THE STATE EX REL. MILLER DIVERSIFIED HOLDINGS, L.L.C., ET AL. v. WOOD COUNTY BOARD OF ELECTIONS
No. 2009-1573
THE SUPREME COURT OF OHIO
September 28, 2009
123 Ohio St.3d 260, 2009-Ohio-4980
Submitted September 17, 2009
Per Curiam.
{¶ 1} This is an expedited election action for a writ of prohibition to prevent a board of elections from submitting three township zoning amendments to the electorate at the November 3, 2009 general election. Because relators have established their entitlement to the requested extraordinary relief for one of the three amendments, we grant the writ to prevent the referendum election on that amendment and deny the writ to prevent the referendum elections on the remaining amendments.
Facts
Zoning Amendments
{¶ 2} Relators, Miller Diversified Holdings, L.L.C. (“Miller“) and McCarthy Builders, Inc. (“McCarthy“), have options to purchase certain parcels of real estate located in Perrysburg Township, Wood County, Ohio. The parcels are known as the Wolf parcel, the DeChristopher parcel, and the Neiderhouse parcel.
{¶ 3} In 2007, Miller and McCarthy, through a commonly owned entity known as Velocity Development, L.L.C., and with the approval and consent of the landowners, submitted applications to the Perrysburg Township Board of Trustees to rezone the three parcels to develop single-family residential subdivisions. More specifically, Miller and McCarthy sought to rezone (1) about 30.593 acres of the Wolf parcel, which was approximately 41 acres, from R-1 (Rural Residential District) and R-2 (Suburban Residential District) to R-3 (Suburban Residential District), (2) about 98.714 acres of the 99.9-acre DeChristopher parcel from A-1 (Agricultural District) to R-4A (Suburban Residential District), and (3) the entire Neiderhouse parcel from A-1 (Agricultural District) to R-3 (Suburban Residential District).
{¶ 5} As noted, the board‘s rezoning of the three parcels was subject to various conditions. For example, the rezoning of the Wolf and Neiderhouse parcels was conditioned on the properties being developed substantially in accordance with preliminary plans attached to the resolutions. In addition, all of the resolutions contained the following conditions:
{¶ 6} 1. “Future lot owners in the subdivision developed on the [parcel] shall not be required to sign annexation petitions and there shall not be any annexation provisions, powers of appointment or powers of attorney regarding annexation in future purchase contracts or any annexation covenants in future deeds that arise as a matter of contract; and
{¶ 7} 2. “McCarthy Builders, Inc., an Ohio corporation, its successors and assigns, shall file an affidavit pursuant to
Referendum Petitions and Protest
{¶ 8} After the township board of trustees passed the resolutions rezoning the three parcels, certain township residents circulated separate referendum petitions seeking to submit the rezoning for each of the parcels to township electors at the November 4, 2008 general election. The petitions were submitted to the board of trustees, but the board refused to certify the petitions to respondent, Wood County Board of Elections.
{¶ 9} Shortly thereafter, certain petition circulators filed a petition in the Court of Appeals for Wood County for a writ of mandamus to compel the township, its trustees, and its fiscal officer to certify the referendum petitions to the board of elections. In February 2009, the court of appeals granted the writ of mandamus to compel the respondents in that case to certify the referendum petitions to the
{¶ 10} The board of elections voted to certify the referendum petitions to the November 3, 2009 general election ballot. On August 4, 2009, pursuant to
{¶ 11} On August 26, 2009, the board of elections conducted a hearing at which it considered the protest. At the conclusion of the hearing, the board of elections denied the protest.
Prohibition Case
{¶ 12} On September 1, Miller and McCarthy filed this expedited election action for a writ of prohibition to prevent the board of elections from submitting the resolutions to a vote at the November 3, 2009 general election. The board of elections submitted an answer, and the parties submitted evidence and briefs pursuant to S.Ct.Prac.R. X(9).
{¶ 13} This cause is now before the court for our consideration of the merits.
Legal Analysis
Prohibition Claim
{¶ 14} Miller and McCarthy request a writ of prohibition to prevent the board of elections from placing the resolutions rezoning the Wolf, DeChristopher, and Neiderhouse parcels on the November 3, 2009 general election ballot. To be entitled to the writ, Miller and McCarthy must establish that (1) the board of elections is about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denying the writ will result in injury for which no adequate remedy exists in the ordinary course of law. State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 14.
