State ex rel. Donaldson v. Delaware 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. Donaldson v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-2943.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

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. 2021-OHIO-2943

THE STATE EX REL. DONALDSON v. DELAWARE COUNTY BOARD OF

ELECTIONS ET AL.

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

may be cited as State ex rel. Donaldson v. Delaware Cty. Bd. of Elections, Slip

Opinion No. 2021-Ohio-2943.]

Mandamus—Writ of mandamus sought to compel the board of elections to include

a referendum on a zoning amendment on the November 2021 ballot—Brief

summary of contents in a zoning-amendment petition pursuant to R.C.

519.12(H) that fails to summarize the contents of the zoning amendment

passed by the township trustees or otherwise include the location of the

property being rezoned and the zoning change does not fairly and

accurately describe the issue being presented to persons being asked to sign

the petition —Board of elections did not abuse its discretion or disregard

clearly applicable law in sustaining an objection to the referendum

petition—Writ denied.

(No. 2021-0867—Submitted August 23, 2021—Decided August 26, 2021.)

SUPREME COURT OF OHIO

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} Relator, Scott Donaldson, seeks to place a referendum on the

November 2021 ballot asking voters to approve or disapprove an amendment to the

Liberty Township Zoning Resolution. Respondent, Delaware County Board of

Elections, sustained a protest to the referendum petition because the petition did not

include an adequate summary of the zoning amendment as required by R.C.

519.12(H). Donaldson asks this court to issue a writ of mandamus ordering the

board of elections to place the referendum on the ballot. We deny the writ because

the board of elections did not abuse its discretion or disregard clearly applicable

law in sustaining the protest.

I. Factual and Procedural Background

{¶ 2} The zoning amendment at issue in this case would allow a planned

development on 17 parcels of land, totaling approximately 190 acres, in Liberty

Township. Currently, the various parcels are zoned as either planned-residence or

farm-residence districts.

{¶ 3} The various owners of the 17 parcels, including intervening

respondent Clarkshaw Reserve I, L.L.C. (“Clarkshaw”), submitted to the Liberty

Township Board of Trustees (the “township”) an application to establish a “planned

overlay district” known as “POD 18(D)” and to amend the township’s zoning

resolution accordingly. The affected property would be rezoned for a planned-unit

development under R.C. 519.021(C).1 Between October 2020 and January 2021,

the Liberty Township Zoning Commission considered the proposed amendment

and held at least two public hearings on the proposal. On January 27, 2021, the

1. R.C. 519.021(C) provides: “Pursuant to section 519.12 of the Revised Code, the board of

township trustees may adopt planned-unit development regulations and amend the zoning map to

rezone property as planned-unit developments.”

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January Term, 2021

zoning commission adopted a resolution recommending that the proposed

amendment be denied.

{¶ 4} The township held public hearings on February 16 and March 15,

2021, to consider the proposed zoning amendment. See R.C. 519.12(E)(3) (stating

that a board of township trustees shall have a public hearing on the proposed

amendment after receipt of the zoning commission’s recommendation). Clarkshaw

modified the zoning amendment in response to some residents’ concerns and

submitted the modified version to the township on March 12, 2021. Clarkshaw’s

modifications created five subareas with varying permitted uses in the proposed

POD 18(D). The four largest subareas would be rezoned for residential and/or

certain commercial uses, and the fifth subarea would be rezoned to permit hospital

or certain healthcare use.

{¶ 5} At the March 15 meeting, the township approved Clarkshaw’s

amended version of the zoning amendment, along with 36 additional modifications

that were read into the record. Thereafter, Donaldson circulated a petition to subject

the POD 18(D) zoning amendment to a referendum in the November 2 election.

