State ex rel. McCord v. Bd. of Elections

Decision Date13 September 2005
Docket NumberNo. 2005-1527.,2005-1527.
Citation2005 Ohio 4758,106 Ohio St.3d 346,835 N.E.2d 336
PartiesThe STATE ex rel. McCORD et al. v. DELAWARE COUNTY BOARD OF ELECTIONS et al.
CourtOhio Supreme Court

Chester, Willcox & Saxbe, L.L.P., Charles R. Saxbe, Donald C. Brey, and Timothy S. Horton, Columbus, for relators.

David A. Yost, Delaware County Prosecuting Attorney, and William J. Owen and Christopher D. Betts, Assistant Prosecuting Attorneys, for respondents.

Moots, Carter & Hogan and Christopher E. Hogan, Columbus, for intervening respondent.

PER CURIAM.

{¶ 1} Relator Margaret Carole McCord is a Kingston Township, Delaware County, Ohio elector. McCord actively supports the efforts of relator NorthStar Land, L.L.C. ("NorthStar") to develop certain real property in Kingston Township that is the subject of this action. Relator Robert J. Weiler is a member of NorthStar and owns some of the property.

Initial Zoning Resolution and Referendum Petition

{¶ 2} In 2002, NorthStar requested that 866.47 acres of property in Kingston Township be rezoned from Farm Residence to Planned Residence District for the "development of about 723 residential building lots, including a golf course, open spaces, land set aside for schools, and land application for sewage treatment." On December 26, 2002, the Kingston Township Board of Trustees adopted Resolution R2002-08, which approved NorthStar's zoning application. The resolution reiterated the foregoing uses, which were set forth in NorthStar's application.

{¶ 3} A group of citizens known as Citizens for Managed Growth ("Citizens") objected to the NorthStar development and began circulating a petition for a referendum on Resolution R2002-08. The petition summarized all of the uses specified in the resolution by stating as follows:

{¶ 4} "The Trustees of Kingston Township approved the rezoning of 866.47 acres from Farm Residence District (FR-1) to Planned Residence District (PRD), in an area of Kingston Township generally located east of N. Galena Rd. and west of Carter's Corner Rd. and north of Wilson Rd. The Planned Residence District, as approved, includes the development of approximately 723 residential building lots, a golf course, open spaces, land area set aside for schools, and land application for sewage treatment."

{¶ 5} The petition also included a map on which the petitioners had outlined the area affected by the zoning resolution. Within the outlined area is a notation that relator Weiler owned some of the property with his wife. Above Weiler's name is written "967.787 (509.254 in Berkshire)." The map also indicated the boundary between Kingston Township and Berkshire Township. Citizens filed its petition, and at a referendum election in November 2003, Kingston Township electors voted 398 to 378 against Resolution R2002-08.

Second Zoning Resolution and Referendum Petition

{¶ 6} In April 2004, NorthStar filed a second application to rezone the 866.47 acres of property in Kingston Township, this time from Farm Residential and Recreational District1 to Planned Residential District. Following discussions with the Kingston Township Zoning Commission, NorthStar attempted to address the voters' and the township's concerns by reducing the number of proposed single-family residential lots for the development from 723 to 653 and donating 25 acres to Kingston Township for a new township hall.

{¶ 7} The township zoning commission recommended approval of NorthStar's second application. At the zoning commission's request, NorthStar signed a development agreement memorializing the terms of the commission's recommendation for approval. The development agreement was titled in part "Motion for recommendation of conditional approval for rezoning of approximately 866.47 acres from (FR-1) Farm Residential and Recreational District (REC) to PRD Planned Residential from District as amended throughout the rezoning hearings dated June 3, 2004, July 7, 2004 and August 9, 2004" and listed 13 items to which NorthStar had agreed. The development agreement specified that the affected area would include no more than 653 single-family residential lots and would include a golf course, open spaces, and land set aside for schools. Under the development agreement, NorthStar would deed to Kingston Township 191.6 acres of farm-preservation area, 103.6 acres of passive-recreation area, including 20 acres set aside for the Big Walnut School System, and 25 acres for a township hall. The 25 acres to be donated for a township hall has been estimated to be worth over $625,000.

{¶ 8} The township board of trustees conducted hearings on NorthStar's application. At one of the hearings, the chairman of the township zoning commission read NorthStar's development agreement into the record. Copies of the development agreement were made available to everyone in attendance at the hearings.

