State ex rel. T-Bill Dev. Co., L.L.C. v. Union 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. T-Bill Dev. Co., L.L.C. v. Union Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-3535.]
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
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the opinion is published.
SLIP OPINION NO. 2021-OHIO-3535[THE STATE EX REL.] T-BILL DEVELOPMENT COMPANY, L.L.C., ET AL . v.
UNION COUNTY BOARD OF ELECTIONS.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. T-Bill Dev. Co., L.L.C. v. Union Cty. Bd. of
Elections, Slip Opinion No. 2021-Ohio-3535.]
Elections—Prohibition and Mandamus—Writs sought to remove a zoning
referendum from the November 2, 2021 ballot—Relators failed to show that
board of elections abused its discretion or clearly disregarded applicable
law in denying their protest to the referendum petition—Writs denied.
(No. 2021-1127—Submitted September 29, 2021—Decided October 1, 2021.)
IN PROHIBITION and MANDAMUS.
__________________
Per Curiam.
{¶ 1} Relators, T-Bill Development Company, L.L.C., Pulte Homes of
Ohio, L.L.C., the Scott Family Living Trust, the Craig D. Scott Revocable Trust,
and the Jerry Lynn Scott Trust, seek writs of prohibition and mandamus ordering
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respondent, the Union County Board of Elections, to remove a zoning referendum
from the November 2, 2021 general-election ballot. Because relators have not
shown that the board abused its discretion or clearly disregarded applicable law in
denying their protest to the referendum petition, we deny the writs and allow the
referendum to remain on the ballot.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} This case concerns the proposed rezoning of approximately 139.34
acres of property in Plain City, Union County. The three Scott family trusts that
are relators in this action own the property, which is currently zoned rural
residential.
{¶ 3} On January 22, 2021, T-Bill Development filed an application to
rezone the property to a planned-development district. Attached to the rezoning
application were more than 70 pages of exhibits, which included the development
plan, a list of the owners of property adjacent to the proposed development, legal
descriptions of the property to be rezoned, and maps and artist renderings depicting
the property and the proposed development. T-Bill Development has executed a
contract to purchase the land from the Scott family trusts and to develop the
property into “The Homestead at Scotts Farm,” which would include up to 248 lots
for single-family homes.
{¶ 4} On March 22, the Jerome Township Zoning Commission voted
unanimously to recommend that the township trustees approve T-Bill
Development’s application. After holding a public hearing on the application, the
Jerome Township Board of Trustees voted unanimously on May 5 to amend the
township’s zoning resolution and map to allow The Homestead at Scotts Farm as a
planned-development district. The trustees’ vote was memorialized in Resolution
No. 21-051, which stated in relevant part:
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WHEREAS, Zoning Amendment Case No. PD21-002 came
for public hearing before the Jerome Township Board of Trustees
on April 20, 2021, and which case is described as follows: an
application submitted by T-Bill Development Company LLC, 2722
Nottingham Road, Columbus Ohio, 43221, seeking to rezone a
parcel of land located at 9521, 9585, and 0 Brock Road, Plain City,
Ohio 43064, being a +/- 139.34 acre tract, and being Parcel No.
1700110291000 owned by Philip E. & Mary Susan Scott, Parcel No.
1700110293000 owned by Jerry L. & Judith E. Scott, Trustees, and
a portion of Parcel No. 1700110291000 owned by Craig D. Scott,
Trustee, from Rural Residential District (RU) to Planned
Development District (PD) pursuant to Chapter 500 and Chapter
230 of the Jerome Township Zoning Resolution. The development
is proposed to consist of single-family dwellings and open space
areas and is commonly known as “The Homestead at Scotts Farm”
or “The Homestead at Scotts Farm Planned Development District.”
***
* * * BE IT RESOLVED by the Board of Trustees of Jerome
Township, Union County, Ohio (the “Board”), that:
The recommendation of the Jerome Township Zoning
Commission to approve this proposed amendment to the Official
Zoning Map, be and hereby is adopted with additional modifications
by the Board as reflected on Attachment 1 of this Resolution.
(Capitalization sic.) “Attachment 1” to the resolution specified that the approved
zoning amendment incorporated certain materials not included in T-Bill
Development’s original application, namely (1) regulation text from a document
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dated February 22, 2021, and (2) the conceptual site plan labeled “Exhibit E-1” and
dated May 5, 2021.
