State ex rel. v. Bd. of Elections
| Decision Date | 05 April 2006 |
| Docket Number | No. 2006-0497.,2006-0497. |
| Citation | 2006 Ohio 1666,109 Ohio St.3d 212,846 N.E.2d 1223 |
| Court | Ohio Supreme Court |
| Parties | The STATE ex rel. GEMIENHARDT v. DELAWARE COUNTY BOARD OF ELECTIONS et al. |
McTigue Law Group, Donald J. McTigue, Mark A. McGinnis, and Robert A. Beattey, Columbus, for relator.
David A. Yost, Delaware County Prosecuting Attorney, and Christopher D. Betts, Assistant Prosecuting Attorney, for respondents.
{¶ 1} This is an expedited election case in which an elector seeks a writ of mandamus to compel an elections board and its members to submit a township zoning-amendment resolution to the electorate at the May 2, 2006 election.
{¶ 2} On September 13, 2005, the Berlin Township Zoning Commission proposed certain amendments to the Berlin Township Zoning Resolution and forwarded them to the Delaware County Regional Planning Commission for review and redrafting. The planning commission redrafted the proposed zoning amendments and journalized them in its September 29, 2005 minutes.
{¶ 3} The proposed amendments "[i]nsert[ed] zoning text amendments to the existing R-3 District and related sections, and * * * add[ed] a new R-4 district" without rezoning any land. The planning commission minutes noted the following background for the proposed amendments:
{¶ 4} "1. Berlin Township has initiated amendments to its comprehensive land use plan * * * that will increase future residential densities in areas that will be served by sanitary sewer. The additional densities are 1.5 units per net developable acre and 1.85 units per net developable acre.
{¶ 5}
{¶ 6} The proposed amendments were to Articles IX, X, and XI of the Berlin Township Zoning Resolution.
{¶ 7} On October 11, 2005, the zoning commission recommended that the Berlin Township Board of Trustees adopt the proposed amendments to the Berlin Township Comprehensive Plan. According to Gemienhardt, the zoning commission's recommendation was for the board of trustees to adopt the proposed amendments "as journalized in the Minutes of the Regional Planning Commission." The minutes of the zoning commission's October 11, 2005 meeting, however, provided only the following regarding the proposed amendments:
{¶ 8}
{¶ 9} The parties agree, however, that "[n]o other version of the amendments, except the version journalized in the Minutes of the Regional Planning Commission, are part of the files of the Zoning Commission or the Trustees."
{¶ 10} On November 28, 2005, the board of trustees passed Berlin Township Resolution No. 05-11-42, which adopted the proposed zoning amendments with the following language:
{¶ 11} "Move to accept case # 05-009 with recommended modifications given to us by the Berlin Zoning Commission to reflect changes in the district and density designations on the Comprehensive Land Use Plan Map for R-3 (1.85 du/acre) and R-4 (1.5 du/acre) as presented."
{¶ 12} At the same meeting, the board of trustees amended the comprehensive land-use map for Berlin Township to reflect the amendments adopted in the resolution. The board of trustees made one handwritten change to the map provided by the planning commission by adding the notation "area hatched in black proposed to be 1.5 units/acre." This change reflected a request by the board of trustees after its October 11, 2005 meeting that certain property be designated as permitting a density of 1.5 units per net developable acre instead of 1.85 units per net developable acre.
{¶ 13} After the board of trustees adopted the township zoning-amendment resolution, relator, Rick Gemienhardt, a township elector, obtained a copy of the amendments and the map of the area affected by them from the Berlin Township Clerk.
{¶ 14} Gemienhardt filed with the board of trustees a referendum petition seeking to submit Berlin Township Resolution No. 05-11-42 to township electors at the May 2, 2006 election. On each part of the petition, Gemienhardt put the title and number of the resolution.
