[Cite as State ex rel. Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd. of Elections, 123
Ohio St.3d 260, 2009-Ohio-4980.]




     THE STATE EX REL. MILLER DIVERSIFIED HOLDINGS, L.L.C., ET AL. v.
                       WOOD COUNTY BOARD OF ELECTIONS.
  [Cite as State ex rel. Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd. of
                 Elections, 123 Ohio St.3d 260, 2009-Ohio-4980.]
Prohibition — Writ to prevent board of elections from submitting three township
        zoning resolutions to electorate — Substantial misstatement of acreage in
        referendum petition conveys mistaken and confusing impression of zoning
        resolutions — Writ granted in part and denied in part.
           (No. 2009-1573 ─ Submitted September 17, 2009 ─ Decided
                                  September 28, 2009.)
                                     IN PROHIBITION.
                                 __________________
        Per Curiam.
        {¶ 1} This is an expedited election action for a writ of prohibition to
prevent a board of elections from submitting three township zoning amendments
to the electorate at the November 3, 2009 general election. Because relators have
established their entitlement to the requested extraordinary relief for one of the
three amendments, we grant the writ to prevent the referendum election on that
amendment and deny the writ to prevent the referendum elections on the
remaining amendments.
                                           Facts
                                  Zoning Amendments
        {¶ 2} Relators, Miller Diversified Holdings, L.L.C. (“Miller”) and
McCarthy Builders, Inc. (“McCarthy”), have options to purchase certain parcels
of real estate located in Perrysburg Township, Wood County, Ohio. The parcels
                              SUPREME COURT OF OHIO




are known as the Wolf parcel, the DeChristopher parcel, and the Neiderhouse
parcel.
          {¶ 3} In 2007, Miller and McCarthy, through a commonly owned entity
known as Velocity Development, L.L.C., and with the approval and consent of
the landowners, submitted applications to the Perrysburg Township Board of
Trustees to rezone the three parcels to develop single-family residential
subdivisions. More specifically, Miller and McCarthy sought to rezone (1) about
30.593 acres of the Wolf parcel, which was approximately 41 acres, from R-1
(Rural Residential District) and R-2 (Suburban Residential District) to R-3
(Suburban Residential District), (2) about 98.714 acres of the 99.9-acre
DeChristopher parcel from A-1 (Agricultural District) to R-4A (Suburban
Residential District), and (3) the entire Neiderhouse parcel from A-1 (Agricultural
District) to R-3 (Suburban Residential District).
          {¶ 4} On December 17, 2007, the township board of trustees adopted
resolutions rezoning the three parcels that differed in certain particulars from the
rezoning requested by Miller and McCarthy, including adding conditions. In
Resolution 2007-28, the board of trustees rezoned the Wolf parcel from R-1 and
R-2 to A-1 and R-3, instead of simply to R-3 as requested. In Resolution 2007-
29, the board of trustees approved the application to rezone the specified portion
of the DeChristopher parcel from A-1 to R-4A. In Resolution 2007-27, the board
of trustees rezoned the Neiderhouse parcel from A-1 to A-1 and R-3, instead of
solely to R-3 as requested.
          {¶ 5} As noted, the board’s rezoning of the three parcels was subject to
various conditions. For example, the rezoning of the Wolf and Neiderhouse
parcels was conditioned on the properties being developed substantially in
accordance with preliminary plans attached to the resolutions. In addition, all of
the resolutions contained the following conditions:




