State ex rel. Shamro v. Delaware County Board of ElectionsState ex rel. Shamro v. Delaware County Board of Elections
- Reporters:
- , , ,
- Before:
- Fischer, Dewine, Deters, Hawkins, Shanahan, Kennedy, Brunner (per curiam)
{¶ 1} In this expedited election case, relator, Chris Shamro, seeks a writ of mandamus ordering respondent, the Delaware County Board of Elections, to place a zoning referendum on the May 6, 2025 primary-election ballot. The referendum concerns a township-zoning amendment for a property in Brown Township. The board of elections sustained an election protest and decertified thе referendum from the ballot, finding that the referendum petition did not contain the correct name of the zoning amendment, contained a misleading summary of the zoning amendment, and was accompanied by a misleading map of the property to be rezoned. The owner of the property to be rezoned, Henmick Brewery, L.L.C. (“Henmick”),1 has intervened as a respondent. 2025-Ohio-826.
{¶ 2} Because Shamro has not shown that the board of elections abused its discretion or acted in clear disregard of applicable legal provisions when it determined that the referendum petition’s summary of the zoning amendment was misleading, sustained the protest agаinst the petition, and decertified the zoning referendum from the ballot, we deny the writ.
FACTUAL, PROCEDURAL, AND LEGAL BACKGROUND
{¶ 3}
{¶ 4} Brown Township is a township in Delaware County. In April 2024, Henmick, the owner of property in Brown Township, filed a rezoning application and final development plan for the property. The property is a farm that has a brewery on it, and Henmick generally seeks a zoning amendment to allow more development on the property. The application stated that the project name was “Henmick Brewery.” The application proposed to rezone the property from “Farm Residential (FR-1) District” to “Planned Commercial and Office District – (PC).” In June, Henmick filed a revised rezoning application and final development plan that changed the size of the property to be rezoned from 89.60 acres to 26.736 acres. In July, Henmick submitted proposed revisions to the revised rezoning application and final development plan.
{¶ 5} At a meeting held on July 22, the Brown Township Board оf Trustees approved the zoning amendment, which one trustee referred to at the meeting as the “Henmick Brewery Planned Commercial and Office District rezoning.” Immediately after initially approving the zoning amendment, the board of trustees approved several modifications to the amendment and final development plan.
{¶ 7} On August 19, Shamro filed the signed part-petitions with the fiscal officer of Brown Township. On December 17, the board of elections certified the referendum petition for the May 6, 2025 primary-election ballot. The parties do not dispute that the petition contained sufficient signatures.
{¶ 8} On December 27, 2024, Henmick and Garrett Gandee filed a protest with the board of elections against the referendum petition. Gandee is a registered voter in Brown Township who works for a civil-engineering firm that provided services to Henmick regarding the proposed development. Henmick and Gandee alleged that the petition was statutorily deficient in three ways: (1) it did not contain the correct name of the zoning amendment, (2) it contained a misleading summary of the zoning amendment, and (3) it was accompanied by a misleading map of the property to be rezoned.
{¶ 9} On February 25, 2025, the bоard of elections held a protest hearing at which it heard testimony from witnesses. At the conclusion of the hearing, the board of elections voted 4 to 0 to sustain the protest and decertify the zoning referendum from the ballot. The board member making the motion to decertify the zoning referendum stated that the referendum petition did not contain the correct name of the zoning amendment, that the summary of the zoning amendment was misleading, and that the map was misleading—i.e., the board of elections agreed
{¶ 10} Shamro claims that he requested an expedited transcript of the protest hearing and that he received it on March 3. Shamro filed his verified complaint for a writ of mandamus on March 7. He seeks a writ ordering the board of elections to place the zoning referendum on the May 6, 2025 primary-election ballot. He also seeks an award of attorney fees and expenses.
{¶ 11} Because this case relates to an election that will be held within 90 days, it is classified as an expedited election case under
ANALYSIS
{¶ 12} A writ of mandamus “may issue ordering a board of elections to place a referendum on the ballot.” Valentine, 2024-Ohio-3439, at ¶ 7. To obtain a writ of mandamus, Shamro must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the board of elections to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. Id. Shamro lacks an adequate remedy in the ordinary course of the law due to the proximity of the election. See id.; see also State ex rel. Miller v. Union Cty. Bd. of Elections, 2023-Ohio-3664, ¶ 15.
