State ex rel. O'Beirne v. Geauga Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 80 Ohio St.3d 176.]

THE STATE EX REL. O’BEIRNE ET AL. v. GEAUGA COUNTY BOARD OF

ELECTIONS ET AL.

[Cite as State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections, 1997-Ohio-348.]

Mandamus to compel Geauga County Board of Elections to place a zoning

referendum issue on the November 1997 election ballot—Writ denied,

when.

(No. 97-1411—Submitted and decided September 29, 1997.)

IN MANDAMUS.

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{¶ 1} In December 1996, Timberwood Farms, Ltd. (“Timberwood”)

applied to Munson Township for a zoning amendment. Timberwood stated in its

application that the applicable property is contained within the block of property

bordered by Bass Lake, Bean, Auburn, and Mayfield Roads and that the property

is mostly vacant and presently zoned as an institutional district. The total acreage

owned by Timberwood in this area is 352.803 acres. Timberwood further stated in

its application that the requested amendment would permit it to develop the

property for use as a single-family residential development and nature reserve, and

that the proposed amended zoning district would be a combination of R-1, R-3, and

R-4 residential districts.

{¶ 2} In February 1997, the Munson Township Zoning Commission

recommended approval of Timberwood’s application for a zoning amendment with

specified modifications, including that the number of lots would not exceed

seventy-four, that no lot would be less than 2.5 acres, and that Timberwood’s

transfer of land to the Geauga County Park District would be in accordance with

conditions specified in a December 1996 letter of intent by Timberwood.

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{¶ 3} In March 1997, the Munson Township Trustees adopted Resolution

97-9, which adopted the zoning commission’s recommendation as modified by

certain incorporated deed restrictions. Resolution 97-9 provided:

“WHEREAS, on the 10th day of February, 1997, the board of township

trustees received a recommendation from the township zoning commission [exhibit

C] on a proposed amendment to the Munson Township Zoning Resolution together

with the application [exhibit A] and map [exhibit B], and recommendation of the

county planning commission relating thereto; and

“WHEREAS, in the 3th [sic] day of March, 1997, the board of township

trustees conducted a public hearing on the proposed amendment as provided by

law; therefore be it

“RESOLVED, that the Munson Township Board of Township Trustees,

Geauga County, Ohio this 15th day of March, 1997 hereby adopts the following

modifications of the recommendations of the township zoning commission as

attached hereto as exhibit D and incorporated herein

“Exhibit D: the restrictions as indicated in the Revised Draft 3/5/97 ‘Deed

of Declaration of Restrictions’ (Walden Oaks Subdivision).

“AND BE IT FURTHER RESOLVED, that the Munson Township Board

of Township Trustees, Geauga County, Ohio, this 15th day of March, 1997, hereby

adopts an amendment to the Munson Township Zoning Map as set forth in the text

and map attached hereto as exhibits B, C, and D and incorporated herein.”

(Bracketed references sic.)

{¶ 4} Thereafter, relators, Munson Township electors and a political action

committee, filed a petition with the township clerk for a referendum election on the

zoning amendment resolution. The petition included the following summary on its

first page:

“On March 15, 1997, the Munson Township Trustees adopted a proposal

to amend the zoning map of the unincorporated area of Munson Township, Geauga

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January Term, 1997

County, Ohio, pursuant to an application by Timberwood Farms, Ltd. and further

described as a total of 352.803 acres bounded by the following roads: Bass Lake,

Bean, Auburn and Mayfield as more fully described in Exhibit 1 (with exhibits

attached) attached hereto and incorporated herein fully by reference and previously

zoned as R-1, R-2, R-3, R-4, Flood Prone and Institutional as shown in Exhibit 2

(map) attached hereto and incorporated herein fully by reference.” (Emphasis

added.)

