The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Valentine v. Schoen, Slip Opinion No. 2024-Ohio-3439.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-3439
THE STATE EX REL. VALENTINE v. SCHOEN ET AL .
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Valentine v. Schoen, Slip Opinion No.
2024-Ohio-3439.]
Elections—Mandamus—Writ sought to compel members of board of elections to
place a zoning referendum on the general-election ballot—Petition
circulators of the zoning referendum did not include with their referendum
petition “an appropriate map of the area affected by the zoning proposal”
as required by R.C. 519.12(H)—Because petition circulators did not
include an appropriate map with their referendum petition, the board of
elections did not abuse its discretion or act in clear disregard of applicable
legal provisions when it sustained the protest against the petition and
refused to place the zoning referendum on the ballot—Writ denied.
(No. 2024-1174—Submitted September 3, 2024—Decided September 6, 2024.)
IN MANDAMUS.
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SUPREME COURT OF OHIO
The per curiam opinion below was joined by KENNEDY, C.J., and FISCHER,
DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ.
Per Curiam.
{¶ 1} In this expedited election case, relator, Shawn Valentine, seeks a writ
of mandamus ordering respondents, the members of the Lucas County Board of
Elections (Fritz Schoen, Kurt Young, Don Miller, and Dawn Christen), to place a
zoning referendum on the November 5, 2024 general-election ballot. We deny the
writ.
FACTUAL, PROCEDURAL, AND LEGAL BACKGROUND
{¶ 2} R.C. 519.12 sets forth the process to amend certain township-zoning
resolutions and to seek a zoning referendum that would allow voters to approve or
reject those amendments. If a board of township trustees votes to adopt a zoning
amendment, the amendment takes effect in 30 days after the date of its adoption
unless, before that time, a referendum petition is filed with the board of township
trustees. R.C. 519.12(H). The petition must contain signatures of registered voters
residing in the unincorporated area of the township or part of that unincorporated
area included in the zoning plan equaling at least fifteen percent of the total vote
cast for all candidates for governor in that area in the last gubernatorial election.
Id. The petition must be “accompanied by an appropriate map of the area affected
by the zoning proposal.” Id. The board of township trustees then certifies the
petition to the board of elections. Id. The board of elections reviews the petition,
and if it determines that the petition is sufficient and valid, the referendum shall be
voted on at the next general or primary election occurring at least 90 days after the
petition was filed with the board of township trustees. Id.
{¶ 3} Spencer Township is a township in Lucas County. In October 2023,
Jeff Davis applied for a zoning change to approximately nine acres of property
owned by Jeff Davis Properties, L.L.C., in Spencer Township. The proposed
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January Term, 2024
change would allow the property to be used as a tow lot and for vehicle storage.
On February 15, 2024, the Spencer Township Board of Trustees adopted a
resolution approving a zoning amendment that rezoned a smaller portion of the
property that Davis had originally requested be rezoned. Specifically, the board of
township trustees voted to rezone only “the area of the Property east of a line 60
feet to the east of the ditch on the Property.” This zoning amendment was embodied
in Resolution 2024-09.
{¶ 4} Valentine and others circulated for signatures a petition to hold a
referendum on the zoning amendment. On March 14, they submitted eight part-
petitions to the board of township trustees. The Lucas County Board of Elections
determined that the part-petitions contained in total more than the required number
of valid signatures, and the board of township trustees certified the referendum
petition to the board of elections for the zoning referendum to be placed on the
November 5, 2024 general-election ballot.
{¶ 5} On July 9, Jeff Davis Properties filed a notice of protest with the board
of elections against the referendum petition. The board of elections held a hearing
on the protest on August 6, at which its members voted unanimously to sustain the
protest and keep the zoning referendum off the ballot. The board of elections did
not take sworn testimony at the hearing. Although Jeff Davis Properties raised
multiple grounds in support of its contention that the referendum should be left off
the ballot, the board of elections sustained the protest based on only one ground—
that the map of the property to be rezoned that accompanied the petition was not an
“appropriate map” as required by R.C. 519.12(H). At the hearing, Jeff Davis
Properties claimed that the petition included a map of the area that was originally
requested to be rezoned, not the reduced portion that the board of township trustees
ultimately voted to rezone, while Valentine argued that the map submitted with the
petition was provided to the petitioners by the township and therefore was
appropriate.
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SUPREME COURT OF OHIO
{¶ 6} On August 14, Valentine filed in this court his verified complaint for
a writ of mandamus. He requests a writ ordering the members of the board of
elections to place the zoning referendum on the November 5, 2024 general-election
ballot. He also requests awards of costs and attorney fees.
ANALYSIS
{¶ 7} A writ of a mandamus may issue ordering a board of elections to place
a referendum on the ballot. See State ex rel. Miller v. Union Cty. Bd. of Elections,
2023-Ohio-3664, ¶ 1. To obtain a writ of mandamus, Valentine 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. at ¶ 15. Valentine
lacks an adequate remedy in the ordinary course of the law due to the proximity of
the election. See id.
{¶ 8} “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.’ ” State ex
rel. Mann v. Delaware Cty. Bd. of Elections, 2015-Ohio-718, ¶ 13, quoting
Whitman v. Hamilton Cty. Bd. of Elections, 2002-Ohio-5923, ¶ 11. “An abuse of
discretion implies an unreasonable, arbitrary, or unconscionable attitude.” State ex
rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections, 1997-Ohio-315,
¶ 13. Valentine does not allege that the board of elections engaged in fraud or
corruption.