And on April 13, Donaldson delivered a referendum petition to the township. Each

part-petition contained the following:

The following is a brief summary of the proposed zoning

amendment:

The proposed amendment would add Article 18D to the

Zoning Resolution and create the planned overlay district as a

planned unit development under Ohio Revised Code 519.021(C)

and which would include sections detailing: the purpose and

establishment of the overlay; requirements for the overlay, including

development tract sizes, permitted uses, open space and prohibited

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uses; establishment of a review process and procedure; process for

modification or extension of development plan; basis of approval;

an approval period; process for modification or extension of

development plan; provisions for design standards and minimum

development standards including, but not limited to, access,

setbacks, yard areas, signage, landscaping, parking, loading, and

open space; and provisions for divergences from minimum

development standards. This amendment would also amend Section

5.01 by adding the POD 18D as a zoning district in the Zoning

Resolution and revising the Zoning Map to designate the POD 18D

area. As part of the proposed amendment, the area and parcels

proposed to be rezoned to the POD 18D are shown on the POD 18D

Overlay Zoning District Map which is attached to and made part of

the proposed amendment text.

The “POD18D Overlay Zoning District Map” referred to in the summary was not

attached to the part-petitions that were circulated for signature. According to

Donaldson, the language used in the summary was derived from the public-hearing

notices issued by the zoning commission and the township on the proposed zoning

amendment.

{¶ 6} On April 19, the township adopted a resolution certifying the petition

to the board of elections. Clarkshaw submitted a protest letter to the board of

elections, challenging the validity and sufficiency of the petition’s summary of the

zoning amendment. The board of elections certified the referendum for the

November 2 ballot without addressing the sufficiency and validity of the summary.

{¶ 7} Clarkshaw, joined by two other protesters, resubmitted the protest

letter on May 13. The protest letter alleged three deficiencies in the petition

summary: (1) failure to identify the property subject to the referendum, (2) failure

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January Term, 2021

to adequately describe the township trustees’ zoning resolution, and (3) failure to

include modifications made to the zoning amendment prior to its passage by the

township trustees.

{¶ 8} The board of elections held a protest hearing on June 28. Donaldson

filed a motion to dismiss the protest, arguing that the board of elections lacked

jurisdiction over the protest because the zoning amendment at issue was not

properly initiated under R.C. 519.021(C) and was therefore void. The board of

elections denied the motion and following testimony and the submission of

evidence, voted to sustain the protest and decertify the petition from the November

ballot.

{¶ 9} Donaldson commenced this action on July 14 and filed an amended

complaint on July 19, naming the board of elections, the township, and individual

township trustees as respondents. In his first claim for relief, Donaldson seeks a

writ of mandamus ordering the board of elections to place the referendum petition

on the November 2 ballot. The second through fifth claims sought extraordinary

relief in either mandamus or prohibition against the board and the township

respondents. The court set an expedited schedule ordering respondents to respond

to the amended complaint by July 23. See 163 Ohio St.3d 1503, 2021-Ohio-2453,

170 N.E.3d 893.

{¶ 10} The board of elections and the township timely filed answers and

motions to dismiss the second through fifth claims for relief under Civ.R. 12(B)(6),

and Clarkshaw filed a motion to intervene as a respondent. We granted the motion

to intervene, granted the motions to dismiss counts two through five, and dismissed

the township respondents as parties to this action. See 163 Ohio St.3d 1514, 2021-

Ohio-2627, 171 N.E.3d 337. We also granted an alternative writ as to the first claim

and set an expedited schedule for the submission of evidence and merit briefs. Id.

Donaldson, Clarkshaw, and the board of elections have submitted evidence and

merit briefs, and the matter is ripe for our decision.