{¶ 5} The petition consisted of forty-three pages in its entirety but omitted

one page of Timberwood’s application for a zoning amendment. The missing page

details Timberwood’s application for a zoning amendment and specifies the present

use and zoning of the property. The maps attached to the petition did not contain a

scale of distance. Further, the petition did not include Timberwood’s December

1996 letter of intent, which was referred to in the zoning commission’s

recommendation.

{¶ 6} After the township clerk certified the referendum petition to

respondent, Geauga County Board of Elections, Timberwood filed written

objections to the referendum petition with the board. Among other things,

Timberwood contended that the petition did not accurately present the issues to be

decided and that the petition did not comply with the requirement of R.C. 519.12(H)

of a brief summary.

{¶ 7} The board conducted a hearing on Timberwood’s protest. At the

hearing, Diane Lynch, a township elector who had signed the petition, testified that

the petition summary of the zoning amendment resolution led her to believe that

the entire three hundred fifty-two acres owned by Timberwood was being rezoned.

John Murray, another elector who signed the petition, testified that he did not know

if he would have signed the petition if he had read the summary first and “probably

would have asked what did this mean in English.” Relators submitted exhibits that

were introduced into evidence at the hearing which indicated that only

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approximately sixty percent of the 352.803 acres owned by Timberwood would be

rezoned. In addition, the township clerk testified that she was unsure whether she

had copied the entire application for a zoning amendment when requested by

relators. Relators did not review the document prior to attaching it to their petition

to make sure it contained all pages of the referenced documents.

{¶ 8} Following the hearing, the board determined that the referendum

petition did not meet the requirement of R.C. 519.12(H) of a “brief summary” and

that the petition was consequently invalid. In its decision, the board determined:

“The statutory obligation to briefly summarize the contents of the zoning

resolution requires the petition to accurately describe property subject to rezoning.

In this case the summary refers to 352.803 acres with its approximate boundaries

but does not state that only approximately 60% of the acreage will actually be

rezoned.

“* * *

“The Referendum included the Resolution of the Township Trustees

approving the zoning change and the exhibits which included the Zoning

Commission recommendation (1 page), the map (1 page) and the application. The

original application is 5 pages. The application attached is missing 1 page that is

material in nature.

“* * *

“Instead the Referendum incorporated a legal description of the property (3

pages) a list of surrounding landowners (4 pages) and a deed of declaration of

restrictions (25 pages) that briefly summarizes nothing to anyone trying to ascertain

what the change to the zoning map actually was.

“Brief summary needs to be just that in order to maintain the integrity of the

referendum. Fair and accurate means that proponents and opponents are afforded

the same dignity in description.”

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January Term, 1997

{¶ 9} Relators then filed this action for a writ of mandamus to compel the

board to place the zoning referendum issue on the November 1997 election ballot.

We granted Timberwood’s motion to intervene as a respondent and relators’ motion

to amend their case caption to indicate that the action was being brought in the

name of the state on their relation in accordance with R.C. 2731.04. We also

granted an alternative writ. The parties have submitted evidence and briefs.

{¶ 10} This cause is now before the court for a consideration of the merits.

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McNeal, Schick, Archibald & Biro Co., L.P.A., and Thomas P. O’Donnell,

for relators.

Lorrie A. Sass, Geauga County Assistant Prosecuting Attorney, for

respondent Geauga County Board of Elections.

Petersen & Ibold, Dennis J. Ibold and Jonathon P. Evans, for respondent

Timberwood Farms, Ltd.

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Per Curiam.

{¶ 11} Relators assert that they are entitled to the requested writ of

mandamus to compel the board to place the referendum issue on the November 4

election ballot. We may vacate the decision of a board of elections and grant a writ

of mandamus to compel a referendum election if relators establish that the board’s

decision resulted from fraud, corruption, abuse of discretion, or clear disregard of

statutes or applicable legal provisions. State ex rel. Rife v. Franklin Cty. Bd. of

Elections (1994), 70 Ohio St.3d 632, 633-634, 640 N.E.2d 522, 523-524. Relators

here contend that the board abused its discretion and disregarded applicable law by

refusing to place the referendum issue on the November 4 election ballot. An abuse

of discretion connotes unreasonable, arbitrary, or unconscionable conduct. State ex

rel. Richard v. Seidner (1996), 76 Ohio St.3d 149, 151, 666 N.E.2d 1134, 1136.

