State ex rel. Miller Diversified Holdings v. Wood Cty. Bd. of Elections

• Decision Date: 28 September 2009
• Docket Number: No. 2009-1573.,2009-1573.
• Citation: 123 Ohio St.3d 260,2009 Ohio 4980,915 N.E.2d 1187
• Parties: The STATE ex rel. MILLER DIVERSIFIED HOLDINGS, L.L.C., et al. v. WOOD COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

915 N.E.2d 1187

123 Ohio St.3d 260

2009-Ohio-4980

The STATE ex rel. MILLER DIVERSIFIED HOLDINGS, L.L.C., et al. v. WOOD COUNTY BOARD OF ELECTIONS.

No. 2009-1573.

Supreme Court of Ohio.

Submitted September 17, 2009.

Decided September 28, 2009.

Eastman & Smith, Ltd., Jeffrey M. Stopar, and Lane D. Williamson, for relators.

Rayle, Matthews & Coon and Max E. Rayle, for respondent.

PER CURIAM.

{¶ 1} This is an expedited election action for a writ of prohibition to prevent a board of elections from submitting three township zoning amendments to the electorate at the November 3, 2009 general election. Because relators have established their entitlement to the requested extraordinary relief for one of the three amendments, we grant the writ to prevent the referendum election on that amendment and deny the writ to prevent the referendum elections on the remaining amendments.

Facts

Zoning Amendments

{¶ 2} Relators, Miller Diversified Holdings, L.L.C. ("Miller") and McCarthy Builders, Inc. ("McCarthy"), have options to purchase certain parcels of real estate located in Perrysburg Township, Wood County, Ohio. The parcels are known as the Wolf parcel, the DeChristopher parcel, and the Neiderhouse parcel.

{¶ 3} In 2007, Miller and McCarthy, through a commonly owned entity known as Velocity Development, L.L.C., and with the approval and consent of the landowners, submitted applications to the Perrysburg Township Board of Trustees to rezone the three parcels to develop single-family residential subdivisions. More specifically, Miller and McCarthy sought to rezone (1) about 30.593 acres of the Wolf parcel, which was approximately 41 acres, from R-1 (Rural Residential District) and R-2 (Suburban Residential District) to R-3 (Suburban Residential District), (2) about 98.714 acres of the 99.9-acre De-Christopher parcel from A-1 (Agricultural District) to R-4A (Suburban Residential District), and (3) the entire Neiderhouse parcel from A-1 (Agricultural District) to R-3 (Suburban Residential District).

{¶ 4} On December 17, 2007, the township board of trustees adopted resolutions rezoning the three parcels that differed in certain particulars from the rezoning requested by Miller and McCarthy, including adding conditions. In Resolution 2007-28, the board of trustees rezoned the Wolf parcel from R-1 and R-2 to A-1 and R-3, instead of simply to R-3 as requested. In Resolution 2007-29, the board of trustees approved the application to rezone the specified portion of the DeChristopher parcel from A-1 to R-4A. In Resolution 2007-27, the board of trustees rezoned the Neiderhouse parcel from A-1 to A-1 and R-3, instead of solely to R-3 as requested.

{¶ 5} As noted, the board's rezoning of the three parcels was subject to various conditions. For example, the rezoning of the Wolf and Neiderhouse parcels was conditioned on the properties being developed substantially in accordance with preliminary plans attached to the resolutions. In addition, all of the resolutions contained the following conditions:

{¶ 6} 1. "Future lot owners in the subdivision developed on the [parcel] shall not be required to sign annexation petitions and there shall not be any annexation provisions, powers of appointment or powers of attorney regarding annexation in future purchase contracts or any annexation covenants in future deeds that arise as a matter of contract; and

{¶ 7} 2. "McCarthy Builders, Inc., an Ohio corporation, its successors and assigns, shall file an affidavit pursuant to R.C. 5301.252, or similar instrument, releasing the right to annex lots in the Emerald Lakes Subdivision, or to exercise any powers of appointment or powers of attorney regarding annexation following the effective date of this resolution, as finally determined, demonstrating that there exist no contracts or agreements of any kind with owners of the [parcel], or any real estate that is contiguous to the [parcel], that confer upon any third party the right to compel the annexation of the [parcel] to any municipality."

