[Cite as Mercer Dev., L.P. v. Mercer Cty. Bd. of Elections, 2010-Ohio-4071.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
MERCER DEVELOPMENT LP,
PLAINTIFF-APPELLANT, CASE NO. 10-10-08
v.
MERCER COUNTY
BOARD OF ELECTIONS, OPINION
DEFENDANT-APPELLEE.
Appeal from Mercer County Common Pleas Court
Trial Court No. 10-CIV-034
Judgment Affirmed
Date of Decision: August 30, 2010
APPEARANCES:
James A. Tesno for Appellant
Andrew J. Hinders for Appellee
Case No. 10-10-08
WILLAMOWSKI, P.J.
{¶1} Appellant Mercer Development, L.P. (“Appellant”) brings this
appeal from the judgment of the Court of Common Pleas of Mercer County
permitting the zoning petitions to be placed on the ballot. Although this appeal
has been placed on the accelerated calendar, this court elects to issue a full opinion
pursuant to Loc.R. 12(5). For the reasons set forth below, the judgment is
affirmed.
{¶2} On August 25, Appellant submitted two applications for a change of
zoning to the Franklin Township Zoning Inspector. The first application wanted
to change the zoning designation from R-2 to RC for a 34.2 acre tract. The second
application was to change the zoning designation from R-2 to R-3 for
approximately 18.8 acres in the township. On September 8, 2009, a hearing was
held on the applications, and each was considered separately. The first application
passed by a vote of 3-1 and the second passed by a vote of 4-0. The changes were
then forwarded to the Franklin Township Trustees for review. The hearing on the
changes was held on November 18, 2009. At that meeting, the changes were
passed by separate resolution with votes of 3-0 on both.
{¶3} On December 16, 2009, a referendum petition consisting of nine
pages of signatures was filed with the Mercer County Board of Elections
(“Appellee”). Appellant filed its notice of protest to the petition on January 19,
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2010. A hearing on the protest was held on February 10, 2010. Appellee, by a
vote of 3-1, rejected Appellant’s protest. On February 18, 2010, Appellant filed
an administrative appeal. By agreement of the parties, no hearing was held and
the appeal proceeded on the filings alone. On March 23, 2010, the Court of
Common Pleas of Mercer County entered judgment affirming the decision of
Appellee to allow the referendum petition on the ballot. Appellant appeals from
this decision and raises the following assignments of error.
First Assignment of Error
[Appellee] erred in not eliminating from count all signatures on
the page of zoning referendum petition when the circulator of
that page also signed that page as a petitioner.
Second Assignment of Error
[Appellee] erred in not eliminating from count all signatures on
every page submitted by a circulator where that circulator had
permitted a person to sign another’s name to one of the pages
submitted.
Third Assignment of Error
Where two separate zoning amendments are combined into one
issue on a zoning referendum petition, [Appellee] should reject
the petition as misleading, inaccurate and contains (sic) material
omissions.
The Ohio Constitution provides for liberal construction of provisions for
referendums. See S.I. Dev. & Const., L.L.C., et al. v. Medina Cty. Bd. Of
Elections, et al., 100 Ohio St.3d 272, 2003-Ohio-5791, 798 N.E.2d 587 and
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Stutzman v. Madison Cty. Bd. Of Elections, 93 Ohio St.3d 511, 2001-Ohio-1624,
757 N.E.2d 297.
{¶4} In the first assignment of error, Appellant alleges that when the
circulator signs a petition as well, all of the signatures on that page should be
deemed as invalid. The Appellee was required to “[r]eview, examine, and certify
the sufficiency and validity of petitions and nomination papers, and, after
certification, return to the secretary of state all petitions and nomination papers
that the secretary of state forwarded to the board. R.C. 3501.11(K). The
Secretary of State is responsible for advising boards of election as to how to
perform their duties. R.C. 3501.05. Pursuant to this statute, the Secretary of State
issued a directive informing the boards of election how to review petitions.