{¶ 9} The board of elections sustained the protest of Jeff Davis Properties
because it determined that the referendum petition did not contain an appropriate
map that complied with R.C. 519.12(H). R.C. 519.12(H) requires that when
petitioners submit a referendum petition to a board of township trustees, the petition
“shall be accompanied by an appropriate map of the area affected by the zoning
proposal.” Petitioners must strictly comply with this requirement. State ex rel.
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January Term, 2024
McCord v. Delaware Cty. Bd. of Elections, 2005-Ohio-4758, ¶ 39. “A map
accompanying a referendum petition should be considered appropriate or suitable
for purposes of R.C. 519.12(H) if it does not mislead the average person about the
area affected by the zoning resolution.” Id. at ¶ 63.
{¶ 10} Here, the petitioners submitted a map with their referendum petition
that did not accurately outline the area affected by the zoning resolution. Instead,
the map outlined the approximately nine-acre area that Davis originally requested
be rezoned, not the smaller portion that the board of township trustees voted to
rezone. The exact size of the portion of the property at issue that the board of
township trustees voted to rezone is not clearly established in his record, but
Valentine states in his briefs, without objection from the members of the board of
elections, that the portion was approximately four acres. A map may be misleading
if “it does not include all of the area affected by [a zoning resolution] and does not
highlight that area.” State ex rel. Columbia Res., Ltd. v. Lorain Cty. Bd. of
Elections, 2006-Ohio-5019, ¶ 35. Similarly, a map may be misleading if it
inaccurately indicates in which township the affected area is located. See McCord
at ¶ 64-65. Here, the map that the petitioners submitted with their petition outlined
an area larger than the area affected by the zoning resolution, which could “mislead
the average person about the area affected by the zoning resolution,” id. at ¶ 63.
{¶ 11} Valentine argues, however, that the board of township trustees
approved the map as reflecting the zoning amendment, and thus it was appropriate
for the petitioners to use that map. Valentine relies on State ex rel. Gemienhardt v.
Delaware Cty. Bd. of Elections, 2006-Ohio-1666, ¶ 56, in which we stated that if a
map “was specifically approved by the board of township trustees to reflect the
zoning amendments approved by the board,” this court will not penalize petitioners
for using that map. “[T]ownship electors seeking to exercise their right of
referendum need not attach a map that is more accurate than the map approved by
the board of trustees.” Id. In Gemienhardt, we ultimately found that the petition at
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SUPREME COURT OF OHIO
issue did not comply with R.C. 519.12(H) for reasons other than the requirement
of using an appropriate map. See id. at ¶ 57.
{¶ 12} But here, other than Valentine’s own statements, there is no evidence
that the board of township trustees ever approved the map at all, much less approved
the map as reflecting the zoning amendment that it ultimately approved. The map
depicts the area affected by Davis’s original application for a zoning change, not
the area that the board of township trustees ultimately voted to rezone. And the
board of township trustees’ resolution approving the zoning amendment does not
mention any map. Valentine avers that he received the map from the township in
response to a public-records request, but he does not provide any evidence of what
records he specifically requested or any evidence that the township represented to
him that the map was approved by the board of township trustees as reflecting the
zoning amendment. Valentine has therefore not shown that this court’s reasoning
in Gemienhardt applies to him.
{¶ 13} Because the petitioners did not submit an appropriate map with their
referendum petition as required by R.C. 519.12(H), the board of elections did not
abuse its discretion or act in clear disregard of applicable legal provisions when it
sustained the protest against the petition. As such, Valentine has not shown by
clear and convincing evidence that he is entitled to a writ of mandamus ordering
the members of the board of elections to place the zoning referendum on the
general-election ballot.
{¶ 14} Finally, in his complaint, Valentine claims that keeping the zoning
referendum off the general-election ballot because of the use of a map that was not
appropriate would violate his constitutional rights of free speech, association, and
petitioning the government for a redress of grievances. However, other than one
conclusory sentence in his merit brief, he included no separate argument in his
briefs concerning these constitutional rights. He has thus waived these claims. See
Mason City School Dist. Bd. of Edn v. Warren Cty. Bd of Revision, 2014-Ohio-104,
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January Term, 2024
¶ 38 (rejecting undeveloped constitutional argument that lacked authority and
argumentation). Similarly, although Valentine requests awards of costs and
attorney fees in his complaint and reiterates those requests in the conclusion of his
merit brief, he has waived these claims because he failed to include a separate
argument in his briefs concerning awards of costs and attorney fees. See State ex
rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, 2012-
Ohio-753, ¶ 69.
CONCLUSION
{¶ 15} When the petition circulators of a zoning referendum submitted their
referendum petition to the board of township trustees, they did not include “an
appropriate map of the area affected by the zoning proposal” as required by R.C.
519.12(H). Because they failed to include an appropriate map with their petition,
the board of elections did not abuse its discretion or act in clear disregard of
applicable legal provisions when it sustained the protest against the petition and
refused to place the referendum on the ballot. As such, we deny the writ. We also
deny Valentine’s requests for awards of costs and attorney fees.
Writ denied.
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Terry J. Lodge for relator.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell,
Assistant Prosecuting Attorney, for respondents.
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