                                         2
                                January Term, 2009




       {¶ 6} 1. “Future lot owners in the subdivision developed on the [parcel]
shall not be required to sign annexation petitions and there shall not be any
annexation provisions, powers of appointment or powers of attorney regarding
annexation in future purchase contracts or any annexation covenants in future
deeds that arise as a matter of contract; and
       {¶ 7} 2. “McCarthy Builders, Inc., an Ohio corporation, its successors
and assigns, shall file an affidavit pursuant to R.C. 5301.252, or similar
instrument, releasing the right to annex lots in the Emerald Lakes Subdivision, or
to exercise any powers of appointment or powers of attorney regarding
annexation following the effective date of this resolution, as finally determined,
demonstrating that there exist no contracts or agreements of any kind with owners
of the [parcel], or any real estate that is contiguous to the [parcel], that confer
upon any third party the right to compel the annexation of the [parcel] to any
municipality.”
                        Referendum Petitions and Protest
       {¶ 8} After the township board of trustees passed the resolutions
rezoning the three parcels, certain township residents circulated separate
referendum petitions seeking to submit the rezoning for each of the parcels to
township electors at the November 4, 2008 general election. The petitions were
submitted to the board of trustees, but the board refused to certify the petitions to
respondent, Wood County Board of Elections.
       {¶ 9} Shortly thereafter, certain petition circulators filed a petition in the
Court of Appeals for Wood County for a writ of mandamus to compel the
township, its trustees, and its fiscal officer to certify the referendum petitions to
the board of elections. In February 2009, the court of appeals granted the writ of
mandamus to compel the respondents in that case to certify the referendum
petitions to the board of elections. Hunter v. Britten, 180 Ohio App.3d 755, 2009-
Ohio-663, 907 N.E.2d 360, ¶ 69.




                                          3
                                SUPREME COURT OF OHIO




          {¶ 10} The board of elections voted to certify the referendum petitions to
the November 3, 2009 general election ballot. On August 4, 2009, pursuant to
R.C. 3501.39, Miller and McCarthy filed a written protest with the board of
elections challenging the referendum petitions.       In their protest, Miller and
McCarthy claimed that the petitions were invalid because they (1) failed to
include the resolutions’ express condition that McCarthy file an affidavit releasing
the right to annex the property and demonstrating that no agreements exist that
confer on any third party the right to compel annexation of the property to any
municipality, (2) buried this condition in dense text purporting to be legal
descriptions of the property, (3) contained the wrong acreage of each rezoned
parcel, and (4) did not include maps.
          {¶ 11} On August 26, 2009, the board of elections conducted a hearing at
which it considered the protest. At the conclusion of the hearing, the board of
elections denied the protest.
                                   Prohibition Case
          {¶ 12} On September 1, Miller and McCarthy filed this expedited election
action for a writ of prohibition to prevent the board of elections from submitting
the resolutions to a vote at the November 3, 2009 general election. The board of
elections submitted an answer, and the parties submitted evidence and briefs
pursuant to S.Ct.Prac.R. X(9).
          {¶ 13} This cause is now before the court for our consideration of the
merits.
                                    Legal Analysis
                                  Prohibition Claim
          {¶ 14} Miller and McCarthy request a writ of prohibition to prevent the
board of elections from placing the resolutions rezoning the Wolf, DeChristopher,
and Neiderhouse parcels on the November 3, 2009 general election ballot. To be
entitled to the writ, Miller and McCarthy must establish that (1) the board of




                                          4
                               January Term, 2009




elections is about to exercise quasi-judicial power, (2) the exercise of that power
is unauthorized by law, and (3) denying the writ will result in injury for which no
adequate remedy exists in the ordinary course of law. State ex rel. Finkbeiner v.
Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d
573, ¶ 14.
       {¶ 15} Miller and McCarthy have established the first requirement
because “R.C. 3501.39(A)(2) required that the board of elections conduct a quasi-
judicial hearing on relators’ protest.” State ex rel. Upper Arlington v. Franklin
Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d 177, ¶
16. “[A] board of elections * * * is a quasi-judicial body when it considers
protests.” State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of
Elections (1997), 80 Ohio St.3d 302, 306, 686 N.E.2d 238. “[E]ven if the board
[has] already exercised its quasi-judicial power by denying [the] protest, relief in
prohibition is still available to prevent the placement of names or issues on a
ballot, as long as the election has not yet been held.” Tatman v. Fairfield Cty. Bd.
of Elections, 102 Ohio St.3d 425, 2004-Ohio-3701, 811 N.E.2d 1130, ¶ 14.
       {¶ 16} For the second requirement of the exercise of unauthorized power,
“we must determine whether the board [of elections] acted fraudulently or
corruptly, abused its discretion, or clearly disregarded applicable law.” State ex
rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-Ohio-1292,
846 N.E.2d 8, ¶ 23. There is no claim of fraud or corruption here, so Miller and
McCarthy must establish that the board of elections abused its discretion or
clearly disregarded applicable law by denying their protest and certifying the
resolutions rezoning the parcels for a vote on the November 3 election ballot.
       {¶ 17} For the third requirement for the writ, Miller and McCarthy must
establish the lack of an adequate remedy in the ordinary course of law. State ex
rel. Craig v. Scioto Cty. Bd. of Elections, 117 Ohio St.3d 158, 2008-Ohio-706,
882 N.E.2d 435, ¶ 25.




