EAST OHIO GAS COMPANY v. WOOD COUNTY BOARD OF ELECTIONS ET AL.
No. 98-1699
SUPREME COURT OF OHIO
September 11, 1998
83 Ohio St.3d 298 | 1998-Ohio-285
[This оpinion has been published in Ohio Official Reports at 83 Ohio St.3d 298.]
Submitted September 10, 1998
IN PROHIBITION.
{¶ 1} Relator, East Ohio Gas Company (“East Ohio“), owns approximately 1,021 acres of undeveloped real property in Troy Township, Wood County, Ohio. In 1990, the township zoned the property as “A,” Agricultural District. In 1995, East Ohio filed an application with the township‘s board of trustees to rezone the property to “I,” Industrial District. The “I” Industrial District is a general industrial zoning classification that provides very little township control over the industrial dеvelopment of property within the district. East Ohio subsequently withdrew its application for rezoning due to the concerns of the township trustees and citizens over permitting industrial development without significant oversight by the township.
{¶ 2} In 1996, the tоwnship added a “PI” Planned Industrial District zoning classification to permit industrial development subject to strict controls over certain matters, including traffic, noise, landscaping, building height, and architecture.
{¶ 3} In February 1998, East Ohio filed an aрplication to rezone the northern 508 acres of its property. The application provided:
“Application is submitted herewith requesting that the Zoning Resolution of Troy Township be amended * * * to change the zoning classification of the
lands described in the attached legal description from ‘A,’ Agricultural to ‘PI,’ Planned Industrial District. ” * * *
“The request for rezoning is being submitted because * * * [t]he owner of the property wishes to make the land available for dеvelopment as industrial property in conformance with the requirements of the PI-Planned Industrial District which they feel represents the highest and best use of the property and will be a benefit to the Township, County, and State by providing a planned area for industrial growth, complimenting [sic] the strong local agricultural economy. * * * ”
{¶ 4} Because of the previous opposition to East Ohio‘s attempt to rezone its property as industrial property, East Ohio specifically drafted the foregoing petition language to emphasize its intent to seek the planned industrial district classification rather than the general industrial district classification.
{¶ 5} In April 1998, the Troy Township Trustees approved and adopted East Ohio‘s application. Shortly thereafter, certain township citizens circulated a petition requesting that the proposed zoning amendment be submitted to the township electors for their approval or rejection at the November 3 general election. The circulators filed the petition with the trustees in May 1998. The petition provided the following brief summary of the proposed zoning amendment:
“[T]o ‘сhange the zoning classification of the lands described in the attached legal description from “A“, Agricultural to “PI“, Planned Industrial District.’
“The reason stated for the application was that ‘The owner wishes to make the land available for development as industrial property ....’ [Ellipsis sic.] * * * ”
{¶ 6} In July 1998, East Ohio filed a protest under
“The Petition is inaccurаte and contains a material omission in that it does not state the complete reason for rezoning given by East Ohio in its Application.
“The Petition is misleading because it creates the impression that East Ohio seeks to dеvelop its land without any input or control by Troy Township.
“The Petition is ambiguous because it confuses the reader as to the Petition‘s purpose and effect.
“Because of these defects, and in light of the prior history regаrding East Ohio‘s development of its land, the Petition would confuse the average person.”
{¶ 7} In August 1998, the board held a hearing on East Ohio‘s protest. The board denied the protest by a two-to-one vote. One of the board members noted the following in voting to deny the protest:
“We have a long tradition in this board of—I don‘t want to say it‘s a presumption in favor of access to the ballot, but that‘s certainly the way we have functioned in the past. This is the toughest one, however, * * * that I have ever seen come before us. * * * But we have a very strong tradition in this board historically, not just these members here, but over 25, 30 years I‘m familiar with of granting citizen access to the ballot.”
{¶ 8} Less than a week after the board‘s denial, East Ohio filed this action for a writ of prohibition to prevent the board from certifying the sufficiency and validity of the referendum petition and from submitting the proposed zoning amendment to the electorate at the November 3 general election. The board filed an answer, Mary Ann Miller and Concerned Citizens of Troy Township filed a motion to intervene and an answer, and East Ohio filed evidence and a merit brief. We granted the motiоn to intervene. Neither the board nor the intervening respondents filed a timely merit brief and evidence.1 Pursuant to the expedited
Eastman & Smith, Ltd., James L. Rogers, Lane D. Williamson and Matthew D. Harpеr, for relator.
Alan R. Mayberry, Wood County Prosecuting Attorney, and Raymond C. Fischer, Assistant Prosecuting Attorney, for respondent Wood County Board of Elections.
Goldberg, Wurster & Hays and Thomas R. Hays, for intervening respondents.
Per Curiam.
{¶ 9} East Ohio asserts in its various propositions of law that the board of eleсtions acted in clear disregard of
{¶ 10}
“Such [zoning] amendment adopted by the board [of township trustees] 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 * * * requesting the board of township trustees to submit the amendment to the electors of such area for approval or rejection at a special election tо be held on the day of the next primary or general election. 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 nаme by which the amendment is known and a brief summary of its contents. * * * ” (Emphasis added.)
{¶ 11} The phrase “brief summary of its contents” refers to the zoning resolution, motion, or application passed or approved by the board of townshiр trustees.
{¶ 12} East Ohio contends that the referendum petition‘s brief summary was misleading, inaccurate, and containеd material omissions that would confuse the average person because the summary included only part of East Ohio‘s stated reasons in its zoning amendment application.
{¶ 13} East Ohio‘s contention has merit because the referendum petition summary did not accurately and unambiguously specify the proposed amended zoning. While the petition summary initially correctly stated that the subject property would be rezoned to the planned industrial distriсt classification, it subsequently represented that East Ohio‘s stated reason for the proposed zoning amendment was to “make the land available for development as industrial property ....” (Ellipsis sic.) East Ohio‘s actual application emphasized that it wished “to make the land available for development as industrial property in conformance with the requirements of the PI-Planned Industrial District * * * by providing a planned area for industrial growth * * *.” (Emphasis added.) The referendum petition summary‘s omission of the remainder of East Ohio‘s brief sentence specifying the
{¶ 14} The summary is ambiguous because it suggests that the zoning amendment is to the general industrial district classification after it states that the area will be rezoned to the planned industrial district classification. This ambiguity results from the inclusion of only that portion of East Ohio‘s stated reason indicating its desire to develop its property for industrial purposes and the omission of the remaining portion emphasizing that these industrial uses would bе in accordance with the planned industrial district requirements, i.e., subject to township oversight and control. The referendum petitioners could have avoided this defect by either including the entire sentence of stated reаsons from East Ohio‘s application, see, e.g., O‘Beirne, 80 Ohio St.3d at 180, 685 N.E.2d at 505, or excluding that sentence. But by including only the portion of the sentence that referred to East Ohio‘s wishes to develop the subject property for industrial uses, the referendum рetitioners appeared to have intended to deceive electors about the zoning amendment. Consequently, the summary did not apprise the average reader of the “precise nature of the requestеd [zoning] change.” Shelly & Sands, 12 Ohio St.3d at 142, 12 OBR at 181, 465 N.E.2d at 885.
{¶ 15} Based on the foregoing, the board acted in clear disregard of
Writ granted.
MOYER, C.J., DOUGLAS, RESNICK and LUNDBERG STRATTON, JJ., concur.
F.E. SWEENEY and PFEIFER, JJ., dissent.
COOK, J., not participating.