IN THE SUPREME COURT OF OHIO

STATE OF OHIO EX REL.EDWARDS LAND CO., LTD., et al. . CASE NO: 11-1266

vs.

Relators,ORIGINAL ACTIONIN PROHIBITION ANDMANDAMUS

DELAWARE COUNTY BOARDOF ELECTIONS,

Respondent.

MERIT BRIEF OF RESPONDENTDELAWARE COUNTY BOARD OF ELECTIONS

Donald J. McTigue (0022849)Mark A. McGinnis (0076275)J. Corey Columbo (0072398)McTIGUE & MCGiNNis LLC545 East Town StreetColumbus, Ohio 43215Telephone: (614) 263-7000Facsimile: (614) 263-7078e-mail: dmctiguecr^electionlawQroup.com

mmc '̂nnisna electionlawgroup.comccolombonn,electionlawgroup.com

Larry H. James (0021773)Andy Douglas (0000006)Laura M. Comek (0070959)CRABBE, BROWN, & JAMES LLP500 South Front Street, Suite 1200Columbus, Ohio 43215Telephone: (614) 229-4557Facsimile: (614) 229-4559e-mail : li amesgcbj lawyers. com

adou las cbjlawyers.comlcomek ,cbjlawyers.com

COUNSEL FOR RELATORS

AUG 1^2011CLE.RK OF QOURT

%i\LHli4/L6 ^

COUNSEL FOR RELATORSCarol Hamilton O'Brien (0026965)Prosecuting AttorneyDelaware County, OhioChristopher D. Betts (0068030)Assistant Prosecuting AttorneyDelaware County, OhioCOUNSEL OF RECORDPROSECUTING ATTORNEY'S OFFICEDELAWARE COUNTY, OHIO140 North Sandusky Street, 3`d FloorDelaware, Ohio 43015Telephone: (740) 833-2690Facsimile: (740) 833-2689e-mail: cobrienkco.delaware.oh.us

cbettsa co.delaware.oh.us

COUNSEL FOR RESPONDENT

ii

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. iii

TABLE OF AUTHORITIES .............................................................................................iv

1. INTRODUCTION ..................................................................................................1

II. STATEMENT OF FACTS AND CASE ................................................................2

III. ARGUMENT .......................................................................................................... 3

A. Standard of Review ..........................................................................................3

B. Election Laws are Mandatory and Require Strict Compliance ........................ 5

C. The Board Did Not Abuse Its Discretion and AppropriatelyApplied Ohio Rev. Code § 519.12(H), Which RequiresReferendum Petitioners to Filed a Referendum Petition WithinThirty (30) Days of Township Trustees' Adoption of a ZoningAmendment . . .................................................................................................... 6

D. The Board Did Not Abuse Its Discretion and AppropriatelyApplied Ohio Rev. Code § 519.12(H), Which RequiresReferendum Petition Be Accompanied by an Appropriate Mapof the Area Affected by the Zoning Proposal . ............................................... 11

IV. CONCLUSION ....................................................................................................14

CERTIFICATE OF SERVICE .........................................................................................15

APPENDIX ......................................................................................................................16

iii

TABLE OF AUTHORITIES

Case Law

Bd. of Twp Trustees v. Spring Creek Gravel Company (1975),45 App.2d 288,344 N.E.2d 156 ...........................................................................................................7, 8, 9

Columbus v. DeLong (1962), 173 Ohio St. 81, 180 N.E.2d 158 .......................................8

Crates v. Garlock Bros. Const. (1991), Third Dist., 1991 WL 229216 ..........................8, 9

Driscoll v. Austintown Assoc. (1975), 42 Ohio St.2d 263, 328 N.E.2d 395 ......................8

Goldstein v. Christiansen (1994), 70 Ohio St.3d 232, 638 N.E.2d 541 .........................3, 4

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 ................................................................11, 12, 13

State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections,80 Ohio St.3d 302, 1997-Ohio-315, 686 N.E.2d 238 .........................................................4

State ex rel Crabtree v. Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247,673 N.E.2d 1281 ....................................................................................:............................4

State ex rel. Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 476, 764 N.E.2d 971 .... 5

State ex rel. Eshleman v. Fornshell, 125 Ohio St.3d 1, 2010-Ohio-1175,925 N.E.2d 609 ...............................................................................................................3, 4

State ex rel. Gemienhardt v. Delaware Cty. Bd. of Elections, 109 Ohio St3d 212,2006-Ohio-1666, 846 N.E.2d 1223 ..................................................................................12

State ex. rel. Knowlton v. Noble Cty. Bd. of Elections, 126 Ohio St.3d 483,2010-Ohio-4450, 935 N.E.2d 395 ..................................................................................3, 4

State ex rel McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346,2005-Ohio-4758, 835 N.E.2d 336 ................................................................................5, 11

State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143,1995-Ohio-269, 656 N.E.2d 1277 ..................................................................................3, 4

State ex rel. Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459,852 N.E.2d 145 .................................................................................................................12

State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333,881 N.E.2d 1214 .................................................................................................................5

iv

Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923,778 N.E.2d 32 ............................................:........................................................................4

Statutes

Ohio rev. Code § 121.22 .....................................................................................................8

Ohio Rev. Code § 507.04 ....... ............................................................................................8

Ohio Rev. Code § 519.12 ..........................................................................................passim

Ohio Rev. Code § 3501.39 .................................................................................................4

Rules

S.Ct. Prac. R. 10.9 .............................................................................................................. 5

v

I. INTRODUCTION

The Liberty Township Board of Township Trustees ("Trustees") approved

Liberty Township Zoning Proposal LTZ 09-01 ("LTZ 09-01") to re-zone 216.3 acres of

three (3) parcels in Liberty Township, Delaware County, Ohio from Farm Residence

District (FR-1) to Planned Residence District (PR) ("Township"). Following this

approval, residents circulated and filed a Referendum Petition ("Petition"). The

Respondent, Delaware County Board of Elections ("Board"), certified the referendum to

the November 8, 2011 ballot. The Relators, who are the owners and/or developers of the

parcels and who sought to re-zone the parcels, filed a protest against the certification

("Protest"). Following a hearing on the Protest, the Board affirmed the certification of

the referendum to the ballot.

The Relators bring this original elections matter to expel the referendum of LTZ

09-01 from the ballot. To this end, the Relators challenge the Board's decision to deny

the Protest and certify the referendum to the ballot.

The Relators' challenge the Board's decision on two (2) grounds. First, the

Petition was not timely filed in accordance with R.C. § 519.12(H). Second, the map

which accompanied the Petition was not appropriate pursuant to R.C. § 519.12(H).

Concluding otherwise, according to the Relators, is an abuse of discretion and is contrary

to law.

The Board, however, did not abuse its discretion. In denying the Protest and

certifying the referendum to the ballot, the Board considered the issues and the evidence.

Having considered both, the Board determined that the Petition met the form

1

requirements of R.C. § 519.12(H). Accordingly, the Board appropriately denied the

Protest and certified the referendum to the ballot.

For all the reasons that follow, the Relators are not entitled to the requested writ

of prohibition.

