State ex rel. C.V. Perry & Co. v. Licking Cty. Bd. of Elections - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. C.V. Perry & Co. v. Licking Cty. Bd. of Elections, 94 Ohio St.3d 442,
2002-Ohio-1369.]

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),
94 Ohio St.3d 442.]
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. 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.

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 01-12-03-03, which adopted the zoning commission's
recommendation and provided:

SUPREME COURT OF OHIO

"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."

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."

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.

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.
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
2

January Term, 2002

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).

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."

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

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
should be granted, and a schedule for the presentation of evidence and briefs
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should be issued. State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d 1, 3, 716
N.E.2d 1114.

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.

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

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
submit the amendment to the electors of such area for approval or rejection at a
4

January Term, 2002
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.)

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).

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 omissions, and was ambiguous, all of which could confuse the
average person signing the petition.
5

SUPREME COURT OF OHIO

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.

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.

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."

Based on the foregoing, while the language suggested by Perry's claims
may have constituted an improvement over the language used by the referendum
6

January Term, 2002
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.
__________________
7