[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Szymanowski v. Grahl, Slip Opinion No. 2015-Ohio-3699.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.



                         SLIP OPINION NO. 2015-OHIO-3699
   THE STATE EX REL. SZYMANOWSKI; DUMMINGER ET AL., APPELLANTS, v.
                              GRAHL, AUD., APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as State ex rel. Szymanowski v. Grahl, Slip Opinion
                                No. 2015-Ohio-3699.]
Elections—Mandamus—Action to compel city auditor to transmit referendum
        petition and related ordinance to county board of elections—Ordinance
        was the “first” measure for purposes of R.C. 731.30, so it was subject to
        referendum—Court of appeals’ judgment reversed—Writ granted.
(No. 2015-1350—Submitted September 9, 2015—Decided September 11, 2015.)
     APPEAL from the Court of Appeals for Sandusky County, No. S-15-004,
                                   2015-Ohio-3074.
                                  ________________
        Per Curiam.
        {¶ 1} This expedited election appeal involves a referendum petition to
invalidate a Fremont City Council Ordinance and thereby save the Ballville Dam
                             SUPREME COURT OF OHIO




from demolition. Appellants sought a writ of mandamus in the Sixth District
Court of Appeals to compel appellee, Paul Grahl, Fremont’s city auditor, to
transmit a certified copy of the ordinance, along with the petitions, to the board of
elections. The appellate court denied the writ. We reverse the judgment of the
court of appeals and grant the writ.
Background
       {¶ 2} On November 20, 2014, the city council of Fremont, Ohio, passed
Ordinance No. 2014-3742, titled “An ordinance authorizing the mayor to proceed
with the process of removing the Ballville Dam and declaring an emergency.”
Although drafted as an emergency measure, it passed only by a simple majority
and therefore did not take effect immediately as an emergency measure and was
subject to referendum.
       {¶ 3} A referendum petition was delivered to Grahl.           Grahl did not
transmit the referendum petition to the board of elections.
       {¶ 4} Clemens Szymanowski, Dennis Dumminger, and Kathie Collins
filed suit for a writ of mandamus, which the court of appeals denied. Dumminger
and Collins appealed as of right, and we ordered expedited briefing.
The issue presented
       {¶ 5} The dispositive question in this appeal is, which municipal
ordinance or resolution triggered the right of referendum relating to the removal
of Ballville Dam? R.C. 731.30 provides:


               Whenever the legislative authority of a municipal
       corporation is required to pass more than one ordinance or other
       measure to complete the legislation necessary to make and pay for
       any public improvement, [the statutory provisions governing
       initiatives and referenda] shall apply only to the first ordinance or




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                               January Term, 2015




       other measure required to be passed and not to any subsequent
       ordinances and other measures relating thereto.


       {¶ 6} The court of appeals held that Ordinance No. 2014-3742 was not
subject to referendum, because it was not the first ordinance passed in connection
with this public-improvement project. 6th Dist. Sandusky No. S-15-004, 2015-
Ohio-3074, ¶ 44. According to the appellate court, city council first approved the
project in 2008, with the passage of Ordinance No. 2008-3462. Id. That measure,
the court found, “specifically call[ed] for ‘the removal of the Ballville Dam.’ ”
Id., ¶ 36. And after that ordinance passed, according to the court, city council
passed five subsequent resolutions and ordinances relating to the Ballville Dam
prior to Ordinance No. 2014-3742. Id., ¶ 33.
       {¶ 7} Dumminger and Collins argue that those prior measures did not
trigger their right to a referendum on removal of the dam. They assert that
“Fremont city council never actually specifically committed to ordaining removal
of the dam until November 20, 2014, and therefore, the citizens had no reason to
seek a referendum beforehand.”
       {¶ 8} Grahl argues that the ordinance in question is a necessary part of a
public-improvement project and the project had two stages: first, construction of a
reservoir, and second, removal of the dam. When the project is considered as a
whole, he contends, Ordinance No. 2014-3742 was “the eighth ordinance and the
tenth legislative act taken by the Fremont City Council” relating to “the public
improvement in question,” and thus was not subject to referendum.
Legal analysis
       {¶ 9} There is little case law defining a “first ordinance” under R.C.
731.30, and what little case law exists is contradictory. On the one hand, there is
State ex rel. Kleem v. Kafer, 13 Ohio App.3d 405, 469 N.E.2d 533 (8th
Dist.1983). The issue in that case was whether referendum was possible on an




