Truman v. Village of Clay Ctr., OT-04-023.

• Decision Date: 25 March 2005
• Docket Number: No. OT-04-023.,OT-04-023.
• Citation: 825 N.E.2d 1182,160 Ohio App.3d 78,2005 Ohio 1385
• Parties: TRUMAN, Appellant, v. VILLAGE OF CLAY CENTER et al., Appellees.
• Court: Ohio Supreme Court

825 N.E.2d 1182

160 Ohio App.3d 78

2005-Ohio-1385

TRUMAN, Appellant, v. VILLAGE OF CLAY CENTER et al., Appellees.

No. OT-04-023.

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided March 25, 2005.

COPYRIGHT MATERIAL OMITTED

Richard R. Gillum, for appellant.

Rahn Huffstutler, Perrysburg, for appellees village of Clay Center and Richard Iffland.

James R. Jeffery and Teresa L. Grigsby, Toledo, for appellee White Rock Quarry.

SKOW, Judge.

{¶ 1} Appellant, Joan Truman, appeals the decision of the Ottawa County Court of Common Pleas that awarded summary judgment to appellees, the village of Clay Center, White Rock, Inc., and Richard Iffland, the village clerk of Clay Center. For the following reasons, we reverse.

{¶ 2} White Rock owns the parcel at issue, a 93-acre tract of land. When White Rock purchased the parcel, a portion of the parcel lay within Clay Center and the remainder lay within Allen Township. White Rock petitioned Clay Center to annex the entire parcel to Clay Center, and the annexation was subsequently approved. According to the applicable Clay Center zoning regulations, parcels of land annexed to Clay Center are automatically designated as residentially zoned. Wishing to conduct quarrying operations on the parcel, White Rock petitioned the Clay Center Zoning Commission to rezone the parcel from residential to manufacturing class. Appellant's residential property lies near the parcel.

{¶ 3} On January 6, 2003, the Clay Center Zoning Commission approved White Rock's petition and recommended to the Clay Center Council that the parcel be rezoned for quarrying. On March 10, 2003, the council held a public hearing on White Rock's request to ratify the zoning commission's recommendation. A group of citizens from both Clay Center and Allen Township, including appellant, attended the hearing and expressed their opposition to the rezoning. After the hearing, the council, on motion, voted unanimously to accept the zoning board's recommendation. The council took no other action at that meeting aside from approving the motion.

{¶ 4} On April 7, 2003, appellant filed suit in the Ottawa County Court of Common Pleas against White Rock and Clay Center, requesting (1) a declaratory judgment that the council's motion to accept the zoning commission's recommendations was an illegal and void zoning change, since an ordinance was required to change zoning, and (2) injunctive relief barring Clay Center from officially rezoning the parcel for manufacturing and barring White Rock from commencing quarrying operations. Since passing an ordinance is a legislative act subject to referendum, and the council vote to approve the zoning change did not constitute an ordinance, appellant filed her initial complaint as an administrative appeal.

{¶ 5} In response, the council passed Ordinance 3-2003 on June 9, 2003.¹ That day was a regular council meeting day, and no public notice was given of council's intent to pass this particular ordinance during this meeting. The council drafted the ordinance as an emergency ordinance, pursuant to R.C. 731.30; this statute requires ordinances to contain a section justifying the necessity for an emergency designation. Ordinance 3-2003 states as its justification, "[T]his Ordinance is hereby declared to be an emergency measure and shall take effect and be in from and after its passage [sic]. The reason for the emergency lies in the fact that this is necessary for the immediate preservation of the public welfare, and for the particular reason that this ordinance is immediately necessary for the public welfare adequate police power for said territory [sic]."

{¶ 6} Pursuant to R.C. 731.29, emergency ordinances may not be challenged by referendum. Regardless, appellant proceeded to prepare a referendum petition to place Ordinance 3-2003 on the November 2004 ballot, including gathering the required electors' signatures, as if the ordinance were not an emergency ordinance and thus challengeable by referendum.

{¶ 7} In order to place a referendum on a ballot, a petition must comply with R.C. 731.29 et seq, which governs how referendum petitions must be filed, what petitions must contain, and the procedures governing petitions. Most relevant here is the statute's requirement that a referendum petition be filed with the city auditor or the village clerk within 30 days of the contested ordinance's passage.

