State ex rel. Donaldson v. Del. Cnty. Bd. of Elections

• Decision Date: 26 August 2021
• Docket Number: 2021-0867
• Citation: 166 Ohio St.3d 55,182 N.E.3d 1135
• Parties: The STATE EX REL. DONALDSON v. DELAWARE COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

166 Ohio St.3d 55

182 N.E.3d 1135

The STATE EX REL. DONALDSON

v.DELAWARE COUNTY BOARD OF ELECTIONS et al.

No. 2021-0867

Supreme Court of Ohio.

Submitted August 23, 2021

Decided August 26, 2021

Guzzo Law Office, L.L.C., and Peggy S. Guzzo, Dublin, for relator.

Melissa A. Schiffel, Delaware County Prosecuting Attorney, and Mark W. Fowler and Vince J. Villio, Assistant Prosecuting Attorneys, for respondent.

Vorys, Sater, Seymour and Pease, L.L.P., and Joseph R. Miller, Christopher L. Ingram, Elizabeth S. Alexander, Columbus, and Muna Abdallah, for intervening respondent.

Per Curiam.

{¶ 1} Relator, Scott Donaldson, seeks to place a referendum on the November 2021 ballot asking voters to approve or disapprove an amendment to the Liberty Township Zoning Resolution. Respondent, Delaware County Board of Elections, sustained a protest to the referendum petition because the petition did not include an adequate summary of the zoning amendment as required by R.C. 519.12(H). Donaldson asks this court to issue a writ of mandamus ordering the board of elections to place the referendum on the ballot. We deny the writ because the board of elections did not abuse its discretion or disregard clearly applicable law in sustaining the protest.

I. Factual and Procedural Background

{¶ 2} The zoning amendment at issue in this case would allow a planned development on 17 parcels of land, totaling approximately 190 acres, in Liberty Township. Currently, the various parcels are zoned as either planned-residence or farm-residence districts.

{¶ 3} The various owners of the 17 parcels, including intervening respondent, Clarkshaw Reserve I, L.L.C. ("Clarkshaw"), submitted to the Liberty Township Board of Trustees (the "township") an application to establish a "planned overlay district" known as "POD 18(D)" and to amend the township's zoning resolution accordingly. The affected property would be rezoned for a planned-unit development under R.C. 519.021(C).¹ Between October 2020 and January 2021, the Liberty Township Zoning Commission considered the proposed amendment and held at least two public hearings on the proposal. On January 27, 2021, the zoning commission adopted a resolution recommending that the proposed amendment be denied.

{¶ 4} The township held public hearings on February 16 and March 15, 2021, to consider the proposed zoning amendment. See R.C. 519.12(E)(3) (stating that a board of township trustees shall have a public hearing on the proposed amendment after receipt of the zoning commission's recommendation). Clarkshaw modified the zoning amendment in response to some residents’ concerns and submitted the modified version to the township on March 12, 2021. Clarkshaw's modifications created five subareas with varying permitted uses in the proposed POD 18(D). The four largest subareas would be rezoned for residential and/or certain commercial uses, and the fifth subarea would be rezoned to permit hospital or certain healthcare use.

{¶ 5} At the March 15 meeting, the township approved Clarkshaw's amended version of the zoning amendment, along with 36 additional modifications that were read into the record. Thereafter, Donaldson circulated a petition to subject the POD 18(D) zoning amendment to a referendum in the November 2 election. And on April 13, Donaldson delivered a referendum petition to the township. Each part-petition contained the following:

The following is a brief summary of the proposed zoning amendment:

The proposed amendment would add Article 18D to the Zoning Resolution and create the planned overlay district as a planned unit development under Ohio Revised Code 519.021(C) and which would include sections detailing: the purpose and establishment of the overlay; requirements for the overlay, including development tract sizes, permitted uses, open space and prohibited uses; establishment of a review process and procedure; process for modification or extension of development plan; basis of approval; an approval period; process for modification or extension of development plan; provisions for design standards and minimum development standards including, but not limited to, access, setbacks, yard areas, signage, landscaping, parking, loading, and open space; and provisions for divergences from minimum development standards. This amendment would also amend Section 5.01 by adding the POD 18D as a zoning district in the Zoning Resolution and revising the Zoning Map to designate the POD 18D area. As part of the proposed amendment, the area and parcels proposed to be rezoned to the POD 18D are shown on the POD 18D Overlay Zoning District Map which is attached to and made part of the proposed amendment text.

