The opinion
[This decision has been published in Ohio Official Reports at 91 Ohio St.3d 465.]
THE STATE EX REL. HILLS COMMUNITIES, INC., APPELLANT, v. CLERMONT
COUNTY BOARD OF ELECTIONS, APPELLEE.
[Cite as State ex rel. Hills Communities, Inc. v. Clermont Cty. Bd. of Elections,
2001-Ohio-101.]
Zoning—Writ of prohibition sought to prevent board of elections from submitting
zoning amendment to township electors at November 7, 2000 election–
Writ denied by court of appeals on October 18—Zoning amendment
rejected by voters at November 7 election—Court of appeals’ denial of
writ not appealed until fifty-seven days after judgment—Appeal dismissed
due to laches and mootness.
(No. 00-2172—Submitted April 25, 2001—Decided May 23, 2001.)
APPEAL from the Court of Appeals for Clermont County, No. 2000CA-09-072.
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Per Curiam.
{¶ 1} Appellant, Hills Communities, Inc. (“Hills”), is the prospective
developer of 26.48 acres of land in Pierce Township, Clermont County, Ohio.
Hills, which had entered into an agreement to purchase the property, applied to
amend the zoning for the property from RA (Residence A) to PUD-R (Planned Unit
Development—Residential) in order to proceed with its development. On June 20,
2000, the Pierce Township Board of Trustees adopted Resolution No. 00-006,
approving Hills’s application for change of zoning and also approving its
preliminary development plan for the property subject to certain conditions.
{¶ 2} In July 2000, a petition was submitted to the Clerk of Pierce Township
in which the petitioners demanded that Resolution No. 00-006 be submitted to the
township electors for their approval or rejection at the November 7, 2000 general
election. In August 2000, Hills filed a written protest with appellee, Clermont
SUPREME COURT OF OHIO
County Board of Elections, requesting that the board invalidate the referendum
petition and not submit the zoning change to the township voters. Hills claimed
that the petition failed to meet the requirements of R.C. 519.12(H) because it did
not contain a full and correct title of the zoning amendment resolution and because
the brief summary of the resolution in the petition was inaccurate, ambiguous, and
misleading, and contained material omissions.
{¶ 3} After a hearing on the protest was held on September 6, the board
denied Hills’s protest, certified the sufficiency and validity of the referendum
petition, and ordered that the zoning amendment be placed on the ballot for the
November 7, 2000 election.
{¶ 4} On September 14, 2000, Hills filed a complaint in the Court of
Appeals for Clermont County for a writ of prohibition to prevent the board of
elections from submitting the zoning amendment to the township electors at the
November 7 election. After the board filed an answer and the parties filed briefs,
the court of appeals denied the writ on October 18. At the November 7 election,
the voters rejected the zoning amendment.
{¶ 5} On December 4, i.e., forty-seven days after the court of appeals’
judgment and twenty-seven days after the November 7 election, Hills appealed the
court of appeals’ judgment.
{¶ 6} This cause is now before the court upon an appeal as of right.
{¶ 7} The board contends that laches and mootness require that the
judgment of the court of appeals remain undisturbed. For the following reasons,
we agree and dismiss the appeal.
{¶ 8} Hills did not act with the diligence and promptness required in this
election case. “It is well established that in election-related matters, extreme
diligence and promptness are required.” State ex rel. Commt. for the Referendum
of Ordinance No. 3543-00 v. White (2000), 90 Ohio St.3d 212, 214, 736 N.E.2d
873, 875. If a party seeking extraordinary relief in an election-related matter fails
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January Term, 2001
to exercise the requisite diligence, laches may bar the action. State ex rel. Ascani
v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 493, 700 N.E.2d 1234,
1236.