                                         5
                            SUPREME COURT OF OHIO




                Issues That Were Not Raised in Relators’ Protest
       {¶ 18} In this expedited election case, Miller and McCarthy claim that the
board of elections clearly disregarded applicable law and abused its discretion by
certifying the resolutions rezoning the properties to the election ballot. Among
other things, they claim that the Wolf and Neiderhouse referendum petitions are
invalid because they do not include the preliminary plans attached to the
resolutions rezoning the parcels, that the DeChristopher referendum petition is
invalid because it includes inconsistent amounts of acreage, and that all the
conditions specified in the resolutions are placed in a manner that camouflages
them and makes them confusing.
       {¶ 19} Under R.C. 3501.39(A)(2), a board of elections shall accept any
petition unless a “written protest against the petition or candidacy, naming
specific objections, is filed, a hearing is held, and a determination is made by the
election officials with whom the protest is filed that the petition violates any
requirement established by law.”      (Emphasis added.)      “One of the evident
purposes of this requirement [concerning specifying objections to a petition in a
written protest] is to give notice to the petitioner and the opportunity to present
evidence to rebut the objections specified”; “[t]his purpose is not served if the
board permits protestors to introduce evidence on objections not specified in their
protest.” See Cooker, 80 Ohio St.3d at 308, 686 N.E.2d 238, interpreting the
analogous provisions in R.C. 3501.39(A)(1).
       {¶ 20} Insofar as the issues now raised by Miller and McCarthy were not
raised in their written protest, the court need not consider them. State ex rel.
Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 539, 757
N.E.2d 319. Miller and McCarthy cannot establish that the board of elections
abused its discretion or clearly disregarded applicable law based on claims they
failed to specifically raise in their written protest before the board. Cf. State ex




                                         6
                                January Term, 2009




rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, 881
N.E.2d 1214, ¶ 40.
       {¶ 21} Moreover, because Miller and McCarthy could have raised these
claims in their statutory protest but failed to do so, the availability of the protest
constituted an adequate remedy in the ordinary course of law, which precludes the
requested extraordinary writ on these claims. Cooker, 80 Ohio St.3d at 308, 686
N.E.2d 238, citing State ex rel. Shumate v. Portage Cty. Bd. of Elections (1992),
64 Ohio St.3d 12, 14-15, 591 N.E.2d 1194; R.C. 3501.39(A)(2).
       {¶ 22} Therefore, Miller and McCarthy are not entitled to a writ of
prohibition on claims that they failed to raise in their written protest filed with the
board of elections.
          Condition on Agreements to Annex Property to Municipality
       {¶ 23} In their protest, Miller and McCarthy did raise the argument that
the referendum petitions were invalid because the language setting forth one of
the conditions for rezoning – that McCarthy had to file an affidavit stating that it
had released the right to annex the property and that no agreements existed
conferring on any third party the right to compel annexation of the parcels to any
municipality – was either imprecise, buried in dense text, or otherwise contained
in an inaccurate and misleading summary.
       {¶ 24} “Under R.C. 519.12(H), each part of a petition seeking a
referendum on a township zoning amendment must also contain a ‘brief
summary’ of the contents of the amendment.” State ex rel. Gemienhardt v.
Delaware Cty. Bd. of Elections, 109 Ohio St.3d 212, 2006-Ohio-1666, 846
N.E.2d 1223, ¶ 37.
       {¶ 25} “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. Under the
applicable test, “[t]he summary must be accurate and unambiguous; otherwise, the