{¶ 8} On July 8, 2003, 29 days after the council passed Ordinance 3-2003, appellant went to Clay Center's town hall in order to file the referendum petition with Iffland, Clay Center's village clerk. Clay Center's town hall shares building space with the local fire department, and it contains the Clay Center office, which includes the Clay Center clerk's office. Iffland testified that there is no separate office or room from which he conducts his duties as clerk; rather, he has a desk inside the single office for Clay Center. Appellant testified that the Clay Center office door was closed and locked when she first arrived that morning. Later that same morning, appellant returned to the office and encountered Merle Fondessy, the president of the council and a member of the Clay Center Zoning Commission. Fondessy testified that he had opened the office to make photocopies. Appellant asked Fondessy whether and when Iffland would return. Fondessy told appellant that he expected Iffland to return at some point later in the day, but he told appellant he could not specify a time. Fondessy testified that appellant did not offer to file anything with him or the office but that she asked only when Iffland would be in the office. Fondessy did not offer to help appellant with anything.

{¶ 9} According to appellant's testimony, after the encounter with Fondessy, she returned to the office on July 8 about once every hour, for a total of "six to seven times," and each time she found the Clay Center office closed and locked.

{¶ 10} On the 13th and last day to timely file the petition, July 9, 2003, appellant returned to the Clay Center office to file the petition with Iffland. Early that morning, appellant found the office door locked. She returned to the office throughout the day, "approximately every hour looking for [Iffland]," and she found the office door locked each time. At approximately 3:00 p.m., intent on filing the petition with someone, appellant telephoned both Iffland and Fondessy at their homes. No one answered. She also telephoned the Clay Center mayor; he was not home. She drove to Iffland's and Fondessy's homes and knocked on their doors, and no one answered. She returned to the Clay Center office again and found it locked. Appellant then went to the post office, which is immediately adjacent to the Clay Center office. Appellant asked the postal clerk to "certify" the petition to Iffland on that date. The clerk refused her request to certify the petition; instead, the postal clerk suggested she sign a certified mail ticket. Appellant filled out the certified mail ticket to Iffland, attached it to the referendum petition, and the postal clerk stamped it. Since Iffland's mailbox was in the post office, the clerk then immediately placed the petition in Iffland's mailbox. Iffland testified that he received all official mail for Clay Center in this mailbox. On the morning of July 10, 2003, one day after the 30-day filing deadline, Iffland received the mail from the post office mailbox and signed the certified mail receipt.

{¶ 11} Iffland testified that he thought the petition was late when he received it. Therefore, he informed appellant that he could not accept the petition.

{¶ 12} Appellant then amended her initial complaint at the trial court to include Iffland as a party and added a claim for a writ of mandamus, asking the court to compel Iffland and the council to accept the referendum petition as filed and certify it to the board of elections. After some discovery, all parties moved for summary judgment.

{¶ 13} In its opinion, the trial court granted summary judgment to Clay Center, White Rock, and Iffland and dismissed appellant's claims. The trial court found that Ordinance 3-2003 failed to meet the statutory requirements for a valid emergency ordinance and was therefore subject to challenge by referendum. The trial court then held that appellant filed the referendum petition after the required 30-day deadline, and thus the petition was time-barred. The trial court reasoned that since election laws require strict compliance, appellant's efforts to file the petition with Iffland on July 9 were irrelevant to a determination that the petition was untimely filed.

{¶ 14} In this appeal, appellant raises the following assignment of error:

{¶ 15} "I. The trial court erred in relying on State ex. rel. Committee for the Proposed Ordinance to Repeal Ordinance No. 146-02 v. City of Lakewood (2003) 100 Ohio St.3d 252 , and failing to apply R.C. 1.14 and the law regarding referendum petitions, by not liberally construing the facts in favor of the fundamental right of referendum."

{¶ 16} Although a city auditor or a village clerk has discretion as to whether to certify a referendum petition, the exercise of that discretion is not final. State ex rel. Kahle v. Rupert (1918), 99 Ohio St. 17, 122 N.E. 39. A writ of mandamus will lie to compel the auditor or clerk to act when the petitioner has demonstrated (1) a clear legal right to have the petition transmitted to the board of elections, (2) a corresponding clear legal duty of the auditor or clerk to do so, and (3) the lack of an adequate remedy in the ordinary course of law. State ex rel. Webb v. Bliss (2003), 99 Ohio St.3d 166, 168, 2003-Ohio-3049, 789 N.E.2d 1102. When an appellate court reviews a denial of a writ of mandamus, the standard of review employed is abuse of discretion. State ex rel. Hrelec v. Campbell (2001), 146 Ohio App.3d 112, 117, 765 N.E.2d 402, citing State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118...