State ex rel. Brown v. Butler Cty. Bd. of Elections
| Decision Date | 22 March 2006 |
| Docket Number | No. 2006-0418.,2006-0418. |
| Parties | The STATE ex rel. BROWN et al. v. BUTLER COUNTY BOARD OF ELECTIONS. |
| Court | Ohio Supreme Court |
Aronoff, Rosen & Hunt, Stanley J. Aronoff, Richard A. Paolo, and Kevin L. Swick, Cincinnati, for relators.
Robin N. Piper, Butler County Prosecuting Attorney, and Roger S. Gates, Assistant Prosecuting Attorney, for respondent.
{¶ 1} This is an expedited election case in which relators request a writ of prohibition to prevent a board of elections from submitting a county zoning amendment to the electorate on May 2, 2006.
{¶ 2} Relators Evelyn A. Brown, Hazel Brown, Darrell E. Brown, Margy B. Beckner, John W. Brown, and James G. Inman own certain property in Ross Township, Butler County, Ohio. Relator Red Pine Properties, L.L.C. ("Red Pine") has agreed to purchase the property from the owners in order to develop it. Relator Andrew J. Temmel is a member of Red Pine.
{¶ 3} On August 8, 2005, Red Pine requested that the property be rezoned from A-1 (agricultural district) and R-2 (single-family-residence district) to R-PUD (residential—planned-unit-development district). On September 13, 2005, the Butler County Planning Commission recommended that Red Pine's request be approved subject to six specified conditions. On October 10, 2005, the Butler County Rural Zoning Commission recommended approval of Red Pine's zoning request subject to 11 stated conditions.
{¶ 4} On November 28, 2005, the Butler County Board of Commissioners approved the recommendation of the zoning commission and passed Resolution No. 05-11-2321, which provides:
{¶ 5} "WHEREAS, by advertisement, a public hearing to amend the Butler County Rural Zoning Resolution was held on November 28, 2005 on the application of Red Pine Properties (case RZC 05-10), to redistrict the following described property in Ross Township from A-1 (Agricultural District) and R-2 (Single Family Residence District) to R-PUD (Residential—Planned Unit Development District):
{¶ 6} "[Property Description]
{¶ 7} "* * *
{¶ 8} "WHEREAS, the Butler County Rural Zoning Commission recommended said map amendment be approved at a public hearing held in conjunction therewith on September 19, 2005; and
{¶ 9} "WHEREAS, the Board of Butler County Commissioners concurs with the findings of the * * * Butler County Rural Zoning Commission that said amendment is an appropriate use of the land.
{¶ 10} "THEREFORE BE IT RESOLVED that the Commission approves the request for case RZC 05-10 based on the aforementioned reasons."
{¶ 11} In December 2005, certain Ross Township electors submitted to the Butler County Board of Commissioners a petition for a referendum on Resolution No. 05-11-2321 pursuant to R.C. 303.12(H). The petitioners requested that the zoning amendment be submitted to township electors at the May 2, 2006 election.
{¶ 12} The petition contained the following summary of the zoning amendment:
{¶ 13} "A proposal to amend the Butler County Rural Zoning Resolution on the application of Red Pine Properties (case RZC 05-10), to redistrict the property described in the attached Resolution No. 05-11-2321 in Ross Township from A-1 (Agricultural District) and R-2 (Single Family Residence District) to R-PUD (Residential—Planned Unit Development District).
{¶ 14} "A legal description of the property is contained in the full text of Resolution No. 05-11-2321 attached hereto."
{¶ 15} As specified in the petition, a copy of the complete text of Resolution No. 05-11-2321 was attached. The petition also included a map showing the affected property. According to the Clerk of the Butler County Board of Commissioners, the map used by the referendum petitioners was attached to Resolution No. 05-11-2321 in the board's records. When the referendum petitioners asked her for a copy of the resolution, she included the map attached to the resolution.
{¶ 16} On January 10, 2006, Red Pine filed a protest against the petition with respondent, Butler County Board of Elections. Red Pine claimed that the petition was invalid because the summary of the resolution and the map were ambiguous and misleading.
