The opinion
[This decision has been published in Ohio Official Reports at 94 Ohio St.3d 442.]
THE STATE EX REL. C.V. PERRY & CO. v. LICKING COUNTY BOARD OF
ELECTIONS ET AL.
[Cite as State ex rel. C.V. Perry & Co. v. Licking Cty. Bd. of Elections,
2002-Ohio-1369.]
Elections—Prohibition—Writ sought to prevent Licking County Board of Elections,
its chairman, and its members from submitting Etna Township Resolution
01-12-03-03 involving rezoning to a referendum at the May 7, 2002
election—Complaint dismissed, when.
(No. 02-209—Submitted February 26, 2002—Decided March 1, 2002.)
IN PROHIBITION.
__________________
Per Curiam.
{¶ 1} In 1999 and 2000, relator, C.V. Perry & Co. (“Perry”), contracted to
purchase two adjoining parcels of land in Etna Township, Licking County, Ohio.
The property was zoned agricultural. In December 2000, Perry applied to change
the zoning classification of the property from agricultural to planned unit
development so that it could build single-family residences and residential
condominiums on the property. In response to concerns raised by neighboring
residents of the proposed development, Perry removed the proposed condominiums
from the development plan. Perry filed its final development plan, which was dated
September 11, 2001.
{¶ 2} On November 14, 2001, the Etna Township Zoning Commission
recommended to the Etna Board of Township Trustees that Perry’s application to
rezone the property to planned unit development for the final development plan be
approved. On December 3, 2001, the board of township trustees enacted Resolution
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01-12-03-03, which adopted the zoning commission’s recommendation and
provided:
“To accept the recommendation of the Etna Township Zoning Commission
to rezone the Frontier Ranch property at National Road and York Road from AG
to PUD, Final Development Plan dated September 11, 2001 and to send a letter of
support to the Licking County Planning Commission for a gate at Daisy Drive or
to not have a stub street to Daisy Drive.”
{¶ 3} In late December 2001, a petition to have a referendum on the
resolution at the May 7, 2002 election was filed with the board of township trustees.
The summary of Resolution 01-12-03-03 on the petition provided:
“To rezone a parcel of land commonly referred to as the Frontier Ranch
property, which contains approximately 170.46 acres, more or less, located at
National Road (U.S. Route 40) and York Road, from AG to PUD, as shown on the
attached map.
“The proposed amendment was adopted by the Etna Township Trustees on
December 3, 2001 as Resolution 01-12-03-03.”
{¶ 4} On January 4, 2002, Perry filed a protest with respondent Licking
County Board of Elections against the referendum petition. Perry amended the
protest on January 15 and 28. On January 28, 2002, respondents, the board of
elections, its chairman, and its members, held a hearing on Perry’s protest at which
testimonial and documentary evidence was presented. At the conclusion of the
hearing, respondents denied the protest and certified the referendum issue for the
May 7, 2002 ballot.
{¶ 5} On February 4, Perry filed this action for a writ of prohibition to
prevent respondents from submitting the referendum issue to the township electors.
On February 8, Perry filed a motion to treat this action as an expedited election
matter pursuant to S.Ct.Prac.R. X(9). On February 21, respondents filed an answer.
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January Term, 2002
This cause is now before the court for our S.Ct.Prac.R. X(5) determination, as well
as our consideration of Perry’s motion for expedited consideration.
Motion to Expedite
{¶ 6} Perry requests that this case be treated as an expedited election matter
under S.Ct.Prac.R. X(9). S.Ct.Prac.R. X(9) provides an expedited evidence and
briefing schedule when an original action relating to a pending election is filed
within ninety days prior to the election. Because Perry’s prohibition action was
filed ninety-two days before the May 7, 2002 election, it is not an expedited election
matter under S.Ct.Prac.R. X(9).
{¶ 7} Nevertheless, Perry requests that we treat this case as an expedited
election matter under S.Ct.Prac.R. X(9) because “[e]xpediting the case will be in
the interests of the parties and prevent any interference with the election schedule.”
{¶ 8} We grant Perry’s request but only to the extent that we expedite our
S.Ct.Prac.R. X(5) determination, i.e., following a response by respondents, which
has now been filed. “We have consistently required relators in election cases to act
with the utmost diligence.” State ex rel. Carberry v. Ashtabula (2001), 93 Ohio
St.3d 522, 523, 757 N.E.2d 307. Given the required diligence in election cases,
expediting our S.Ct.Prac.R. X(5) determination will be beneficial to township
electors here.
S.Ct.Prac.R. X(5) Determination
{¶ 9} Under S.Ct.Prac.R. X(5), we must determine whether dismissal, an
alternative writ, or a peremptory writ is appropriate. Dismissal is warranted if it
appears beyond doubt, after presuming the truth of all material factual allegations
and making all reasonable inferences in favor of Perry, that Perry is not entitled to
the requested extraordinary relief in prohibition. State ex rel. Rasul-Bey v.
Onunwor (2002), 94 Ohio St.3d 119, 120, 760 N.E.2d 421. On the other hand, if,
after construing the material factual allegations of the complaint most strongly in
Perry’s favor, it appears that his complaint may have merit, an alternative writ
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should be granted, and a schedule for the presentation of evidence and briefs should
be issued. State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d 1, 3, 716 N.E.2d
1114.
{¶ 10} In order to be entitled to a writ of prohibition, Perry must establish
that (1) the board of elections is about to exercise quasi-judicial power, (2) the
exercise of that power is unauthorized by law, and (3) denial of the writ will cause
injury for which no other adequate remedy in the ordinary course of law exists.