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ordinance authorizing a contract for architectural services to alleviate
overcrowding in the Berea Municipal Building. The appellate court held that the
ordinance was not the first action, for purposes of R.C. 731.30, because the city
council had enacted two prior ordinances, one authorizing a contract for
preliminary drawings and a study of costs and needs, and the second on the cost
of acquiring and renovating other buildings for use by the city. Id. at 406-407. In
other words, according to Kleem, the right of referendum is triggered when the
legislature undertakes any action to assess a project, even if approval comes later.
       {¶ 10} On the other hand, there is Peppers v. Beier, 75 Ohio App.3d 420,
599 N.E.2d 793 (3d Dist.1991).
       {¶ 11} Over the course of eight years, the city of Fostoria passed seven
ordinances and a one resolution concerning construction of a reservoir. One
question in the case was which measure was “first” within the meaning of R.C.
731.30, for purposes of preventing the reservoir project by initiative. The trial
court held that the “first” ordinances were passed before the project was officially
approved, citing preliminary ordinances authorizing the mayor to negotiate a
construction agreement with the Ohio Department of Natural Resources
(“ODNR”) and authorizing the city to engage a law firm to acquire land for the
project. See id. at 424.
       {¶ 12} But the court of appeals disagreed. It held that the first measure
passed that was necessary to complete the public improvement was the resolution
declaring the necessity of constructing the reservoir. Id. at 424-425.
       {¶ 13} The analysis in Peppers highlights a little-noted aspect of the
statute. R.C. 731.30 applies, according to its terms, “[w]henever the legislative
authority of a municipal corporation is required to pass more than one ordinance
or other measure to complete the legislation necessary to make and pay for any
public improvement.” (Emphasis added.) The cases almost never discuss what
the word “required” means in that sentence.




                                         4
                                 January Term, 2015




        {¶ 14} The word “required,” in this context, could have at least two
meanings. In their reply brief, Dumminger and Collins argue (for the first time)
that this language applies only to projects that by statute must be authorized in
multiple steps.    Alternatively, “required” could refer to any measure that is
necessary to the completion of the project, which could be any official
authorization or commitment to the project. This appears to be how the Peppers
court interpreted the statute.
        {¶ 15} Resolution of this case does not require us to pick from among the
competing interpretations of the word “required,” so we decline to do so. The fact
is, under any reasonable construction of the statute, Ordinance No. 2014-3742
was the first ordinance required for removal of the Ballville Dam.
The prior ordinances and resolutions
        1. Ordinance No. 2008-3462 and the 2008 contract with ODNR
        {¶ 16} On February 14, 2008, the director of the Ohio Environmental
Protection Agency (“EPA”) issued findings and orders to the city of Fremont
regarding its public water system. Among other things, the director ordered
Fremont to begin construction of an off-stream reservoir to hold approximately
750 million gallons of water. The city was required to begin construction by the
end of November 2008 and to complete construction by March 15, 2011.
        {¶ 17} In response to the EPA’s order, on June 9, 2008, the Fremont city
council passed Ordinance No. 2008-3462.          The first two preamble clauses
mentioned the director’s order to construct the off-stream reservoir by March 15,
2011, and that failure to comply with the order could result in civil and
administrative penalties. The remaining preamble clauses noted that Fremont had
entered into negotiations with ODNR to acquire funding for the reservoir, that
ODNR had committed $5,000,000 from the Boat-Angler Fund toward the
construction of the off-stream reservoir, and that to be eligible for the money, the