II. STATEMENT OF FACTS AND CASE

Except for the following, the Respondent agrees with the statement of facts and case in

the Merit Brief of Relators:

A. The Respondent does not agree that "Because of the proximity of the November 8,

2011 election, Relators lack an adequate remedy in the ordinary course of law."

(Merit Brief of Relators, pg. 2).

B. The Respondent does not agree that "The statutory thirty (30) days began to run at

that time [April 4, 2011]. For Respondent or the Petitioners to say anything else is

disingenuous. By any reading of Webster's Dictionary or Black's Law Dictionary,

the plain meaning of thirty days from adoption means thirty days. The language of

the statute [R.C. § 519.12(H)] is plain and the vote equally so." (Merit Brief of

Relators, pg. 3).

C. The Respondent does not agree that "June 3, 2011 was sixty (60) days after the

adoption of Rezoning Proposal LTZ-09-01." (Merit Brief of Relators, pg. 4).

D. The Respondent does not agree that "Furthermore, the maps on file [with Liberty

Township] did not ever change with respect to the 216.3 acres subject of the

rezoning. Any of the maps filed over the course of two (2) years and kept on file

2

with Liberty Township would have been `appropriate' and more accurately reflected

the `affected area."' (Merit Brief of Relators, pg. 4).

E. The Respondent does not agree that "Had the Petitioners submitted any of the several

maps on file with the Township - for over two years, this issue would not exist."

(Merit Brief of Relators, pg. 4).

F. The Respondent does not agree that "The Board's Decision is set forth without any

basis (rational, factual evidence or observation of applicable law)." (Merit Brief of

Relators, pg. 5).

The Respondent adds the following to the statement of facts:

A. The Petitioners were heard at the July 18, 2011 hearing before the Board.

B. Prior to the July 18, 2011 hearing, the Petitioners filed a response with the Board to

the Protest Against Petition for Zoning Referendum For Liberty Township Rezoning

Proposal LTZ 09-01. (Evidence of Relators - B-3).

III. ARGUMENT

A. Standard of Review

The issuance of a writ of prohibition is dependent upon the Relators establishing

1) that the board of elections and its members have or are about to exercise quasi-judicial

power, 2) the exercise of that power is unauthorized by law, and 3) the denial of the writ

will result in injury for which no other adequate remedy exists in the ordinary course of

law State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 144-

3

145, 1995-Ohio-269, 656 N.E.2d 1277, 1279 citing Goldstein v. Christiansen (1994), 70

Ohio St.3d 232,234-235, 638 N.E.2d 541, 543 and State ex. rel. Knowlton v. Noble Cty.

Bd. of Elections, 126 Ohio St.3d 483, 2010-Ohio-4450, 935 N.E.2d 395, ¶ 32, citing

State ex rel. Eshleman v. Fomshell, 125 Ohio St.3d 1, 2010-Ohio-1175, 925 N.E.2d 609,

¶ 11. The Relators fail to establish these requirements.

As to the first and second prongs, the Board admittedly exercised quasi-judicial

authority. This exercise of authority was authorized by R.C. § 3501.39. Pursuant to such

authority, the Board appropriately applied and acted consistent with R.C. § 519.12(H).

The Board never exceeded this authority.

The standard as to whether the Board acted outside of its authorized authority is

whether the Board "engaged in fraud, corruption, or abuse of discretion, or acted in clear

disregard of applicable legal provisions." Whitman v. Hamilton Cty. Bd. of Elections, 97

Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. Fraud and corruption are not

alleged. Abuse of discretion is alleged, but implies "an unreasonable, arbitrary, or

unconscionable attitude." State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd.

of Elections, 80 Ohio St.3d 302,305, 1997-Ohio-315, 686 N.E.2d 238, 241 citing State ex

rel. Crabtree v. Franklin Cty. Bd. of Health (1997), 77 Ohio St.3d 247, 249, 673 N.E.2d

1281, 1283. The actions of the Board do not possess any of these qualities or attributes

and are not an abuse of discretion. Instead, the Board gave due consideration to the

applicable law and applied the law appropriately.

The third prong concerning the availability of other remedies is a matter of

timing. Both the Board's action and the filing of the Complaint in this matter were taken

well in advance of the date of the election. The Complaint was filed on July 26, 2011,

4

more than ninety (90) days prior to the election and outside of the applicability of the

expedited election matters calendar imposed by S.Ct. Prac. R. 10.9. The Rule expressly

requires an expedited schedule "to give . . . [this Court] adequate time for full

consideration of the case." S.Ct. Prac. R. 10.9. This implies that actions filed outside of

the ninety (90) day window are not so close to the date of the election as to preclude a

conventional schedule and the possibility of other legal remedies. Thus, at the time of

filing, other legal remedies were available to the Relators. The Relators simply choose

not to avail themselves of those remedies.

Based on the foregoing, the Relators have not met the burden of establishing the

there (3) prerequisites for the issuance of a writ of prohibition. The Realtors are therefore

not entitled to the writ.

B. Election Laws are Mandatory and Require Strict Compliance

This Court has set the standard by which election laws are to be applied. "[T]he

settled rule is that election laws are mandatory and require strict compliance and that

substantial compliance is acceptable only when an election provision expressly states that

it is." State ex rel. Stoll v. Lo ag n Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-

333, 881 N.E.2d 1214, ¶ 32 citing State ex rel. Ditmars v. McSweeney (2002), 94 Ohio

St.3d 472, 476, 764 N.E.2d 971. This rule applies to R.C. § 519.12(H). "Because R.C.

519.12(H) does not expressly state that substantial compliance is sufficient, strict

compliance is required. Stoll at ¶ 32, citing State ex rel. McCord v. Delaware Ctv. Bd. of

Elections, 106 Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 36.

5

The Board recognized and applied this standard to its review of the Petition. The

Board took no liberties and applied the provisions of R.C. § 519.12(H) as written. Where

ambiguity existed due to a lack of interpretation, the Board continued to hold to the

standard and attempted to apply the particular provision of R.C. § 519.12(H) as intended.

C. The Board Did Not Abuse Its Discretion and Appropriately Applied Ohio

Rev. Code & 519 12(H) Which Reauires Referendum Petitioners to File a

Referendum Petition Within Thirty (30) Days of Township Trustees'

Adoption of a Zoning Amendment.

This issue centers on the meaning of a single word. That word is "adoption" as it

appears in the context of R.C. § 519.12(H). The Relators admit that this word has never

been defined and that the context in which it appears has never been interpreted. (Merit

Brief of Relators, pg 9.) The reason, according to the Relators, is because the "language

is so plain and so unambiguous." Id. More likely, the unique facts to draw this language

into question have not occurred until now.

In relevant part, R.C. § 519.12(H) states:

[t]he proposed zoning amendment ... 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, signed by anumber of registered electors.... [Emphasis Added.]

The date of "adoption" by the board of township trustees is the date which starts the thirty

(30) day clock to file a petition. This date is either the date the board of township trustees

verbally voted to approve the proposed zoning amendment or the date the board of

township trustees approved the meeting minutes which memorialized that vote.