{¶ 17} On February 13, 2006, the board of elections held a hearing on Red Pine's protest. At the hearing, Red Pine's representative testified that the map used by the referendum petitioners had been used in zoning meetings and that the planning commission had produced the map to identify the area. A referendum petitioner testified that although the map was not required, it was included with the petition to help petition signers determine the location of the affected property. The petitioner further testified that he had obtained the map from either the board of elections or some other county office and that Red Pine had put the map on a display board at the zoning meetings. Red Pine's representative also testified that the map provided a basic understanding of where the proposed development is located.
{¶ 18} At the conclusion of the hearing, the board of elections denied Red Pine's protest. The board of elections concluded that the petition satisfied the statutory brief-summary requirement because the summary was "basically identical to the resolution." The board of elections further concluded that the map was not misleading, because "it generally accurately portrays the area of the proposed change." The board thus accepted the petition and placed Resolution No. 05-11-2321 on the May 2, 2006 election ballot.
{¶ 19} On February 27, 2006, relators filed this expedited election case seeking a writ of prohibition to prevent the board of elections from submitting Resolution No. 05-11-2321 to the Ross Township electors at the May 2, 2006 election. On March 7, 2006, the board of elections submitted an answer. Evidence and briefs were filed pursuant to the accelerated schedule for expedited election matters in S.Ct.Prac.R. X(9).
{¶ 20} This cause is now before the court for a decision on the merits.
{¶ 21} Relators claim that they are entitled to a writ of prohibition to prevent the board of elections from submitting Resolution No. 05-11-2321 to the township electorate on May 2, 2006. In order to be entitled to the requested writ of prohibition, relators must establish that (1) the board of elections is about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Choices for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 29.
{¶ 22} Relators have established the first and third requirements for the writ. The board of elections exercised quasi-judicial authority by denying Red Pine's protest after conducting a hearing that included sworn testimony. See Tatman v. Fairfield Cty. Bd. of Elections, 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 14 (). In addition, given the closeness of the election date in this expedited election case, relators lack an adequate remedy in the ordinary course of law. See, e.g., State ex rel Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d 289, 291-292, 649 N.E.2d 1205; State ex rel. Smart v. McKinley (1980), 64 Ohio St.2d 5, 6, 18 O.O.3d 128, 412 N.E.2d 393.
{¶ 23} Therefore, the dispositive issue for relators' prohibition claim is whether the board of elections' act of denying Red Pine's protest and submitting the resolution to the electorate was unauthorized by law. In extraordinary actions contesting a board of elections decision, we must determine whether the board acted fraudulently or corruptly, abused its discretion, or clearly disregarded applicable law. Choices for South-Western City Schools, 108 Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 32. There is no allegation of fraud or corruption here, and thus, relators must establish that the board of elections abused its discretion or clearly disregarded applicable law by denying Red Pine's protest. "An abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude." State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 305, 686 N.E.2d 238.
{¶ 24} Relators assert that the board of elections abused its discretion and clearly disregarded applicable law by denying Red Pine's protest, because the referendum petition did not comply with the brief-summary requirement of R.C. 303.12(H) and the map attached to the petition was misleading and inaccurate and contained material omissions.
{¶ 25} R.C. 303.12(H) requires that each part of a petition seeking a referendum on a county 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 proposal is known and a brief summary of its contents." (Emphasis added.)
{¶ 26} "Where an application for rezoning has been amended during the legislative process, the phrase, `brief summary of its contents' necessarily refers to the proposal to amend the zoning resolution as adopted by the resolution of the board of county commissioners." State ex rel. Rife v. Franklin Cty. Bd. of Elections (1994), 70 Ohio St.3d 632, 634, 640 N.E.2d 522, citing Olen Corp. v. Franklin Cty. Bd. of Elections (1988), 43 Ohio App.3d 189, 194, 541 N.E.2d 80; see, also, State ex rel. O'Beirne v. Geauga Cty....
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