Board of Elections rejects one zoning referendum
LANCASTER - One decision made, one to go.
After a nearly two-hour evidentiary hearing before three of the four members of the Fairfield County Board of Elections, the Board by a 2-1 vote granted the protest filed by Licking-Fairfield Corporation and rejected the referendum petition. Chair Dale Graham is in Florida and didn't participate. Acting chair Dwight Andrews and member Allan Reid voted to grant the protest. Member John Dolske opposed it.
The issue arose after Walnut Township Trustees, by a 2-1 vote, approved its zoning commission's recommendation that approximately 289 acres owned by Licking-Fairfield Corporation be rezoned from Rural Residential to I-2 (Industrial-General). The tract stretches east from Ohio 37 and across Millersport Road. Licking Fairfield owner Ed Parrish lives on the site.
Parrish said township officials asked him several years ago to seek industrial zoning for this property and again in January. He reluctantly agreed to do so this year. Parrish has no specific development plans and has repeatedly emphasized that he is a farmer, not a developer. His corporation also owns property in Licking Township near Lakewood Schools that has been zoned industrial for nearly 10 years. That property has not been developed and Parrish actively farms it.
Some neighbors and other residents started a petition drive to put the rezoning issue on the November ballot. A total of 158 valid signatures of registered voters living in the unincorporated portions of the township were required to put it on the ballot.
Attorney Steven A. Davis of Crabbe, Brown & James LLP, filed a protest with the Fairfield County Board of Elections contending that the referendum petitions failed to comply with Ohio Revised Code 519.12 in several respects. Davis asked for an evidentiary hearing before the Board. Neighbor and attorney John Harker appeared pro se for the petitioners.
In his opening, Davis said there are three requirements for a valid petition:
• Valid number of signatures;
• An accurate brief summary; and
• An appropriate map.
He said a sufficient number of valid signatures were filed. Davis said the summary referred to a "heavy industrial district" which isn't a term used in the Walnut Township zoning resolution. He said the use of the term "heavy" conjours up a "bit of nastiness." Walnut Township calls I-2 "general industrial."
Davis said the key issue is the map. "Two point five (2.5) acres right smack dab in the middle is not part of this zoning," he told Board members. "The map is wrong."
Harker countered that "Licking Fairfield picked the map. It is the only map that has been made." Harker called Walnut Township Zoning Inspector Ralph Reeb as a witness. Reeb said the original map filed with the application had a line around the 2.5 acres that Licking Fairfield doesn't own. He didn't know whether copies of that map showed the line on the original. Neighbor Mary Sue Slater, called by Harker, said the map included with the petitions was the same one sent by the township to adjoining property owners.
In his closing, Davis said a recent Supreme Court of Ohio decision speaks directly to the issue at hand. In Columbia Reserve Ltd. v. Lorain County Board of Elections, 2006, the unanimous court declared, "The mere fact that the petitioners received the inaccurate map from the township does not alter their duty under R.C. 519.12(H) to submit an appropriate map with their petition." Davis added, "You have the burden of putting in an appropriate map."
He acknowledged that the issue is a "technicality," but one that was put there intentionally by the General Assembly. The issue is the right of property owners to use their property as they see fit. Zoning is a recognized mechanism to limit property rights and R. C. 519.12 gave electors "a path" to challenge zoning decisions. The legislature intentionally made it difficult and technical, Davis said. "All the evidence is that the map is wrong," Davis concluded.
In his closing, Harker said, "It was the only map. You are being asked to take people's right to vote away. We're asking that the people be allowed to vote."
Acting chair Andrews and member Reid agreed that the map was "inappropriate and misleading." Their finding stated, "The majority of the board of elections finds that the map was inappropriate and inaccurate because a 2.50 acre parcel appears to be included in the area to be rezoned when, in fact, the 2.5 acre parcel was not to be included in the area sought to be rezoned. The board of elections, in accordance with State ex re. Columbia Reserve Ltd v. Lorain County Bd. of Elections, (2206), 111 Ohio St. 3 167, 855 N.E. 2d 815, find that such inaccuracy would mislead the average elector about the area affected by the zoning resolution."
Board members also decided that the petitioners had met the "brief summary" requirement, finding that "the 'Heavy Industrial' misnomer refers only to something other than I-1 'Light Industrial' and would not mislead the average person about the use to which the affected area would be put."
Parrish was not celebrating Tuesday. He is concerned about the rights of property owners and the ability of the township to attract commercial and industrial businesses to help take some of the school funding pressure off residential property owners. He expects to be growing corn and soybeans on the tract for years.
Harker told The Beacon Wednesday that the petitioners have two options. They can appeal the Board of Elections decision to the Court of Common Pleas and they can directly attack the township's zoning decision in the same court. He plans to talk with some referendum supporters over the weekend. Harker expects they will make a decision on what action to pursue next week.
Monday afternoon, the Board held a three-hour hearing on the protest filed by Jerry and Barbara Mock against a referendum petition seeking to let voters make the final decision on whether approximately 66 acres on the west side of Ohio 37 should be rezoned from I-1 (light industrial) to I-2 (general industrial).
Trustees unanimously approved the rezoning on May 6. They termed their approval as correcting a mistake made by township officials who had told the Mocks that I-1 zoning would be sufficient for their planned business activities. Township officials later determined that I-2 zoning is required since the businesses are not conducted inside buildings as I-1 requires.
Neighbors objected, contending that the Mocks have expanded their operations far beyond their original plans by adding concrete grinding and unloading/processing of construction and demolition debris (C&DD). Their concern has increased since learning that the Mocks are evaluating the site for a C&DD landfill.
The Mocks listed eight grounds for the protest. Prominent Columbus election law attorney Donald J. McTigue presented their case Monday afternoon.
Late Monday afternoon, after a 30-45 minute executive session. Board members said they would resume deliberations on the Mock protest Friday morning. The Board has scheduled a meeting for 9 a.m. at its Liberty Center offices and expects to return to executive session to reach a decision.