If the term "adoption" means the date that the Trustees verbally voted to approve

the re-zoning, then the Petition would not be timely. The Trustees voted on the re-zoning

6

on April 4, 2011. The petition for the referendum was not filed until sixty (60) days later

on June 3, 2011. However, if "adoption" means the day that the minutes were approved

by the Trustees, then the petition would be timely. The minutes of the April 4, 2011

meeting were approved on May 4, 2011 and the petition was filed thirty (30) days later

on June 3, 2011. The term "adoption" must mean the later; the date that the minutes are

approved. The minutes of the meeting contain written documentation of the approved

zoning. As a result they serve a necessary function in the preparation of a referendum

petition. Just as a court requires the written record of a hearing to hear an appeal, citizens

proposing a referendum need the minutes to prepare a petition.

Absent a written record, citizens lack the details necessary to prepare a valid

referendum petition. Because election laws, including R.C. § 519.12(H), require strict

compliance, written documentation of the approved zoning is critical to preparation of a

petition. Without such documentation, townships and re-zoning applicants hold an

advantage. The possibility of errors rises where a document is prepared from memory.

Where strict compliance is required, it is unreasonable to require a referendum petition to

be prepared from memory or mere notes. Official minutes are critical to compliance with

the law and a valid petition. Therefore, in the context of R.C. § 519.12(H), defining the

word "adoption" to mean at the time the minutes are approved is both necessary and

logical.

The critical function minutes serve in the preparation of a referendum petition has

been noted by the Second District Court of Appeals. That Court recognized that "[t]he

failure to record the adoption of an amendment substantially affects the right to request a

referendum." Bd. of Twp. Trustees v. Spring Creek Gravel Company (1975),45 App.2d

7

288, 289, 344 N.E.2d 156, 158. While the Court did expound on the issue of referendum,

the Court the concluded that "[w]here there is no record of the adoption of an amended

zoning regulation by the township trustees, such amended zoning regulation did not

become law and does not exist." Spring Creek at 292, 159. Applying this holding to the

current circumstances means that the re-zoning did not take effect and did not exist until

the recorded minutes were approved by the Trustees.

As this Court has held, the adoption of zoning amendments are a legislative act.

Driscoll v. Austintown Assoc. (1975), 42 Ohio St.2d 263, 328 N.E.2d 395. Legislative

acts require that complete and accurate records be kept. Spring Creek; Crates v. Garlock

Bros. Const. (1991), Third Dist., 1991 WL 229216 (See Appendix); R.C. § 507.04. To

be valid, the legislative act must be "reasonably certain and definite." Crates at *3 citing

Columbus v. DeLong (1962), 173 Ohio St. 81, 180 N.E.2d 158. Without or "[i]n the

absence of such an accurate record, a rezoning cannot be presumed." Crates at *3. Thus,

prior to the recording and approval of the minutes, there has been no "adoption" of a

zoning amendment.

The requirement that minutes be published further supports that a re-zoning is not

adopted until the minutes are approved. Pursuant to R.C. § 121.22(C), "[t] he minutes of

a regular or special meeting of any public body shall be promptly prepared, filed, and

maintained and shall be open to public inspection." There is no definition of the word

"promptly", but the fact that the statute requires the minutes to be filed "promptly"

suggests that the minutes serve to provide the citizens with notice of legislative action.

Without notice, citizens cannot be presumed to know about the legislative action itself

and the details of such action.

8

While it is arguable that citizens had notice of the adoption of the re-zoning

application by simply attending the public meeting, this argument fails in light of the

requirement that legislative acts must be recorded to be effective. Crates at *3. In fact,

despite a public meeting, the SnringCreek Court concluded that in the absence of a

record of the adoption of an amended zoning regulation, no action occurred. Spring

Creek at 292, 159.

Because the Trustees approval of the re-zoning was not supported by a written

record until the May 4, 2011 approval of the minutes, the Board reasonably concluded

that the "adoption" of the re-zoning did not occur until May 4, 2011. Liberty Township

("Township") apparently concluded similarly. The Township's cover letter received by

the Board with the petitions references the "May 4, 2011 approval of Rezoning

Application LTZ 09-01." [Emphasis Added] (Evidence of Relators - B-6). The Board

was entitled to rely on this piece of evidence for its decision.

While the word "adoption" in R.C. § 519.12(H) has never been defined, it must

now be defined by this Court. Absent a definition, the term is ambiguous and left to

interpretation. Where this occurs there is confusion. Confusion is a recipe for failure;

especially where strict compliance is required.

Failure can come in many forms. As an example, the lack of a definition of

"adoption" effects when a circulator can begin to gather signatures on a petition.

Depending on the interpretation of the word "adoption," residents can begin to gather

signatures on a petition too early or too late. In either case, the gathered signatures or

petition could be invalidated and the residents would effectively be denied the right of

referendum.

9

Even under the confines of strict compliance, latitude should be accorded where

an ambiguity exists. Where a word or phase can reasonably be interpreted in more than

one way, either interpretation should be acceptable compliance until legislation or a court

interprets the term and ends the ambiguity. Applying this to the current situation, there is

no definition for the word "adoption" in the context of R.C. § 519.12(H). The two (2)

interpretations proposed in this case are both reasonable. Given the lack of definition for

this term, the Board's interpretation should be upheld or at least upheld in this instance

with guidance from this Court for the future.

Citizens need to know when the thirty (30) day referendum clock begins to run.

The deadline to file circulated petitions with the board of trustees is impossible to

calculate without knowing where to begin. The right of referendum serves no purpose if

the rules are not clear. The rules need to be clear so that a legitimate referendum effort is

not doomed to failure on a technicality before it even starts.

To be clear and fair, the word "adoption" in the context of R.C. § 519.12(H) must

mean approval of the written record. This is definition is supported by law. It allows

citizens the opportunity to have the written record of the proceedings so that they can

draft an appropriate petition. It also levels the playing field so that citizens are not

potentially subject to schemes whereby a written record is intentionally withheld to

stymie a referendum.

In the present case, the "Record of Proceeding" approving LTZ 09-01 was

approved on May 4, 2011. (Evidence of Relators - F). Thus, May 4, 2011 is the point at

which "adoption" of the re-zoning occurred for purposes of R.C. § 519.12(H). The Board

acted within the confines of the law in considering May 4, 2011 as the date of adoption.

10

The Board did not abuse its discretion in reaching this conclusion. The decision of the

Board to overrule the Protest and consider the Petition as being filed timely should be

upheld. The petitioners and circulators of the Petition should not be punished for an

ambiguous statute.

D. The Board Did Not Abuse Its Discretion and Appropriately Applied OhioRev. Code & 51912(I1) Which Requires Referendum Petition BeAccompanied by an Appropriate Map of the Area Affected by the Zonin^

Proposal.

Pursuant to R.C. § 519.12(H) a petition for a referendum "shall be filed with the

board of the township trustees and shall be accompanied by an appropriate map of the

area affected by the zoning proposal." The map which accompanied the Petition met this

requirement. (Evidence of Relators - B).

Like the rest of R.C. § 519.12(H), the "appropriate map" requirement demands

strict compliance. State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio

St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 36. Substantial compliance is not

permitted. McCord at ¶36. Thus, a map which does not comply with the requirements

of R.C. § 519.12(H) is unacceptable.

This Court has held that "[a] map accompanying a referendum petition should be

considered appropriate or suitable for purposes of R.C. 519.12(H) if it does not mislead

the average person about the area affected by the zoning resolution." McCord, at ¶63.