The "POD18D Overlay Zoning District Map" referred to in the summary was not attached to the part-petitions that were circulated for signature. According to Donaldson, the language used in the summary was derived from the public-hearing notices issued by the zoning commission and the township on the proposed zoning amendment.

{¶ 6} On April 19, the township adopted a resolution certifying the petition to the board of elections. Clarkshaw submitted a protest letter to the board of elections, challenging the validity and sufficiency of the petition's summary of the zoning amendment. The board of elections certified the referendum for the November 2 ballot without addressing the sufficiency and validity of the summary.

{¶ 7} Clarkshaw, joined by two other protesters, resubmitted the protest letter on May 13. The protest letter alleged three deficiencies in the petition summary: (1) failure to identify the property subject to the referendum, (2) failure to adequately describe the township trustees’ zoning resolution, and (3) failure to include modifications made to the zoning amendment prior to its passage by the township trustees.

{¶ 8} The board of elections held a protest hearing on June 28. Donaldson filed a motion to dismiss the protest, arguing that the board of elections lacked jurisdiction over the protest because the zoning amendment at issue was not properly initiated under R.C. 519.021(C) and was therefore void. The board of elections denied the motion and following testimony and the submission of evidence, voted to sustain the protest and decertify the petition from the November ballot.

{¶ 9} Donaldson commenced this action on July 14 and filed an amended complaint on July 19, naming the board of elections, the township, and individual township trustees as respondents. In his first claim for relief, Donaldson seeks a writ of mandamus ordering the board of elections to place the referendum petition on the November 2 ballot. The second through fifth claims sought extraordinary relief in either mandamus or prohibition against the board and the township respondents. The court set an expedited schedule ordering respondents to respond to the amended complaint by July 23. See 163 Ohio St.3d 1503, 2021-Ohio-2453, 170 N.E.3d 893.

{¶ 10} The board of elections and the township timely filed answers and motions to dismiss the second through fifth claims for relief under Civ.R. 12(B)(6), and Clarkshaw filed a motion to intervene as a respondent. We granted the motion to intervene, granted the motions to dismiss counts two through five, and dismissed the township respondents as parties to this action. See 163 Ohio St.3d 1514, 2021-Ohio-2627, 171 N.E.3d 337. We also granted an alternative writ as to the first claim and set an expedited schedule for the submission of evidence and merit briefs. Id. Donaldson, Clarkshaw, and the board of elections have submitted evidence and merit briefs, and the matter is ripe for our decision.

II. Analysis

{¶ 11} To obtain a writ of mandamus ordering the board of elections to place the referendum on the November ballot, Donaldson must establish by clear and convincing evidence (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. See State ex rel. Ebersole v. Powell , 149 Ohio St.3d 501, 2017-Ohio-509, 75 N.E.3d 1245, ¶ 10. Given the proximity of the November election, Donaldson 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. As to the remaining elements, Donaldson must show that the board of elections engaged in fraud or corruption, abused its discretion, or clearly disregarded applicable law in invalidating 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. Donaldson does not claim fraud or corruption on the part of the board of elections; therefore, the relevant inquiry is whether the board abused its discretion or clearly disregarded applicable law.

A. The Petition's Summary

{¶ 12} 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). A referendum petition must comply strictly with these requirements. State ex rel. Quinn v. Delaware Cty. Bd. of Elections , 152 Ohio St.3d 568, 2018-Ohio-966, 99 N.E.3d 362, ¶ 30. The sole issue in this case is whether the summary of POD 18(D) contained in the referendum petition complied strictly with R.C. 519.12(H).

{¶ 13} The phrase "brief summary of its contents" 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 Tam O'Shanter Co. v. Stark Cty. Bd. of Elections , 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 18 (explaining the three statutory methods—motion, resolution, or...