State ex rel. C.V. Perry & Co. v. Licking County Board of Elections

764 N.E.2d 411, 94 Ohio St. 3d 442
CourtOhio Supreme Court
DecidedMarch 1, 2002
DocketNo. 02-209
StatusPublished
Cited by15 cases

This text of 764 N.E.2d 411 (State ex rel. C.V. Perry & Co. v. Licking County Board of Elections) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. C.V. Perry & Co. v. Licking County Board of Elections, 764 N.E.2d 411, 94 Ohio St. 3d 442 (Ohio 2002).

Opinion

Per Curiam.

In 1999 and 2000, relator, C.Y. Perry & Co. (“Perry”), contracted to purchase two adjoining parcels of land in Etna Township, Licking County, Ohio. The property was zoned agricultural. In December 2000, Perry applied to change the zoning classification of the property from agricultural to planned unit development so that it could build single-family residences and residential condominiums on the property. In response to concerns raised by neighboring residents of the proposed development, Perry removed the proposed condominiums from the development plan. Perry filed its final development plan, which was dated September 11, 2001.

On November 14, 2001, the Etna Township Zoning Commission recommended to the Etna Board of Township Trustees that Perry’s application to rezone the property to planned unit development for the final development plan be approved. On December 3, 2001, the board of township trustees enacted Resolution 01-12-03-03, which adopted the zoning commission’s recommendation and provided:

“To accept the recommendation of the Etna Township Zoning Commission to rezone the Frontier Ranch property at National Road and York Road from AG to PUD, Final Development Plan dated September 11, 2001 and to send a letter of support to the Licking County Planning Commission for a gate at Daisy Drive or to not have a stub street to Daisy Drive.”

In late December 2001, a petition to have a referendum on the resolution at the May 7, 2002 election was filed with the board of township trustees. The summary of Resolution 01-12-03-03 on the petition provided:

“To rezone a parcel of land commonly referred to as the Frontier Ranch property, which contains approximately 170.46 acres, more or less, located at National Road (U.S. Route 40) and York Road, from AG to PUD, as shown on the attached map.

[443]*443“The proposed amendment was adopted by the Etna Township Trustees on December 3, 2001 as Resolution 01-12-03-03.”

On January 4, 2002, Perry filed a protest with respondent Licking County Board of Elections against the referendum petition. Perry amended the protest on January 15 and 28. On January 28, 2002, respondents, the board of elections, its chairman, and its members, held a hearing on Perry’s protest at which testimonial and documentary evidence was presented. At the conclusion of the hearing, respondents denied the protest and certified the referendum issue for the May 7, 2002 ballot.

On February 4, Perry filed this action for a writ of prohibition to prevent respondents from submitting the referendum issue to the township electors. On February 8, Perry filed a motion to treat this action as an expedited election matter pursuant to S.Ct.Prac.R. X(9). On February 21, respondents filed an answer. This cause is now before the court for our S.Ct.Prac.R. X(5) determination, as well as our consideration of Perry’s motion for expedited consideration.

Motion to Expedite

Perry requests that this case be treated as an expedited election matter under S.CtPrac.R. X(9). S.CtPrac.R. X(9) provides an expedited evidence and briefing schedule when an original action relating to a pending election is filed within ninety days prior to the election. Because Perry’s prohibition action was filed ninety-two days before the May 7, 2002 election, it is not an expedited election matter under S.CtPrac.R. X(9).

Nevertheless, Perry requests that we treat this case as an expedited election matter under S.Ct.Prac.R. X(9) because “[ejxpediting the case will be in the interests of the parties and prevent any interference with the election schedule.”

We grant Perry’s request but only to the extent that we expedite our S.Ct.Prac.R. X(5) determination, ie., following a response by respondents, which has now been filed. “We have consistently required relators in election cases to act with the utmost diligence.” State ex rel. Carberry v. Ashtabula (2001), 93 Ohio St.3d 522, 523, 757 N.E.2d 307. Given the required diligence in election cases, expediting our S.CtPrac.R. X(5) determination will be beneficial to township electors here.

S.Ct.Prae.R. X(5) Determination

Under S.Ct.Prac.R. X(5), we must determine whether dismissal, an alternative writ, or a peremptory writ is appropriate. Dismissal is warranted if it appears beyond doubt, after presuming the truth of all material factual allegations and making all reasonable inferences in favor of Perry, that Perry is not entitled to the requested extraordinary relief in prohibition. State ex rel. Rasul-Bey v. [444]*444Onunwor (2002), 94 Ohio St.3d 119, 120, 760 N.E.2d 421. On the other hand, if, after construing the material factual allegations of the complaint most strongly in Perry’s favor, it appears that his complaint may have merit, an alternative writ should be granted, and a schedule for the presentation of evidence and briefs should be issued. State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d 1, 3, 716 N.E.2d 1114.

In order to be entitled to a writ of prohibition, Perry must establish that (1) the board of elections is about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3) denial of the writ will cause injury for which no other adequate remedy in the ordinary course of law exists. State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93 Ohio St.3d 592, 594, 757 N.E.2d 1135. The dispositive issue here is whether Perry established that the board’s exercise of quasi-judicial authority in denying the protest was unauthorized by law.

In determining whether Perry established this requirement, the applicable standard is whether the board engaged in fraud or corruption, abused its discretion, or acted in clear disregard of applicable legal provisions in denying Perry’s protest. State ex rel. Phillips v. Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 538, 757 N.E.2d 319. Perry asserts that the board of elections abused its discretion and clearly disregarded R.C. 519.12(H) by denying its protest. For the reasons that follow, the board neither abused its discretion nor clearly disregarded R.C. 519.12(H) in denying Perry’s protest, and we deny the requested extraordinary relief in prohibition.

R.C. 519.12(H): Brief Summary Requirement

R.C. 519.12(H) provides that a petition requesting a referendum on a township zoning amendment resolution contain a brief summary of the contents of the resolution:

“Such [zoning] amendment adopted by the board [of township trustees] shall become effective in thirty days after the date of such adoption, unless, within thirty days after the adoption of the amendment, 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 such area for approval or rejection at a special election to be held on the day of the next primary or general election.

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Bluebook (online)
764 N.E.2d 411, 94 Ohio St. 3d 442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-cv-perry-co-v-licking-county-board-of-elections-ohio-2002.