State ex rel. v. Bd. of Elections, 2006-1667.

• Decision Date: 29 September 2006
• Docket Number: No. 2006-1667.,2006-1667.
• Citation: 2006 Ohio 5019,111 Ohio St.3d 167,855 N.E.2d 815
• Parties: The STATE ex rel. COLUMBIA RESERVE LTD. et al. v. LORAIN COUNTY BOARD OF ELECTIONS.
• Court: Ohio Supreme Court

855 N.E.2d 815

111 Ohio St.3d 167

2006-Ohio-5019

The STATE ex rel. COLUMBIA RESERVE LTD. et al. v. LORAIN COUNTY BOARD OF ELECTIONS.

No. 2006-1667.

Supreme Court of Ohio.

Submitted September 25, 2006.

Decided September 29, 2006.

Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.

Dennis P. Will, Lorain County Prosecuting Attorney, and M. Robert Flanagan and Scott F. Serazin, Assistant Prosecuting Attorneys, for respondent.

PER CURIAM.

{¶ 1} This is an expedited election case in which relators seek a writ of prohibition to prevent a board of elections from placing a zoning referendum on the November 7, 2006 ballot in Lorain County.

{¶ 2} Relator Columbia Reserve Ltd. is the developer of approximately 57.09 acres of land located at the southeast corner of Clarke and Snell Roads in Columbia Township, Lorain County, Ohio. The property consists of five parcels, including four owned by corporate entities named CMK Ltd. and Riverside Development, Inc., and one owned by Patricia and Joseph Webber.

{¶ 3} Columbia Reserve requested that Columbia Township rezone the property from R-3 Residential to R-1 Residential, and this request is the subject of Columbia Township Zoning Resolution No. 06-05 ("Resolution 06-05"). An R-3 Residential zoning classification requires that single-family residential dwellings in the township be constructed on parcels that contain a two-acre minimum lot size, whereas an R-1 Residential zoning classification permits these dwellings to be constructed on parcels with a less than one-half-acre minimum lot size. Columbia Reserve also requested that Columbia Township rezone the property from Residential to Planned Residential Development, and this request is the subject of Columbia Township Zoning Resolution No. 06-04 ("Resolution 06-04"). The approval of each zoning change is contingent upon the approval of the other.

{¶ 4} As part of its application to rezone the property from Residential to Planned Residential Development (Resolution 06-04), Columbia Reserve submitted a preliminary development plan, which included a drawing entitled "Columbia Reserve Existing Conditions." The drawing does not show all of the property that is subject to Columbia Reserve's zoning proposals. Instead, it shows less than half of the southernmost parcel of land.

{¶ 5} On June 8, 2006, the Columbia Township Zoning Commission approved Resolution 06-05 and advised the township board of trustees of that approval. On July 17, 2006, the board of trustees passed Resolution 06-05, attaching a map with the affected area of the proposed rezoning highlighted in yellow. Resolution 06-05 provides:

{¶ 6} "Proposed Zoning Amendment 06-05 is a request by Richard Beran, Columbia Reserve Ltd., on behalf of the property owners to rezone five parcels of land consisting of 57.09 acres located on the southeast corner of Clarke and Snell Roads from R3 Residential to R1 Residential. This rezoning request is for the purpose of a Planned Residential Development, the Columbia Reserve.

{¶ 7} "The five parcels included in this request for rezoning and the names of the property owners as they appear on the Lorain County Auditor's current tax list are: 12-00-004-000-006, 12-00-004-000-007, 12-00-003-000-046 and 12-00-003-000-054, all owned by CMK Ltd. and Riverside Development, Inc.; and 12-00-004-000-016, owned by Patricia and Joseph Webber.

{¶ 8} "Approval of Zoning Amendment 06-05 shall be contingent upon the final approval of Zoning Amendment 06-04.

{¶ 9} "Upon final approval of the both [sic] zoning amendments, the Official Columbia Township Zoning Map will be amended to reflect the changes. A copy of the zoning map indicating the location of the parcels proposed for rezoning is enclosed."

{¶ 10} On August 14, 2006, Mary Lou Berger, the Columbia Township Clerk, received a petition for a township zoning referendum on Resolution 06-05 at the November 7, 2006 general election. The petition comprised 53 part-petitions and 805 signatures. The petition included the same language as Resolution 06-05 for its brief summary of the proposed amendment, but unlike the actual resolution, the petition did not contain any attached map of the affected area.