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II. Analysis

{¶ 11} To obtain a writ of mandamus ordering the board of elections to

place the referendum on the November ballot, Donaldson must establish by clear

and convincing evidence (1) a clear legal right to the requested relief, (2) a clear

legal duty on the part of the respondent to provide it, and (3) the lack of an adequate

remedy in the ordinary course of the law. See State ex rel. Ebersole v. Powell, 149

Ohio St.3d 501, 2017-Ohio-509, 75 N.E.3d 1245, ¶ 10. Given the proximity of the

November election, Donaldson lacks an adequate remedy in the ordinary course of

the law. See State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d

462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 18. As to the remaining elements,

Donaldson must show that the board of elections engaged in fraud or corruption,

abused its discretion, or clearly disregarded applicable law in invalidating the

referendum petition. See State ex rel. Jacquemin v. Union Cty. Bd. of Elections,

147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, ¶ 9. Donaldson does not

claim fraud or corruption on the part of the board of elections; therefore, the

relevant inquiry is whether the board abused its discretion or clearly disregarded

applicable law.

A. The Petition’s Summary

{¶ 12} Each part-petition calling for a referendum on a zoning amendment

“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.” R.C. 519.12(H). A

referendum petition must comply strictly with these requirements. State ex rel.

Quinn v. Delaware Cty. Bd. of Elections, 152 Ohio St.3d 568, 2018-Ohio-966, 99

N.E.3d 362, ¶ 30. The sole issue in this case is whether the summary of POD 18(D)

contained in the referendum petition complied strictly with R.C. 519.12(H).

{¶ 13} The phrase “brief summary of its contents” in R.C. 519.12(H) “refers

to the zoning resolution, motion, or application passed or approved by the board of

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January Term, 2021

township trustees.” E. Ohio Gas Co. v. Wood Cty. Bd. of Elections, 83 Ohio St.3d

298, 300-301, 699 N.E.2d 916 (1998); see also Tam O’Shanter Co. v. Stark Cty.

Bd. of Elections, 151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 18

(explaining the three statutory methods—motion, resolution, or application—by

which a township zoning amendment may be initiated). Regardless of the method

by which the zoning amendment is initiated, the petition must summarize the

contents of the zoning amendment passed by the township trustees. Id. at ¶ 19; see

also State ex rel. Barney v. Union Cty. Bd. of Elections, 159 Ohio St.3d 50, 2019-

Ohio-4277, 147 N.E.3d 595, ¶ 31 (R.C. 519.12(H) requires “a brief summary of the

contents of the zoning amendment”); State ex rel. O’Beirne v. Geauga Cty. Bd. of

Elections, 80 Ohio St.3d 176, 179, 685 N.E.2d 502 (1997) (“brief summary of its

contents” refers to the zoning amendment passed by the township trustees). “The

purpose of requiring a summary is ‘to present fairly and accurately the question or

issue to be decided in order to assure a free, intelligent and informed decision by

the persons to whom it is presented.’ ” State ex rel. Hamilton v. Clinton Cty. Bd. of

Elections, 67 Ohio St.3d 556, 559, 621 N.E.2d 391 (1993), quoting Nunneker v.

Murdock, 9 Ohio App.3d 73, 77, 458 N.E.2d 431 (1st Dist.1983). If the summary

contains material omissions that would confuse the average person, the referendum

petition is invalid and may not be submitted to a vote. State ex rel. Gemienhardt v.

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

1223, ¶ 38; see also 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 (summary must be

“accurate and unambiguous” to be valid).

{¶ 14} The obligation to briefly summarize a zoning amendment “implicitly

requires a referendum petition to accurately describe property subject to rezoning.”

State ex rel. Rife v. Franklin Cty. Bd. of Elections, 70 Ohio St.3d 632, 635, 640

N.E.2d 522 (1994) (describing the identical “brief summary” requirement in R.C.

303.12(H) applicable to county zoning amendments). In this case, the petition

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summary describes in general terms that POD 18(D) would amend the Liberty

Township Zoning Resolution to add a planned overlay district. But nowhere does

the summary contain any information about where the planned overlay district is

located. The average person reading the summary would not know where the

planned overlay district is located or what property is included within it.

