State Ex Rel. Miller Diversified Holdings, L.L.C. v. Wood County Board of Elections

[Cite as State ex rel. Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd. of Elections, 123

Ohio St.3d 260, 2009-Ohio-4980.]

THE STATE EX REL. MILLER DIVERSIFIED HOLDINGS, L.L.C., ET AL. v.

WOOD COUNTY BOARD OF ELECTIONS.

[Cite as State ex rel. Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd. of

Elections, 123 Ohio St.3d 260, 2009-Ohio-4980.]

Prohibition — Writ to prevent board of elections from submitting three township

zoning resolutions to electorate — Substantial misstatement of acreage in

referendum petition conveys mistaken and confusing impression of zoning

resolutions — Writ granted in part and denied in part.

(No. 2009-1573 ─ Submitted September 17, 2009 ─ Decided

September 28, 2009.)

IN PROHIBITION.

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Per Curiam.

{¶ 1} This is an expedited election action for a writ of prohibition to

prevent a board of elections from submitting three township zoning amendments

to the electorate at the November 3, 2009 general election. Because relators have

established their entitlement to the requested extraordinary relief for one of the

three amendments, we grant the writ to prevent the referendum election on that

amendment and deny the writ to prevent the referendum elections on the

remaining amendments.

Facts

Zoning Amendments

{¶ 2} Relators, Miller Diversified Holdings, L.L.C. (“Miller”) and

McCarthy Builders, Inc. (“McCarthy”), have options to purchase certain parcels

of real estate located in Perrysburg Township, Wood County, Ohio. The parcels

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are known as the Wolf parcel, the DeChristopher parcel, and the Neiderhouse

parcel.

{¶ 3} In 2007, Miller and McCarthy, through a commonly owned entity

known as Velocity Development, L.L.C., and with the approval and consent of

the landowners, submitted applications to the Perrysburg Township Board of

Trustees to rezone the three parcels to develop single-family residential

subdivisions. More specifically, Miller and McCarthy sought to rezone (1) about

30.593 acres of the Wolf parcel, which was approximately 41 acres, from R-1

(Rural Residential District) and R-2 (Suburban Residential District) to R-3

(Suburban Residential District), (2) about 98.714 acres of the 99.9-acre

DeChristopher parcel from A-1 (Agricultural District) to R-4A (Suburban

Residential District), and (3) the entire Neiderhouse parcel from A-1 (Agricultural

District) to R-3 (Suburban Residential District).

{¶ 4} On December 17, 2007, the township board of trustees adopted

resolutions rezoning the three parcels that differed in certain particulars from the

rezoning requested by Miller and McCarthy, including adding conditions. In

Resolution 2007-28, the board of trustees rezoned the Wolf parcel from R-1 and

R-2 to A-1 and R-3, instead of simply to R-3 as requested. In Resolution 2007-

29, the board of trustees approved the application to rezone the specified portion

of the DeChristopher parcel from A-1 to R-4A. In Resolution 2007-27, the board

of trustees rezoned the Neiderhouse parcel from A-1 to A-1 and R-3, instead of

solely to R-3 as requested.

{¶ 5} As noted, the board’s rezoning of the three parcels was subject to

various conditions. For example, the rezoning of the Wolf and Neiderhouse

parcels was conditioned on the properties being developed substantially in

accordance with preliminary plans attached to the resolutions. In addition, all of

the resolutions contained the following conditions:

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{¶ 6} 1. “Future lot owners in the subdivision developed on the [parcel]

shall not be required to sign annexation petitions and there shall not be any

annexation provisions, powers of appointment or powers of attorney regarding

annexation in future purchase contracts or any annexation covenants in future

deeds that arise as a matter of contract; and

{¶ 7} 2. “McCarthy Builders, Inc., an Ohio corporation, its successors

and assigns, shall file an affidavit pursuant to R.C. 5301.252, or similar

instrument, releasing the right to annex lots in the Emerald Lakes Subdivision, or

to exercise any powers of appointment or powers of attorney regarding

annexation following the effective date of this resolution, as finally determined,

demonstrating that there exist no contracts or agreements of any kind with owners

of the [parcel], or any real estate that is contiguous to the [parcel], that confer

upon any third party the right to compel the annexation of the [parcel] to any

municipality.”