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city had to, among other things, allow reservoir access for anglers and “commit to
the removal of the Ballville Dam by December 31, 2012.”
        {¶ 18} Based on these predicate facts, the ordinance ordained: “[T]he
Mayor is hereby authorized to enter into an agreement * * * with [ODNR], in
connection with the construction of an off-stream reservoir and the removal of the
Ballville Dam.”
        {¶ 19} Two days later, the mayor and ODNR signed a “Subsidy
Agreement for Boat-Angler Access Program.” ODNR agreed to commit up to
$5,000,000 to reimburse Fremont for costs incurred in building the reservoir
through June 30, 2009.        “Upon completion of the reservoir,” Fremont was
required to “breach, decommission and remove no less than 75% of the linear
length of the dam to the riverbed elevation such that the channel is unobstructed.”
The agreement provided that “removal of the dam shall be completed by
December 31, 2012.” The record contains four subsequent measures enacted
before that date relating to the dam and/or the reservoir, and none of them
purports to extend that deadline.1
        {¶ 20} Without question, Ordinance No. 2008-3462 authorized removal of
the dam, and was therefore the first opportunity for referendum on the question.
This does not mean, however, that it was also the last opportunity for referendum.
The city’s authorization to remove the dam expired on December 31, 2012.
Thereafter, efforts to remove the dam would require fresh authorization, and that
new authorization measure would restart the opportunity to pursue a referendum.
        {¶ 21} The court of appeals reached a different conclusion because it
determined that the parties had extended the deadline of the original agreement.
2015-Ohio-3074, ¶ 9. On March 20, 2015, a new agreement gave Fremont until


1
 Those measures are (1) Resolution No. 2008-1752 (passed Oct. 16, 2008), (2) Ordinance No.
2009-3483 (passed Feb. 5, 2009), (3) Ordinance No. 2009-3508 (passed Nov. 5, 2009), and (4)
Resolution No. 2011-1811 (passed Jan. 6, 2011).




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                               January Term, 2015




December 31, 2017, to complete the removal of the dam. But by the time that
agreement was executed, the city had already adopted a fresh authorization (the
ordinance at issue here), and the effort to test it by referendum was underway.
The city cannot defeat the application of a referendum by retroactively tying a
new authorization to remove the dam to a project whose authorization had
expired.
         2. Measures enacted between January 2013 and November 2014
         {¶ 22} Between January 2013 and November 2014, the city continued to
consider removing the dam, but the ordinances passed during that time indicate
that the city was not committed to the project. For example, on September 19,
2013, city council increased the budget for the contractor who had been hired to
prepare an environmental-impact statement (Ordinance No. 2013-3655) and
separately increased the budget for the consultant who had been hired to help with
obtaining permits to allow the consultant to create a database of comparable dams
(Ordinance No. 2013-3656). However, there was as yet no final commitment to
the project, as evidenced by Ordinance No. 2014-3695, passed on April 3, 2014,
by which the city approved entering into a contract “for either removing or
repairing the dam.” Finally, on July 17, 2014, city council passed Ordinance No.
2014-3722, which authorized another change order for the environmental-impact
study.
         {¶ 23} A referendum on any of these measures would not have called for a
vote on the question whether or not to remove the Ballville Dam. After the 2008
ordinance approving removal of the dam expired, the issue was not again ripe for
referendum until November 20, 2014, when Ordinance No. 2014-3742 expressly
authorized the mayor to proceed with removal.




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                            SUPREME COURT OF OHIO




Conclusion
       {¶ 24} Based on the foregoing, we grant the writ of mandamus, and we
order the auditor of Fremont to transmit the petitions and certified text of the
ordinance to the Sandusky County Board of Elections.
                                                             Judgment reversed,
                                                               and writ granted.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                              _________________
       Mayle Ray & Mayle, L.L.C., Andrew R. Mayle, Jeremiah S. Ray, and
Ronald J. Mayle, for appellants.
       James F. Melle, Fremont Law Director, for appellee.
                              _________________




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