State ex rel. Barney v. Union Cnty. Bd. of Elections

• Decision Date: 17 October 2019
• Docket Number: No. 2019-1296,2019-1296
• Citation: 159 Ohio St.3d 50,2019 Ohio 4277,147 N.E.3d 595
• Parties: The STATE EX REL. BARNEY et al. v. UNION COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

159 Ohio St.3d 50

147 N.E.3d 595

2019 Ohio 4277

The STATE EX REL. BARNEY et al.

v.UNION COUNTY BOARD OF ELECTIONS.

No. 2019-1296

Supreme Court of Ohio.

Submitted October 11, 2019

Decided October 17, 2019.

McTigue & Colombo, L.L.C., J. Corey Colombo, Donald J. McTigue, Derek S. Clinger, and Ben F.C. Wallace ; and Laura M. Comek Law, L.L.C., and Laura MacGregor Comek, Columbus, for relators.

David W. Phillips, Union County Prosecuting Attorney, and Thayne D. Gray, Assistant Prosecuting Attorney, for respondent.

Kristen L. Sours, urging granting of the writ for amicus curiae, Ohio Home Builders Association.

Per Curiam.

{¶ 1} In this expedited election case, relators, Bryan R. Barney and Walbonns, L.L.C., ("the protesters"), seek a writ of prohibition to prevent respondent, the Union County Board of Elections, from placing a township zoning referendum on the November 5, 2019 general-election ballot. We deny the writ.

I. Background

{¶ 2} On January 28, 2019, Paragon Building Group, Ltd., filed an application to rezone approximately 210.62 acres of land in Jerome Township, Union County. The property in question is currently zoned RU-Rural Residential District and SRE-Special Recreation District. The application sought to change the zoning classification to PD-Planned Development District. Upon its filing, the zoning application was designated "PD 19-130."

{¶ 3} In March 2019, the Jerome Township Zoning Commission voted five to zero to recommend approval of PD 19-130 to the Jerome Township Board of Trustees. The board of trustees held four public hearings on the application.

{¶ 4} On July 2, the trustees adopted Resolution No. 19-066 by a two-to-one vote. The resolution approved application PD 19-130, subject to five conditions (referred to as "modifications"). Those modifications were set forth on a separate page labeled "Attachment 1":

1. Increase to a 40-foot minimum setback for lots having shared access drives along Crottinger Road.

2. Remove at least 5 lots from south property (wooded area), adjacent to the neighbor/residence at 10420 Crottinger Road, with the option at Applicant's election to redistribute or re-place any of those 5 lots elsewhere in the development at Final Development Plan. 3. Include additional language in the Development Text to state plainly that any golf course or other use operated or conducted on the Open Space shall at all times be open to the public.

4. As proposed by the Applicant, developer to pay a $500 per lot supplemental zoning review fee, payable at time of Township zoning approval.

5. Prior to construction, the execution and recording of an option contract for the golf course area substantially similar to the one prepared and proposed by the Applicant dated June 12, 2019.

{¶ 5} On July 29, a petition was filed with the Jerome Township Fiscal Officer, seeking to place a referendum concerning the zoning amendment on the November ballot. Atop each part-petition form, in the space designated for the "[n]ame and number of the proposal, if any," the circulators wrote:

Amendment of Zoning Resolution to rezone approx. 210.62 acres from Rural Residential District (RU) and Special Recreation District (SRE) to Planned Development District (PD). Resolution 19-066.

{¶ 6} In the space provided for a summary of the proposed zoning amendment, the following information was provided:

A resolution, 19-066, approving zoning amendment PD 19-130 to rezone approximately 210.62 +/- acres located approximately 2,100 feet north-west of the intersection of Taylor Road and Industrial Parkway having a current address of 10897 Industrial Parkway, Marysville, Ohio 43040 ("Property"), from Rural Residential District (RU) and Special Recreation District (SRE) to Planned Development District (PD) allowing for a residential community consisting of up to 378 single-family homes and open space areas to be known as "Rolling Meadows."

The attached exhibits provide more details.

Resolution 19-066 (Exhibit 1)

List of Affected Parcels (Exhibit 2)

Regional Context Map (Exhibit 3)

Illustrative Master Plan (Exhibit 4)

Exhibit 1 included the "Attachment 1" that set forth the five modifications imposed by the board of trustees. However, the modifications were not described in the summary, nor did the summary indicate that there were any modifications.

{¶ 7} On August 6, the board of trustees certified the petition to the Union County Board of Elections to determine the petition's sufficiency and validity. One week later, the board of elections determined that the petition contained a sufficient number of valid signatures and certified the issue to the ballot.