Referendum Petitions and Protest

{¶ 8} After the township board of trustees passed the resolutions rezoning the three parcels, certain township residents circulated separate referendum petitions seeking to submit the rezoning for each of the parcels to township electors at the November 4, 2008 general election. The petitions were submitted to the board of trustees, but the board refused to certify the petitions to respondent, Wood County Board of Elections.

{¶ 9} Shortly thereafter, certain petition circulators filed a petition in the Court of Appeals for Wood County for a writ of mandamus to compel the township, its trustees, and its fiscal officer to certify the referendum petitions to the board of elections. In February 2009, the court of appeals granted the writ of mandamus to compel the respondents in that case to certify the referendum petitions to the board of elections. Hunter v. Britten, 180 Ohio App.3d 755, 2009-Ohio-663, 907 N.E.2d 360, ¶ 69.

{¶ 10} The board of elections voted to certify the referendum petitions to the November 3, 2009 general election ballot. On August 4, 2009, pursuant to R.C. 3501.39, Miller and McCarthy filed a written protest with the board of elections challenging the referendum petitions. In their protest, Miller and McCarthy claimed that the petitions were invalid because they (1) failed to include the resolutions' express condition that McCarthy file an affidavit releasing the right to annex the property and demonstrating that no agreements exist that confer on any third party the right to compel annexation of the property to any municipality, (2) buried this condition in dense text purporting to be legal descriptions of the property, (3) contained the wrong acreage of each rezoned parcel, and (4) did not include maps.

{¶ 11} On August 26, 2009, the board of elections conducted a hearing at which it considered the protest. At the conclusion of the hearing, the board of elections denied the protest.

Prohibition Case

{¶ 12} On September 1, Miller and McCarthy filed this expedited election action for a writ of prohibition to prevent the board of elections from submitting the resolutions to a vote at the November 3, 2009 general election. The board of elections submitted an answer, and the parties submitted evidence and briefs pursuant to S.Ct.Prac.R. X(9).

{¶ 13} This cause is now before the court for our consideration of the merits.

Legal Analysis

Prohibition Claim

{¶ 14} Miller and McCarthy request a writ of prohibition to prevent the board of elections from placing the resolutions rezoning the Wolf, DeChristopher, and Neiderhouse parcels on the November 3, 2009 general election ballot. To be entitled to the writ, Miller and McCarthy 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 adequate remedy exists in the ordinary course of law. State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 14.

{¶ 15} Miller and McCarthy have established the first requirement because "R.C. 3501.39(A)(2) required that the board of elections conduct a quasi-judicial hearing on relators' protest." State ex rel. Upper Arlington v. Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, ¶ 16. "[A] board of elections * * * is a quasi-judicial body when it considers protests." State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 306, 686 N.E.2d 238. "[E]ven if the board [has] already exercised its quasi-judicial power by denying [the] protest, relief in prohibition is still available to prevent the placement of names or issues on a ballot, as long as the election has not yet been held." Tatman v. Fairfield Cty. Bd. of Elections, 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 14.

{¶ 16} For the second requirement of the exercise of unauthorized power, "we must determine whether the board [of elections] acted fraudulently or corruptly, abused its discretion, or clearly disregarded applicable law." State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-Ohio-1292, 846 N.E.2d 8, ¶ 23. There is no claim of fraud or corruption here, so Miller and McCarthy must establish that the board of elections abused its discretion or clearly disregarded applicable law by denying their protest and certifying the resolutions rezoning the parcels for a vote on the November 3 election ballot.

{¶ 17} For the third requirement for the writ, Miller and McCarthy must establish the lack of an adequate remedy in the ordinary course of law. State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 25.

Issues That Were Not Raised in Relators' Protest

{¶ 18} In this expedited election case, Miller and McCarthy claim that the board of elections clearly disregarded applicable law and abused its discretion by certifying the resolutions rezoning the properties to the election ballot. Among other things, they claim that the Wolf and Neiderhouse referendum petitions are invalid because they do not include the preliminary plans attached to the resolutions rezoning the parcels, that the DeChristopher referendum petition is invalid because it includes inconsistent amounts of acreage, and that all the conditions specified in the resolutions are placed in a manner that camouflages them and makes them confusing.

{¶ 19} Under R.C. 3501.39(A)(2), a board of elections shall accept any petition unless a "written protest against the petition or candidacy, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition violates any requirement established by law." (Emphasis added.) "One of the evident purposes of this...