Opinion
No. 76-500
Decided December 15, 1976.
Townships — Zoning resolution — Referendum petition — Invalid, when.
APPEAL from the Court of Appeals for Cuyahoga County.
A request to rezone an unincorporated area of Olmsted Township in Cuyahoga County was submitted to the township zoning commission. Four paragraphs were contained in the title of the resolution to rezone (hereinafter "resolution"), each dealing with a separate parcel of land.
The township zoning commission approved the rezoning of three of the parcels, but disapproved the rezoning of the fourth; and the resolution, containing all four paragraphs in the title, including the paragraph disapproved by the commission, was transmitted to the board of township trustees together with the recommendation of the zoning commission.
The trustees rejected the commission's recommendation, by a vote of two-to-one. However, because of the requirement of R.C. 519.12 that a vote of the board for denial must be unanimous, the recommendation of the zoning commission was adopted, including the disapproval of rezoning of one parcel by the zoning commission.
R.C. 519.12 provides that "* * * the board [of township trustees] shall either adopt or deny the recommendations of the zoning commission or adopt some modification thereof. In the event the board denies or modifies the recommendation of the township zoning commission the unanimous vote of the board shall be required."
A referendum petition was then circulated by persons seeking submission of the zoning resolution "passed by the Olmsted Township Zoning Commission * * * and adopted at [ sic] the Board of Township Trustees of Olmsted Township * * * to the electors of this area for approval * * *." All four paragraphs in the title of the resolution were then set forth, including the paragraph disapproved by the zoning commission.
The resolution, including all four paragraphs in the title, was certified by the board of township trustees to the Cuyahoga County Board of Elections for placement on the ballot. Following a hearing on objections to the referendum petition on the ground that it was "invalid, as the facts were misstated and the signers were not accurately informed," the board of elections accepted the protest and ordered that the resolution not appear on the ballot.
Minutes of the Cuyahoga County Board of Elections hearing to determine the sufficiency and validity of the petition.
Petitioners then instituted the instant mandamus action in the Court of Appeals to compel the board of elections to place the referendum on the ballot. That court found that the referendum petition "failed to state the correct title of the resolution" because it contained the additional paragraph involving the proposal for rezoning which was not adopted as part of the resolution, and that the impression was "conveyed that all four paragraphs represented the title of a zoning amendment which had been adopted."
The Court of Appeals held that the "statements contained in the referendum petitions did not fairly and accurately present the question; [and] that it could have substantially misled those persons who signed the petitions," and denied the writ of mandamus.
Relator's appeal as of right brings the cause to this court for review.
Messrs. Cain Henn and Mr. Arthur L. Cain, for appellants.
Mr. John T. Corrigan, prosecuting attorney, Mr. John L. Dowling and Mr. Thomas P. Gill, for appellees.
The referendum petition submitted by relators does not indicate anywhere that one of the paragraphs included in the title of the resolution to be voted on was not adopted by the Olmsted Township Board of Trustees. It is apparent, therefore, that the referendum petition does not fairly and accurately present the issues sought to be submitted to the electorate. Markus v. Bd. of Elections (1970), 22 Ohio St.2d 197.
Accordingly, the judgment of the Court of Appeals, denying the writ of mandamus, is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, STEPHENSON and P. BROWN, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for W. BROWN, J.