{¶ 15} Equally problematic is the petition’s failure to describe the nature of

the zoning amendment. This court has found a referendum petition’s summary to

be “ambiguous and misleading” when it “failed to apprise the reader of the present

zoning status of the land and of the precise nature of the requested change.” Shelly

& Sands, Inc. v. Franklin Cty. Bd. of Elections, 12 Ohio St.3d 140, 142, 465 N.E.2d

883 (1984); see also O’Beirne at 181 (present use and zoning of the property at

issue was “material information” and its omission rendered the petition summary

deficient). The petition summary in this case did not describe either the current use

of the property or the uses that the zoning amendment would permit. The summary

stated that the zoning amendment would “include sections detailing * * * permitted

uses, open space and prohibited uses” and that the zoning resolution and map would

be amended to designate the POD 18(D) area.

{¶ 16} Accordingly, the board of elections did not abuse its discretion or

disregard applicable law in deciding that the petition summary was deficient for

failing to provide material information to those who were asked to sign it. At a

minimum, the summary should have identified the location of the land being

rezoned and explained the proposed zoning change. Without this minimum

information, a petition summary does not present the issue fairly and accurately to

those being asked to sign the petition. Indeed, even in cases relied upon by

Donaldson in which we upheld the validity of the petition, the summary at issue

contained at least this information. See 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) (summary

specified address of property and the zoning change “from AG to PUD” use); Rife,

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January Term, 2021

70 Ohio St.3d at 632-633, 640 N.E.2d 522 (summary specified address and acreage

of the property and the zoning change to “general industrial”). The board of

elections therefore did not err in finding the petition invalid in this case.

B. Donaldson’s Reliance on Public-Hearing Notice and Zoning-Commission

Language

{¶ 17} Despite the omissions described above, Donaldson argues that the

petition’s summary was sufficient as a matter of law because it was the same as the

summary used (1) by the zoning commission in its notices of public hearings on the

proposed amendment, (2) by the zoning commission in its resolution

recommending disapproval of the amendment, and (3) by the township in its notices

of public hearings in February and March 2021. Donaldson argues that the board

of elections abused its discretion and disregarded applicable law by requiring the

petition summary to include information that was not in the township’s description

of the zoning amendment. Donaldson’s argument is unpersuasive.

{¶ 18} Donaldson ignores that it is the zoning amendment as adopted by the

township that must be summarized in the petition. See Barney, 159 Ohio St.3d 50,

2019-Ohio-4277, 147 N.E.3d 595, at ¶ 31; Tam O’Shanter Co., 151 Ohio St.3d 134,

2017-Ohio-8167, 86 N.E.3d 332, at ¶ 19. It is irrelevant that the petition summary’s

text was identical to the public-hearing notices used by the township because those

notices did not summarize the zoning amendment passed by the township. Those

notices simply informed the public of hearings that were scheduled to take place on

the proposed amendment (prior to its enactment). And unlike the petition summary

required by R.C. 519.12(H), notices for hearings before the zoning commission or

the township trustees are not required to contain a summary of the proposed zoning

amendment. Rather, if (as in this case) an amendment rezones more than ten

parcels of land, the hearing notice must specify the time and place where the text

and maps of the proposed amendment will be available for examination for a period

of at least ten days prior to the hearing. See R.C. 519.12(D)(3) and (G)(3).

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{¶ 19} Nor does it matter that the language in the petition summary was the

same as that used in the zoning commission’s resolution recommending denial of

the proposed zoning amendment. Again, the relevant inquiry is whether the petition

adequately summarizes the zoning amendment passed by the township. Barney at

¶ 31; Tam O’Shanter Co. at ¶ 19. The zoning commission’s resolution was a

recommendation to the township, not a summary of the zoning amendment.

Moreover, the zoning commission’s resolution related to a previous version of POD

18(D), not the one that was ultimately passed by the township.

{¶ 20} Donaldson relies on a line of cases in which this court has held that

“when a referendum petition’s summary of a resolution contains substantially the

same wording as the resolution itself, * * * the summary complies with the statutory

requirement, even when the summary fails to include a statement regarding the

meaning of the zoning classifications, the purpose of the zoning change, or the uses

specified in the development plan approved by the resolution.” State ex rel.