{¶ 5} On June 1, a group of petitioners filed a referendum petition with the
Jerome Township trustees. As required by R.C. 519.12(H), the petition contained
a brief summary of the zoning amendment, which included much of the same
information that appeared in the township’s resolution adopting the amendment.
The summary read:
The proposed zoning amendment, known as PD 21-002,
“The Homestead at Scotts Farm,” or “The Homestead at Scotts Farm
Planned Development District,” with the applicant being T-Bill
Development Co., LLC, would rezone three parcels totaling +/-
139.34 acres from their current Rural Residential District (RU)
zoning to Planned Development District (PD). The affected parcels
numbers are XX-XXXXXXX.3000, XX-XXXXXXX.2000, and 17-
0011029.1000, on the south side of Brock Road, just east of the US-
33 overpass. The proposed entrance parcel to the community is
located approximately 2500′ east of the intersection of Industrial
Parkway and Brock Road having a current address of 9585 Brock
Road, Plain City, Ohio 43064. This planned development would
allow for approximately 248 single-family dwellings.
The attached exhibits provide more details. The Regulation
Text and other documents are available by request at the Jerome
Township Zoning Department, 9777 Industrial Parkway, Plain City,
OH 43064
Zoning Application PD 21-002 (Exhibit 1)
Resolution 21-051 with attached modifications (Exhibit 2)
Regulation Text (Exhibit 3)
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Zoning Plan (Exhibit 4)
Regional Context Map (Exhibit 5)
The township trustees certified the referendum petition and submitted it to the board
of elections. And on July 13, the board of elections certified the petition as
containing enough valid signatures for the referendum to be placed on the
November 2 election ballot.
{¶ 6} On July 28, relators filed a protest to the referendum petition with the
board of elections. Relators contended that the petition failed to satisfy the “brief
summary” requirement of R.C. 519.12(H). In a supplemental protest letter filed on
August 31, relators also argued that when the petition was filed with the township,
it did not include a map of the area that would be affected by the zoning proposal,
as required by R.C. 519.12(H).
{¶ 7} The board held a hearing on September 1, at which it heard sworn
testimony from six witnesses and accepted evidence into the record. At the close
of the hearing, the board voted unanimously to deny the protest and allow the
referendum to appear on the ballot.
{¶ 8} Relators filed this expedited election action on September 9, seeking
writs of prohibition and mandamus to prevent the board from submitting the
referendum to the ballot and directing the board to sustain their protest to the
referendum petition. The board filed an answer, and the parties have filed evidence
and merit briefs in accordance with S.Ct.Prac.R. 12.08(A).
II. ANALYSIS
{¶ 9} To obtain a writ of prohibition, relators must show that (1) the board
exercised quasi-judicial power, (2) the exercise of that power was unauthorized by
law, and (3) relators have no adequate remedy in the ordinary course of the law.
State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-
Ohio-4758, 835 N.E.2d 336, ¶ 27. To obtain a writ of mandamus, relators must
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establish by clear and convincing evidence (1) a clear legal right to have the board
remove the zoning referendum from the ballot, (2) a clear legal duty on the part of
the board to do so, and (3) the lack of an adequate remedy in the ordinary course of
law. See State ex rel. Nauth v. Dirham, 161 Ohio St.3d 365, 2020-Ohio-4208, 163
N.E.3d 526, ¶ 11.
{¶ 10} Given the proximity of the November election, relators lack 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 for obtaining a writ of prohibition or mandamus,
relators must show that the board engaged in fraud or corruption, abused its
discretion, or clearly disregarded applicable law in denying their protest. 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. Since relators do not claim fraud or corruption, the
relevant inquiry is whether the board abused its discretion or clearly disregarded
applicable law.
A. Did Petitioners File a Map?
{¶ 11} R.C. 519.12(H) requires that a referendum petition filed with a board
of township trustees “be accompanied by an appropriate map of the area affected
by the zoning proposal.” A referendum petition must strictly comply with that
requirement. See State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio
St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 38-39.
{¶ 12} Relators rely solely on the certification by the Jerome Township
fiscal officer to the board of elections, dated June 15, 2021, as proof that the
petitioners failed to file a map with their referendum petition. The certification
stated:
I, the undersigned Fiscal Officer of Jerome Township, Union
County, Ohio attest that the Jerome Township Board of Trustees
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January Term, 2021
certified Petitions for a Township Zoning Referendum consisting of
twenty-two (22) separate submissions of Form No. 6-0 including
attached exhibits for the Application for a Zoning Amendment PD
21-002 (Resolution 21-051 adopted on May 5, 2021).