The map which accompanied the Petition is the official zoning map for Liberty

Township. The map has been approved by the Trustees. As required, it includes "all of

the area affected" by the zoning, but in the larger context of a map of the entire township.

11

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, ¶ 35. As such, the map is an appropriate map and

would not be misleading.

The map remains an appropriate map despite any inaccuracies that may exist

outside of the area affected by the zoning proposal. In referring to a map approved as a

part of the re-zoning, this Court has held that "township electors seeking to exercise their

right of referendum need not attach a map that is more accurate than the map approved by

the board of trustees." State ex rel. Gemienhardt v. Delaware Ctv. Bd. of Elections, 109

Ohio St3d 212, 2006-Ohio-1666, 846 N.E.2d 1223, ¶ 56. The situation is no different

here. The official zoning map has been approved by the Trustees and accurately includes

that area subject to the re-zoning. Thus the map accompanying the Petition was

appropriate.

The map was also appropriate as it was not misleading. The Petition was

circulated without a map. There is no requirement that each part-petition being circulated

for signatures include a map. Columbia Reserve Ltd. at ¶ 32. See also State ex rel.

Russo v. McDonnell, 110 Ohio St.3d 144, 2006-Ohio-3459, 852 N.E.2d 145, ¶ 50 (court

cannot add language to statute or rule). The map, in accordance with R.C. § 519.12(H),

was only included with the Petition once it was filed with the Trustees. As the Trustees

were integrally involved in the re-zoning, the map would not have mislead the Trustees.

Having not been circulated with the Petition, the signers of the Petition could not have

been mislead by the map. No additional signatures could have been attached to the

Petition once it was filed with the Trustees. The Petition was complete at that point.

Thus, no one could have been mislead by the map.

12

An appropriate map must "highlight" and "outline" the area affected. Columbia

Reserve Ltd. at ¶35-36. Admittedly, the map does not visually "highlight" or have an

"outline" around the affected area by the zoning proposal. However, the Petition

contains a written description of the area affected. In accordance with R.C. § 519.12(H),

the Petition must necessarily be "accompanied" by a map. As a result, the written

description in the Petition highlights and outlines the location on the map where the area

affected by the zoning proposal is located. In viewing the Petition and map together, the

average person is not mislead.

As an alternative to the map used, the Relators suggest that the Petitioners could

have used any of the various maps that the Relator submitted to the Townships as a part

of the re-zoning. (Exhibits of Relators - G). These maps, however, are themselves

inaccurate. The maps depict two (2) roads within the proposed development as being

connected. When the Trustees approved the re-zoning, the approval was subject to

amendments that these roads be stubbed, not be connected or gated for emergency access

only. (Exhibits of Relators - E - April 4, 2011 Trustee Minutes). As these maps show

these roads as being connected, they are inaccurate. Thus, any of these maps would have

been inappropriate and misleading.

In determining that the filed map was an "appropriate map of the area affected by

the zoning proposal" the Board acted within the confines of the law and did not abuse its

discretion. The decision of the Board to overrule the Protest and consider the map

appropriate should be upheld.

13

IV. CONCLUSION

The Board acted upon the evidence and pursuant to R.C. § 519.12(H) when it

overruled the Protest. Measuring the Petition against the mandatory requirements of

election law and using the strict compliance standard, the Board determined that the

Petition was filed timely and was accompanied by an appropriate map of the area

affected by the zoning proposal. The Board did not abuse its discretion or disregard

applicable law in reaching this decision. Accordingly, the Board appropriately denied

the Protest and certified the referendum to the ballot. For the foregoing reasons, the

Relators are not entitled to the requested writ of prohibition. The Respondent

respectfully requests that the writ be denied.

Respect ubmitted,PROS FtL G-ATTORNEY

Carbt'Ramilton O'Brien (0026965)Delaware County Prosecuting AttorneyDelaware County, OhioChristopher D. Betts (0068030)Assistant Prosecuting AttorneyDelaware County, OhioPROSECUTING ATTORNEY'S OFFICEDELAWARE COUNTY, OHIO140 North Sandusky Street, 3`d FloorDelaware, Ohio 43015Telephone: (740) 833-2690Facsimile: (740) 833-2689e-mail: cobrien@co.delaware.oh.us

cbetts(c^co.delaware.oh.us

COUNSEL FOR RESPONDENT

14

CERTIFICATE OF SERVICE

In accordance with S. Ct. Prac. R. 10.9(C), the undersigned hereby certifies that a

copy of the foregoing was served on the following listed individual(s) via e-mail at the

19__following e-mail addresses on this the day of filing, being the day of August

2011:

Donald J. McTiguedmcti¢ue(crelectionlawgrouU.com

Mark A. McGinnismmcginnis(cilelectionlawgroup,com

J. Corey Columboccol ombo(a)electionlawgroup.com

Larry H. Jamesljames cbjlawyers.com

Andy Douglasadouglaskcbilawyers.com

Laura M. ComeklcomekAcbilawyers.com

Christopher D. Betts (0068030)Assistant Prosecuting Attorney

15

APPENDIX

APPENDIX TABLE OF CONTENTS

Exhibit No.

Ohio Rev. Code § 519.12 ....................................................................................................1

Crates v. Garlock Bros. Const. (1991), Third Dist., 1991 WL 229216 ...............................2

16

Lawriter - ORC - 519.12 Zoning amendmenw,

519.12 Zoning amendments.

(A)(1) Amendments to the zoning resolution may be initiated by motion of the township zoningcommission, by the passage of a resolution by the board of township trustees, or by the filing of anapplication by one or more of the owners or lessees of property within the area proposed to bechanged or affected by the proposed amendment with the township zoning commission. The board oftownship trustees may require that the owner or lessee of property filing an application to amend thezoning resolution pay a fee to defray the cost of advertising, mailing, filing with the county recorder,and other expenses. If the board of township trustees requires such a fee, it shall be requiredgenerally, for each application. The board of township trustees, upon the passage of such a resolution,

shall certify it to the township zoning commission.

(2) Upon the adoption of a motion by the township zoning commission, the certification of a resolutionby the board of township trustees to the commission, or the filing of an application by property ownersor lessees as described in division (A)(1) of this section with the commission, the commission shall seta date for a public hearing, which date shall not be less than twenty nor more than forty days from thedate of the certification of such a resolution, the date of adoption of such a motion, or the date of thefiling of such an application. Notice of the hearing shall be given by the commission by one publicationin one or more newspapers of general circulation in the township at least ten days before the date of

the hearing.

(B) If the proposed amendment intends to rezone or redistrict ten or fewer parcels of land, as listed onthe county auditor's current tax list, written notice of the hearing shall be mailed by the townshipzoning commission, by first class mail, at least ten days before the date of the public hearing to allowners of property within and contiguous to and directly across the street from the area proposed to

be rezoned or redistricted to the addresses of those owners appearing on the county auditor's currenttax list. The failure of delivery of that notice shall not invalidate any such amendment.