State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93 Ohio St.3d 592,
594, 757 N.E.2d 1135. The dispositive issue here is whether Perry established that
the board’s exercise of quasi-judicial authority in denying the protest was
unauthorized by law.
{¶ 11} In determining whether Perry established this requirement, the
applicable standard is whether the board engaged in fraud or corruption, abused its
discretion, or acted in clear disregard of applicable legal provisions in denying
Perry’s protest. State ex rel. Phillips v. Lorain Cty. Bd. of Elections (2001), 93
Ohio St.3d 535, 538, 757 N.E.2d 319. Perry asserts that the board of elections
abused its discretion and clearly disregarded R.C. 519.12(H) by denying its protest.
For the reasons that follow, the board neither abused its discretion nor clearly
disregarded R.C. 519.12(H) in denying Perry’s protest, and we deny the requested
extraordinary relief in prohibition.
R.C. 519.12(H): Brief Summary Requirement
{¶ 12} R.C. 519.12(H) provides that a petition requesting a referendum on
a township zoning amendment resolution contain a brief summary of the contents
of the resolution:
“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
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January Term, 2002
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
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.)
{¶ 13} The R.C. 519.12(H) “brief summary of its contents” requirement
refers to the zoning resolution, motion, or application passed or approved by the
board of township trustees. State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections
(1997), 80 Ohio St.3d 176, 179, 685 N.E.2d 502. A valid zoning referendum
petition summary must be accurate and unambiguous; therefore, “ ‘[i]f the
summary is misleading, inaccurate, or contains material omissions [that] would
confuse the average person, the petition is invalid and may not form the basis for
submission to a vote.’ ” State ex rel. Hamilton v. Clinton Cty. Bd. of Elections
(1993), 67 Ohio St.3d 556, 559, 621 N.E.2d 391, quoting Shelly & Sands, Inc. v.
Franklin Cty. Bd. of Elections (1984), 12 Ohio St.3d 140, 141, 12 OBR 180, 465
N.E.2d 883, both construing the analogous R.C. 303.12(H) summary requirement
for referenda on county zoning resolutions; O’Beirne, 80 Ohio St.3d at 179, 685
N.E.2d 502 (township zoning resolution).
{¶ 14} Perry asserts that the referendum petition summary of Resolution 01-
12-03-03 does not comply with R.C. 519.12(H) because “it failed to include any
reference to the zoning change being for Relator’s development plan dated
September 11, 2001 or for any specific development plan, failed to include any
statement that the zoning change was for single family residences, and failed to
describe the proposed change in zoning classifications as being from ‘Agricultural’
to ‘Planned Unit Development.’ ” According to Perry, the summary thus failed to
inform signers of the precise nature of the zoning change, contained material
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omissions, and was ambiguous, all of which could confuse the average person
signing the petition.
{¶ 15} Regarding Perry’s challenge of the referendum petition’s failure to
include a statement that the zoning change was for single-family residences and to
specify the meaning of the zoning classifications “AG” and “PUD,” the petition
summary contained the same information as the resolution it summarized. In other
words, Resolution 01-12-03-03 does not include a statement that the zoning change
is for single-family residences, nor does it explain that “AG” means agricultural or
that “PUD” means planned unit development.
{¶ 16} In this regard, the summary is an accurate reflection of the language
contained in the resolution that is the subject of the referendum petition. Inclusion
of this text of the resolution satisfies the “brief summary” requirement of R.C.
519.12(H). See, generally, O’Beirne, 80 Ohio St.3d at 180, 685 N.E.2d 502
(“Inclusion of the full text of the amendment of the ordinance generally satisfies
the ‘brief summary’ requirement of R.C. 519.12[H]”); Christy v. Summit Cty. Bd.
of Elections (1996), 77 Ohio St.3d 35, 39, 671 N.E.2d 1. We will not penalize the
township electors’ attempt to exercise their right of referendum for summarizing
the resolution with substantially the same wording as the resolution itself.
{¶ 17} Similarly, the summary’s omission of any reference to the final
development plan was not so material as to mislead or confuse the average person.
The summary informs electors of the precise nature of the zoning change, i.e., from
the “AG” classification to the “PUD” classification. As emphasized by the
appellate court in Rose v. Montgomery Cty. Bd. of Elections (Sept. 22, 1995),
Montgomery App. No. 15358, unreported, 1995 WL 558820:
“R.C. 519.12 requires a ‘brief summary’ of the contents of the zoning
amendment. Both the adjective ‘brief’ and the noun ‘summary’ connote brevity
rather than comprehensiveness.”
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January Term, 2002
{¶ 18} Based on the foregoing, while the language suggested by Perry’s
claims may have constituted an improvement over the language used by the
referendum petitioners, the summary is not misleading or inaccurate and does not
contain material omissions that would confuse the average person. Therefore, the
board did not abuse its broad discretion in denying Perry’s protest. This result
comports with our duty to liberally construe referendum provisions in order to
permit the exercise of the power and to promote rather than prevent or obstruct the
object sought to be attained. See, e.g., Stutzman v. Madison Cty. Bd. of Elections
(2001), 93 Ohio St.3d 511, 514, 757 N.E.2d 297. Accordingly, we dismiss the
cause.
Cause dismissed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________
Donald J. McTigue, for relator.
Robert L. Becker, Licking County Prosecuting Attorney, and Brent W.
Shenk, Assistant Prosecuting Attorney, for respondents.
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