State Ex Rel. Edwards Land Co. v. Delaware Cnty. Bd. of Elections., 2011-1266

CourtUnited States State Supreme Court of Ohio
Writing for the CourtPFEIFER
Docket NumberNo. 2011-1266,2011-1266
Decision Date31 August 2011

2011 Ohio 4397


No. 2011-1266

Supreme Court of Ohio

Submitted August 23, 2011
Decided August 31, 2011


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 formal errors in the opinion, in order that corrections may be made before the opinion is published.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. Edwards Land Co., Ltd. v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2011-Ohio-4397.]

Prohibition — R.C. 519.12(H) — Board of Elections abused its discretion in denying relators' protest — Referendum petition was not timely filed — Writ granted.



{¶ 1} This is an original action for a writ of prohibition to prevent respondent, the Delaware County Board of Elections, from certifying a referendum petition and submitting a Liberty Township zoning amendment to the township electorate at the November 8, 2011 general election. Because relators, who applied for the zoning amendment and protested the referendum petition,

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have established their entitlement to the requested extraordinary relief, we grant the writ.

Statutory Backdrop

{¶ 2} This case arises out of the amendment of a township zoning resolution and the subsequent attempt by certain township citizens to force a referendum vote on the amendment. R.C. 519.12 sets out the process for amending township zoning resolutions and for overturning those amendments. Pursuant to R.C. 519.12(A)(1), an owner of property within the area proposed for a zoning change may initiate an amendment to a township zoning resolution by filing an application with the township zoning commission. R.C. 519.12(A)(2) requires a public hearing before the zoning commission on the proposed amendment. Under R.C. 519.12(E), the zoning commission must solicit a recommendation on the amendment from county or regional planning authorities. That recommendation is considered at the zoning commission's public hearing. After the public hearing, the zoning commission recommends the approval or denial of the proposed amendment, or the approval of some modification of it, and submits that recommendation, the recommendation of the county or regional planning commission, and the text and map pertaining to the proposed amendment to the board of township trustees. R.C. 519.12(E).

{¶ 3} The board of township trustees, in turn, must hold a public hearing on the proposed amendment. R.C. 519.12(E). Pursuant to R.C. 519.12(H), within 20 days of its hearing, the board of trustees must "either adopt or deny the recommendations of the township zoning commission or adopt some modification of them." If the board denies or modifies the commission's recommendations, a majority vote of the board is required. If the board adopts the proposed zoning amendment, with or without modification, the zoning amendment automatically becomes effective 30 days after the board of trustees' action, unless a referendum petition is filed within those 30 days. R.C. 519.12(H).

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{¶ 4} The focus of this case is on R.C. 519.12(H), and specifically on whether the petitioners filed their referendum petition within 30 days of the board of trustees' adoption of the zoning amendment at issue. On what date the board of trustees adopted the zoning amendment is the bone of contention.

Factual and Procedural Background

{¶ 5} In January 2009, relator Valerie Knowlton submitted a zoning-amendment application to Liberty Township—Rezoning Proposal LTZ 09-01— that would amend the township zoning resolution to rezone 216.3 acres on three parcels of township land from Farm Residence District (FR-1) to Planned Residence District (PR). Knowlton owned the property at that time. Relator Edwards Land Co., Ltd. ("Edwards Land") is a limited-liability company that will be the developer of the property that is subject to rezoning, and relator Charles P. Driscoll Jr. is the company's president.

{¶ 6} In November 2010, Knowlton transferred the property to relator MRLD Farm, Ltd. ("MRLD"), a limited-liability company of which she is a member, and in January 2011, Knowlton amended her rezoning application to reflect that MRLD was the owner of the property. On January 26, 2011, the Liberty Township Zoning Commission voted to recommend approval of the rezoning proposal.