(C) If the proposed amendment intends to rezone or redistrict ten or fewer parcels of land as listed onthe county auditor's current tax list, the published and mailed notices shall set forth the time, date,

and place of the public hearing and include all of the following:

(1) The name of the township zoning commission that will be conducting the hearing;

(2) A statement indicating that the motion, resolution, or application is an amendment to the zoning

resolution;

(3) A list of the addresses of all properties to be rezoned or redistricted by the proposed amendmentand of the names of owners of those properties, as they appear on the county auditor's current tax

list;

(4) The present zoning classification of property named in the proposed amendment and the proposed

zoning classification of that property;

(5) The time and place where the motion, resolution, or application proposing to amend the zoning

resolution will be available for examination for a period of at least ten days prior to the hearing;

(6) The name of the person responsible for giving notice of the hearing by publication, by mail, or by

both publication and mail;

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(7) A statement that, after the conclusion of the hearing, the matter will be submitted to the board of

township trustees for its action;

(8) Any other information requested by the commission.

(D) If the proposed amendment alters the text of the zoning resolution, or rezones or redistricts more

than ten parcels of land as listed on the county auditor's current tax list, the published notice shall set

forth the time, date, and place of the public hearing and include all of the following:

(1) The name of the township zoning commission that will be conducting the hearing on the proposed

amendment;

(2) A statement indicating that the motion, application, or resolution is an amendment to the zoning

resolution;

(3) 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;

(4) The name of the person responsible for giving notice of the hearing by publication;

(5) A statement that, after the conclusion of the hearing, the matter will be submitted to the board of

township trustees for its action;

(6) Any other information requested by the commission.

(E) Within five days after the adoption of the motion described in division (A) of this section, the

certification of the resolution described in division (A) of this section, or the filing of the applicationdescribed in division (A) of this section, the township zoning commission shall transmit a copy of ittogether with text and map pertaining to it to the county or regional planning commission, if there is

such a commission.

The county or regional planning commission shall recommend the approval or denial of the proposedamendment or the approval of some modification of it and shall submit its recommendation to thetownship zoning commission. The recommendation shall be considered at the public hearing held by

the township zoning commission on the proposed amendment.

The township zoning commission, within thirty days after the hearing, shall recommend the approvalor denial of the proposed amendment, or the approval of some modification of it, and submit thatrecommendation together with the motion, application, or resolution involved, the text and mappertaining to the proposed amendment, and the recommendation of the county or regional planning

commission on it to the board of township trustees.

The board of township trustees, upon receipt of that recommendation, shall set a time for a publichearing on the proposed amendment, which date shall not be more than thirty days from the date ofthe receipt of that recommendation. Notice of the hearing shall be given by the board by onepublication in one or more newspapers of general circulation in the township, at least ten days before

the date of the hearing.

(F) If the proposed amendment intends to rezone or redistrict ten or fewer parcels of land as listed onthe county auditor's current tax list, the published notice shall set forth the time, date, and place of the

public hearing and include all of the following:

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(1) The name of the board of township trustees that will be conducting the hearing;

(2) A statement indicating that the motion, application, or resolution is an amendment to the zoning

resolution;

(3) A list of the addresses of all properties to be rezoned or redistricted by the proposed amendmentand of the names of owners of those properties, as they appear on the county auditor's current tax

list;

(4) The present zoning classification of property named in the proposed amendment and the proposed

zoning classification of that property;

(5) The time and place where the motion, application, or resolution proposing to amend the zoningresolution will be available for examination for a period of at least ten days prior to the hearing;

(6) The name of the person responsible for giving notice of the hearing by publication, by mail, or by

both publication and mail;

(7) Any other information requested by the board.

(G) If the proposed amendment alters the text of the zoning resolution, or rezones or redistricts morethan ten parcels of land as listed on the county auditor's current tax list, the published notice shall set

forth the time, date, and place of the public hearing and include all of the following:

(1) The name of the board of township trustees that will be conducting the hearing on the proposed

amendment;

(2) A statement indicating that the motion, application, or resolution is an amendment to the zoning

resolution;

(3) 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;

(4) The name of the person responsible for giving notice of the hearing by publication;

(5) Any other information requested by the board.

(H) Within twenty days after its public hearing, the board of township trustees shall either adopt ordeny the recommendations of the township zoning commission or adopt some modification of them. Ifthe board denies or modifles the commission's recommendations, a majority vote of the board shall be

required.

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 oftownship trustees a petition, signed by a number of registered electors residing in the unincorporated

area of the township or part of that unincorporated area included in the zoning plan equal to not lessthan eight per cent of the total vote cast for all candidates for governor in that area at the most recentgeneral election at which a governor was elected, requesting the board of township trustees to submitthe amendment to the electors of that area for approval or rejection at a special election to be held onthe day of the next primary or general election that occurs at least ninety days after the petition isfiled. Each part of this petition shall contain the number and the full and correct title, if any, of the

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zoning amendment resolution, motion, or application, furnishing the name by which the amendment isknown and a brief summary of its contents. In addition to meeting the requirements of this section,each petition shall be governed by the rules specified in section 3501.38 of the Revised Code.

The form of a petition calling for a zoning referendum and the statement of the circulator shall be

substantially as follows:

"PETITION FOR ZONING REFERENDUM

(if the proposal is identified by a particular name or number, or both, these should be inserted

here) .......................

A proposal to amend the zoning map of the unincorporated area of ............. Township, .................

County, Ohio, adopted .....(date)..... (followed by brief summary of the proposal).

To the Board of Township Trustees of ..................... Township, ................. County, Ohio:

We, the undersigned, being electors residing in the unincorporated area of ....................... Township,

included within the ............. Township Zoning Plan, equal to not less than eight per cent of the total

vote cast for all candidates for governor in the area at the preceding general election at which a

governor was elected, request the Board of Township Trustees to submit this amendment of the zoningresolution to the electors of ........................ Township residing within the unincorporated area of the

township included in the .................. Township Zoning Resolution, for approval or rejection at a

special election to be held on the day of the primary or general election to be held on .. ...(date).....,

pursuant to section 519.12 of the Revised Code.

Street Address Date of Signature or R.F.D. Township Precinct County Signing .............

STATEMENT OF CIRCULATOR

I . .............(name of circulator).........., declare under penalty of election falsification that I am anelector of the state of Ohio and reside at the address appearing below my signature; that I am thecirculator of the foregoing part petition containing .......(number)....... signatures; that I have

witnessed the affixing of every signature; that all signers were to the best of my knowledge and beliefqualified to sign; and that every signature is to the best of my knowledge and belief the signature ofthe person whose signature it purports to be or of an attorney in fact acting pursuant to section

3501.382 of the Revised Code.

. . .... .... ... .. . .. . ... ...... ..........................

(Signature of circulator)

. . .. ... . .. . .. . . ............... .. ....... .. ... ... ...... ..

(Address of circulator's permanent residence in this state)

. . ... . ... . .. ... . .. ....... ......... .............. .......

(City, village, or township, and zip code)

WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE.-

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The petition shall be filed with the board of township trustees and shall be accompanied by anappropriate map of the area affected by the zoning proposal. Within two weeks after receiving apetition filed under this section, the board of township trustees shall certify the petition to the board ofelections. A petition filed under this section shall be certified to the board of elections not less than

ninety days prior to the election at which the question is to be voted upon.

