State ex rel. Ebersole v. City Council of Powell, 2016–1701.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: PER CURIAM.
• Citation: 75 N.E.3d 1245,2017 Ohio 509,149 Ohio St.3d 501
• Parties: The STATE ex rel. EBERSOLE v. CITY COUNCIL OF POWELL et al.
• Docket Number: No. 2016–1701.,2016–1701.
• Decision Date: 14 February 2017

149 Ohio St.3d 501
75 N.E.3d 1245
2017 Ohio 509

The STATE ex rel. EBERSOLE
v.
CITY COUNCIL OF POWELL et al.

No. 2016–1701.

Supreme Court of Ohio.

Submitted Feb. 9, 2017.
Decided Feb. 14, 2017.

75 N.E.3d 1245

Brian Ebersole, pro se.

Frost Brown Todd, L.L.C., Eugene L. Hollins, Katherine Klingelhafer, and Yazan S. Ashrawi, Columbus, for respondent.

Vorys, Sater, Seymour & Pease, L.L.P., Joseph R. Miller, Christopher L. Ingram, and Kara M. Mundy, Columbus, for intervening respondents.

PER CURIAM.

149 Ohio St.3d 501

{¶ 1} Relator, Brian Ebersole, seeks a writ of mandamus to compel respondent Powell City Council to place a referendum on the May 2017 ballot. We deny the writ.

75 N.E.3d 1246

Background

{¶ 2} This case arises out of efforts to develop 8.75 acres of land adjoining Beech Ridge Drive in Powell, Ohio. On or about April 24, 2015, Arlington Homes¹ submitted a development plan for the property to Powell. The plan envisioned a residential development to be called Harper's Pointe, consisting of 47 single-family condominium homes. The plan also requested a change of zoning classification for the property from "R–Residential and Planned Commercial" to "Planned Residential–PR."

{¶ 3} On May 19, 2015, the Powell City Council adopted Ordinance 2015–18, approving the plan and amending the zoning map from "PC, Planned Commercial District and R, Residence District" to "PR, Planned Residence District."

149 Ohio St.3d 502

{¶ 4} In November 2015, the voters of Powell rejected Ordinance 2015–18 in a referendum election.

{¶ 5} On or about July 26, 2016, Arlington Homes submitted a second development plan for Harper's Pointe. This time, the plan called for the construction of 48 single-family homes on the same 8.75 acres. Arlington Homes' new application again sought to rezone the property as Planned Residential–PR but the zoning commission insisted instead that the land should be rezoned to DR, Downtown Residence District.

{¶ 6} On November 1, 2016, Ordinance 2016–44—rezoning the property from Planned Commercial and Residence Districts to Downtown Residence District—came before the Powell City Council for a second reading. The city's law director clarified for the council that the only matter up for consideration was the proposed rezoning and that the council was not voting on the proposed development plan at that time. The council formally voted to clarify that the development plan was not part of the document under consideration and then approved Ordinance 2016–44.

Legal issue and procedural development

{¶ 7} The Powell City Charter, Article VI, Section 6.06(B) provides that "[o]rdinances rejected or repealed by an electoral vote shall not be re-enacted, in whole or in part, except by an electoral vote." During the November 1 council meeting at which Ordinance 2016–44 was adopted, Councilman Tom Counts expressed concern about violating the charter:

I was concerned at the last Council meeting about what our obligations would be if we were to find this Ordinance to be similar in whole or in part [to the prior Ordinance] because our Charter says that if it is similar it needs to be voted on by the residents. I believe that we as a Council need to have a discussion about whether we believe that this Ordinance is different than the other ordinance. I had asked our Law Director to prepare a proposed amendment ordinance which not only has the existing language in it but that it has language which sends it to the ballot. * * * If this Council were to approve this

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