[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,



                                         -2-
Case No. 10-10-08


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



                                        -3-
Case No. 10-10-08


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



                                         -4-
Case No. 10-10-08


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


                                         -5-
Case No. 10-10-08


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



                                        -6-
Case No. 10-10-08


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



                                        -7-
Case No. 10-10-08


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.

/jlr




                                         -8-
Case No. 10-10-08


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.




                                         -9-
Case No. 10-10-08


       {¶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.


                                         -10-
Case No. 10-10-08



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.

/jlr




                                       -11-
