
summary satisfied the brief-summary requirement). But Pinkston has not proved by
clear and convincing evidence that each part-petition had a map attached to it. The
undisputed evidence is that the petition filed with the township and submitted to the
board of elections included just one map—not separate maps for each part-petition.
This court therefore must determine whether the summary itself satisfies R.C.
519.12(H).
3. The petition summary does not borrow text from a zoning resolution
{¶ 29} Pinkston argues that the petition summary complied with R.C.
519.12(H) because it “substantially recited the text of the zoning resolution of the
board of township trustees.” To support this argument, Pinkston cites State ex rel.
McCord v. Delaware Cty. Bd of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758, 835
N.E.2d 336, ¶ 43, in which this court stated 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.”
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{¶ 30} This principle does not support Pinkston’s claim, however, because
the petition in this case did not summarize a zoning resolution passed by the board
of trustees. Pinkston fails to recognize that the zoning amendment at issue was
proposed by Highland Realty’s application, not by a resolution of the board of
trustees. See Tam O’Shanter Co., 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d
332, at ¶ 18 (describing the three ways a township zoning amendment may be
proposed). Here, the petition’s summary borrowed language from the minutes of the
board of trustees’ October 10, 2022 meeting. Pinkston has not shown that using that
language shields the petition’s summary from scrutiny.
4. The petition summary did not contain material omissions and was not
misleading
{¶ 31} As noted above, to satisfy R.C. 519.12(H), a brief summary must
identify the location of the property at issue, its current zoning status, and the nature
of the requested change. T-Bill Dev. Co., 166 Ohio St.3d 250, 2021-Ohio-3535, 185
N.E.3d 50, at ¶ 16. The petition summary in this case meets that basic standard: It
provides parcel numbers and an address for the property, along with its current zoning
(“Planned Institutional District (PIND)”), the proposed zoning (“Planned Residential
District (PRD)”), and the nature of the proposed development (“single-family
homes”). Under this court’s precedent, the petition summary at issue in this case
satisfies R.C. 519.12(H).
{¶ 32} The board and Highland Realty argue, however, that the petition
summary leaves out material information. A summary does not comply with R.C.
519.12(H) when it “contains material omissions that would confuse the average
person.” Donaldson, 166 Ohio St.3d 55, 2021-Ohio-2943, 182 N.E.3d 1135, at ¶ 13.
The board found two omissions—(1) a failure “to adequately describe the nature of
the requested zoning change” and (2) the omission of information about Highland
Realty’s modification to its original application.
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a. Number of homes and density
{¶ 33} In support of the board’s first finding, Highland Realty and the board
cite Shelly & Sands, Inc. v. Franklin Cty. Bd. of Elections, 12 Ohio St.3d 140, 142,
465 N.E.2d 883 (1984), in which this court found that a petition summary was
“ambiguous and misleading because it failed to apprise the reader * * * of the precise
nature of the requested change.” Highland Realty and the board suggest that to
understand the “precise nature” of the proposed change, one must know how many
homes would be built in the proposed development. They support their argument by
noting that the summaries at issue in T-Bill Dev. Co. and State ex rel. Hillside Creek
Farms, L.L.C. v. Clark Cty. Bd. of Elections, 166 Ohio St.3d 77, 2021-Ohio-3214,
182 N.E.3d 1153, both identified the number of homes being proposed. See T-Bill
Dev. Co. at ¶ 5; Hillside Creek Farms at ¶ 5. But neither T-Bill Dev. Co. nor Hillside
Creek Farms held that a petition’s summary must indicate the number of homes being
proposed in a residential development. Those cases therefore do not support the
board’s finding.
{¶ 34} Highland Realty and the board also argue that the number of proposed
homes must have been material because circulators testified at the protest hearing
that when they were collecting signatures, they talked about the number of homes
and the density of the development. To support this argument, the board cites
Jacquemin, 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, at ¶ 11, in which
this court indicated that the overall context of a proposed development informs what
information is material. But Jacquemin indicated that context must be considered
when the petition’s summary contains information that is factually inaccurate. Id.Although the mistake in that case seemed minor on its face, it was material,
considering the totality of the local events that had recently occurred. See id. In
contrast, here, neither the board nor Highland Realty argues that the petition summary
at issue contains inaccuracies. This court’s reference to context in Jacquemin,
therefore, does not support the proposition that statements made by circulators dictate
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what information must be included in a petition’s summary. Indeed, such a
suggestion would be inconsistent with this court’s characterization of the standard
for evaluating a petition summary as an “objective test,” Shelly & Sands, Inc. at 142.
{¶ 35} In Shelly & Sands, Inc., this court applied the objective test by
examining the petition summary that was at issue in the context of the property’s
existing and proposed zoning statuses. The statement in Shelly & Sands, Inc., that
the petition summary did not describe “the precise nature” of the proposal, id. at 142,
should be understood in the context of that case.