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{¶ 12} Relators assert in their first proposition of law that a township zoning

referendum petition containing a summary that refers to and attaches as exhibits the

zoning resolution and map adopted by the township trustees presents a fair and

accurate summary of the zoning amendment in compliance with R.C. 519.12. R.C.

519.12(H) provides that each part of a township zoning referendum petition “shall

contain the number and the full and correct title, if any, of the zoning amendment

resolution, * * * furnishing the name by which the amendment is known and a brief

summary of its contents.” (Emphasis added.) Cf. R.C. 303.12(H), which includes

virtually identical requirements for county zoning referendum petitions.

{¶ 13} The phrase “brief summary of its contents” refers to the zoning

resolution passed by the township trustees. R.C. 519.12(H); Rife, 70 Ohio St.3d at

634, 640 N.E.2d at 524, citing Olen Corp. v. Franklin Cty. Bd. of Elections (1988),

43 Ohio App.3d 189, 194, 541 N.E.2d 80, 84. The zoning referendum petition

summary must be accurate and unambiguous; 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 vote.” Shelly & Sands, Inc. v. Franklin Cty. Bd. of Elections (1984), 12 Ohio

St.3d 140, 141, 12 OBR 180, 181, 465 N.E.2d 883, 884.

{¶ 14} Relators contend that since the summary contained in their zoning

referendum petition incorporated the entire zoning resolution, it fully complied

with R.C. 519.12(H). See, e.g., Rife, 70 Ohio St.3d at 635, 640 N.E.2d at 524

(“[T]he board also disregarded the law by demanding, in effect, that Rife’s [zoning

referendum] petition describe the subject property better than the county

commissioners did themselves.”). Relators urge this court to adopt Nunneker v.

Murdock (1983), 9 Ohio App.3d 73, 9 OBR 93, 458 N.E.2d 431, and hold that

attachment of the full resolution to a zoning referendum petition always complies

with the requirement of R.C. 519.12(H) of a brief summary.

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{¶ 15} Inclusion of the full text of the amendment of the ordinance

generally satisfies the “brief summary” requirement of R.C. 519.12(H). See,

generally, Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 39, 671

N.E.2d 1, 4-5 (“[E]ven in zoning referendum petition and ballot language cases,

inclusion of the full text of the amendment or ordinance has generally been held to

satisfy constitutional and statutory requirements.”).

{¶ 16} Nevertheless, this general rule is not always applicable. In fact, in

the case that relators request this court to apply here, the court of appeals

emphasized that “[i]n many cases, the resolution itself will constitute a fair and

accurate statement of its terms, and in this case, we find that Resolution No. 641

was readily understandable.” Nunneker, supra, 9 Ohio App.3d at 77, 9 OBR at 97,

458 N.E.2d at 436. In contrast, it is not evident here that the resolution, which

contained approximately forty pages of incorporated exhibits, was “readily

understandable.” See, e.g., Pilarczyk v. Johnson (Mar. 5, 1979), Geauga App. No.

788, unreported (Average referendum petition signers could not be expected to

familiarize themselves with issue before signing where all sixty-one pages of the

zoning resolution were included in the petition.).

{¶ 17} More important, even assuming that the general rule applies here,

relators added language to the petition not included in the resolution which stated

that the township trustees “adopted a proposal to amend the zoning map of the

unincorporated area of Munson Township * * * further described as a total of

352.803 acres * * *.” Referendum petitions that convey a confusing or mistaken

impression as to the effect of a zoning resolution, for example by significantly

overestimating the acreage rezoned by the resolution, are invalid. State ex rel.