The board of elections shall determine the sufficiency and validity of each petition certified to it by aboard of township trustees under this section. If the board of elections determines that a petition issufficient and valid, the question shall be voted upon at a special election to be held on the day of thenext primary or general election that occurs at least ninety days after the date the petition is filed withthe board of township trustees, regardless of whether any election will be held to nominate or elect

candidates on that day.

No amendment for which such a referendum vote has been requested shall be put into effect unless amajority of the vote cast on the issue is in favor of the amendment. Upon certification by the board ofelections that the amendment has been approved by the voters, it shall take immediate effect.

Within five working days after an amendment's effective date, the board of township trustees shall filethe text and maps of the amendment in the office of the county recorder and with the county or

regional planning commission, if one exists.

The failure to file any amendment, or any text and maps, or duplicates of any of these documents,with the office of the county recorder or the county or regional planning commission as required by thissection does not invalidate the amendment and is not grounds for an appeal of any decision of the

board of zoning appeals.

Amended by 128th General Assembly File No. 29, HB 48, § 1, eff. 7/2/2010.

Effective Date: 08-28-2001; 12-20-2005; 06-01-2006; 2008 HB562 09-22-2008

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Crates v. Garlock Bros. Const. - WestlawNext

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CHECK OHIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND

WEIGHT OF LEGAL AUTHORITY.

Court of Appeals of Ohio, Third District, Hancock County.

Fred J. CRATES, et al., Plaintiffs-Appellants,

V.

GARLOCK BROS. CONSTRUCTION, et al., Defendants-Appellees.

No. 5-91-8. Oct. 31,1991.

Civil Appeal from Common Pleas Court.

Attorneys and Law Firms

Firmin, Sprague & Huffman Co., L.P.A., Stephen A. Roepke, Findlay, for appellants.

Cheetwood & Davies, John S. Cheetwood, Bowling Green, for appellees, Garlock Bros.

Construction, Todd J. and Michael J. Garlock.

Rakestmw & Rakestraw, Gregory A. Rakestraw, Findlay, for appellees, Board of

Trustees of Marion Township, Hancock County.

Opinion

OPINION

HADLEY, Judge.

`1 Plaintiffs-Appellants have appealed the judgment of the Common Pleas Court ofHancock County, which granted summary judgment to Defendants-Appellees, Garlock

Brothers Construction (hereinafter " Garlock") and the Marion Township Board of

Trustees (hereinafter "Trustees") and denied Appellants' motion for summary judgment

and dismissed Appellants' complaint.

Although the complaint in this action was filed on May 25, 1990, it is necessary to thedetermination of the assignments of error that eadier events are examined.

In 1962, the Trustees enacted the Marion Township, Hancock County, Ohio ZoningResolution of 1962 (hereinafter 1962 Resolution"). On September 11, 1985, theTrustees sought by way to amend the 1962 Resolution (hereinafter"1985 Amendment").This amendment did not have any repeal language and stated that it was to amend

Articles III through XVIII of the 1962 Resolution. Appellee Garlock's property remained

zoned as it had before the 1985 Amendment (Agricultural A-1). The 1985 Amendmentwas never submitted to the voters of Marion Township.

On October 13, 1989, Appellee Garlock filed an Application for Zoning Amendment with

the Marion Township Zoning Commission (hereinafter "Zoning Commission") to rezonenineteen acres it owned in Marion Township. The Hancock Regional PlanningCommission recommended rezoning forty-five acres, including the nineteen acres

proposed to be rezoned by Appellee Garlock. On November 14, 1989, the Zoning

Commission recommended to the Trustees the rezoning of the forty-five acres. OnDecember 23, 1989, the Trustees held a special meeting t at which there was a motion

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"to approve Garlock Bros. zoning from Agricultural to R-1" (hereinafter "1989

Rezoning").

On January 22, 1990, residents of Marion Township submitted referendum petitions tothe Trustees requesting that the 1989 Rezoning be placed on the May 1990 primaryballot. This petition referenced a nineteen acre parcel. Subsequently, Appellee Garlock

claimed that the petitions were void because they referenced a nineteen acre parcelwhen the Trustees had rezoned a forty-five acre parcel. A hearing was held on March 7,1990 and the Board of Elections determined that the petitions were insufficient and therezoning issue could not be placed on the ballot because the 1989 Rezoning dealt witha forty-five acre parcel, not a nineteen acre parcel.

On March 23, 1990, Appellant Crates filed a Complaint and Petition for Alternate Writ in

Mandamus with this Court (Crates v. Hancock County Board of Elections (Apr. 3, 1990),

Hancock App. No. 5-90-21, unreported), seeking to compel the Board of Elections toplace the 1989 Rezoning upon the May 8, 1990, primary ballot. The parties presented astipulation of facts to this Court in that case. This Court reviewed the record and denied

the complaint filed by Crates and found the issue of the amount of acreage involved as

being irrelevant. This Court did not reach Crates' argument because although it wasstipulated to, the record did not indicate that a "proper zoning resolution" had beenestablished. 2 The parties stipulated that Appellee Garlock's Application for Zoning

Amendment constituted a proper rezoning resolution, as requested by Appellee

Garlock. However, this Court found that,

*2 "[T]he handwdtten notations at the bottom and on the reverse side of this applicationindicating approval of the application by check mark and signed either by the zoningcommission chairman or the township clerk, are not sufficient to constitute a properlegislative enactment by the township trustees (or any other legislative body)." Crates at

3.

Absent from the record in Crates was the minutes of the December 23, 1989 meeting of

the Trustees. In the case sub judice, the December 23, 1989 minutes have been

included.

Subsequent to this Court's journal entry in Crates, Appellee Garlock requested a site

plan approval for a residential development to be located on the nineteen acre parcel.

The Trustees approved this request.

On September 5, 1990, Appellant filed its amended complaint. Count one of thecomplaint challenged the 1989 attempt to rezone Appellee Garlock's nineteen acre

parcel, and prayed that the purported resolution be declared void. Count two of thecomplaint claimed that R.C. 519.12 had not been complied with inasmuch as all thelandowners had not received the statutory notice mandated therein, and prayed that the1989 Rezoning be declared void. Count three of the Appellant's complaint argued that

the 1985 Amendment was void as it was never submitted to the electors of Madon

Township, and prayed that the 1985 Amendment be declared void.

On January 23, 1991, the trial court granted summary judgment to Appellees becausereasonable minds could come to but one conclusion, which was adverse to Appellants.The trial court denied summaryjudgment to Appellants and ordered that the Appellants'complaint be dismissed. Specifically, the trial court found the 1985 Amendment to be avalid amendment of the 1962 Resolution and that the 1985 Amendment did not need tobe submitted to the electorate. Also, it found that because this Court did not have before

it in Crates, supra, the minutes of the December 23, 1989 Trustees' meeting, this Court

was correct in not finding a proper rezoning. However, with the addition of theDecember 23, 1989 meeting minutes, the trial court found that a proper rezoning had

been completed in response to Appellee Garlock's application for rezoning. It is from

this decision that Appellants have raised seven assignments of error. Appellants haveput these assignments of error into three groups, and we will address the assignments

in the same manner.