Referendum Petitions and Protest

{¶ 8} After the township board of trustees passed the resolutions

rezoning the three parcels, certain township residents circulated separate

referendum petitions seeking to submit the rezoning for each of the parcels to

township electors at the November 4, 2008 general election. The petitions were

submitted to the board of trustees, but the board refused to certify the petitions to

respondent, Wood County Board of Elections.

{¶ 9} Shortly thereafter, certain petition circulators filed a petition in the

Court of Appeals for Wood County for a writ of mandamus to compel the

township, its trustees, and its fiscal officer to certify the referendum petitions to

the board of elections. In February 2009, the court of appeals granted the writ of

mandamus to compel the respondents in that case to certify the referendum

petitions to the board of elections. Hunter v. Britten, 180 Ohio App.3d 755, 2009-

Ohio-663, 907 N.E.2d 360, ¶ 69.

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{¶ 10} The board of elections voted to certify the referendum petitions to

the November 3, 2009 general election ballot. On August 4, 2009, pursuant to

R.C. 3501.39, Miller and McCarthy filed a written protest with the board of

elections challenging the referendum petitions. In their protest, Miller and

McCarthy claimed that the petitions were invalid because they (1) failed to

include the resolutions’ express condition that McCarthy file an affidavit releasing

the right to annex the property and demonstrating that no agreements exist that

confer on any third party the right to compel annexation of the property to any

municipality, (2) buried this condition in dense text purporting to be legal

descriptions of the property, (3) contained the wrong acreage of each rezoned

parcel, and (4) did not include maps.

{¶ 11} On August 26, 2009, the board of elections conducted a hearing at

which it considered the protest. At the conclusion of the hearing, the board of

elections denied the protest.

Prohibition Case

{¶ 12} On September 1, Miller and McCarthy filed this expedited election

action for a writ of prohibition to prevent the board of elections from submitting

the resolutions to a vote at the November 3, 2009 general election. The board of

elections submitted an answer, and the parties submitted evidence and briefs

pursuant to S.Ct.Prac.R. X(9).

{¶ 13} This cause is now before the court for our consideration of the

merits.

Legal Analysis

Prohibition Claim

{¶ 14} Miller and McCarthy request a writ of prohibition to prevent the

board of elections from placing the resolutions rezoning the Wolf, DeChristopher,

and Neiderhouse parcels on the November 3, 2009 general election ballot. To be

entitled to the writ, Miller and McCarthy must establish that (1) the board of

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elections is about to exercise quasi-judicial power, (2) the exercise of that power

is unauthorized by law, and (3) denying the writ will result in injury for which no

adequate remedy exists in the ordinary course of law. State ex rel. Finkbeiner v.

Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d

573, ¶ 14.

{¶ 15} Miller and McCarthy have established the first requirement

because “R.C. 3501.39(A)(2) required that the board of elections conduct a quasi-

judicial hearing on relators’ protest.” State ex rel. Upper Arlington v. Franklin

Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, ¶

16. “[A] board of elections * * * is a quasi-judicial body when it considers

protests.” State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of

Elections (1997), 80 Ohio St.3d 302, 306, 686 N.E.2d 238. “[E]ven if the board

[has] already exercised its quasi-judicial power by denying [the] protest, relief in

prohibition is still available to prevent the placement of names or issues on a

ballot, as long as the election has not yet been held.” Tatman v. Fairfield Cty. Bd.

of Elections, 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 14.

{¶ 16} For the second requirement of the exercise of unauthorized power,

“we must determine whether the board [of elections] acted fraudulently or

corruptly, abused its discretion, or clearly disregarded applicable law.” State ex

rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-Ohio-1292,

846 N.E.2d 8, ¶ 23. There is no claim of fraud or corruption here, so Miller and

McCarthy must establish that the board of elections abused its discretion or

clearly disregarded applicable law by denying their protest and certifying the

resolutions rezoning the parcels for a vote on the November 3 election ballot.