{¶ 7} The proposed amendment then moved to the Liberty Township Board of Trustees for review. Pursuant to R.C. 519.12(H), it then became the board of trustees' duty to "either adopt or deny the recommendations of the township zoning commission or adopt some modification of them." Beginning on March 15, 2011, and continuing on April 4, 2011, the board of trustees conducted its final public hearing on Rezoning Proposal LTZ 09-01. At the conclusion of the April 4, 2011 hearing, the board of trustees verbally amended the rezoning proposal as follows: (1) "Pillion Way be stubbed and not be connected and, if for any reason it is required to be connected by another authority at a later date, that

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the connection be restricted to emergency vehicle access only with gates or like devices which will be subject to approval by this Board of Trustees and our Liberty Township Fire Department" and (2) "Red Emerald Way be restricted to emergency vehicle access only, and that it be gated or has such other device as to only allow emergency vehicle access, with such device being subject to approval by the Board of Trustees and the Liberty Township Fire Department." The board of trustees then unanimously approved the application for rezoning as amended, rezoning 216.3 acres on three parcels of township land from Farm Residence District to Planned Residence District.

{¶ 8} At the board of trustees' April 18, 2011 meeting, the board noted that minutes for its March 15 and April 4 meetings would be approved at the board's May 4, 2011 meeting. At the board of trustees' May 4 meeting, the board approved its minutes for the April 4, 2011 meeting; those minutes included the board's approval of the application as amended by the board. May 4 was thus the first date upon which there was an approved, written recordation of the board's April 4 modification and approval of the zoning amendment.

{¶ 9} On June 3, 2011, a group of petitioners filed a referendum petition seeking to submit the board's action approving the rezoning of the property to the electors of Liberty Township. Their filing date fell 60 days after the board of township trustees' April 4 voice-vote adoption of the amended version of MRLD's Rezoning Proposal LTZ 09-01 and 30 days after the board's May 4 approval of the minutes for the April 4 hearing. The petitioners specified that they sought a referendum "on the proposal to amend the Zoning Map of the unincorporated area of Liberty Township, Delaware County, Ohio," that was "[a]dopted on the 4th day of May, 2011 by the Liberty Township Board of Trustees, Rezoning Proposal LTZ-09-01 [and that] would permit the rezoning of 216+ acres at the intersection of Home Road and Olentangy River Road from Farm Residence District (FR-1) to Planned Residence District (PR)."

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{¶ 10} With their petition, the petitioners submitted a black-and-white copy of the official zoning map for all of Liberty Township. The map was not highlighted or otherwise marked to delineate the 216.3-acre property subject to the zoning amendment being challenged.

{¶ 11} On June 23, 2011, relators, Edwards Land, Driscoll, MRLD, and Knowlton, submitted a protest to the Delaware County Board of Elections against the referendum petition. In their protest, relators specified eight separate grounds, including the two grounds argued here—that the referendum petition was not timely filed and that the petitioners did not submit an appropriate map of the area affected by the zoning proposal. On June 28, the board of elections certified the referendum petition and placed the rezoning issue on the November 8, 2011 general-election ballot.

{¶ 12} On July 18, 2011, the board of elections held a hearing on relators' protest. Relators and the petitioners were represented by counsel at the hearing, and sworn testimony was submitted. Kathy Melvin, the clerk of the Liberty Township Board of Trustees, testified that the board of trustees addresses zoning amendments by motion at a public hearing rather than by written resolution because the board considers zoning amendments to require only an "administrative review." The board of elections voted two to one to deny the relators' protest and to affirm its prior certification of the referendum to the November 8 election ballot. The board also issued a document entitled "Findings of Fact and Conclusion and Decision" in which it gave reasons for rejecting each of relators' protest grounds.

{¶ 13} Eight days later, on July 26, 2011, relators filed this action for a writ of prohibition to prevent the board of elections from certifying to the November 8 election ballot a referendum on Liberty Township Rezoning Proposal LTZ 09-01 and a writ of mandamus to compel the board of elections to sustain relators' protest against the referendum petition. Relators also filed a motion to


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