{¶ 8} Three days later, on August 16, the protesters filed a protest against the petition with the board of elections. They alleged that they each own two parcels of land that would be subject to the proposed zoning amendment. Their protest letter identified four alleged defects in the petition: (1) the petition incorrectly identified the number of the zoning-amendment application, (2) the petition incorrectly identified the full and correct title of the zoning-amendment application, (3) the petition incorrectly identified the name by which the zoning amendment is known, and (4) the petition's brief summary contained material omissions.

{¶ 9} The board of elections conducted a hearing on the protest on September 19, at which it heard testimony from nine witnesses and received documents into evidence, including an affidavit from one of the township trustees who was unable to attend for medical reasons. At the conclusion of the hearing, the board voted to deny the protest, allowing the referendum to appear on the ballot.

II. Procedural history

{¶ 10} On September 23, the protesters filed a complaint for a writ of prohibition. Because they filed their complaint within 90 days of the relevant election, the case was automatically expedited pursuant to S.Ct.Prac.R. 12.08(A)(1). The matter was fully briefed. The only evidence in the record was submitted by the protesters. We also received an amicus brief from the Ohio Home Builders Association supporting the issuance of a writ.

III. Legal analysis

{¶ 11} Three elements are necessary for a writ of prohibition to issue: the exercise of judicial or quasi-judicial power, the lack of legal authority for the exercise of that power, and the lack of an adequate remedy in the ordinary course of law. State ex rel. Tam O'Shanter v. Stark Cty. Bd. of Elections , 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 14.

{¶ 12} The first and third elements are met. R.C. 3501.39(A) requires a board of elections to conduct a quasi-judicial hearing on a petition protest. See State ex rel. Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd. of Elections , 123 Ohio St.3d 260, 2009-Ohio-4980, 915 N.E.2d 1187, ¶ 15. A board of elections exercises quasi-judicial authority when it makes a decision regarding a protest after a mandatory hearing that includes sworn testimony. See Christy v. Summit Cty. Bd. of Elections , 77 Ohio St.3d 35, 37, 671 N.E.2d 1 (1996). And due to the proximity of the November election, the protesters have no adequate remedy at law. See State ex rel. Combs v. Greene Cty. Bd. of Elections , 158 Ohio St.3d 70, 2019-Ohio-4110, 140 N.E.3d 555, ¶ 6.

{¶ 13} This case turns on the second element of the prohibition analysis: whether the board of elections lacked authority to place the petition on the ballot. To answer this question, we "must determine whether the board acted fraudulently or corruptly, abused its discretion, or clearly disregarded applicable law." State ex rel. Brown v. Butler Cty. Bd. of Elections , 109 Ohio St.3d 63, 2006-Ohio-1292, 846 N.E.2d 8, ¶ 23. There is no allegation that the board acted "fraudulently or corruptly."

A. The requirements of R.C. 519.12(H)

{¶ 14} 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). The statute thus imposes "four distinct requirements" regarding what a zoning-referendum petition must contain:

(1) "the number of * * * the zoning amendment resolution, motion, or application,"

(2) "the full and correct title , if any, of the zoning amendment resolution, motion, or application,"

(3) "the name by which the amendment is known," and

(4) "a brief summary of the contents."

(Emphasis added.) State ex rel. Quinn v. Delaware Cty. Bd. of Elections , 152 Ohio St.3d 568, 2018-Ohio-966, 99 N.E.3d 362, ¶ 26, quoting R.C. 519.12(H).

{¶ 15} The requirements of R.C. 519.12(H) demand strict compliance. Quinn at ¶ 30. The protesters contend that the petition did not satisfy any of these requirements and therefore the board of elections abused its discretion and clearly disregarded applicable law by permitting the referendum to appear on the ballot.

B. The number of the zoning-amendment application

{¶ 16} The requirement of R.C. 519.12(H) that the petition must provide the number of the zoning-amendment resolution, motion, or application appears to be written in the disjunctive. As we explained in Quinn , the three possibilities actually mirror the three methods by which a zoning amendment may be initiated. Id . at ¶ 29. Under R.C. 519.12(A)(1), amendments to a township zoning resolution may be initiated in one of three ways, depending on who proposes the change: (1) by motion of the township zoning commission, (2) by the passage of a resolution by the board of township trustees, or (3) by the filing of an application by one or more of the owners or lessees of the affected property. Tam O'Shanter , 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, at ¶ 18. The appropriate number and title to use on the petition "depends on the method of initiation," Quinn at ¶ 29. When, as in this case, the zoning amendment is proposed by an application, R.C. 519.12(H) requires the petition to contain the...