{¶ 13} “In a mandamus action challenging the decision of a county board of elections, the standard is whether the board engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions.” (Cleaned up.) Valentine at ¶ 8. “‘An abuse of discretion implies an unreasonable, arbitrary, or unconscionable attitude.’” Id., quoting State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections, 1997-Ohio-315, ¶ 13. Shamro does not allege that the board of elections engaged in fraud or corruption.
{¶ 15} Each part of a referendum petition must “contain the number and the full and correct title, if any, of the zoning amendment resolution, motion, or application, furnishing the name by which the amendment is known and a brief summary of its contents.” (Emphasis added.)
{¶ 17} In response, Shamro argues that the board of trustees never actually approved these modifications. This is inaccurate. At a meeting held on July 22, 2024, the board of trustees voted in favor of a motion to approve the modifications to the zoning amendment and final development plan immediately after voting on the zoning amendment. Shamro presents no authority to support his argument that the board of trustees’ procedure was improper, and generally, “alleged defects in a township’s enactment of a zoning amendment are not a proper basis for granting mandamus relief against a board of elections that has sustained a protest to a referendum petition,” State ex rel. Donaldson v. Delaware Cty. Bd. of Elections, 2021-Ohio-2943, ¶ 24. “[Boards of elections] do not sit as arbiters of the legality of the underlying local legislation that is the subject of the referendum.” Id.
{¶ 18} In his reply brief, Shamro cites State ex rel. Rife v. Franklin Cty. Bd. of Elections, 70 Ohio St.3d 632 (1994). In Rife, the relator submitted a petition for a referendum on a zoning resolution and the board of elections sustained a protest to the petitiоn on the ground that the petition did not adequately summarize the rezoning resolution because it did not include the specified uses for the rezoned property that were described in the development plan. This court granted a writ, finding that the failure to summarize the specified uses was not material, because the resolution itself did not mention the specified uses. Id. at 634. It is not clear in
{¶ 19} Other than his argument that the board of trustees did not approve the modifications, Shamro does not argue that the failure to include the modifications in the referendum petition’s summary of the zoning amendment did not cause the summary to be misleading or to contain material omissions. We conclude that the boаrd of elections did not abuse its discretion or act in clear disregard of applicable legal provisions when it determined that the referendum petition’s summary of the zoning amendment was misleading because it did not include the approved modifications to the zoning amendment.
{¶ 20} Because the board of elections did not abuse its discretion or act in clear disregard of applicable legal provisions when it determined that the referendum petition’s summary of the zoning amendment was misleading, we conclude that Shamro is not entitled to a writ. Therefore, we need not address his other arguments for why thе board of elections abused its discretion or acted in clear disregard of applicable legal provisions. See State ex rel. Jacquemin v. Union Cty. Bd. of Elections, 2016-Ohio-5880, ¶ 9 (in mandamus case, after deciding that one argument for keeping a zoning referendum off the ballot was meritorious, this court did not address other arguments).
{¶ 21} Finally, in his complaint, Shamro requested an award of attorney fees and expenses. However, other than one conclusory sentence in his merit brief that does not include a citation to authority, he included no separate argument in his merit brief concerning attorney fees and expenses. Thus, Shamro has waived
CONCLUSION
{¶ 22} Shamro has not shown that the board of elections abused its discretion or acted in clear disregard of applicable legal provisions when it determined that the referendum petition’s summary of the zoning amendment was misleading, sustained the protest against the petition, and decertified the zoning referendum from the ballot. Thus, we deny the writ. We also deny Shamro’s request for an award of attorney fees and expenses.
Writ denied.
Kennedy, C.J., joined by Brunner, J., concurring in part and dissenting in part.
{¶ 23} I concur in the majority’s judgment to thе extent that it denies relator, Chris Shamro, an award of attorney fees and expenses because he has waived the request for an award of attorney fees and expenses. See majority opinion, ¶ 21. I dissent, however, from the majority’s judgment to the extent that it denies Shamro a writ of mandamus.
{¶ 24} Contrary to the majority’s judgment, in my view, respondent, the Delaware County Board of Elections, abused its discretion in determining that the referendum petition was deficient. I would hold that the petition complied with the statutory requirements of
{¶ 25} The referendum petition correctly provided the name by which the township-zoning amendment is known, and the petition’s summary of the zoning amendment and the map of the property to be rezoned that accompanied the petition are not misleading. Shamro is therefore entitled to the requested writ of mandamus
Law and Analysis
Standard of Review
{¶ 26} In determining whether Shamro is entitled to a writ, the standard of review is “whether the board ‘engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions.’” Stаte ex rel. Tam O’Shanter Co. v. Stark Cty. Bd. of Elections, 2017-Ohio-8167, ¶ 16, quoting Whitman v. Hamilton Cty. Bd. of Elections, 2002-Ohio-5923, ¶ 11. “‘An abuse of discretion connotes an unreasonable, arbitrary, or unconscionable attitude.’” State ex rel. Hamilton Cty. Bd. of Commrs. v. State Emp. Relations Bd., 2004-Ohio-3122, ¶ 17, quoting State ex rel. Grady v. State Emp. Relations Bd., 1997-Ohio-221, ¶ 10.
