State ex rel. Zonders v. Delaware Cty. Bd. of Elections, 94-347

• Decision Date: 18 March 1994
• Docket Number: No. 94-347,94-347
• Citation: 69 Ohio St.3d 5,630 N.E.2d 313
• Parties: The STATE ex rel. ZONDERS, et al. v. DELAWARE COUNTY BOARD OF ELECTIONS, et al.
• Court: Ohio Supreme Court

Page 5

69 Ohio St.3d 5

630 N.E.2d 313

The STATE ex rel. ZONDERS, et al. v. DELAWARE COUNTY BOARD OF ELECTIONS, et al.

No. 94-347.

Supreme Court of Ohio.

Submitted March 14, 1994.

Decided March 18, 1994.

Relators, Maria and George Zonders, Lester Noble, and Steve and Becky Jones, registered voters and property owners residing in Genoa Township, Delaware County, Ohio, request a writ of mandamus to compel respondents, the Delaware County Board of Elections and its members, to place a petition for a township zoning referendum on the May 3, 1994 election ballot.

On June 11, 1993, Katherine S. LeVeque filed an application with the Genoa Township Trustees to rezone 177.6 acres of land owned by her and located in Genoa Township. LeVeque certified that the application was "submitted to induce the amendment of the zoning map," and she agreed "to be bound by the provisions of the zoning resolution of Genoa Township, Delaware County, Ohio." LeVeque's application requested rezoning the property from a rural residential district, as set forth in Section 404, Article IV of the Genoa Township Code, to a planned residential district, as specified in Section 406, Article IV of the Genoa Township Zoning Code. The proposed development text attached to the application indicated that the planned residential district would contain single-family detached dwelling units. The district also would comprise open space covering nearly fifty percent of the entire area. The open space would consist of utility easements, yards, lakes or ponds, and private and public open space. Twenty-four percent of the total area was to be reserved as common open space for residents of the planned development.

Following two public hearings on the application, the Genoa Township Planning/Zoning Commission recommended approval of the application and proposed development. At the first of the aforementioned hearings, a representative of the prospective developer indicated that 42.6 acres of the planned residential district would be "open space with a functioning lake * * * which will be maintained by a homeowners association." On September 27, 1993, the Genoa Township Trustees held a public hearing on the zoning commission's recommendation to grant the application and rezone the property. On October 11, 1993, the township trustees voted to accept the recommendation of the zoning commission to approve rezoning the property from rural residential to planned residential.

Subsequently, several of the relators and other citizens circulated part-petitions for a referendum concerning the rezoning of the subject property. The part-petitions were filed on November 8, 1993 with respondent board of elections. On November 23, 1993, intervening respondent Donald R. Kenney, who had obtained ownership of the property and was the developer, filed a written protest against the referendum petition. Kenney contended, inter alia, that R.C. 519.021 precludes a referendum on the resolution adopted by the township trustees rezoning the property. On February 1, 1994, respondent board of elections determined that the action of the township trustees in approving the application to rezone the property was not referendable pursuant to R.C. 519.021. ¹

Robert K. Lang, Worthington, for relators.

W. Duncan Whitney, Delaware County Pros. Atty., and David M. Gormley, Asst. Pros. Atty., for respondents Delaware County Bd. of Elections and its members.

Lucas, Prendergast, Albright, Gibson & Newman and Robert E. Albright, Columbus, for intervening respondent Donald R. Kenney.

PER CURIAM.

Relators contend that the board of elections erred in its determination that the township trustees' approval of the application to rezone the property was not referendable pursuant to R.C. 519.021 because (1) the proposed development is not a planned-unit development ("PUD"), since it does not integrate a mixture of uses as required by R.C. 519.021, (2) R.C. 519.021 does not preclude a referendum with respect to rezoning of the land, (3) Section 1, Article II of the Ohio Constitution guarantees a right of referendum in this case, and (4) a person who files an application to rezone land from one classification to another is bound by the express terms agreed upon in the application. Because we concur with relators on the second issue, we hereby allow a writ of mandamus compelling the respondent board of elections to place the referendum on the May 3, 1994 ballot. ²