                                          7
                            SUPREME COURT OF OHIO




petition is invalid 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.           Therefore, “[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 & Sands, Inc. v. Franklin Cty. Bd. of Elections (1984), 12 Ohio
St.3d 140, 141, 12 OBR 180, 465 N.E.2d 883.
       {¶ 26} The referendum petitions for the Wolf and DeChristopher parcels
contain language in the summaries specifying that the rezoning was “further
conditioned upon McCarthy Builders, Inc. filing an affidavit pursuant to R.C.
5301.252 releasing the right to annex lots in the Emerald Lakes Subdivision or
empowering anyone on its behalf from taking action to annex that property.” The
referendum petition for the Neiderhouse parcel contains comparable language
specifying that the rezoning was “further conditioned upon McCarthy Builders,
Inc. filing an affidavit pursuant to R.C. 5301.252 releasing the right to annex lots
in the Emerald Lakes Subdivision or empowering any one [sic] on its behalf from
taking such action.”
       {¶ 27} Although it is true that this summary language is not in the precise
language of the condition specified in the resolutions and that the language is
located at the end of the summary, after legal descriptions of the property that is
being rezoned, the language used by the petitioners accurately summarizes the
specified condition and would not mislead or confuse the average person. The
mere presence of the legal descriptions of the property in the petition summaries
is not improper even though the resolutions did not include these descriptions.
See State ex rel. Rife v. Franklin Cty. Bd. of Elections (1994), 70 Ohio St.3d 632,
635, 640 N.E.2d 522 (“The obligation to briefly summarize the contents of a
rezoning resolution * * * implicitly requires a referendum petition to accurately
describe property subject to rezoning”); Gemienhardt, 109 Ohio St.3d 212, 2006-




                                         8
                                January Term, 2009




Ohio-1666, 846 N.E.2d 1223, ¶ 41 (“we have never held that summaries are
restricted to the wording of the resolution”).
       {¶ 28} Therefore, Miller and McCarthy have not established their
entitlement to the writ on this claim.
              Incorrect Acreage in Referendum Petition Summary
       {¶ 29} Relators finally claim that the referendum petitions are invalid
because they contain the wrong acreage for the rezoned parcels.
       {¶ 30} Referendum petitions that convey a confusing or mistaken
impression of a zoning resolution by significantly overestimating the acreage
rezoned by the resolution sought to be referred are invalid. O’Beirne, 80 Ohio
St.3d at 180, 685 N.E.2d 502; State ex rel. Hamilton v. Clinton Cty. Bd. of
Elections (1993), 67 Ohio St.3d 556, 562, 621 N.E.2d 391. A slight misstatement
of the acreage, however, is insufficient to withhold the rezoning from the
electorate. See, e.g., Stutzman v. Madison Cty. Bd. of Elections (2001), 93 Ohio
St.3d 511, 515, 757 N.E.2d 297, holding that a de minimis error in the acreage
listed in the title of referendum petition relating to a village ordinance rezoning
property did not violate the R.C. 731.31 requirement that referendum petitions
contain a “full and correct copy of the title of the ordinance” because there was no
evidence or any reasonable argument that the error could have misled electors to
sign a petition that they would not have signed had the correct acreage been listed.
       {¶ 31} For the Wolf parcel, Miller and McCarthy claim — as they did in
their protest — that the referendum petition summary incorrectly specifies that
two parcels, a total of approximately 72 acres, are being rezoned when only the
41-acre parcel was rezoned by the township resolution. Relators’ claim has merit.
The referendum petition concerning the zoning amendment relating to the Wolf
parcel applies to one 41-acre parcel and not to two parcels totaling over 71 acres.
By significantly overestimating the acreage affected by the rezoning, the
referendum petitions conveyed a mistaken and confusing impression of the