“Please note that if a circulator signed his or her own part petition just the
circulator’s signature is invalid as a signer of the petition.” Directive 2010-01,
Ohio Secretary of State. In this case, Appellee deemed invalid the circulator’s
signature, but did not invalidate the others on the page. This procedure was in
conformance with the directive and is thus not an abuse of discretion. The first
assignment of error is overruled.
{¶5} The second assignment of error alleges that if one petition page is
invalidated, all pages by that circulator should be invalidated. “In a petition for a
referendum of a township zoning-amendment resolution, a part or part-petition
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refers to each petition circulated for signatures and includes the name and number
of the proposed zoning amendment, a summary of the amendment, a request to
submit the amendment to the township electors at an election, spaces for elector
signatures, and a statement of an elector circulating the part-petition.” State ex
rel. Gemienhardt v. Delaware Cty. Bd. Of Elections, 109 Ohio St.3d 212, 2006-
Ohio-1666, 846 N.E.2d 1223, ¶34. Each part-petition is individually evaluated.
R.C. 3501.38.
An individual is not permitted to sign a name other than his or
her own name to a petition, except when the individual who
signed the name of another elector did so as the elector’s duly
appointed attorney in fact in accordance with R.C. 3501.382
(R.C. 3501.38(D))[.] If a board of elections determines that an
individual who is not a duly-appointed attorney in fact signed
the name of another elector, that signature must be rejected by
the board of elections. Also, if the board determines that the
circulator knowingly permitted an individual other than a duly-
appointed attorney in fact to sign a name other than his/her own
name to a petition, the board must invalidate the entire part
petition. (R.C. 3501.38(F)).
Directive 2010-01, Ohio Secretary of State. The directive does not require the
board to invalidate every part-petition circulated by that circulator. Additionally,
the Ohio Supreme Court has held that prior fraud by a circulator does not support
a conclusion that all petition papers signed by that circulator are fraudulent. State
ex rel. Hinkle v. Franklin Cty. Bd. Of Elections (1991), 62 Ohio St.3d 145, 580
N.E.2d 767. The court held that the court’s function was not to conduct an
independent evaluation of the petition papers, but rather to determine whether the
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board of elections disregarded the law when making its decision. Id. This court
notes that Appellant has not provided any legal basis for its argument as to why all
of the petition papers signed by one circulator should be invalidated when only
one of them has evidence of fraud. The evidence showed that all of the signatures
on the other pages were found to be legitimate and that there was no reason for
invalidating those part petitions. Given this evidence, there is no abuse of
discretion in validating those signatures. The second assignment of error is
overruled.
{¶6} Finally, Appellant claims that the wording of the petition was
inappropriate because it consolidated two separate zoning resolutions into one
petition.
R.C. 519.12(H) requires that each part of a petition seeking a
referendum on a township zoning amendment shall contain “a
brief summary of its contents.” “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. “The
summary must be accurate and unambiguous; otherwise, the
petition is invalid *175 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.
State ex rel. Columbia Reserve Ltd. v. Lorain County Bd. of Elections, 111 Ohio
St.3d 167, 2006-Ohio-5019, ¶38, 855 N.E.2d 815. When a referendum petition’s
summary of a resolution contains substantially the same wording as the
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resolution, it substantially complies with the brief summary requirement. Id. at
¶39.
{¶7} Here, the resolutions stated as follows.
1. Ronald J. Niekamp moved to approve a change of zoning
from R-2 medium Density Residential to R-3 High Density
Residential for 2 parcels containing 18.8 acres; properties are
located in Section 24, T6S, R4E, Franklin Township, Mercer
County, Ohio and located between Behm Road and the Big
Chickasaw Creek and Thomas N. Rose seconded the motion. * *
*
2. Ronald J. Niekamp moved and Thomas N. Rose seconded
the motion to approve a change of zoning from R-2 Medium
Density Residential to RC Resort Commercial for a parcel
containing 34.2 acres; properties are located in Section 24, T6S,
R4E, Franklin Township, Mercer County, Ohio and located
between Behm Road and the Big Chickasaw Creek.
Nov. 18, 2009, Minutes of Franklin Township Meeting. The brief summary states
as follows.