Pursuant to R.C. 3501.11(K), each board of elections shall review, examine, and certify the sufficiency and validity of petitions. See, also, R.C. 3501.39(B) (board of elections shall accept any petition described in R.C. 3501.38 unless a written protest is filed and, following a hearing, a determination is made that the petition violates any requirement established by law). The decision of a board of elections is final, and is subject to judicial review only for fraud, corruption, abuse of discretion, or a clear disregard of statutes or applicable legal provisions. State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 5, 8, 598 N.E.2d 1152, 1155; State ex rel. Senn v. Cuyahoga Cty. Bd. of Elections (1977), 51 Ohio St.2d 173, 175, 5 O.O.3d 381, 382, 367 N.E.2d 879, 880. There is no allegation of fraud or corruption here. Instead, relators contend that respondent board of elections abused its discretion and acted in clear disregard of the applicable statutes and law in determining that the action of the township trustees in rezoning the subject property from rural residential to planned residential is not subject to referendum.

Relators assert in their first proposition of law that respondent board of elections and its members erred in relying on R.C. 519.021 because the proposed development was not a PUD. Generally, R.C. 519.12(H) provides that an amendment of a zoning resolution approved by a board of township trustees shall be subject to referendum upon the filing of a petition:

"Such amendment adopted by the board shall become effective in thirty days after the date of such adoption unless within thirty days after the adoption of the amendment there is presented to the board of township trustees a petition, signed by a number of registered electors residing in the unincorporated area of the township or part thereof included in the zoning plan equal to not less than eight per cent of the total vote cast for all candidates for governor in such area at the last preceding general election at which a governor was elected, requesting the board of township trustees to submit the amendment to the electors of such area for approval or rejection at a special election to be held on the day of the next primary or general election * * *."

Nevertheless, R.C. 519.021 provides:

"A township zoning resolution or amendment adopted in accordance with this chapter may establish or modify planned-unit development regulations, which regulations shall only apply to property at the election of the property owner and which regulations may include standards to be used by the board of township trustees or, if the board so chooses, by the township zoning commission, in determining whether to approve or disapprove any planned-unit development. The regulations shall further the purpose of promoting the general public welfare, encouraging the efficient use of land and resources, promoting greater efficiency in providing public and utility services, and encouraging innovation in the planning and building of all types of development. Within a planned-unit development, the township zoning regulations need not be uniform, but may vary in order to accommodate unified development and to promote the public health safety, morals, and the other purposes of this section. If standards are adopted for approval or disapproval of planned-unit developments, no planned-unit development shall be approved unless the plan for that development satisfies the standards of approval established under this section. No approval of a planned-unit development as being in compliance with the standards of approval established under this section, if any, shall be considered to be an amendment or supplement to the township zoning resolution for the purpose of section 519.12 of the Revised Code.

"As used in this section, 'planned-unit development' means a development which is planned to integrate residential, commercial, industrial, or any other use." (Emphasis added.)

Relators assert that since the proposed development was solely composed of single-family detached dwellings, it failed to integrate residential use with "any other use" and thus was not a "PUD" as defined in R.C. 519.021. "In construing a statute, a court's paramount concern is the legislative intent in enacting the statute. In determining legislative intent, the court first looks to the language in the statute and the purpose to be accomplished." (Citations omitted.) State v. S.R. (1992), 63 Ohio St.3d 590, 594-595, 589 N.E.2d 1319, 1323. Words used in a statute must be taken in their usual, normal or customary meaning. R.C. 1.42; Indep. Ins. Agents of Ohio, Inc. v. Fabe (1992), 63 Ohio St.3d 310, 314, 587 N.E.2d 814, 817. The word "integrate" means "to form into a more complete, harmonious, or coordinated entity often by the addition or arrangement of parts or elements." Webster's Third New International Dictionary (1986) 1174. The word "use" means to "put into action or service; * * * employ." Id. at 2523. The proposed development specified a residential use, i.e., single-family detached dwellings, and also provided nonresidential open space which contained no dwellings and included lakes or ponds and common areas for residents of the planned development.

Traditional zoning techniques commonly resulted in neighborhoods of like structures on essentially identical lots, creating "cookie cutter" subdivisions which did not provide sufficient open space. See, generally, 5 Rohan, Zoning and Land Use...