{¶ 27} In this case, Shamro does not argue that the board of elections engaged in fraud or corruption. Consequently, review of the board of elections’ decision is limited to whether it abused its discretion or acted in plain disregard of applicable legal provisions when it decided that Shamro’s referendum petition was deficient for failing to comply with
Referendum-Petition Requirements
{¶ 28}
{¶ 29} The board of elections sustained the protest against the referendum petition, finding that the petition (1) failed to correctly state the name by which the
The Summary of the Zoning Amendment
{¶ 30} The board of elections determined that the referendum petition’s summary of the zoning amendment was misleading—and therefore invalid—for three reasons: (1) the parcels оf land subject to the amendment were not properly identified, (2) the description of the present use of the property to be rezoned and the nature of the requested zoning change was insufficient, and (3) the summary failed to incorporate the oral modifications that the Brown Township Board of Trustees approved at a hearing on July 22, 2024.
{¶ 31} As this court has previously held, “[t]he overriding purpose of the summary is to fairly and accurately present the question or issues to be decided so as to ensure that voters can make free, intelligent, and informed decisions.” State ex rel. Jacquemin v. Union Cty. Bd. of Elections, 2016-Ohio-5880, ¶ 7.
[W]hen a referendum petition’s summary of a resolution contains substantially the same wording as the resolution itself, we have held that the summary complies with the statutory requirement, even when the summary fails to include a statement regarding the meaning of zoning classifications, the purpose of the zoning change, or the uses specified in the development plan approved by the resolution.
{¶ 32} When a referendum petition goes further to summarize the rezoning application that was presented to the zoning body, the additional language must be accurate and unambiguous. McCord at ¶ 44-46. And “‘[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 vote.’” E. Ohio Gas Co. v. Wood Cty. Bd. of Elections, 1998-Ohio-285, ¶ 11, quoting Shelly & Sands, Inc. v. Franklin Cty. Bd. of Elections, 12 Ohio St.3d 140, 141 (1984). This court has found that a referendum petition’s summary was “‘ambiguous and misleading’ when it ‘failed to apprise the reader of the present zoning status of the land and of the precise nature of the requested change.’” State ex rel. Donaldson v. Delaware Cty. Bd. of Elections, 2021-Ohio-2943, ¶ 15, quoting Shelly & Sands at 142.
{¶ 33} In this case, the referendum petition’s summary language on both the present use of the property and the nature of the requested zoning change was legally sufficient. The present-use description of the property is nearly an exact copy of the language provided in the introduction of the revised rezoning application. And the nature of the zoning change—what the applicant intends to do with the property—is also nearly an exact copy of that introduction. In accordance with this court’s precedent in McCord, the petition’s summary complies with the statutory requirement under
{¶ 34} Moreover, the failure of the referendum petition to incorporate the modifications that the Brown Township Board of Trustees orally approved at the July 22 hearing is of no consequence. The board of trustees adopted four
{¶ 35} Pursuant to
{¶ 36} In State ex rel. Barney v. Union Cty. Bd. of Elections, the Jerome Township Board of Trustees approved five modifications that were set forth in an attachment to a rezoning application. 2019-Ohio-4277, ¶ 4. The modifications were as follows: an increase to the minimum setbacks for lots that had shared driving access along Crottinger Road; the removal of “at least” five lots adjacent to the residence at 10420 Crottinger Road; adding language to state plainly that any golf course or other use operated or conducted “on the Open Space” to be open to the public; an additional $500 per lot fee to be paid by the developer; and a requirement that prior to construction, an option contract for the golf-course area be executed and recorded and be substantially similar to the one prepared and рroposed by the applicant. Id. For these five modifications in Barney, the chairman of the Union County Board of Elections conceded that they were material because they modified the requested zoning changes (although the chairman and other board
{¶ 37} As this court recognized in Barney, material modifications affect the land—the property subject to the rezoning application. And the modifications in Barney were material because they changed the attributes of the land subject tо rezoning. For example, the modifications altered the boundaries of lots, removed lots, and regulated the use of certain land as a golf course. In contrast, in this case, the modifications do not change the physical makeup of the land’s boundaries or plot sizes. Dust mitigation relates to a potential nuisance. Planting of additional trees affects aesthetics. And prohibiting outdoor live music after 10:00 p.m. protects neighbors’ quiet enjoyment of their land. None of these modifications were material to the zoning status of the land sought to be rezoned or the precise nature of the requеsted change. Not including the modifications in the referendum petition’s summary of the zoning amendment did not cause the summary to be misleading or inaccurate or to contain a material omission that would confuse the average person. See Barney at ¶ 32.
