State ex rel. Valentine v. Schoen

[This opinion has been published in Ohio Official Reports at 176 Ohio St.3d 533.]

THE STATE EX REL. VALENTINE v. SCHOEN ET AL .

[Cite as State ex rel. Valentine v. Schoen, 2024-Ohio-3439.]

Elections—Mandamus—R.C. 519.12(H)—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, 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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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

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reject those amendments. If a board of township trustees votes to adopt a zoning

amendment, the amendment takes effect 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 15 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

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

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January Term, 2024

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.

{¶ 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

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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.

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 the record, but

Valentine states in his briefs, without objection from the members of the board of

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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 that it was therefore

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 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 that it

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

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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. Therefore, 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, ¶ 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.

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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. Therefore, 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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