A proposal to amend the zoning map of the unincorporated area
of Franklin Township, Mercer County, Ohio, adopted
November 18, 2009 to rezone property owned by Mercer
Development of approximately 18.8 acres from Medium-Density
Residential District (R-2) to High-Density Residential District
(R-3), and of approximately 34.2 acres from Medium-Density
Residential District (R-2) to Resort Commercial District (RC).
The properties are located in Section 24, T6S, R4E, Franklin
Township, Mercer County, Ohio, and located between Behm
Road and the Big Chickasaw Creek.
Petition for Township Zoning Referendum. Although the petition combined both
resolutions into one referendum, the language of the petition was substantially the
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same as that in the resolutions. Appellant argues that by combining the two
resolutions into one, the petition became ambiguous because a voter may
agree/disagree with only one of the resolutions, not both. However, Appellant has
not provided any legal authority as to why the two resolutions cannot be
combined into one petition for referendum. This court sees no legal basis for
precluding the combination of two resolutions. The mere fact that the resolutions
were combined does not make the brief summary inaccurate, confusing, or
ambiguous. If the voter does not agree with the entire petition, they are free to
vote against it. Thus, Appellee did not abuse its discretion in approving the
petition. The third assignment is overruled.
{¶8} Since Appellant followed the directives of the Secretary of State in
making its decision, the judgments reached are not unreasonable, arbitrary or
capricious and the trial court did not err in determining that Appellant did not
abuse its discretion. Accordingly, for the aforementioned reasons, it is the order of
this Court that the Judgment Entry of the Court of Common Pleas of Mercer
County be, and hereby is, affirmed.
Judgment Affirmed
PRESTON, J. concurs.
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ROGERS, J., concurring in part, dissenting in part.
{¶9} I concur with the majority in its analysis and result reached in the
first two assignments of error, but I respectfully dissent regarding its disposition of
assignment of error number three.
{¶10} As stated in the majority opinion, R.C. 519.12(H)’s mandate that a
referendum petition on a township zoning amendment contain a brief summary of
the zoning amendment resolution’s contents specifically requires that the summary
be ‘“accurate and unambiguous.’” State ex rel. Columbia Res. Ltd., 111 Ohio
St.3d 167, at ¶38, quoting S.I. Dev. and Constr., LLC, 100 Ohio St.3d 272, at ¶17.
Specifically, 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 (1993), 67 Ohio St.3d 556, 559, quoting
Nunneker v. Murdock (1983), 9 Ohio App.3d 73, 77. Furthermore, “[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 and Sands, Inc. v. Franklin Cty. Bd. of Elections
(1984), 12 Ohio St.3d 140, 141, citing Markus v. Bd. of Elections (1970), 22 Ohio
St.2d 197.
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{¶11} In reviewing the language contained within the petition, the wording
substantially follows that of the two separate zoning resolutions. However, the
combining of the two resolutions into one petition prevents voters from deciding
on each resolution separately. For example, some voters may feel compelled to
vote for the petition, despite the fact that they disagree with one of the resolutions,
solely on the basis that they desire to approve the other resolution and see no other
alternative to accomplishing that goal. In order for a voter to be able to make a
“free, intelligent and informed decision,” and for the petition to “fairly and
accurately” present the resolutions for a vote, I would find that each resolution
must be presented in a separate petition.
{¶12} Furthermore, I would find that the combining of two resolutions in
one referendum petition is contrary to law. R.C. 519.12(H) provides no authority
for combining two resolutions in one referendum petition, and the Appellee has
cited none.
{¶13} The statute provides, in pertinent, part as follows:
The proposed amendment, if adopted by the board, shall
become effective in thirty days after the date of its adoption,
unless, within thirty days after the adoption, 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 that area for approval or rejection * * * . 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.
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R.C. 519.12(H).
{¶14} The statute speaks in terms of a single amendment and a single
resolution, referring to the amendment in the singular, and the zoning amendment
resolution in the singular. I would find that combining multiple resolutions in one
petition violates the language and intent of the statute, and would reverse the
decision of the trial court.
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Mercer Dev., L.P. v. Mercer Cty. Bd. of Elections
Combined Opinion