{¶ 13} Relators read the certification as stating that the petitioners filed only
the part-petitions and the exhibits attached thereto, which did not (relators say)
include an appropriate map. But the certification does not prove what relators say
it does. The township fiscal officer certified to the board of elections the petition
documents that were filed with the township. Although an appropriate map must
accompany a referendum petition filed with a board of township trustees, there is
no requirement that a map be attached to a petition that is circulated for signatures.
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, ¶ 40.
{¶ 14} For relators’ argument to prevail, they must prove that the
referendum petitioners did not file a map with the township trustees when they filed
the petition. But relators have not presented evidence to support this theory.
Further, at the protest hearing, the person who filed the referendum petition testified
that maps were attached to the petition when he filed it with the township.
Accordingly, relators have failed to show that the board of elections abused its
discretion or disregarded R.C. 519.12(H).
B. Adequacy of the Petition Summary
{¶ 15} Each part-petition calling for a referendum on a zoning amendment
“shall contain * * * a brief summary of [the amendment’s] contents.” R.C.
519.12(H). A referendum petition must strictly comply with this requirement.
State ex rel. Quinn v. Delaware Cty. Bd. of Elections, 152 Ohio St.3d 568, 2018-
Ohio-966, 99 N.E.3d 362, ¶ 30.
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{¶ 16} The phrase “brief summary” in R.C. 519.12(H) “refers to the zoning
resolution, motion, or application passed or approved by the board of 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 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 summary “of the contents of the zoning amendment”). The
summary must identify the location of the relevant property and “ ‘apprise the
reader of the present zoning status of the land and the precise nature of the requested
change.’ ” State ex rel. Donaldson v. Delaware Cty. Bd. of Elections, __ Ohio St.3d
__, 2021-Ohio-2943, __ N.E.3d __, ¶ 14-15, quoting Shelly & Sands, Inc. v.
Franklin Cty. Bd. of Elections, 12 Ohio St.3d 140, 142, 465 N.E.2d 883 (1984). If
there are material omissions from the summary that would confuse the average
person, the referendum petition is invalid and may not be submitted to a vote. See
State ex rel. Gemienhardt v. Delaware Cty. Bd. of Elections, 109 Ohio St.3d 212,
2006-Ohio-1666, 846 N.E.2d 1223, ¶ 38.
{¶ 17} The petition summary in this case identified the property affected by
the zoning change by address, parcel numbers, and geographic location in relation
to specific landmarks (e.g., Brock Road, Industrial Parkway, and US-33 overpass).
The summary also noted that the property is currently zoned as a rural residential
district and that the zoning amendment would change it to a planned-development
district. An average person reading the petition summary would understand (1) that
the zoning amendment would rezone three parcels totaling approximately 139.34
acres, (2) where the three parcels are located, and (3) that the existing zoning would
be changed to allow 248 single-family dwellings on the three parcels. Relators do
not contend that any of this information disclosed in the petition summary is
misleading or inaccurate.
{¶ 18} Despite the accurate information contained in the text of the petition
summary, relators still contend that the summary is invalid because it is misleading,
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January Term, 2021
inaccurate, and/or omits other material information. Relators identify three alleged
flaws in the petition summary to support their argument. But the board did not
abuse its discretion or disregard applicable law in rejecting these arguments.
1. Full zoning application not attached to petition
{¶ 19} First, relators argue that the petition summary is flawed because it
does not include a complete copy of the zoning application as an exhibit to each
part-petition. In addition to the text described above, the petition summary listed
five exhibits that were attached to “provide more details.” The first of these exhibits
was described as “Zoning Application PD 21-002.” But each part-petition included
only the first page of the zoning application, which showed the size and location of
the property and named T-Bill Development as the applicant. Relators contend that
the petition’s failure to include copies of the more than 70 pages of attachments to
the application renders the summary misleading and that the referendum should
therefore be stricken from the ballot.