{¶ 17} For the third requirement for the writ, Miller and McCarthy must

establish the lack of an adequate remedy in the ordinary course of law. State ex

rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706,

882 N.E.2d 435, ¶ 25.

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Issues That Were Not Raised in Relators’ Protest

{¶ 18} In this expedited election case, Miller and McCarthy claim that the

board of elections clearly disregarded applicable law and abused its discretion by

certifying the resolutions rezoning the properties to the election ballot. Among

other things, they claim that the Wolf and Neiderhouse referendum petitions are

invalid because they do not include the preliminary plans attached to the

resolutions rezoning the parcels, that the DeChristopher referendum petition is

invalid because it includes inconsistent amounts of acreage, and that all the

conditions specified in the resolutions are placed in a manner that camouflages

them and makes them confusing.

{¶ 19} Under R.C. 3501.39(A)(2), a board of elections shall accept any

petition unless a “written protest against the petition or candidacy, naming

specific objections, is filed, a hearing is held, and a determination is made by the

election officials with whom the protest is filed that the petition violates any

requirement established by law.” (Emphasis added.) “One of the evident

purposes of this requirement [concerning specifying objections to a petition in a

written protest] is to give notice to the petitioner and the opportunity to present

evidence to rebut the objections specified”; “[t]his purpose is not served if the

board permits protestors to introduce evidence on objections not specified in their

protest.” See Cooker, 80 Ohio St.3d at 308, 686 N.E.2d 238, interpreting the

analogous provisions in R.C. 3501.39(A)(1).

{¶ 20} Insofar as the issues now raised by Miller and McCarthy were not

raised in their written protest, the court need not consider them. State ex rel.

Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 539, 757

N.E.2d 319. Miller and McCarthy cannot establish that the board of elections

abused its discretion or clearly disregarded applicable law based on claims they

failed to specifically raise in their written protest before the board. Cf. State ex

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rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881

N.E.2d 1214, ¶ 40.

{¶ 21} Moreover, because Miller and McCarthy could have raised these

claims in their statutory protest but failed to do so, the availability of the protest

constituted an adequate remedy in the ordinary course of law, which precludes the

requested extraordinary writ on these claims. Cooker, 80 Ohio St.3d at 308, 686

N.E.2d 238, citing State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992),

64 Ohio St.3d 12, 14-15, 591 N.E.2d 1194; R.C. 3501.39(A)(2).

{¶ 22} Therefore, Miller and McCarthy are not entitled to a writ of

prohibition on claims that they failed to raise in their written protest filed with the

board of elections.

Condition on Agreements to Annex Property to Municipality

{¶ 23} In their protest, Miller and McCarthy did raise the argument that

the referendum petitions were invalid because the language setting forth one of

the conditions for rezoning – that McCarthy had to file an affidavit stating that it

had released the right to annex the property and that no agreements existed

conferring on any third party the right to compel annexation of the parcels to any

municipality – was either imprecise, buried in dense text, or otherwise contained

in an inaccurate and misleading summary.

{¶ 24} “Under R.C. 519.12(H), each part of a petition seeking a

referendum on a township zoning amendment must also contain a ‘brief

summary’ of the contents of the amendment.” State ex rel. Gemienhardt v.

Delaware Cty. Bd. of Elections, 109 Ohio St.3d 212, 2006-Ohio-1666, 846

N.E.2d 1223, ¶ 37.

{¶ 25} “The phrase ‘brief summary of its contents’ refers to the zoning

resolution passed by the 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. Under the

applicable test, “[t]he summary must be accurate and unambiguous; otherwise, the

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petition is invalid and the subject resolution will not be submitted for vote.” S.I.