Appellants' Trst and second assignments of error relate to count one of their complaint:

FIRST ASSIGNMENT OF ERROR

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Crates v. Garlock Bros. Const. - WestlawNeXt

"THE TRIAL COURT COMMITTED ERROR, AS A MATTER OF LAW, WHEN ITOVERRULED PLAINTIFFS' MOTION FOR SUMMARY JUDGEMENT ON COUNT 1 OFTHE COMPLAINT BY FAILING TO FIND THAT THE THIRD DISTRICT COURT OF

APPEALS' DECISION IN CRATES V. HANCOCK COUNTY BOARD OF ELECTIONS,

# 5-90-21, RENDERED THE 1989 RESOLUTION LEGALLY INEFFECTIVE TOREZONE EITHER A 19 ACRE PARCEL OR A 45 ACRE PARCEL."

SECOND ASSIGNMENT OF ERROR'3 "THE TRIAL COURT COMMITTED ERROR, AS A MATTER OF LAW, WHEN ITSUSTAINED GARLOCKS' MOTION FOR SUMMARY JUDGEMENT AS TO COUNT [1]OF THE COMPLAINT FINDING THE 1989 RESOLUTION TO BE VALID AND LEGALNOTWITHSTANDING THE THIRD DISTRICT COURT OF APPEALS' DECISION IN

CRATES V. HANCOCK COUNTY BOARD OF ELECTIONS, # 5-90-21:'

These assignments of error essentially allege that the 1989 Rezoning is not an effective

rezoning, based on this Court's decision in Crates, supra. Appellees counter these

assignments by arguing that the inclusion of the Trustees' December 23, 1989, minutes

of its special meeting in the record in the case sub judice, result in the action taken at

that meeting to constitute a valid rezoning of nineteen acres of Garlock's property.

In Crates, we held that the October 13, 1989 application for rezoning submitted byAppellee Garlock to the Zoning Commission and the handwritten notations that appearthereupon, were not sufficient to constitute a legislative enactment. In the currentappeal, the minutes of the Trustees' December 23, 1989, special meeting are includedas part of the record. This is now the complete record. We find that the complete recordreveals that there was not a proper rezoning in this case. This holding is not based upon

our decision in Crates. In Crates, we found that based upon the record as presented,

there was not a proper legislative enactment by the Trustees to rezone the real estate inquestion. Herein, we find that based upon the complete record, there is not a proper

legislative enactment.

A necessary element of a valid ordinance or other legislative measure is that theenactment be reasonably certain and definite. See Columbus v. DeLong (1962), 173

Ohio St. 81. The township clerk is required by statute to keep accurate records of allmeetings of the board of trustees. R.C. 507.04. This statute requiring a record be kept ismandatory when the action taken by the township trustees is legislative in nature. Board

of Township Tmstees v. Spring Creek Gravel Co., Inc. (1975), 45 Ohio App.2d 288. The

attempt to secure a rezoning is considered a legislative act. Driscotl v. Austintown

Assoc. (1975), 42 Ohio St.2d 263. In the absence of such an accurate record, a

rezoning cannot be presumed.

The Appellees argue that the complete record of the 1989 action is evidence of arezoning. The trial court agreed with Appellees. We do not agree, as there is an

absence of an accurate complete record, and therefore, no proper rezoning exists. The

December 23, 1989, minutes indicate only that:

"James Oman announced the Trustees [sic] decision to approve Garlock ZoningAmend [sic] from Agricultural to R-1. Motion to confirm Motion by David Spahr toapprove Garlock Bros. Zoning from Agricultural to R-1. Seconded by Paul Huber.

Vote-Spahr-Yes Oman-Yes Huber-Yes"

The minutes are silent as to precisely what land is being rezoned, how much of the landis being rezoned, and where the property is located. Also, there is no authorization torevise the zoning map to reflect the new zoning. Nowhere in the minutes is there anydiscussion of the rezoning prior to the vote. Although the trial court believed that thismotion by the Trustees, which did not indicate the area to be rezoned, was enough to

constitute a legislative enactment, we do not.

*4 As the first assignment of error relies upon Crates, supra, to render the 1989

Rezoning ineffective, we overrule that assignment of erzor. We sustain Appellants'second assignment of error and find that the 1989 Rezoning is void as there was not aproper legislative enactment based upon the complete record.

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Appellants' third, fourth, and Flfth assignments of error relate to Count Two of their

complaint, and are set forth as follows:

THIRD ASSIGNMENT OF ERROR"THE TRIAL COURT COMMITTED ERROR, AS A MATTER OF LAW, WHEN ITOVERRULED PLAINTIFFS' MOTION FOR SUMMARY JUDGEMENT AS TO COUNT 2OF THE COMPLAINT BY FAILING TO FIND THAT MARION TOWNSHIP FAILED TOPROVIDE THE REQUIRED STATUTORY NOTICE TO THOSE PROPERTY OWNERSAFFECTED BY THE PROPOSED REZONING OF THE 45 ACRE PARCEL WHICH ASA MATTER OF LAW WOULD HAVE RENDERED THE 1989 RESOLUTION

UNAUTHORIZED AND INEFFECTIVE."

FOURTH ASSIGNMENT OF ERROR"THE TRIAL COURT COMMITTED ERROR, AS A MATTER OF LAW, WHEN IT

SUSTAINED GARLOCKS' MOTION FOR SUMMARY JUDGEMENT AS TO COUNT 2

OF THE COMPLAINT BY FINDING THAT MARION TOWNSHIP COMPLIED WITHTHE NOTICE PROVISIONS OF SEC. 519.12, OHIO REVISED CODE THEREBY

FINDING THE 1989 RESOLUTION TO BE VALID AND LEGAL."

FIFTH ASSIGNMENT OF ERROR"THE TRIAL COURT COMMITTED ERROR, AS A MATTER OF LAW, WHEN ITINTERPRETED THE NOTICE PROVISIONS OF SEC. 519.12, OHIO REVISED CODE,

IN A MANNER WHICH RENDERS THE TOWNSHIP ZONING AMENDMENT

PROCESS UNCONSTITUTIONAL BY DENYING AFFECTED PROPERTY OWNERS

DUE PROCESS IN THE ADOPTION OF A ZONING AMENDMENT."

Appellants' third, fourth, and fifth assignments of error allege that Marion Township didnot provide statutory notice to all necessary property owners, pursuant to R.C. 519.12

(B), prior to the November 14, 1989 Zoning Commission meeting.

On October 13, 1989, Appellee Garlock filed their application for rezoning with theZoning Commission. That application requested that nineteen acres be rezoned.Individual notice of the application was mailed to the seven property owners who were

the property owners within, contiguous to, and directly across the street from the

nineteen acre parcel.

Pursuant to 519.12(E), within five days after the filing of Appellee Garlock's application

the Zoning Commission transmitted a copy of the application and the relevant text and

map to the Hancock Regional Planning Commission (hereinafter "Planning

Commission") for its recommendation. The Planning Commission recommended thatnot only the nineteen acres requested in the application be rezoned, but alsorecommended that an additional twenty-six acres to the north of nineteen acre parcel be

rezoned from "A-1" (agricultural) to "R-1" (residential).

The addition of the twenty-six acres to the proposed rezoning engulfed seven moreproperty owners who were "within and contiguous to and directly across the street fromsuch area proposed to be rezoned ***." R.C. 519.12(B). Appellants do not dispute thatthese seven additional landowners were not given mailed notice of the proposed

rezoning of forty-five acres.

