State ex rel. Jacquemin v. Union Cty. Bd. of Elections (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Jacquemin v. Union Cty. Bd. of Elections, Slip Opinion No. 2016-Ohio-5880.]

NOTICE

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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2016-OHIO-5880

THE STATE EX REL. JACQUEMIN ET AL. v. UNION COUNTY BOARD OF

ELECTIONS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. Jacquemin v. Union Cty. Bd. of Elections,

Slip Opinion No. 2016-Ohio-5880.]

Mandamus and prohibition—R.C. 519.12(H)—Board of elections abused its

discretion in denying relators’ protest to referendum petition—Writ of

mandamus granted.

(No. 2016-0614—Submitted September 14, 2016—Decided September 19, 2016.)

IN MANDAMUS and PROHIBITION.

________________

Per Curiam.

{¶ 1} Relators, Paul and Mary Jacquemin, seek extraordinary relief to

prevent a referendum from appearing on the November 2016 ballot. We grant a

writ of mandamus against respondent, the Union County Board of Elections.

Background

{¶ 2} On December 23, 2015, the Jerome Township Board of Trustees

held a public hearing to consider a rezoning application filed by the Schottenstein

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Real Estate Group. The application sought a “mixed-use” designation for three

parcels of land, two owned by the Jacquemins and a third one owned by Arthur and

Elizabeth Wesner.

{¶ 3} By a two-to-one vote, the trustees adopted Township Resolution No.

15-167, which stated in full:

The Jerome Township Trustees hereby enter into record a

Resolution adopting and modifying the recommendation of the

Jerome Township Zoning Commission. It is recognized that the

applicant filed a Preliminary Zoning Plan Application for a Mixed

Use Planned Development (PUD #15-120).

It is recognized by the Trustees that the application meets the

requirements of the Jerome Township Comprehensive Plan and

further the applicant and co-applicants have agreed to make

substantial financial contributions to the needed road improvements.

The application further meets the needs of the Township regarding

senior housing and care and multi-unit housing in accordance with

future needs as presented to the Township by the Mid Ohio Regional

Planning Commission (MORPC) and other independent studies.

It is agreed that after passage, the applicant or their

representatives will negotiate with Township representatives in

good faith the following terms of passage to be presented in text

upon such time [as] the Final Development Plan is presented for

approval.

1. Terms and conditions of any Joint Economic Agreements

or Tax Incremental Financing agreements as needed for the Final

Development Plan and also reimburse Jerome Township and [sic]

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January Term, 2016

agreed upon expenses in the execution of these documents should

they be necessary.

2. Applicant and or their legal representative shall enter into

an agreement in the Final Development Plan as an agreement that

will include negotiated reimbursement to Jerome Township for

additional necessary costs incurred for the service of Fire and EMS

protection for the proposed development until such time tax revenue

is generated at projected build out.

3. Negotiate in good faith with any other terms and

conditions as necessary in the text of the Final Development Plan.

Jerome Township further reserves the right to negotiate

further terms of the Final Development Plan beyond the scope of

this resolution.

Amended portion of the resolution is to include the

modifications as presented by the Applicant/Developer in their

memorandum dated December 22, 2015.

{¶ 4} On January 20, 2016, opponents of Resolution No. 15-167 delivered

a referendum petition to the township fiscal officer. Each part-petition contained

the following summary language:

A Zoning amendment approving rezoning an irregular “L”

shaped site of approximately 60.43 acres Between the West side of

Hyland Croy Road and the East side of US 33 from U-1 Rural

District to P.U.D. Planed [sic] Unit Development for Parcels 17-

0031038000 and 17-0031038100 known as the “Jacquemin Farms.”

The P.U.D. Planed [sic] Unit Development (Res. 15-167) provides

for approximately 300 Residential Units and a 250 Bed Adult Living

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Facility (See Development Site Map – Exhibit #2 and Plot Map –

Exhibit #3.) The Nearest intersection being Hyland Croy Road and

SR 161 – Post Road.

All as more fully described and identified in the attached:

1) The Record of Proceedings of Jerome Township Board of

Trustees Public Hearing of December 23, 2015 (Exhibit #1)

2) “Jacquemin Farms.” Vicinity “Site” Map (exhibit #2)

3) Development Plot Map (exhibit #3)

{¶ 5} The Jacquemins filed a protest of the petition with the Union County

Board of Elections. Five days later, the Wesners filed a separate protest. On April

12, 2016, the board held a hearing on the two protests, and at the conclusion of the

hearing, it voted three to one to deny the protests and to place the referendum issue

on the November 8, 2016 general-election ballot.

{¶ 6} The Jacquemins then filed this action to prevent the board from

placing the referendum on the ballot.1 The parties have fully briefed the case. In

addition, we have received three amicus briefs, two in support of the Jacquemins

(filed by the Ohio Home Builders Association and the Diocesan Retirement

Community Corporation) and one in support of the board of elections (filed by

Andrew Diamond).