                                          9
                             SUPREME COURT OF OHIO




resolution so as to mislead or confuse the average person that the rezoning would
affect considerably more property than actually impacted.
       {¶ 32} This conclusion is not altered by the board’s argument that the
resolution rezoning the Wolf parcel did not refer to the actual acreage rezoned.
“By choosing to summarize the resolution in language other than that employed
by the board of township trustees, [the referendum petitioners’] additional
language had to satisfy the applicable test in R.C. 519.12(H).” Gemienhardt, 109
Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d 1223, ¶ 43. The petitioners did not
satisfy the applicable test when they significantly overstated the acreage rezoned.
Nor did the attachment of a preliminary drawing to the referendum petition
sufficiently clarify or remedy the substantial misstatement of the acreage in the
summary.
       {¶ 33} For the DeChristopher parcel, Miller and McCarthy claim that
rather than simply state that 98.81 acres of the parcel were being rezoned, the
petition contains a lengthy and confusing legal description with inconsistent
amounts of acreage. Relators did not, however, raise this specific claim in their
written protest, and we need not address it. Instead, they claimed in their written
protest only that the referendum petition incorrectly stated that the portion of the
parcel being rezoned was 99.9 acres instead of what they stated was the actual
acreage of 98.81 acres. Assuming that the contention raised in the protest is
accurate, the slight misstatement in acreage is insufficient to withhold the zoning
amendment from the electorate. See Stutzman, 93 Ohio St.3d at 515, 757 N.E.2d
297.
       {¶ 34} Finally, for the Neiderhouse parcel, Miller and McCarthy claim
that based upon auditor records they had submitted as evidence in this case, the
parcel is 40.71 acres instead of the 37.126 acres specified in the referendum
petition. But relators did not cite the auditor’s listing of acreage in their written
protest. Rather, in their protest, Miller and McCarthy argued that the actual




                                         10
                               January Term, 2009




acreage of the parcel is 37.926 acres, or 0.8 acres more than the 37.126 acres
specified as the approximate acreage of the parcel in the referendum petition.
This figure comports with the drawing attached to relators’ application for a
zoning amendment. Again, any minimal misstatement in acreage is insufficient to
preclude a referendum on the zoning amendment. Stutzman, 93 Ohio St.3d at
515, 757 N.E.2d 297.
       {¶ 35} Therefore, relators have established that the board of elections
abused its discretion and clearly disregarded R.C. 519.12(H) by denying their
protest challenging the referendum petition on the resolution rezoning the Wolf
parcel, but they failed to establish any abuse of discretion or clear disregard of
R.C. 519.12(H) by the board of elections in denying the protest challenging the
referendum petitions on the resolutions rezoning the DeChristopher and
Neiderhouse parcels. Relators have also established the lack of an adequate
remedy in the ordinary course of law to challenge the validity of the Wolf
referendum petition on the acreage issue because of the proximity of the
November 3 election. Upper Arlington, 119 Ohio St.3d 478, 2008-Ohio-5093,
895 N.E.2d 177, ¶ 17.
                                   Conclusion
       {¶ 36} Relators have established their entitlement to the requested writ of
prohibition regarding the referendum petition on the resolution rezoning the Wolf
parcel but not for the referendum petitions on the resolutions rezoning the
DeChristopher and Neiderhouse parcels. Therefore, we grant a writ of prohibition
to prevent the board of elections from submitting Perrysburg Township
Resolution 2007-28, which rezones the Wolf parcel, to the township electorate at
the November 3, 2009 election. We deny relators’ remaining claims for a writ of
prohibition to prevent the submission of the resolutions rezoning the other parcels
to the electors at the November 3, 2009 election. This holding is consistent with
our duties recognizing that “[t]he constitutional right of citizens to referendum is




                                        11
                           SUPREME COURT OF OHIO




of paramount importance,” State ex rel. Ohio Gen. Assembly v. Brunner, 115
Ohio St.3d 103, 2007-Ohio-4460, 873 N.E.2d 1232, ¶ 8, and that we liberally
construe R.C. 519.12(H) in favor of the right of referendum, although referendum
petitioners must still strictly comply with that requirement, Gemienhardt, 109
Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d 1223, ¶ 57.
                                                            Writ granted in part
                                                             and denied in part.
        MOYER, C.J., and PFEIFER, O’CONNOR, O’DONNELL, LANZINGER, and
CUPP, JJ., concur.
        LUNDBERG STRATTON, J., dissents and would deny the writ entirely.
                             __________________
        Eastman & Smith, Ltd., Jeffrey M. Stopar, and Lane D. Williamson, for
relators.
        Rayle, Matthews & Coon and Max E. Rayle, for respondent.
                           _____________________




                                       12
