Posted by: Patricia Salkin | November 29, 2011

Ohio Supreme Court Holds Application for Referendum Untimely

Under Ohio law, a property owner within a township may seek a zoning amendment by providing an application to the planning commission.  This application is then sent to a county or regional planning authority, and this body must submit a recommendation.  The township planning commission makes its recommendation, and sends both the regional and township planning commission recommendations to the board of township trustees.  The trustees must then make a decision, which becomes effective in thirty days unless a referendum petition is filed within the thirty days to the county board of elections.

Following this procedure, an application was made for a zoning amendment to rezone 216.3 acres of land from the designation of Farm Residence District to Planned Residence District.    The Liberty Township planning commission voted to recommend approval of the zoning amendment on January 26, 2011.  On April 4, 2011, the Liberty Township Board of Trustees orally amended portions of the zoning resolution and unanimously voted for the approval of the zoning amendment application.  On May 4, 2011, the board met again and approved the minutes from the April 4th meeting, thereby recording the April 4, 2011 oral amendment in writing.  On June 3, 2011, a group of citizens petitioned for a referendum on the rezoning application, which was 60 days from the April 4th oral amendment, and 30 days from the approval of the minutes, on May 4th.  The Realtor submitted a protest to the petition application, claiming, among other things, that it was untimely, and an appropriate map of the subject parcel was not included in the application.  The county proceeded to put the referendum question on the ballot.

In determining whether the referendum request was timely, the court had to determine what the term “adoption” meant, as the time period to apply for a referendum accrues upon the adoption of the amendment, and must be made within 30 days of the accrual.  The court determined that “adoption” meant the date in which the application was approved.  The approval of the application occurred during the oral vote to approve, which was held on April 4, 2011.  The court held that a written recordation is not required; the vote itself constituted the approval as municipalities have no legal obligation to record their approvals in written documents.  Given that the application for referendum was not filed until 60 days after the April 4, 2011 adoption, it was held to be untimely.  Since it was untimely, the court found the respondent board of elections abused its discretion in submitting the question to the ballot, and the Realtor’s writ of prohibition was granted.

Three justices dissented, finding the adopting of the zoning amendment did not occur until the written recordation, as citizens seeking a referendum on the matter would not have an adequate opportunity to petition until they had a copy of what they were opposing.

State ex rel. Edwards Land Co. v. Delaware Cty. Bd. of Elections, 129 Ohio St.3d, 580, 2011-Ohio-4397 (2011)

The opinion can be accessed at: http://www.sconet.state.oh.us/rod/docs/pdf/0/2011/2011-ohio-4397.pdf.


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