{¶ 15} Gemienhardt also included the following summary of the zoning amendments:
{¶ 16} "Berlin Township has initiated amendments to its comprehensive land use plan that will increase future residential densities in areas that will be served by sanitary sewer. The additional densities are 1.5 per net developable acre and 1.85 units per developable acre. To accommodate these densities Resolution # 05-11-42 amends the zoning text to allow for Planned Residential Developments to overlay the appropriate zoning district. The R-3 is an existing district, with 20,000 square foot lots. A PRD overlay at this density would yield 1.85 units per net developable acre. The R-4 district is a new district with 25,000 square foot lots, which will yield a density of 1.5 units per net developable acre when overlaid by PRD zoning. The PRD is an existing district with amendments to reference the R-3 and R-4 districts. This referendum petition is applicable to the changes made to articles IX-Multi-type Residential District (R-3) and XI-Planned Residential District (PRD) and to the creation of article X-Multi-type Residential District (R-4). The Comprehensive Land Use Map changes are not subject to referendum and are not being submitted to the electors of Berlin Township for approval or rejection but are presented for informational purposes only. Highlights of the three (3) amendments are:
{¶ 17} "Article IX-Multi-type Residential District R-3. Section 9.01-Purpose: The R-3 district is intended to provide for a variety of housing types at a density of one unit per 20,000 feet square feet [sic], or approximately 1.85 units per net developable acre. Section 9.02-Application: The R-3 district is intended to be applied to lands recommended on the adopted Berlin Township Comprehensive Plan for densities of a maximum of 1.85 units per net developable area. Section 9.03A.-Residential structures of any type, either single family or multi-family, including but not limited to detached, semi-detached, attached, industrialized units (modular), permanently sited manufactured homes, common wall or any reasonable variation on the same theme. A minimum net lot size of twenty thousand (20,000) square feet per dwelling unit shall be required for this conditional use.
{¶ 18} "Article X-Multi-type Residential District R-4. Section 10.01-Purpose: The R-4 district is intended to provide for a variety of housing types at a density of one unit per 25,000 square feet, or approximately 1.5 units per net developable acre. Section 10.02-Application: The R-4 district is intended to be applied to lands recommended on the adopted Berlin Township Comprehensive Plan for densities of a maximum of 1.5 units per net developable area. Section 10.03-Permitted Uses: Within the Multi-Type Residential District (R-4), the following permitted uses exist: (A). Residential structures of any type, either single family or multi-family, including but not limited to detached, semi-detached, attached, industrialized units (modular), permanently sited manufactured homes, common wall or any reasonable variation on the same theme. A minimum net lot size of twenty five thousand (25,000) square feet per dwelling unit shall be required for this conditional use.
{¶ 19} "Article XI-Planned Residential District (PRD). Section 11.03-Location of Planned Residential (Open Space) Developments: Planned Residential Development zoning may be overlaid on the FR-1 the R-2, R-3 and R-4 zones pursuant to a zoning map amendment approved by the township. Section 11.05 Design Features-(k.) The required percent of open space shall be provided. The percent of open space varies according to zoning district overlaid; FR-1-40% (of gross tract area) open space; R-2, R-3 and R-4-20% (of gross tract area) open space.
{¶ 20} "The text of Resolution 05-11-42 as passed by the Trustees on November 28, 2005 is attached hereto." (Emphasis sic.)
{¶ 21} Gemienhardt attached to the referendum petition the full text of the proposed zoning amendments as contained in the planning-commission minutes and adopted by the board of trustees. Gemienhardt also attached a copy of the map approved by the board of trustees, reflecting the proposed zoning amendments. The map was entitled "Draft 2005 Berlin Township Comprehensive Land Use Plan" and included the board of trustees' notation that an area hatched in black was proposed to be 1.5 units per acre.
{¶ 22} Respondents, the Delaware County Board of Elections and its members, determined that the petition contained more than the legally required number of valid signatures of qualified Berlin Township electors to place the...
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