The opinion
[This opinion has been published in Ohio Official Reports at 83 Ohio St.3d 298.]
EAST OHIO GAS COMPANY v. WOOD COUNTY BOARD OF ELECTIONS ET AL.
[Cite as E. Ohio Gas Co. v. Wood Cty. Bd. of Elections, 1998-Ohio-285.]
Elections—Writ of prohibition to prevent Wood County Board of Elections from
submitting a proposed zoning amendment to the electorate at the November
3 general election granted, when.
(No. 98-1699—Submitted September 10, 1998—Decided September 11, 1998.)
IN PROHIBITION.
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{¶ 1} Relator, East Ohio Gas Company (“East Ohio”), owns approximately
1,021 acres of undeveloped real property in Troy Township, Wood County, Ohio.
In 1990, the township zoned the property as “A,” Agricultural District. In 1995,
East Ohio filed an application with the township’s board of trustees to rezone the
property to “I,” Industrial District. The “I” Industrial District is a general industrial
zoning classification that provides very little township control over the industrial
development of property within the district. East Ohio subsequently withdrew its
application for rezoning due to the concerns of the township trustees and citizens
over permitting industrial development without significant oversight by the
township.
{¶ 2} In 1996, the township added a “PI” Planned Industrial District zoning
classification to permit industrial development subject to strict controls over certain
matters, including traffic, noise, landscaping, building height, and architecture.
{¶ 3} In February 1998, East Ohio filed an application to rezone the
northern 508 acres of its property. The application provided:
“Application is submitted herewith requesting that the Zoning Resolution
of Troy Township be amended * * * to change the zoning classification of the
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lands described in the attached legal description from ‘A,’ Agricultural to ‘PI,’
Planned Industrial District.
“***
“The request for rezoning is being submitted because * * * [t]he owner of
the property wishes to make the land available for development as industrial
property in conformance with the requirements of the PI-Planned Industrial District
which they feel represents the highest and best use of the property and will be a
benefit to the Township, County, and State by providing a planned area for
industrial growth, complimenting [sic] the strong local agricultural economy. * *
*”
{¶ 4} Because of the previous opposition to East Ohio’s attempt to rezone
its property as industrial property, East Ohio specifically drafted the foregoing
petition language to emphasize its intent to seek the planned industrial district
classification rather than the general industrial district classification.
{¶ 5} In April 1998, the Troy Township Trustees approved and adopted
East Ohio’s application. Shortly thereafter, certain township citizens circulated a
petition requesting that the proposed zoning amendment be submitted to the
township electors for their approval or rejection at the November 3 general election.
The circulators filed the petition with the trustees in May 1998. The petition
provided the following brief summary of the proposed zoning amendment:
“[T]o ‘change the zoning classification of the lands described in the attached
legal description from “A”, Agricultural to “PI”, Planned Industrial District.’
“The reason stated for the application was that ‘The owner wishes to make
the land available for development as industrial property ....’ [Ellipsis sic.] * * * ”
{¶ 6} In July 1998, East Ohio filed a protest under R.C. 3501.39 with
respondent, Wood County Board of Elections (“board”). East Ohio requested that
the board invalidate the referendum petition because:
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“The Petition is inaccurate and contains a material omission in that it does
not state the complete reason for rezoning given by East Ohio in its Application.
“The Petition is misleading because it creates the impression that East Ohio
seeks to develop its land without any input or control by Troy Township.
“The Petition is ambiguous because it confuses the reader as to the
Petition’s purpose and effect.
“Because of these defects, and in light of the prior history regarding East
Ohio’s development of its land, the Petition would confuse the average person.”
{¶ 7} In August 1998, the board held a hearing on East Ohio’s protest. The
board denied the protest by a two-to-one vote. One of the board members noted
the following in voting to deny the protest:
“We have a long tradition in this board of—I don’t want to say it’s a
presumption in favor of access to the ballot, but that’s certainly the way we have
functioned in the past. This is the toughest one, however, * * * that I have ever
seen come before us. * * * But we have a very strong tradition in this board
historically, not just these members here, but over 25, 30 years I’m familiar with of
granting citizen access to the ballot.”
{¶ 8} Less than a week after the board’s denial, East Ohio filed this action
for a writ of prohibition to prevent the board from certifying the sufficiency and
validity of the referendum petition and from submitting the proposed zoning
amendment to the electorate at the November 3 general election. The board filed
an answer, Mary Ann Miller and Concerned Citizens of Troy Township filed a
motion to intervene and an answer, and East Ohio filed evidence and a merit brief.
We granted the motion to intervene. Neither the board nor the intervening
respondents filed a timely merit brief and evidence.1 Pursuant to the expedited
1. Because neither the board nor the intervening respondents filed a timely merit brief, we may grant
the writ if East Ohio’s brief reasonably appears to sustain the writ. S.Ct.Prac.R. X(11).
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election schedule set forth in S.Ct.Prac.R. X(9), this cause is now before the court
for a consideration of the merits.
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Eastman & Smith, Ltd., James L. Rogers, Lane D. Williamson and Matthew
D. Harper, for relator.
Alan R. Mayberry, Wood County Prosecuting Attorney, and Raymond C.
Fischer, Assistant Prosecuting Attorney, for respondent Wood County Board of
Elections.
Goldberg, Wurster & Hays and Thomas R. Hays, for intervening
respondents.
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Per Curiam.