Hamilton v. Clinton Cty. Bd. of Elections (1993), 67 Ohio St.3d 556, 562, 621

N.E.2d 391, 395.

{¶ 18} The board determined that the referendum petition was invalid

because the summary referred to 352.803 acres but did not specify that only

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approximately sixty percent of that acreage would be rezoned. The evidence before

the board included testimony by one elector that the summary led her to believe

that all 352.803 acres owned by Timberwood were being rezoned. Although

relators contend that no testimonial evidence supports the board’s finding that only

about sixty percent of the 352.803 acres was actually rezoned, documentary

evidence that relators themselves presented, i.e., a letter from the township trustees

to township residents and newspaper articles, supported the board’s finding that

only sixty percent of the property was being rezoned. Relators cannot now contend

that the board erred in relying on such evidence. State ex rel. Bitter v. Missig

(1995), 72 Ohio St.3d 249, 254, 648 N.E.2d 1355, 1358 (“Under the invited-error

doctrine, a party will not be permitted to take advantage of an error which he

himself invited or induced the court to make.”). Further, relators’ contention that

the actual percentage of acreage rezoned was eighty percent would, if true, still

have resulted in the summary significantly overstating the amount of the acreage to

be rezoned.

{¶ 19} Relators also did not attach the entire resolution and its incorporated

documents to the petition. The petition omitted a page from Timberwood’s

application that was material to the issue. The missing page noted the present use

and zoning of the property. Relators do not contend that the page was immaterial;

instead, they claim that they should not bear the responsibility for the neglect of the

township clerk in making copies of the application.

{¶ 20} Relators’ claim, however, lacks merit. First, the township clerk’s

testimony was contradictory concerning whether she supplied relators with all

pages of the requested records. We will not substitute our judgment for that of a

board of elections if there is conflicting evidence on an issue. State ex rel. Herdman

v. Franklin Cty. Bd. of Elections (1993), 67 Ohio St.3d 593, 596, 621 N.E.2d 1204,

1206. Second, even if the township clerk mistakenly failed to copy the missing

page, this did not estop the board from invalidating the petition based on this

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material omission. Cf. State ex rel. McMillan v. Ashtabula Cty. Bd. of Elections

(1992), 65 Ohio St.3d 186, 189, 602 N.E.2d 631, 633 (“[T]he mistaken advice or

opinion of an employee of the board of elections does not estop the board from

removing a candidate’s name from the ballot.”). Relators should have checked the

copies prior to attaching them to their petition.

{¶ 21} Accordingly, the board of elections did not err in determining that

the petition did not comply with the requirement of R.C. 519.12(H) of a brief

summary. The petition significantly overstated the amount of acreage affected by

the zoning resolution and omitted a material page referred to and incorporated in

the zoning resolution. We therefore overrule relators’ first proposition of law.

{¶ 22} Relators assert in their second proposition of law that the board

abused its discretion by including in its findings of fact matters not presented at the

hearing. Relators initially claim that there was no evidence concerning the

percentage of acreage rezoned by the resolution. This claim is meritless for the

reasons previously discussed.

{¶ 23} Relators also contend that the board could not rely on the sixty-

percent figure because it was not included in Timberwood’s specific objections

pursuant to R.C. 3501.39. But Timberwood did specify in its written protest that

the petition did not comply with the “brief summary” requirement of R.C. 519.12.

Further, the board can refuse to accept a petition even in the absence of a written

protest if it determines that it violates the applicable legal requirements. R.C.

3501.39(C). Relators’ second proposition of law is overruled.

{¶ 24} Based on the foregoing, the board neither abused its discretion nor

acted in clear disregard of R.C. 519.12 and other applicable law by sustaining

Timberwood’s protest and refusing to certify the issue for the November 1997

ballot. Accordingly, relators have not established entitlement to the requested

extraordinary relief in mandamus, and the writ is denied.

Writ denied.

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MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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