{¶ 38} For the foregoing reasons, I would hold that the board of elections abused its discretion in finding that the referendum petition’s summary of the zoning amendment was deficient—the summary “contains substantially the same wording as the [amendment] itself.” McCord, 2005-Ohio-4758, at ¶ 43. While the majority addresses only the summary in denying the writ, the board of elections sustained the protest against the petition on three bases. I now turn to thе board of elections’ two remaining reasons for sustaining the protest against the petition.
The Known Name of the Zoning Amendment
{¶ 39} The board of elections’ first ground for sustaining the protest against the referendum petition is based on its determination that “Henmick Brewery” was
{¶ 40} This court has held that a zoning amendment’s known name is determined by examining “evidence that shows how the township board of trustees—the promulgating entity—identified the zoning amendment.” Tam O’Shanter Co., 2017-Ohio-8167, at ¶ 31. “In plain terms, the name requirement of
{¶ 41} The referendum petition provides that “Henmick Brewery” is the known name of the zoning amendment. In contrast, the board of elections asserts that the board of trustees identified the zoning amendment as the “Henmick Brewery Planned Commercial and Office District.” In reviewing the record, however, both names were used at different times throughout the rezoning-application proceedings.
{¶ 42} The revised rezoning apрlication refers to the project as “Henmick Brewery,” and the Brown Township Zoning Commission used that name at its June 5 and 6, 2024 hearings. The Brown Township Board of Trustees referred to the project as the “Henmick Brewery Planned Commercial and Office District” at its July 8 and 22 hearings. In these instances, then, the zoning amendment was referred to as a variation of “Henmick Brewery.” Whether this use included “Planned Commercial and Office District” does not change that “Henmick Brewery” was used throughout the rezoning-application process to identify the zoning amendment.
The Accompanying Map
{¶ 44} The board of elections’ third ground for sustaining the protest against the referendum petition is based on its determination that the map accompanying the petition was misleading. See
{¶ 45} Maps specifically approved by a township board of trustees are generally sufficient to submit with a referendum petition. See State ex rel. Gemienhardt v. Delaware Cty. Bd. of Elections, 2006-Ohio-1666, ¶ 56. But an exact copy of the approved map is not required. Rather, “[a] map accompanying a referendum petition should be considered appropriate or suitable for purposes of
{¶ 46} Shamro attached to the referendum petition a copy of a map that was submitted with the applicant’s revised rezoning application. The only noticeable difference between the map submitted with the revised rezoning application and the map accompanying the referendum petition is that the latter map had been resized. The information included in that map is the same as what the applicant presented to the board of trustees.
{¶ 47} The entirety of the property to be rezoned is contained within the map accompanying the referendum petition. The map contains the address of the property, the road along which the property lies, the parcel numbers that will be affected by the zoning amendment, information about adjoining properties, and a boundary line labeled “Proposed Limit of Rezoning.”
Conclusion
{¶ 49} The right of referendum is of paramount importance. See State ex rel. Ohio Gen. Assembly v. Brunner, 2007-Ohio-4460, ¶ 8. Contrary to the majority’s judgment, the referendum petition complied with the statutory requirements of
{¶ 50} For the foregoing reasons, I would hold that the board of elections abused its discretion when it found that the referendum petition was deficient. In my view, the petition correctly provided the name by which the township-zoning amendment is known, and the petition’s summary of the zoning amendment and the map of the prоperty to be rezoned that accompanied the petition are not misleading. Therefore, I dissent in part from the majority’s judgment and would grant the requested writ of mandamus compelling the board of elections to place the zoning referendum on the May 6, 2025 primary-election ballot. I concur in the majority’s judgment to the extent that it denies Shamro an award of attorney fees and expenses. Accordingly, I concur in part and dissent in part.