{¶ 20} Relators rely on State ex rel. O’Beirne v. Geauga Cty. Bd. of
Elections, 80 Ohio St.3d 176, 685 N.E.2d 502 (1997), for the proposition that the
failure to attach a complete document that is referred to in a summary of a zoning-
referendum petition invalidates the entire petition. In O’Beirne, a board of
township trustees adopted a resolution approving a zoning amendment and the
trustees incorporated and attached as an exhibit to the resolution a copy of the entire
application for the amendment. See id. at 176. The referendum petition at issue in
that case purported to attach a copy of the township’s resolution adopting the
amendment, including all exhibits, but it omitted one page of the zoning-
amendment application. Id. at 177. The omitted page contained the present use
and zoning of the property, and the relators in O’Beirne (in that case the relators
were the proponents of the referendum) did not dispute that this information was
material. Id. at 181. We held that the board of elections had not abused its
discretion or acted in clear disregard of the law by refusing to certify the referendum
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to the ballot in that case. Relators argue that the petitioners’ failure to attach the
entire zoning application to their circulated part-petitions similarly calls for
invalidating the petition in this case.
{¶ 21} Relators are wrong, however, because O’Beirne is distinguishable
from this case. In O’Beirne, the zoning application was part of the zoning
resolution that was the subject of the referendum. In contrast, T-Bill
Development’s application was not incorporated as part of the zoning resolution
passed by the township. Relators argue that the petition should be invalidated for
omitting a document that was not a part of the resolution. O’Beirne does not
support such a result.
2. “Faded” and “blurry” maps attached to the part-petitions
{¶ 22} Relators also argue that the maps attached to the part-petitions were
poor-quality copies on 8½-by-11-inch paper. Even though there is no requirement
in R.C. 519.12(H) that a map of the affected area of a zoning amendment be
circulated with a referendum petition, see Columbia Reserve, 111 Ohio St.3d 167,
2006-Ohio-5019, 855 N.E.2d 815, at ¶ 40, relators contend that the maps attached
to the part-petitions in this case rendered the petition’s summary misleading
because, they argue, it was “very difficult for any potential signer of the part-
petition to accurately read the details” of the proposed zoning plan or understand
the location of the proposed development “in a regional context.” Relators say that
the petition should have included the larger and more detailed 11-by-17-inch color
maps that relators submitted to the township trustees.
{¶ 23} Relators’ argument is unavailing. After reviewing the maps that
were attached to the part-petitions submitted as evidence in this case, we conclude
that they do not support relators’ contention that the maps were so faded and blurry
as to be misleading to potential signers about the area covered by the zoning
amendment. Moreover, relators submitted no evidence at the protest hearing to
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support their theory that the maps misled or confused anyone who was asked to
sign the petition.
{¶ 24} Relators also argue that the more detailed, color-coded maps were
necessary because they depicted changes that T-Bill Development made in
response to input from neighboring landowners. But such information is not
required to be included in a summary of a zoning resolution. 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. See State ex rel. Hillside Creek Farms, L.L.C. v. Clark Cty. Bd. of
Elections, __ Ohio St.3d __, 2021-Ohio-3214, __ N.E.3d __, ¶ 34.
3. Referring potential signers to the township zoning department
{¶ 25} Finally, relators contend that the petition summary is deficient
because it stated that the “Regulation Text” for the proposed development was
attached as an exhibit to the petition but also stated: “The Regulation Text and other
documents are available by request at the Jerome Township Zoning Department.”
Relators argue that this is confusing because potential signers would have been
unsure whether the regulation text was attached as an exhibit or whether they had
to go to the township zoning department to obtain it.
{¶ 26} Relators’ argument is without merit. “The overriding purpose of the
summary is to fairly and accurately present the question or issues to be decided so
as to ensure that voters can make free, intelligent, and informed decisions.”
Jacquemin, 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, at ¶ 7. The
summary in this case fairly and accurately presented the issue: it disclosed to
potential signers the proposed zoning change, the location of the property affected,
and a description of the current and amended zoning. See Donaldson, __ Ohio
St.3d __, 2021-Ohio-2943, __ N.E.3d __, at ¶ 14-15 (a summary gives fair
understanding of the measure when it identifies the location of the affected
property, the current zoning, and the zoning change). The fact that the petition
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summary referred signers to the zoning-commission office to find additional
information did not render the summary inaccurate, confusing, or misleading.
III. CONCLUSION
{¶ 27} For the foregoing reasons, relators have not shown that the board of
elections abused its discretion or clearly disregarded applicable law in denying their
protest. We therefore deny the writs.
Writs denied.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Taft, Stettinius & Hollister, L.L.P., Steven R. Cuckler, and Joseph C.
Pickens, for relators.
David W. Phillips, Union County Prosecuting Attorney, and Thayne D.
Gray, Assistant Prosecuting Attorney, for respondent.
_________________
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