{¶ 9} On December 9, 2004, the board of township trustees adopted a resolution approving NorthStar's "application as presented by the zoning commission." On December 27, 2004, the board of township trustees designated the resolution "Resolution 2004-10." Citizens again opposed the rezoning and circulated a petition to submit Resolution 2004-10 to the township electorate. Citizens filed the petition on January 8, 2005.

{¶ 10} The referendum petition summarized Resolution 2004-10 as follows:

{¶ 11} "Kingston Township Resolution 2004-10 to approve an application to rezone 773.287 acres more or less, from Farm Residential District (FR-1) to Planned Residential District (PRD) and 93.183 acres, more or less, from Recreation District (REC) for a total of 866.47 acres, more or less, to Planned Residential District (PRD).

{¶ 12} "The trustees of Kingston Township approved the rezoning of land from Farm Residential District (FR-1), consisting of approximately 773.287 acres, more or less, and Recreation District (REC), consisting of 93.183 acres, more or less, for a total of 866.47 acres, more or less, to Planned Residential District (PRD), in an area of Kingston Township generally located east of North Galena Road and west of Carters Corner Road and north of Wilson Road. A map showing the area subject to the rezoning is attached hereto. The Planned Residential District (PRD), includes residential building lots, a golf course, open spaces, and lands set aside for schools. The development plan may be viewed at the Township offices." (Underlining sic. Italics added.)

{¶ 13} In the map attached to the petition, portions of the property outlined included notations that some of the property was located in Berkshire Township, but unlike the map attached to Citizens' previous referendum petition, it did not indicate the boundary between Kingston Township and Berkshire Township.

{¶ 14} In February 2005, upon the request of respondent Delaware County Board of Elections Director Janet Brenneman, a Delaware County Assistant Prosecuting Attorney reviewed the referendum petition and determined that the petition was defective and should not be placed on the November 8, 2005 election ballot because, among other reasons, the petition did not contain an accurate summary of the resolution or an appropriate map of the area affected by the resolution. Notwithstanding this advice, respondent board of elections accepted the referendum petition on Resolution 2004-10 and placed the resolution on the November 8, 2005 ballot.

{¶ 15} In June 2005, McCord protested the petition pursuant to R.C. 3501.39. McCord claimed, inter alia, that the petition summary was inaccurate and ambiguous and that the map was not an appropriate map of the area affected. On August 2, 2005, the board of elections conducted a hearing on the protest at which the parties introduced sworn testimony. At the hearing, Citizens' attorney claimed that the petitioners got a copy of the map from the county map room. The maps in the county map room, however, included the boundary between Kingston and Berkshire Townships. The board denied the protest and allowed the referendum on Resolution 2004-10 to remain on the November 8 ballot.

{¶ 16} On August 15, 2005, relators, McCord, Northstar, and Weiler, filed this action against respondents, the board of elections, its members, director, and deputy director (collectively, "board"). Relators request (1) a writ of mandamus ordering the board of elections to reject and find insufficient the referendum petition concerning Resolution 2004-10 and (2) a writ of prohibition preventing the board from submitting Resolution 2004-10 to the township electorate on November 8, 2005. On August 22, 2005, respondents answered the complaint. On August 26, we granted Citizens' motion to intervene as an additional respondent. On August 29, relators moved to vacate the entry permitting Citizens to intervene or, in the alternative, to strike Citizens' answer.

{¶ 17} Evidence and briefs were filed pursuant to the accelerated schedule for expedited election matters in S.Ct.Prac.R. X(9). This cause is now before us for our consideration of relators' motion and the merits.

Motion to Vacate Entry Granting Motion to Intervene or, in the Alternative, to Strike Answer

{¶ 18} Relators move to vacate our August 26 entry granting Citizens' motion to intervene as an additional respondent or, in the alternative, to strike Citizens' answer. Relators claim that Citizens' "failure to timely file and properly serve its motion has prejudiced Relators."

{¶ 19} Relators correctly observe that Citizens failed to properly serve its answer when it served the parties by mail. See S.Ct.Prac.R. XIV(2)(B)(3) ("In expedited election cases under S.Ct.Prac.R. X, Section 9, service of the response, evidence, and merit briefs shall be personal or by facsimile transmission" [emphasis added]).

{¶ 20} They also persuasively contend that Citizens' August 23 motion to intervene and answer were untimely because S.Ct.Prac.R. X(9)...

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