State ex rel. Quinn v. Del. Cnty. Bd. of Elections
| Decision Date | 15 March 2018 |
| Docket Number | No. 2018–0115,2018–0115 |
| Citation | 99 N.E.3d 362,2018 Ohio 966,152 Ohio St.3d 568 |
| Parties | The STATE EX REL. QUINN v. DELAWARE COUNTY BOARD OF ELECTIONS. |
| Court | Ohio Supreme Court |
Manos, Martin & Pergram Co., L.P.A., and Andrew P. Wecker, Delaware, for relator.
Laura M. Comek Law, L.L.C., and Laura MacGregor Comek, Columbus, for respondent.
Vorys, Sater, Seymour & Pease, L.L.P., Joseph R. Miller, John M. Kuhl, Christopher L. Ingram, and Elizabeth S. Alexander, Columbus, for intervening respondents.
{¶ 1} In this expedited election case, relator, Graeme J. Quinn, seeks a writ of mandamus to compel respondent, Delaware County Board of Elections, to place a referendum on the May 8, 2018 ballot. For the reasons set forth below, we grant the writ.
Statutory framework
{¶ 2} "Referendum" is the "process of referring to the electorate for approval * * * a law passed by the legislature." Black's Law Dictionary 1281 (6th Ed.1990). The Ohio Constitution expressly reserves to the people the right of referendum over legislation passed by the General Assembly, Ohio Constitution, Article II, Section 1c, and also over municipal ordinances, Ohio Constitution, Article II, Section 1f. However, the Ohio Constitution neither provides for nor forbids referenda over the legislative acts of a township. Cook–Johnson Realty Co. v. Bertolini , 15 Ohio St.2d 195, 200, 239 N.E.2d 80 (1968). The General Assembly has filled the gap, at least in part: once a township has adopted a zoning plan, subsequent amendments to that plan are, by statute, subject to referendum. R.C. 519.12(H).
{¶ 3} A township adopts an overarching zoning plan in three steps: (1) the township zoning commission recommends a plan, R.C. 519.05 ; (2) the township trustees approve a resolution adopting the plan, R.C. 519.10 ; and (3) a majority of the township electors approves the plan, R.C. 519.11. Thereafter, a proposed amendment to the plan may be initiated in any one of three ways: (1) by a motion of the township zoning commission, (2) by the passage of a resolution by the township trustees, or (3) by the submission of an application by an owner or lessee of property within the area proposed to be changed. R.C. 519.12(A)(1). After notice and a hearing, the township zoning commission has 30 days in which to recommend that the amendment be approved, denied, or approved with modifications. R.C. 519.12(E). The township trustees then conduct their own hearing and vote on whether to accept, reject, or modify the commission's recommendation. R.C. 519.12(H).
{¶ 4} If the trustees approve a resolution adopting the proposed amendment, then the amendment will become effective 30 days later unless within that time period, the trustees receive a petition, signed by the requisite number of eligible electors in the relevant area of the township,1 asking the trustees to submit the amendment to the electors of that area for approval or rejection. Id. Upon receiving a zoning-amendment-referendum petition, the township trustees "shall certify the petition to the board of elections" within 14 days. Id. The elections board must then determine "the sufficiency and validity of [the] petition." Id.
{¶ 5} "If the board of elections determines that a petition is sufficient and valid, the question shall be voted upon at a special election * * *." Id. However, opponents of the referendum have one mechanism available to them to prevent the petition from appearing on the ballot: a protest.
Factual and procedural background
{¶ 6} This case concerns a 24.312–acre parcel of real property located at 5427 State Route 37 East in Berlin Township, Delaware County. Intervening respondent Boatman, Inc., is the titled owner of the property.
{¶ 7} On November 8, 2016, intervening respondent Savko Bros. Properties X, L.L.C. ("Savko") submitted an informal proposal to the Berlin Township Zoning Commission ("BZC") for an industrial and commercial development on the site. The BZC assigned the project zoning case No. BZC 17–006. Savko submitted a revised application on May 18, 2017, designated No. (R) BZC 17–006. At its June 27, 2017 meeting, the BZC unanimously approved the revised application, after Savko agreed to additional terms and conditions for the project.
{¶ 8} On October 9, 2017, the Berlin Township trustees adopted Berlin Township Zoning Resolution No. 17–10–09 to "approve BZC Case 17–006 Boatman Inc. with exhibits 1 thru 18 with modifications of the BZC's recommendation with the notes [sic] changes to rezone the property at 5427 S.R. 37 East Delaware Ohio from Neighborhood Commercial District & Farm Residential District to Planned Industrial District."
{¶ 9} On November 6, 2017, Quinn submitted a petition for a referendum, along with signed part-petitions. Each part-petition was on Secretary of State Form No. 6–O, "Petition for a Township Zoning Referendum," and included the following (with the information provided by Quinn indicated by italics):
{¶ 10} On November 13, 2017, the Berlin Township trustees adopted a resolution finding the petition to be valid on its face and certifying the petition to the board of elections to determine the sufficiency and validity of the petition. On November 28, the elections board verified that the petition had a sufficient number of valid signatures and certified the petition to appear on the May 2018 ballot.
{¶ 11} The elections board's minutes indicate that immediately after the certification vote, two interested parties voiced an oral protest against "the legitimacy of the Referendum, specifically its failure to comply with section 519 of the Ohio Revised Code in several respects." The board scheduled a protest hearing for January 9, 2018, "assuming a formal protest [would] be filed in the coming week."
{¶ 12} The next day, Savko submitted a formal written protest to the elections board, in which it wrote:
R.C. 519.12(H) sets forth the information that a valid zoning-referendum petition must contain: "Each part of this petition 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."
{¶ 13} The elections board later rescheduled the protest hearing for January 18, 2018. On January 17, 2018, Savko filed and served on Quinn a brief setting forth detailed legal arguments in support of the protest. The brief identified the following alleged defects in the petition:
• The petition fails to satisfy the requirement in R.C. 519.12(H) that it contain the "full and correct title" of the zoning-amendment resolution. The petition refers to the BZC case number ("Berlin Township Zoning Commission Case 17–006 Boatman, Inc.") instead of the township zoning resolution number ("Berlin Township Zoning Resolution No. 17–10–09").
• Even assuming that it is acceptable for the petition to use the BZC case number as the petition title (which Savko disputes), the petition provides the wrong case number—BZC 17–006 rather than (R) BZC 17–006.
• The petition fails to satisfy the requirement in R.C. 519.12(H) that it "furnish[ ] the name by which the amendment is known." The name "Berlin Township Zoning Resolution Number 17–10–09" does not appear on the petition.
• The mandatory "brief summary of [the resolution's] contents" is misleading and inaccurate and contains numerous material omissions. Specifically, the brief alleges that the petition misrepresents the zoning proposal by failing to mention development restrictions to which Savko had agreed, modifications to the BZC's recommendation made by the trustees, or the benefits to the community from the project.
{¶ 14} On January 18, 2018, the elections board held a hearing on the protest, at which it heard testimony from two witnesses, received documents into evidence, and considered oral argument from counsel. At the outset of the hearing, Quinn objected to the board's entertaining challenges based on alleged defects in the title, amendment name, or summary contained in the petition. Quinn noted that a written protest must "nam[e] specific objections" (emphasis added), R.C. 3501.39(A)(2), and argued that Savko's November 29, 2017 protest letter lacked specificity. However, the board concluded that the language of Savko's letter was "broad enough to encompass all of the issues."
{¶ 15} By a vote of three to one, the board approved a motion "to sustain the protest and decertify the...
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