*5 The Planning Commission's recommendation was considered at the public hearing

held by the Zoning Commission. Subsequently, the Zoning Commission's

recommendation to the Trustees reiterated the Planning Commission's recommendation

that forty-five acres be rezoned, not just the nineteen acre parcel requested by Appellee

Garlock.

R.C. 519.12(B) provides in pertinent part:

"If the proposed amendment intends to rezone or redistrict ten or fewer parcels of land,as listed on the county auditor's current tax list, written notice of the hearing shall be

mailed by the zoning commission, by first class mail, at least ten days before the date of

the public hearing to all owners of property within and contiguous to and directly acrossthe street from such area proposed to be rezoned or redistricted to the addresses of

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such owners appearing on the county auditor's current tax list. The failure of delivery of

such notice shall not invalidate any such amendment."

The clear intent of the statute is that the landowners to be directly affected-those livingon land to be rezoned, those living next to land to be rezoned, and those living directlyacross the street from the area to be rezoned-are to be mailed notice that a rezoningamendment may be applied to their property. As is evidenced by R.C. 519.12, dueprocess requires that before one can deprived of his property, he must be given notice.

See Cleveland Board of Education v, Loudermdt (1985), 470 U.S. 532.

Herein, it is uncontradicted that with the Planning Commission's recommendation that atotal of forty-five acres be rezoned, that seven additional landowners were susceptibleto having the land they owned, land they lived next to, or land directly across the streetfrom them, being rezoned without their knowledge. Appellant argues that the noticeprocedure of R.C. 519.12(B) requires that notice be given only to those landowners thatare affected by the initial application. However, due process requires that in the eventthat during the amendment process additional landowners become affected by amodification by the Planning Commission, Zoning Commission, or Trustees, that theselandowners also receive mailed notice that a proposed amendment may change thezoning on the land they own or which is contiguous to them. a Therefore, we find theZoning Commission's failure to mail notice to all landowners within, contiguous to, anddirectly across the street from the proposed amendment, a deprivation of due process to

those landowners who were not mailed notice.

For the above stated reasons, the third, fourth, and fifth assignments of error are

sustained.

Finally, Appellants' sixth and seventh assignments of error relate to eount three of their

complaint, set forth as follows:

SIXTH ASSIGNMENT OF ERROR"THE TRIAL COURT COMMITTED ERROR, AS A MATTER OF LAW, WHEN ITOVERRULED PLAINTIFFS' MOTION FOR SUMMARY JUDGEMENT AS TO COUNT 3OF THE COMPLAINT BY FAILING TO FIND (1) THAT THE 1985 RESOLUTION WASINVALID AND UNENFORCEABLE AND (2) THAT ANY AMENDMENTS THERETOWITHOUT FORCE OR EFFECT, BECAUSE MARION TOWNSHIP FAILED TOSUBMIT THE 1985 RESOLUTION TO THE VOTERS OF MARION TOWNSHIP INACCORDANCE WITH SEC. 519.11, OHIO REVISED CODE."

SEVENTH ASSIGNMENT OF ERROR`6 "THE TRIAL COURT COMMITTED ERROR, AS A MATTER OF LAW, WHEN IT

SUSTAINED GARLOCKS' MOTION FOR SUMMARY JUDGEMENT AS TO COUNT 3

OF THE COMPLAINT, BY FINDING THAT THE 1985 RESOLUTION WAS PROPERLY

ENACTED AND IN FULL FORCE AND EFFECT."

These assignments of error challenge the validity of the 1985 Amendment. Appellantsargue that the 1985 Amendment is invalid because it was never submitted to the votersof Marion Township. Appellants' also argue that if it was properly enacted, there is stillan issue of whether it was an amendment of the 1962 Resolution or a repeal of the

1962 Resolution.

We find that the 1985 Amendment was not properly enacted.4 Therefore, we are unableto rule on the other issues, because we would first have to know whether the 1985action was an amendment or a repealer, before we could decide whether the action hadto be submitted to the voters of Marion Township.

The trial court based its decision on the mere fact that Appellants and Appellees calledthe minutes of September 11, 1985 an amendment. For the trial court, it was enough tocall the September 11, 1985 minutes an "amendment." However, we find this is clearly

not enough to effectuate a zoning amendment.

The only evidence in the record of the 1985 Amendment is the September 11, 1985minutes, purportedly amending the 1962 Resolution. However, there is no mention inthe minutes of what was changed. More importantly, there is no indication in the record

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Crates v. Garlock Bros. Const. - We*tlawNext Page 6 of 6

that the Trustees knew what they were amending, much less that they had read thedifferences between the 1962 Resolution and the 1985. proposed amendment. If the1962 Resolution and the 1985 Amendment had been set forth as part of the September11, 1989 minutes, this would indicate that the Trustees had read the new proposal andwhat they had accepted. It would further reveal whether this was an amendment or an

attempt to substantively repeal the 1962 Resolution.

Therefore, we find the issue of whether the 1965 Resolution had to be submitted to thevoters of Marion Township an issue that cannot yet be determined, as we are unable todetermine from the record whether this was an attempted amendment or an attemptedrepeal of the 1962 Resolution. We further find that the 1985 Amendment is void as itfails to constltute a properly enacted amendment by the Trustees based upon the record

before us.

We overrule Appellants' sixth assignment of error as there is not sufficient evidencebefore us to determine the effect of the 1985 Amendment. We find the Appellants'seventh assignment of error well taken, concluding that the 1985 Amendment is invalid

as it is not a proper amendment.

This cause is remanded to the trial court for further proceedings in accordance with this

decision.

Judgment reversed and cause remanded.

EVANS and SHAW, JJ., concur.

....Footnotes'''

.....--._,-__-A public hearing was held on December 14, 1989, pursuant to R.C. 519.12

(E), (F) and (H).

2 Although the two actions that occurred on September 11, 1985 andDecember 23, 1989, have both been referred to as "Resolutions",substantively neither is a n:solution. The 1985 action was an attempted

amendment of the 1962 Resolution. The 1989 action was an attemptedrezoning of a specific parcel of real estate which would also require anamendment to the Marion Township Zoning Map. Therefore, hereinafter the

1985 action will be referred to as the "1985 Amendment" and the 1989action will be referred to as the "1989 Rezoning".

3 Since the legislature has seen fit to provide that notice should consist ofmailings in addition to newspaper notification for the interested parties tothe original petition, we hesitate to find that any less notice would bereasonable for the parties affected by any modification.

4 It must be noted that Appellees disagree with Appellants' argument on thebasis of R.C. 519.122. R.C. 519.122 states that the statute of limitations forchallenging the validity of a zoning resolution is two years after theadoption of the zoning resolution. That statute is not applicable to the case

sub judice. Herein, the act occurred on September 11, 1989. R.C. 519.122became effective April 13, 1990. As the legislature did not specificallyprovide that this statute would be applied retroactively, the statute of

limitations is not an issue. See Van Fossen v. Babcock & Wilcox Co.

(1968), 36 Ohio St.3d 100.

End of Document' 0 2011 Thomson Reuters No clalm to orlginal US. Govemment Works.

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