{¶ 11} On that same date, the petitioners also filed a copy of the "Columbia Reserve Existing Conditions," which had been previously submitted by Columbia Reserve as part of its application to rezone the property from Residential to Planned Residential Development (Resolution 06-04). According to the referendum petitioners, they received the "Columbia Reserve Existing Conditions" map from the township when they requested an appropriate map of the affected area, and a township representative wrote the permanent-parcel numbers of the property subject to rezoning on that map.

{¶ 12} As noted previously, this document does not list or show all of the area that would be affected by the rezoning proposed by Resolution 06-05 because the southernmost parcel is only partially shown. In addition, the "Columbia Reserve Existing Conditions" map does not highlight the affected area. The referendum petitioners did not submit a copy of the map attached to Resolution 06-05 to the township clerk with their petition, even though some of the petitioners had previously received copies of this map with a notice of hearing sent by the township trustees.

{¶ 13} On August 17, 2006, the township clerk submitted the petition to respondent, Lorain County Board of Elections, to verify the number of valid signatures on the petition. On August 21, 2006, the Columbia Township Board of Trustees enacted Resolution No. 06-25, which certified certain facts regarding the referendum petition for Resolution No. 06-05, including that (1) an appropriate map of the area affected by the proposed zoning amendment was not attached to the petition filed with the township clerk and (2) the document labeled "Columbia Reserve Existing Conditions," which was filed with the township clerk, "differs substantially and materially from the appropriate map of the area affected by the zoning proposal attached to Columbia Township Zoning Amendment No. 06-05 and is not a copy of such map." The board of elections determined that the referendum petition contained sufficient valid signatures for placement on the November 7, 2006 election ballot.

{¶ 14} On August 24, 2006, pursuant to R.C. 3501.39, relators, Columbia Reserve Concerned Citizens for Smart Growth in Columbia, and Paul Dougher, filed a protest with the board of elections challenging the referendum petition. Concerned Citizens is a group of Columbia Township residents and citizens concerned about township zoning issues, and Dougher is the chairman of the group. Relators claimed that the petition was invalid because (1) petitioners failed to attach to their petition an appropriate map of the area affected by the zoning proposal, (2) petitioners failed to file an appropriate map of the area affected by the zoning proposal at the time they filed their petition with the township clerk, and (3) petitioners' brief summary of Resolution 06-05 is misleading and inaccurate and contains a material omission that would confuse or give a false impression to the average voter because petitioners failed to include an attached copy of the map with the petition.

{¶ 15} On August 29, 2006, the board of elections conducted a hearing on relators' protest and denied it. At the hearing, there was no evidence introduced that the referendum petition was misleading or inaccurate. The board of elections placed the referendum issue on the November 7, 2006 election ballot.

{¶ 16} On September 5, 2006, relators filed this expedited election action for a writ of prohibition to prevent the elections board from placing the referendum issue concerning Resolution 06-05 on the November 7, 2006 election ballot. The board of elections filed an answer on September 13, and the parties filed evidence and briefs pursuant to the expedited schedule in S.Ct.Prac.R. X(9).

{¶ 17} This cause is now before the court for a consideration of the merits.

Requests to Strike Relators' Evidence

{¶ 18} In its merit brief, the board of elections asserts that the court should strike relators' attorney's affidavits, one of which is included in relators' evidence and the other of which is attached to the complaint. The board first asserts that relator's counsel's affidavits should be stricken because the attorney cannot provide evidence by affidavit in this case, and the affidavits are argumentative and contain legal conclusions.

{¶ 19} We deny the request to strike for the following reasons.

{¶ 20} First, the board did not file a motion to strike pursuant to S.Ct.Prac.R. XIV(4)(A) ("Unless otherwise prohibited by these rules, an application for an order or other relief shall be made by filing a motion for the order or relief").

{¶ 21} Second, the board cites no specific rule in support of its initial, broad requests to completely strike the affidavits.

{¶ 22} Third, affidavits of counsel are generally permissible in original actions filed in this court. S.Ct.Prac.R. X(4)(B) ("All complaints shall contain a specific statement of facts upon which the claim for relief is based, shall be supported by an affidavit of the relator or counsel specifying the details of the claim, and may be accompanied by a memorandum in support of the writ" (emphasis added)); cf. Mentor Lagoons, Inc. v. Rubin (1987), 31 Ohio St.3d 256, 31 OBR 459, 510 N.E.2d 379, paragraph one of the syllabus ("DR 5-102(A) does not render an attorney incompetent to testify as a witness in a proceeding in which he is representing a litigant. When an attorney seeks to testify, his employment as counsel goes to the weight, not the competency, of his testimony").

{¶ 23} Fourth, insofar as relators' counsel's affidavits contain legal arguments and conclusions, we will disregard these statements.

{¶ 24} The board also objects to specific paragraphs of the attorney's...