Analysis

{¶ 7} R.C. 519.12(H) requires that each part of a petition seeking a

referendum on a township zoning resolution contain “a brief summary” of the

resolution’s contents. The overriding purpose of the summary is to present the

question or issues to be decided fairly and accurately, so as to ensure that voters

can make a free, intelligent, and informed decision. State ex rel. Gemienhardt v.

1

The Wesners are not parties to this case, and the grounds asserted in their protest are not at issue

in this case.

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January Term, 2016

Delaware Cty. Bd. of Elections, 109 Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d

1223, ¶ 38. For this reason, the petition summary must be accurate and

unambiguous. State ex rel. C.V. Perry & Co. v. Licking Cty. Bd. of Elections, 94

Ohio St.3d 442, 445, 764 N.E.2d 411 (2002).

{¶ 8} “ ‘If 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.’ ” State ex rel. Hamilton v. Clinton

Cty. Bd. of Elections, 67 Ohio St.3d 556, 559, 621 N.E.2d 391 (1993), quoting

Shelly & Sands, Inc. v. Franklin Cty. Bd. of Elections, 12 Ohio St.3d 140, 141, 465

N.E.2d 883 (1984). An R.C. 519.12(H) petition summary must strictly comply

with the requirement that it not be misleading. Gemienhardt at ¶ 57.

{¶ 9} The Jacquemins contend that the referendum summary is invalid

because it contains six omissions and three errors. The board of elections did not

agree. When reviewing the decision of a county board of elections, the standard is

whether the board engaged in fraud or corruption, abused its discretion, or acted in

clear disregard of applicable legal provisions. State ex rel. Holwadel v. Hamilton

Cty. Bd. of Elections, 144 Ohio St.3d 579, 2015-Ohio-5306, 45 N.E.3d 994, ¶ 29.

Our consideration of the Jacquemins’ arguments convinces us that one of the

arguments is meritorious. Accordingly, we resolve this case based on that argument

and do not address the other contentions.

{¶ 10} The parcels in question are shaped somewhat like the state of

Louisiana, with the western boundary sloping toward Texas as one moves north.

The Jacquemin property forms the larger, rectangular base, and the Wesner parcel

is the smaller, northern top. The eastern boundary of the Jacquemin property is

Hyland-Croy Road, which runs north and south.

{¶ 11} The summary states that the nearest intersection to the properties is

“Hyland-Croy Road and SR 161 – Post Road.” But the closest intersection is

actually Hyland-Croy Road and Park Mill Drive. Hyland-Croy Road intersects

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Post Road a quarter mile or more away from the southern edge of the development

site. Without more, the error seems minor enough. But as is so often the case, the

context of the mistake informs its import.

{¶ 12} In fact, the context of the mistake in identifying the nearest

intersection allowed potential signers to infer that the petition addressed a different,

contentious zoning change already approved for a development to the southwest of

this property. A member of the township’s Zoning and Development Committee

testified that identifying Route 161-Post Road and Hyland-Croy Road as the nearest

intersection was “misleading * * * [b]ecause it’s referencing a sore spot for the

community * * * because there’s been a lot of discussion about that particular

intersection as how this particular development would impact that intersection.”

The misidentified intersection is near the location of land now zoned for big-box

retail use. People in the community are likely familiar with what is poised to

become a large development project near the Post Road intersection with Hyland-

Croy Road. By misidentifying the nearest intersection as one that is near property

that is already being developed for big-box retail use, the petition summary may

have poisoned would-be signers against the new development, which is more than

a quarter mile away from the intersection identified in the summary. At the very

least, it suggests to a would-be signer that the developments would nearly overlap

each other. The petition summary is therefore misleading and cannot form the basis

to submit this issue to a vote. Hamilton, 67 Ohio St.3d at 559, 621 N.E.2d 391,

citing Shelly & Sands, 12 Ohio St.3d at 141, 465 N.E.2d 883. Instead of properly

exercising its discretion, the board clearly disregarded the applicable legal standard

for reviewing petition summaries. C.V. Perry & Co., 94 Ohio St.3d at 445, 764

N.E.2d 411.

Conclusion

{¶ 13} For the foregoing reasons, we grant the request for a writ of

mandamus.

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January Term, 2016

Writ granted.

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

FRENCH, and O’NEILL, JJ., concur.

_________________________

McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, and

Derek S. Clinger; and Laura M. Comek Law, L.L.C., and Laura M. Comek, for

relators.

David W. Phillips, Union County Prosecuting Attorney, and Thayne D.

Gray, Assistant Prosecuting Attorney, for respondent.

Kristen L. Sours, urging granting of the writ for amicus curiae Ohio Home

Builders Association.

Kegler, Brown, Hill & Ritter, Robert G. Schuler, Paul D. Ritter Jr., and

Allan L. Handlan, urging granting of the writ for amicus curiae Diocesan

Retirement Community Corporation.

Andrew I. Diamond, pro se, urging denial of the writ as amicus curiae.

_________________________

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