{¶ 9} Even though Hills expressly requested an “expedited consideration”
of its protest before the board of elections, Hills delayed forty-seven days from the
court of appeals’ judgment—which is after the November 7 election—to file its
notice of appeal, and it delayed another forty-six days after the record was
transmitted to file its merit brief. Hills also does not request expedited treatment of
this appeal. By contrast, appellants in comparable cases have acted to ensure an
expedited determination of their appeals. Cf. State ex rel. Sinay v. Sodders (1997),
80 Ohio St.3d 224, 685 N.E.2d 754 (appellants in election case filed motions for
expedited briefing schedule and review of appeal, filed their merit brief within
seven days of their notice of appeal, and filed their reply brief within five days of
appellee’s merit brief, permitting the court to enter judgment in election-related
appeal before November 1997 general election); State ex rel. Arnett v. Winemiller
(1997), 80 Ohio St.3d 255, 685 N.E.2d 1219 (appellants in election case filed
motions to expedite appeal and filed briefs in time for court to enter judgment
before November 1997 general election). Hills does not offer any argument
justifying the lack of diligence, and its appellate brief consists of the same
arguments raised in its August 2000 protest.
{¶ 10} Moreover, despite Hills’s claims to the contrary, the board was not
precluded from raising the laches issue in this appeal by not raising it in the court
of appeals. In election cases, laches is not an affirmative defense that must be raised
in order to avoid waiver. See State ex rel. Manos v. Delaware Cty. Bd. of Elections
(1998), 83 Ohio St.3d 562, 564, 701 N.E.2d 371, 373. In fact, the board could not
raise the issue of Hills’s laches in prosecuting this appeal until Hills appealed.
{¶ 11} Furthermore, in addition to laches, because Hills requested that the
zoning amendment resolution not be submitted to township electors at the
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November 7 election, and that election has now passed, this appeal is moot. As we
have repeatedly held, “prohibition may issue to prevent the placement of names or
issues on a ballot even though a protest hearing has been completed, as long as the
election has not yet been held.” (Emphasis added.) State ex rel. Crossman
Communities of Ohio, Inc. v. Greene Cty. Bd. of Elections (1999), 87 Ohio St.3d
132, 136, 717 N.E.2d 1091, 1095; Christy v. Summit Cty. Bd. of Elections (1996),
77 Ohio St.3d 35, 37, 671 N.E.2d 1, 3; State ex rel. Thurn v. Cuyahoga Cty. Bd. of
Elections (1995), 72 Ohio St.3d 289, 291, 649 N.E.2d 1205, 1207.
{¶ 12} When the election has passed, as it has here, the action for
extraordinary relief or an appeal from a judgment in the extraordinary-writ action
is moot. See State ex rel. Bona v. Orange (1999), 85 Ohio St.3d 18, 21, 706 N.E.2d
771, 773-774, and cases cited therein; see, also, State ex rel. Pendell v. Adams Cty.
Bd. of Elections (1988), 40 Ohio St.3d 58, 61, 531 N.E.2d 713, 715, fn. 1. Hills’s
attempts to distinguish these cases on the basis that they are either not prohibition
cases or are not appeals of cases originating in courts of appeals are not persuasive.
Cf., e.g., State ex rel. Snyder v. Lucas Cty. Bd. of Elections (1946), 146 Ohio St.
556, 33 O.O. 43, 67 N.E.2d 322 (appeal from denial or writ of prohibition to prevent
referendum election became moot when special election was held). Resolving the
merits of this appeal even though the election has now passed would circumvent
the precept that “an election result will not be disturbed unless the evidence
establishes that the result was contrary to the will of the electorate.” In re Election
Contest of Democratic Primary Election Held May 4, 1999 for Clerk, Youngstown
Mun. Court (2000), 88 Ohio St.3d 258, 262, 725 N.E.2d 271, 275.
{¶ 13} This is also not a case that is capable of repetition yet evading
review. If Hills had pursued its appeal with the requisite diligence, the merits of
this appeal would not necessarily have evaded review. Bona, 85 Ohio St.3d at 21-
22, 706 N.E.2d at 774.
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January Term, 2001
{¶ 14} Based on the foregoing, we dismiss this appeal due to laches and
mootness.
Appeal dismissed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and LUNDBERG
STRATTON, JJ., concur.
PFEIFER, J., dissents.
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Manley, Burke & Lipton, Gary E. Powell and Rhonda S. Frey, for appellant.
Donald W. White, Clermont County Prosecuting Attorney, and Mary Lynn
Birck, Assistant Prosecuting Attorney, for appellee.
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