Truman v. Village of Clay Center

825 N.E.2d 1182, 160 Ohio App. 3d 78, 2005 Ohio 1385
CourtOhio Court of Appeals
DecidedMarch 25, 2005
DocketNo. OT-04-023.
StatusPublished
Cited by10 cases

This text of 825 N.E.2d 1182 (Truman v. Village of Clay Center) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Truman v. Village of Clay Center, 825 N.E.2d 1182, 160 Ohio App. 3d 78, 2005 Ohio 1385 (Ohio Ct. App. 2005).

Opinion

Skow, Judge.

{¶ 1} Appellant, Joan Truman, appeals the decision of the Ottawa County Court of Common Pleas that awarded summary judgment to appellees, the village of Clay Center, Wfiiite Rock, Inc., and Richard Iffland, the village clerk of Clay Center. For the following reasons, we reverse.

{¶ 2} Wfliite Rock owns the parcel at issue, a 93-acre tract of land. Wflien Wfliite Rock purchased the parcel, a portion of the parcel lay within Clay Center and the remainder lay within Allen Township. White Rock petitioned Clay Center to annex the entire parcel to Clay Center, and the annexation was subsequently approved. According to the applicable Clay Center zoning regulations, parcels of land annexed to Clay Center are automatically designated as residentially zoned. Wishing to conduct quarrying operations on the parcel, White Rock petitioned the Clay Center Zoning Commission to rezone the parcel from residential to manufacturing class. Appellant’s residential property lies near the parcel.

{¶ 3} On January 6, 2003, the Clay Center Zoning Commission approved WTiite Rock’s petition and recommended to the Clay Center Council that the parcel be rezoned for quarrying. On March 10, 2003, the council held a public hearing on White Rock’s request to ratify the zoning commission’s recommendation. A group of citizens from both Clay Center and Allen Township, including appellant, attended the hearing and expressed their opposition to the rezoning. After the hearing, the council, on motion, voted unanimously to accept the zoning board’s *81 recommendation. The council took no other action at that meeting aside from approving the motion.

{¶ 4} On April 7, 2003, appellant filed suit in the Ottawa County Court of Common Pleas against White Rock and Clay Center, requesting (1) a declaratory judgment that the council’s motion to accept the zoning commission’s recommendations was an illegal and void zoning change, since an ordinance was required to change zoning, and (2) injunctive relief barring Clay Center from officially rezoning the parcel for manufacturing and barring White Rock from commencing quarrying operations. Since passing an ordinance is a legislative act subject to referendum, and the council vote to approve the zoning change did not constitute an ordinance, appellant filed her initial complaint as an administrative appeal.

{¶ 5} In response, the council passed Ordinance 3-2003 on June 9, 2003. 1 That day was a regular council meeting day, and no public notice was given of council’s intent to pass this particular ordinance during this meeting. The council drafted the ordinance as an emergency ordinance, pursuant to R.C. 731.30; this statute requires ordinances to contain a section justifying the necessity for an emergency designation. Ordinance 3-2003 states as its justification, “[T]his Ordinance is hereby declared to be an emergency measure and shall take effect and be in from and after its passage [sic]. The reason for the emergency lies in the fact that this is necessary for the immediate preservation of the public welfare, and for the particular reason that this ordinance is immediately necessary for the public welfare adequate police power for said territory [sic].”

{¶ 6} Pursuant to R.C. 731.29, emergency ordinances may not be challenged by referendum. Regardless, appellant proceeded to prepare a referendum petition to place Ordinance 3-2003 on the November 2004 ballot, including gathering the required electors’ signatures, as if the ordinance were not an emergency ordinance and thus challengeable by referendum.

{¶ 7} In order to place a referendum on a ballot, a petition must comply with R.C. 731.29 et seq., which governs how referendum petitions must be filed, what petitions must contain, and the procedures governing petitions. Most relevant here is the statute’s requirement that a referendum petition be filed with the city auditor or the village clerk within 30 days of the contested ordinance’s passage.

{¶ 8} On July 8, 2003, 29 days after the council passed Ordinance 3-2003, appellant went to Clay Center’s town hall in order to file the referendum petition with Iffland, Clay Center’s village clerk. Clay Center’s town hall shares building space with the local fire department, and it contains the Clay Center office, which *82 includes the Clay Center clerk’s office. Iffland testified that there is no separate office or room from which he conducts his duties as clerk; rather, he has a desk inside the single office for Clay Center. Appellant testified that the Clay Center office door was closed and locked when she first arrived that morning. Later that same morning, appellant returned to the office and encountered Merle Fondessy, the president of the council and a member of the Clay Center Zoning Commission. Fondessy testified that he had opened the office to make photocopies. Appellant asked Fondessy whether and when Iffland would return. Fondessy told appellant that he expected Iffland to return at some point later in the day, but he told appellant he could not specify a time. Fondessy testified that appellant did not offer to file anything with him or the office but that she asked only when Iffland would be in the office. Fondessy did not offer to help appellant with anything.

{¶ 9} According to appellant’s testimony, after the encounter with Fondessy, she returned to the office on July 8 about once every hour, for a total of “six to seven times,” and each time she found the Clay Center office closed and locked.

{¶ 10} On the 13th and last day to timely file the petition, July 9, 2003, appellant returned to the Clay Center office to file the petition with Iffland. Early that morning, appellant found the office door locked. She returned to the office throughout the day, “approximately every hour looking for [Iffland],” and she found the office door locked each time. At approximately 3:00 p.m., intent on filing the petition with someone, appellant telephoned both Iffland and Fondessy at their homes. No one answered. She also telephoned the Clay Center mayor; he was not home. She drove to Iffland’s and Fondessy’s homes and knocked on their doors, and no one answered. She returned to the Clay Center office again and found it locked. Appellant then went to the post office, which is immediately adjacent to the Clay Center office. Appellant asked the postal clerk to “certify” the petition to Iffland on that date. The clerk refused her request to certify the petition; instead, the postal clerk suggested she sign a certified mail ticket. Appellant filled out the certified mail ticket to Iffland, attached it to the referendum petition, and the postal clerk stamped it. Since Iffland’s mailbox was in the post office, the clerk then immediately placed the petition in Iffland’s mailbox. Iffland testified that he received all official mail for Clay Center in this mailbox. On the morning of July 10, 2003, one day after the 30-day filing deadline, Iffland received the mail from the post office mailbox and signed the certified mail receipt.

{¶ 11} Iffland testified that he thought the petition was late when he received it. Therefore, he informed appellant that he could not accept the petition.

{¶ 12} Appellant then amended her initial complaint at the trial court to include Iffland as a party and added a claim for a writ of mandamus, asking the court to

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Bluebook (online)
825 N.E.2d 1182, 160 Ohio App. 3d 78, 2005 Ohio 1385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/truman-v-village-of-clay-center-ohioctapp-2005.