State ex rel. Rife v. Franklin Cty. Bd. of Elections, 94-1908

• Decision Date: 04 October 1994
• Docket Number: No. 94-1908,94-1908
• Parties: The STATE EX REL. RIFE v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 632

70 Ohio St.3d 632

640 N.E.2d 522

The STATE EX REL. RIFE v. FRANKLIN COUNTY BOARD OF ELECTIONS et al.

No. 94-1908.

Supreme Court of Ohio.

Submitted and Decided Oct. 4, 1994.

Fred J. Milligan, Westerville, for relator.

Michael Miller, Franklin County Pros. Atty., Harland H. Hale and John B. Kahle, Asst. Pros. Attys., for respondent.

Bricker & Eckler, Richard S. Lovering, Andrew A. Folkerth and Michael D. Smith, Columbus, for intervening respondent.

PER CURIAM.

We may set aside the decision of a board of elections and grant a writ of mandamus to compel a referendum election where fraud, corruption, abuse of discretion, or a clear disregard of statutes or applicable legal provisions is shown. State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994), 69 Ohio St.3d 5, 7, 630 N.E.2d 313, 314-315. Rife argues that the board of elections disregarded the election laws in rejecting his referendum petition. For the reasons that follow, we agree. ²

R.C. 303.12(H) states with respect to a petition for submission of a zoning resolution to area electors for approval or rejection that:

"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 proposal is known and a brief summary of its contents." (Emphasis added.)

Where an application for rezoning has been amended during the legislative process, the phrase, "brief summary of its contents" necessarily refers to the proposal to amend the zoning resolution as adopted by the resolution of the board of county commissioners. Olen Corp. v. Franklin Cty. Bd. of Elections (1988), 43 Ohio App.3d 189, 194, 541 N.E.2d 80, 84. The standard against which to measure the summary in a zoning referendum petition is:

"[T]he petition must contain an accurate and unambiguous summary of the issue sought to be submitted to the electorate. If the summary is misleading, inaccurate, or contains material omissions which would confuse the average person, the petition is invalid and may not form the basis for submission to a vote. Markus v. Bd. of Elections (1970), 22 Ohio St.2d 197 [51 O.O.2d 277, 259 N.E.2d 501]." Shelly & Sands, Inc. v. Franklin Cty. Bd. of Elections (1984), 12 Ohio St.3d 140, 141, 12 OBR 180, 181, 465 N.E.2d 883, 884.

The rezoning resolution in this case did not mention the uses specified in the development plan submitted to amend Taylor's application, ³ yet the board of elections concluded that this was a material omission. We fail to see how Resolution No. 267-94 could be accurately and unambiguously summarized with information the resolution itself did not contain. Indeed, in Shelly & Sands, Inc., supra, at 142, 12 OBR at 181-182, 465 N.E.2d at 885, we quashed efforts to hold a referendum election on a zoning issue, in part, because the petition embellished the resolution summary with information that, although accurate, was not adopted as part of the resolution. Cf. State ex rel. Hamilton v. Clinton Cty. Bd. of Elections (1993), 67 Ohio St.3d 556, 621 N.E.2d 391 (accurate and unambiguous resolution summary may require accounting for uses in a development plan incorporated by the resolution). Accordingly, the board of elections disregarded the law in rejecting Rife's petition for this reason.

The obligation to briefly summarize the contents of a rezoning resolution per R.C. 303.12(H) implicitly requires a referendum petition to accurately describe property subject to rezoning. Olen Corp., supra, 43 Ohio App.3d at 193-194, 541 N.E.2d at 83-84. Compliance with this requirement is also measured against the resolution as adopted by the county commissioners. Id. at 194, 541 N.E.2d at 84.

The board of elections further found Rife's petition invalid, at least in part, because it did not state the eastern boundary between the property subject to rezoning and Taylor's adjacent property zoned general...