Dev. & Constr., L.L.C. v. Medina Cty. Bd. of Elections, 100 Ohio St.3d 272,

2003-Ohio-5791, 798 N.E.2d 587, ¶ 17. 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, 465 N.E.2d 883.

{¶ 26} The referendum petitions for the Wolf and DeChristopher parcels

contain language in the summaries specifying that the rezoning was “further

conditioned upon McCarthy Builders, Inc. filing an affidavit pursuant to R.C.

5301.252 releasing the right to annex lots in the Emerald Lakes Subdivision or

empowering anyone on its behalf from taking action to annex that property.” The

referendum petition for the Neiderhouse parcel contains comparable language

specifying that the rezoning was “further conditioned upon McCarthy Builders,

Inc. filing an affidavit pursuant to R.C. 5301.252 releasing the right to annex lots

in the Emerald Lakes Subdivision or empowering any one [sic] on its behalf from

taking such action.”

{¶ 27} Although it is true that this summary language is not in the precise

language of the condition specified in the resolutions and that the language is

located at the end of the summary, after legal descriptions of the property that is

being rezoned, the language used by the petitioners accurately summarizes the

specified condition and would not mislead or confuse the average person. The

mere presence of the legal descriptions of the property in the petition summaries

is not improper even though the resolutions did not include these descriptions.

See State ex rel. Rife v. Franklin Cty. Bd. of Elections (1994), 70 Ohio St.3d 632,

635, 640 N.E.2d 522 (“The obligation to briefly summarize the contents of a

rezoning resolution * * * implicitly requires a referendum petition to accurately

describe property subject to rezoning”); Gemienhardt, 109 Ohio St.3d 212, 2006-

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Ohio-1666, 846 N.E.2d 1223, ¶ 41 (“we have never held that summaries are

restricted to the wording of the resolution”).

{¶ 28} Therefore, Miller and McCarthy have not established their

entitlement to the writ on this claim.

Incorrect Acreage in Referendum Petition Summary

{¶ 29} Relators finally claim that the referendum petitions are invalid

because they contain the wrong acreage for the rezoned parcels.

{¶ 30} Referendum petitions that convey a confusing or mistaken

impression of a zoning resolution by significantly overestimating the acreage

rezoned by the resolution sought to be referred are invalid. O’Beirne, 80 Ohio

St.3d at 180, 685 N.E.2d 502; State ex rel. Hamilton v. Clinton Cty. Bd. of

Elections (1993), 67 Ohio St.3d 556, 562, 621 N.E.2d 391. A slight misstatement

of the acreage, however, is insufficient to withhold the rezoning from the

electorate. See, e.g., Stutzman v. Madison Cty. Bd. of Elections (2001), 93 Ohio

St.3d 511, 515, 757 N.E.2d 297, holding that a de minimis error in the acreage

listed in the title of referendum petition relating to a village ordinance rezoning

property did not violate the R.C. 731.31 requirement that referendum petitions

contain a “full and correct copy of the title of the ordinance” because there was no

evidence or any reasonable argument that the error could have misled electors to

sign a petition that they would not have signed had the correct acreage been listed.

{¶ 31} For the Wolf parcel, Miller and McCarthy claim — as they did in

their protest — that the referendum petition summary incorrectly specifies that

two parcels, a total of approximately 72 acres, are being rezoned when only the

41-acre parcel was rezoned by the township resolution. Relators’ claim has merit.

The referendum petition concerning the zoning amendment relating to the Wolf

parcel applies to one 41-acre parcel and not to two parcels totaling over 71 acres.

By significantly overestimating the acreage affected by the rezoning, the

referendum petitions conveyed a mistaken and confusing impression of the

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resolution so as to mislead or confuse the average person that the rezoning would

affect considerably more property than actually impacted.

{¶ 32} This conclusion is not altered by the board’s argument that the

resolution rezoning the Wolf parcel did not refer to the actual acreage rezoned.

“By choosing to summarize the resolution in language other than that employed

by the board of township trustees, [the referendum petitioners’] additional

language had to satisfy the applicable test in R.C. 519.12(H).” Gemienhardt, 109

Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d 1223, ¶ 43. The petitioners did not

satisfy the applicable test when they significantly overstated the acreage rezoned.