{¶ 9} East Ohio asserts in its various propositions of law that the board of
elections acted in clear disregard of R.C. 519.12(H) by denying its protest and not
invalidating the referendum petition. In extraordinary actions challenging the
decision of a board of elections, the applicable standard is whether the board
engaged in fraud, corruption, abuse of discretion, or clear disregard of statutes or
other pertinent law. State ex rel. Lynch v. Cuyahoga Cty. Bd. of Elections (1997),
80 Ohio St.3d 341, 342, 686 N.E.2d 498, 499; see, also, State ex rel. Cooker
Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302,
305, 686 N.E.2d 238, 241.
{¶ 10} R.C. 519.12(H) provides:
“Such [zoning] amendment adopted by the board [of township trustees]
shall become effective in thirty days after the date of such adoption unless within
thirty days after the adoption of the amendment there is presented to the board of
township trustees a petition * * * requesting the board of township trustees to
submit the amendment to the electors of such area for approval or rejection at a
special election to be held on the day of the next primary or general election. Each
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part of this petition shall 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.)
{¶ 11} The phrase “brief summary of its contents” refers to the zoning
resolution, motion, or application passed or approved by the board of township
trustees. R.C. 519.12(H); State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections
(1997), 80 Ohio St.3d 176, 179, 685 N.E.2d 502, 505. The zoning referendum
petition summary must be accurate and unambiguous. Id. 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.
{¶ 12} East Ohio contends that the referendum petition’s brief summary
was misleading, inaccurate, and contained material omissions that would confuse
the average person because the summary included only part of East Ohio’s stated
reasons in its zoning amendment application.
{¶ 13} East Ohio’s contention has merit because the referendum petition
summary did not accurately and unambiguously specify the proposed amended
zoning. While the petition summary initially correctly stated that the subject
property would be rezoned to the planned industrial district classification, it
subsequently represented that East Ohio’s stated reason for the proposed zoning
amendment was to “make the land available for development as industrial property
....” (Ellipsis sic.) East Ohio’s actual application emphasized that it wished “to
make the land available for development as industrial property in conformance with
the requirements of the PI-Planned Industrial District * * * by providing a planned
area for industrial growth * * *.” (Emphasis added.) The referendum petition
summary’s omission of the remainder of East Ohio’s brief sentence specifying the
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reasons for its application conveyed the confusing and mistaken impression that the
amendment might be to the general industrial classification rather than the planned
industrial classification. “Referendum petitions have been held invalid for
conveying a confusing or mistaken impression as to the effect of a zoning
resolution.” State ex rel. Hamilton v. Clinton Cty. Bd. of Elections (1993), 67 Ohio
St.3d 556, 562, 621 N.E.2d 391, 395.
{¶ 14} The summary is ambiguous because it suggests that the zoning
amendment is to the general industrial district classification after it states that the
area will be rezoned to the planned industrial district classification. This ambiguity
results from the inclusion of only that portion of East Ohio’s stated reason
indicating its desire to develop its property for industrial purposes and the omission
of the remaining portion emphasizing that these industrial uses would be in
accordance with the planned industrial district requirements, i.e., subject to
township oversight and control. The referendum petitioners could have avoided
this defect by either including the entire sentence of stated reasons from East Ohio’s
application, see, e.g., O’Beirne, 80 Ohio St.3d at 180, 685 N.E.2d at 505, or
excluding that sentence. But by including only the portion of the sentence that
referred to East Ohio’s wishes to develop the subject property for industrial uses,
the referendum petitioners appeared to have intended to deceive electors about the
zoning amendment. Consequently, the summary did not apprise the average reader
of the “precise nature of the requested [zoning] change.” Shelly & Sands, 12 Ohio
St.3d at 142, 12 OBR at 181, 465 N.E.2d at 885.
{¶ 15} Based on the foregoing, the board acted in clear disregard of R.C.
519.12(H) and applicable precedent by denying East Ohio’s protest and refusing to
invalidate the referendum petition. This result does not, as the board’s protest
hearing suggests, contravene the duty to liberally construe municipal referendum
provisions to permit rather than preclude the exercise of the power of referendum.
Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 40, 671 N.E.2d
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1, 5. “[E]ven under the most liberal construction, the record in this case indicates
that the petitions circulated * * * were prepared in a manner which failed to meet
the petition form requirements contained in R.C. 519.12, and that the petitions
could have substantially misled those persons who signed them.” Markus v.
Trumbull Cty. Bd. of Elections (1970), 22 Ohio St.2d 197, 200, 51 O.O.2d 277, 279,
259 N.E.2d 501, 503. In fact, if we were to uphold the board’s decision here,
referendum petitioners would be given carte blanche to use ellipses to alter the
meaning of proposed zoning amendments. Accordingly, because the board
additionally exercised quasi-judicial authority in ruling on East Ohio’s protest and
East Ohio lacks an adequate legal remedy, we grant the writ of prohibition to
prevent the board from submitting the zoning amendment to the township electors
at the November 3 election. State ex rel. Harbarger v. Cuyahoga Cty. Bd. of
Elections (1996), 75 Ohio St.3d 44, 45, 661 N.E.2d 699, 700.
Writ granted.
MOYER, C.J., DOUGLAS, RESNICK and LUNDBERG STRATTON, JJ., concur.
F.E. SWEENEY and PFEIFER, JJ., dissent.
COOK, J., not participating.
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