McCord v. Delaware Cty. Bd of Elections, 106 Ohio St.3d 346, 2005-Ohio-4758,

835 N.E.2d 336, ¶ 43, citing C.V. Perry & Co., 94 Ohio St.3d at 445, 764 N.E.2d

411 and Rife, 70 Ohio St.3d at 634, 640 N.E.2d 522. But these cases are of no help

to Donaldson. The petition summary in this case did not summarize a zoning

resolution that was passed or approved by the township. As detailed above, the

petition summary borrowed from language contained in the public-hearing notices

and in a resolution of the zoning commission, not from any resolution or other

legislative act of the township passing the zoning amendment at issue.

{¶ 21} Donaldson also argues that the board of elections abused its

discretion because it “apparently wanted a map to be included with each part-

petition.” Donaldson bases his argument on a board member’s observation at the

protest hearing that there was no map attached to the petition that was circulated

for signature. As this court held in State ex rel. Columbia Reserve, Ltd. v. Lorain

Cty. Bd. of Elections, 111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815, ¶ 32,

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January Term, 2021

there is no statutory requirement that a map of the affected area of a zoning

amendment be attached to a referendum petition.

{¶ 22} But here, the board did not find the petition deficient for want of a

map. On the contrary, a board member mentioned the inclusion of a map as one of

several ways in which the petition could have described the location of the property

to which the zoning amendment applied. In other words, the board member

suggested that a map attached to the petition could have provided material

information that was missing from the petition’s printed summary. See Barney,

159 Ohio St.3d 50, 2019-Ohio-4277, 147 N.E.3d 595, at ¶ 33-34 (material

information provided in an attachment to the petition but not in the printed summary

satisfied the summary requirement).

C. Alleged Voidness of Zoning Amendment

{¶ 23} Donaldson also argues that the zoning amendment at issue was not

properly initiated under R.C. 519.021 or enacted by the township under R.C.

519.12. He also asserts that the property owners’ application for POD 18(D) was

“defective at best and fraud at worst” because of alleged discrepancies between the

version of the application that the protesters filed with the board of elections and

the version maintained in the township’s records. Because of these alleged defects,

Donaldson argues that the application and the zoning amendment passed by the

township are nullities.

{¶ 24} Under R.C. 3501.11(K)(1), a board of elections has the authority to

determine the validity of a referendum petition. But alleged defects in a township’s

enactment of a zoning amendment are not a proper basis for granting mandamus

relief against a board of elections that has sustained a protest to a referendum

petition. While a board of elections’ authority to determine the validity of a

referendum petition may include the power to determine whether a ballot measure

is a proper subject of a referendum, boards do not sit as arbiters of the legality of

the underlying local legislation that is the subject of the referendum. See State ex

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rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-

Ohio-3761, 41 N.E.3d 1229, ¶ 11.

III. Conclusion

{¶ 25} For the foregoing reasons, Donaldson has failed to demonstrate by

clear and convincing evidence that the board of elections abused its discretion or

disregarded clearly applicable law in sustaining the protest to the referendum

petition. We therefore deny the writ.

Writ denied.

O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, and STEWART, JJ.,

concur.

FISCHER, J., concurs in judgment only.

BRUNNER, J., dissents and would grant the petition for a writ of mandamus

ordering the Delaware County Board of Elections to place the referendum issue on

the November 2, 2021 ballot.

_________________

Guzzo Law Office, L.L.C., and Peggy S. Guzzo, for relator.

Melissa A. Schiffel, Delaware County Prosecuting Attorney, and Mark W.

Fowler and Vince J. Villio, Assistant Prosecuting Attorneys, for respondent.

Vorys, Sater, Seymour and Pease L.L.P., and Joseph R. Miller, Christopher

L. Ingram, Elizabeth S. Alexander, and Muna Abdallah, for intervening respondent.

_________________

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