Nor did the attachment of a preliminary drawing to the referendum petition

sufficiently clarify or remedy the substantial misstatement of the acreage in the

summary.

{¶ 33} For the DeChristopher parcel, Miller and McCarthy claim that

rather than simply state that 98.81 acres of the parcel were being rezoned, the

petition contains a lengthy and confusing legal description with inconsistent

amounts of acreage. Relators did not, however, raise this specific claim in their

written protest, and we need not address it. Instead, they claimed in their written

protest only that the referendum petition incorrectly stated that the portion of the

parcel being rezoned was 99.9 acres instead of what they stated was the actual

acreage of 98.81 acres. Assuming that the contention raised in the protest is

accurate, the slight misstatement in acreage is insufficient to withhold the zoning

amendment from the electorate. See Stutzman, 93 Ohio St.3d at 515, 757 N.E.2d

297.

{¶ 34} Finally, for the Neiderhouse parcel, Miller and McCarthy claim

that based upon auditor records they had submitted as evidence in this case, the

parcel is 40.71 acres instead of the 37.126 acres specified in the referendum

petition. But relators did not cite the auditor’s listing of acreage in their written

protest. Rather, in their protest, Miller and McCarthy argued that the actual

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acreage of the parcel is 37.926 acres, or 0.8 acres more than the 37.126 acres

specified as the approximate acreage of the parcel in the referendum petition.

This figure comports with the drawing attached to relators’ application for a

zoning amendment. Again, any minimal misstatement in acreage is insufficient to

preclude a referendum on the zoning amendment. Stutzman, 93 Ohio St.3d at

515, 757 N.E.2d 297.

{¶ 35} Therefore, relators have established that the board of elections

abused its discretion and clearly disregarded R.C. 519.12(H) by denying their

protest challenging the referendum petition on the resolution rezoning the Wolf

parcel, but they failed to establish any abuse of discretion or clear disregard of

R.C. 519.12(H) by the board of elections in denying the protest challenging the

referendum petitions on the resolutions rezoning the DeChristopher and

Neiderhouse parcels. Relators have also established the lack of an adequate

remedy in the ordinary course of law to challenge the validity of the Wolf

referendum petition on the acreage issue because of the proximity of the

November 3 election. Upper Arlington, 119 Ohio St.3d 478, 2008-Ohio-5093,

895 N.E.2d 177, ¶ 17.

Conclusion

{¶ 36} Relators have established their entitlement to the requested writ of

prohibition regarding the referendum petition on the resolution rezoning the Wolf

parcel but not for the referendum petitions on the resolutions rezoning the

DeChristopher and Neiderhouse parcels. Therefore, we grant a writ of prohibition

to prevent the board of elections from submitting Perrysburg Township

Resolution 2007-28, which rezones the Wolf parcel, to the township electorate at

the November 3, 2009 election. We deny relators’ remaining claims for a writ of

prohibition to prevent the submission of the resolutions rezoning the other parcels

to the electors at the November 3, 2009 election. This holding is consistent with

our duties recognizing that “[t]he constitutional right of citizens to referendum is

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of paramount importance,” State ex rel. Ohio Gen. Assembly v. Brunner, 115

Ohio St.3d 103, 2007-Ohio-4460, 873 N.E.2d 1232, ¶ 8, and that we liberally

construe R.C. 519.12(H) in favor of the right of referendum, although referendum

petitioners must still strictly comply with that requirement, Gemienhardt, 109

Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d 1223, ¶ 57.

Writ granted in part

and denied in part.

MOYER, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and

CUPP, JJ., concur.

LUNDBERG STRATTON, J., dissents and would deny the writ entirely.

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Eastman & Smith, Ltd., Jeffrey M. Stopar, and Lane D. Williamson, for

relators.

Rayle, Matthews & Coon and Max E. Rayle, for respondent.

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