{¶ 36} Shelly & Sands, Inc., had been operating a commercial sand and
gravel quarry as a legal nonconforming use on more than 100 acres when it applied
for the rezoning of less than two of those acres to permit a new type of sand-and-
gravel processing in that small area. Id., 12 Ohio St.3d at 140, 465 N.E.2d 883. If
voters had rejected the proposed zoning change, Shelly & Sands, Inc., still would
have had the right to continue its existing quarry operation. Id. The petition summary
of the proposed change was “confusing,” “ambiguous,” and “misleading” because it
suggested that a referendum rejecting the proposed change would discontinue the
entire existing operation. Id. at 142. This court concluded, under these unique facts,
that the petition summary “failed to apprise the reader of the present zoning status of
the land and of the precise nature of the requested change.” Id. Contrary to what
Highland Realty and the board suggest, Shelly & Sands, Inc., merely requires a
petition summary to clearly convey basic information about the proposed change—
that is, no more than what this court stated in T-Bill Dev. Co., 166 Ohio St. 3d 250,
2021-Ohio-3535, 185 N.E.3d 50.
{¶ 37} The other cases Highland Realty relies on do not establish more
onerous requirements. Highland Realty cites E. Ohio Gas Co. v. Wood Cty. Bd. of
Elections, 83 Ohio St.3d 298, 699 N.E.2d 916 (1998), and Donaldson, 166 Ohio
St.3d 55, 2021-Ohio-2943, 182 N.E.3d 1135, arguing that the petition summary at
issue here fails to adequately describe the nature of the proposed zoning change or
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the use that the change would permit. But neither E. Ohio Gas Co. nor Donaldson
supports the position that the petition summary at issue here is inadequate. The
petition summary in E. Ohio Gas Co. was ambiguous because it included only part
of the relevant language. And the petition summary in Donaldson was deficient
because, among other reasons, it stated only that the proposal would “ ‘include
sections detailing * * * permitted uses, open space and prohibited uses.’ ” (Ellipsis
sic.) Id. at ¶ 15, quoting the petition summary. In other words, the petition summary
in Donaldson provided no specific information about the uses that the zoning
amendment would permit. Id. In contrast, the summary at issue here unambiguously
apprises readers of the specific use the proposal would permit: “the development of
single-family homes.”
{¶ 38} For these reasons, we conclude that the board abused its discretion and
acted contrary to law in finding that the petition summary improperly omitted
information about the nature of the proposed zoning change.
b. Modifications to the application
{¶ 39} Highland Realty and the board also argue that the petition summary
omitted material information by failing to describe the modifications Highland
Realty had made to its original application. Highland Realty argues that because the
petition summary does not include information about the modifications, it “convey[s]
the false impression that the rezoning as approved was the same as the rezoning as
initially proposed.”
{¶ 40} Precedent does not support this argument or the board’s finding. “[I]t
is the zoning amendment as adopted by the township that must be summarized in the
petition.” (Emphasis added.) Donaldson, 66 Ohio St.3d 55, 2021-Ohio-2943, 182
N.E.3d 1135, at ¶ 18. This court has explained that “it is not the responsibility of the
referendum’s advocates to educate themselves about the history of the proposal,
much less reflect that history in their summary.” Hillside Creek Farms, 166 Ohio
14January Term, 2023
St.3d 77, 2021-Ohio-3214, 182 N.E.3d 1153, at ¶ 34. See also T-Bill Dev. Co., 166
Ohio St.3d 250, 2021-Ohio-3535, 185 N.E.3d 50, at ¶ 24 (“The summary must
accurately reflect the zoning amendment, not the history of a proposed development
or changes that were made before the amendment’s adoption by the township
trustees”).
{¶ 41} Because the petition summary at issue in this case did not need to
describe Highland Realty’s earlier applications, the board abused its discretion and
acted contrary to law in finding that the summary improperly omitted that
information.
III. CONCLUSION
{¶ 42} We conclude that the board of elections abused its discretion and
disregarded applicable law in deciding that the petition summary was deficient. The
summary identified the size and location of the land at issue, the proposed zoning
change, and the nature of the intended development. We therefore grant the writ and
order the board of elections to place the referendum on the May 2, 2023 ballot.
Writ granted.
DONNELLY, STEWART, and BRUNNER, JJ., concur.
KENNEDY, C.J., and FISCHER, DEWINE, and DETERS, JJ., concur in
judgment only.
__________________
Dinsmore & Shohl, L.L.P., Jennie K. Ferguson, and Joshua M. Cartee, for
relators.
Melissa A. Schiffel, Delaware County Prosecuting Attorney, and Mark W.
Fowler and Vince J. Villio, Assistant Prosecuting Attorneys, for respondent.
Vorys, Sater, Seymour & Pease, L.L.P., Joseph R. Miller, Christopher L.
Ingram, and Muna Abdallah, for intervening respondent.
________________________
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