{¶ 15} Miller and McCarthy have established the first requirement because ”
{¶ 16} For the second requirement of the exercise of unauthorized power, “we must determine whether the board [of elections] acted fraudulently or corruptly, abused its discretion, or clearly disregarded applicable law.” State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-Ohio-1292, 846 N.E.2d 8, ¶ 23. There is no claim of fraud or corruption here, so Miller and McCarthy must establish that the board of elections abused its discretion or clearly disregarded applicable law by denying their protest and certifying the resolutions rezoning the parcels for a vote on the November 3 election ballot.
{¶ 17} For the third requirement for the writ, Miller and McCarthy must establish the lack of an adequate remedy in the ordinary course of law. State ex rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706, 882 N.E.2d 435, ¶ 25.
Issues That Were Not Raised in Relators’ Protest
{¶ 18} In this expedited election case, Miller and McCarthy claim that the board of elections clearly disregarded applicable law and abused its discretion by certifying the resolutions rezoning the properties to the election ballot. Among other things, they claim that the Wolf and Neiderhouse referendum petitions are invalid because they do not include the preliminary plans attached to the resolutions rezoning the parcels, that the DeChristopher referendum petition is invalid because it includes inconsistent amounts of acreage, and that all the conditions specified in the resolutions are placed in a manner that camouflages them and makes them confusing.
{¶ 19} Under
{¶ 21} Moreover, because Miller and McCarthy could have raised these claims in their statutory protest but failed to do so, the availability of the protest constituted an adequate remedy in the ordinary course of law, which precludes the requested extraordinary writ on these claims. Cooker, 80 Ohio St.3d at 308, 686 N.E.2d 238, citing State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992), 64 Ohio St.3d 12, 14-15, 591 N.E.2d 1194;
{¶ 22} Therefore, Miller and McCarthy are not entitled to a writ of prohibition on claims that they failed to raise in their written protest filed with the board of elections.
Condition on Agreements to Annex Property to Municipality
{¶ 23} In their protest, Miller and McCarthy did raise the argument that the referendum petitions were invalid because the language setting forth one of the conditions for rezoning—that McCarthy had to file an affidavit stating that it had released the right to annex the property and that no agreements existed conferring on any third party the right to compel annexation of the parcels to any municipality—was either imprecise, buried in dense text, or otherwise contained in an inaccurate and misleading summary.
{¶ 24} “Under
{¶ 25} “The phrase ‘brief summary of its contents’ refers to the zoning resolution passed by the township trustees.” State ex rel. O‘Beirne v. Geauga Cty. Bd. of Elections (1997), 80 Ohio St.3d 176, 179, 685 N.E.2d 502. Under the applicable test, “[t]he summary must be accurate and unambiguous; otherwise, the petition is invalid and the subject resolution will not be submitted for vote.” S.I. Dev. & Constr., L.L.C. v. Medina Cty. Bd. of Elections, 100 Ohio St.3d 272, 2003-Ohio-5791, 798 N.E.2d 587, ¶ 17. Therefore, “[i]f the summary is misleading, inaccurate, or contains material omissions which would confuse the average person, the petition is invalid and may not form the basis for submission to a
{¶ 26} The referendum petitions for the Wolf and DeChristopher parcels contain language in the summaries specifying that the rezoning was “further conditioned upon McCarthy Builders, Inc. filing an affidavit pursuant to
{¶ 27} Although it is true that this summary language is not in the precise language of the condition specified in the resolutions and that the language is located at the end of the summary, after legal descriptions of the property that is being rezoned, the language used by the petitioners accurately summarizes the specified condition and would not mislead or confuse the average person. The mere presence of the legal descriptions of the property in the petition summaries is not improper even though the resolutions did not include these descriptions. See State ex rel. Rife v. Franklin Cty. Bd. of Elections (1994), 70 Ohio St.3d 632, 635, 640 N.E.2d 522 (“The obligation to briefly summarize the contents of a rezoning resolution * * * implicitly requires a referendum petition to accurately describe property subject to rezoning“); Gemienhardt, 109 Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d 1223, ¶ 41 (“we have never held that summaries are restricted to the wording of the resolution“).
{¶ 28} Therefore, Miller and McCarthy have not established their entitlement to the writ on this claim.
Incorrect Acreage in Referendum Petition Summary
{¶ 29} Relators finally claim that the referendum petitions are invalid because they contain the wrong acreage for the rezoned parcels.
{¶ 30} Referendum petitions that convey a confusing or mistaken impression of a zoning resolution by significantly overestimating the acreage rezoned by the resolution sought to be referred are invalid. O‘Beirne, 80 Ohio St.3d at 180, 685 N.E.2d 502; State ex rel. Hamilton v. Clinton Cty. Bd. of Elections (1993), 67 Ohio St.3d 556, 562, 621 N.E.2d 391. A slight misstatement of the acreage, however, is insufficient to withhold the rezoning from the electorate. See, e.g., Stutzman v. Madison Cty. Bd. of Elections (2001), 93 Ohio St.3d 511, 515, 757 N.E.2d 297, holding that a de minimis error in the acreage listed in the title of referendum petition relating to a village ordinance rezoning property did not
{¶ 31} For the Wolf parcel, Miller and McCarthy claim—as they did in their protest—that the referendum petition summary incorrectly specifies that two parcels, a total of approximately 72 acres, are being rezoned when only the 41-acre parcel was rezoned by the township resolution. Relators’ claim has merit. The referendum petition concerning the zoning amendment relating to the Wolf parcel applies to one 41-acre parcel and not to two parcels totaling over 71 acres. By significantly overestimating the acreage affected by the rezoning, the referendum petitions conveyed a mistaken and confusing impression of the resolution so as to mislead or confuse the average person that the rezoning would affect considerably more property than actually impacted.
{¶ 32} This conclusion is not altered by the board‘s argument that the resolution rezoning the Wolf parcel did not refer to the actual acreage rezoned. “By choosing to summarize the resolution in language other than that employed by the board of township trustees, [the referendum petitioners‘] additional language had to satisfy the applicable test in
{¶ 33} For the DeChristopher parcel, Miller and McCarthy claim that rather than simply state that 98.81 acres of the parcel were being rezoned, the petition contains a lengthy and confusing legal description with inconsistent amounts of acreage. Relators did not, however, raise this specific claim in their written protest, and we need not address it. Instead, they claimed in their written protest only that the referendum petition incorrectly stated that the portion of the parcel being rezoned was 99.9 acres instead of what they stated was the actual acreage of 98.81 acres. Assuming that the contention raised in the protest is accurate, the slight misstatement in acreage is insufficient to withhold the zoning amendment from the electorate. See Stutzman, 93 Ohio St.3d at 515, 757 N.E.2d 297.
{¶ 34} Finally, for the Neiderhouse parcel, Miller and McCarthy claim that based upon auditor records they had submitted as evidence in this case, the parcel is 40.71 acres instead of the 37.126 acres specified in the referendum petition. But relators did not cite the auditor‘s listing of acreage in their written protest. Rather, in their protest, Miller and McCarthy argued that the actual
{¶ 35} Therefore, relators have established that the board of elections abused its discretion and clearly disregarded
Conclusion
{¶ 36} Relators have established their entitlement to the requested writ of prohibition regarding the referendum petition on the resolution rezoning the Wolf parcel but not to the referendum petitions on the resolutions rezoning the DeChristopher and Neiderhouse parcels. Therefore, we grant a writ of prohibition to prevent the board of elections from submitting Perrysburg Township Resolution 2007-28, which rezones the Wolf parcel, to the township electorate at the November 3, 2009 election. We deny relators’ remaining claims for a writ of prohibition to prevent the submission of the resolutions rezoning the other parcels to the electors at the November 3, 2009 election. This holding is consistent with our duties recognizing that “[t]he constitutional right of citizens to referendum is of paramount importance,” State ex rel. Ohio Gen. Assembly v. Brunner, 115 Ohio St.3d 103, 2007-Ohio-4460, 873 N.E.2d 1232, ¶ 8, and that we liberally construe
Writ granted in part and denied in part.
MOYER, C.J., and PFEIFER, O‘CONNOR, O‘DONNELL, LANZINGER, and CUPP, JJ., concur.
LUNDBERG STRATTON, J., dissents and would deny the writ entirely.
Rayle, Matthews & Coon and Max E. Rayle, for respondent.