State law authorizes Board of Elections to keep challenge to development plan off of ballot

by Hannah Dankbar

State ex rel. Ebersole v. Delaware Cty. Bd. of Elections
Ohio Supreme Court, September 19, 2014

In June 2014 the City Council of Powell, Ohio approved Ordinance No. 2014-10, which was a development plan for property in downtown Powell. Three citizens circulated petitions to put three items on the  ballot November 2014: to block the Ordinance from taking effect, an initiative to pass an ordinance to repeal Ordinance No. 2014-10, and an amendment to the city charter that would nullify Ordinance No. 2014-10. The City Council approved the referendum and initiative, but the Delaware County Board of Elections refused to put it on the ballot.  The citizens sought a writ of mandamus to get the referendum on the ballot.

The Board of Elections validated the necessary amount of signatures for each thing in order to get it on the ballot. In August 2014 the board met to discuss the protests of the referendum and initiative. The board accepted that the referendum was administrative in nature and therefore not allowed, this held for the initiative as well and that the protest against both petitions on the grounds that the format of the petitions did not comply with the Powell City Charter and forms prescribed by the secretary of state. As a result, none of the actions were certified to make the November ballot. In September the realtors filed a mandamus action, which is denied.

When City Councils act in an administrative, rather than legislative, capacity, their resolutions and ordinances are not subject to referendum. The Board of Elections rejected the referendum petition because it believed that Ordinance No. 2014-10 was passed by the city council in its administrative capacity. The citizens argue that  (1) passing Ordinance 2014-10 was a legislative act, (2) a challenge to the substance of a referendum is unripe until the referendum is approved and (3) that the board has only ministerial duties in the referendum process and lacks authority to review the substance of the referendum.

(1) The test for determining whether an action is legislative or administrative is “whether the action taken is one enacting a law, ordinance, or regulation, or executing a law, ordinance, or regulation already in existence.” City ordinances that adopt final development plans pursuant to preexisting planned community development, without changing the zoning, are not subject to referendum. In fact, the Ohio Supreme Court has made it clear in prior cases that the Board of Elections is required to withhold the initiative and referendum from the ballot.  In the present case, Ordinance 2014-10 complied with the preexisting requirements for the Downtown Business District and the Downtown District Overlay District and did not require any zoning changes.

(2) The citizens alternatively argued that there is no “case or controversy” until the referendum and initiative have been passed.  Thus, the Board of Elections’ objection was premature.  However, the Board of Elections has an affirmative duty to review the content of proposed referenda and initiatives. The best, and only, time to fulfill this duty is before the election.

(3) The realtors argue that the Powell City Charter does not give the Board of Elections the authority to review the content of referenda or initiatives; rather their job is to certify the number of electors.  The court disagreed. The Powell charter is silent on the question of the board’s power to conduct protests, and therefore no conflict exists. Moreover, Article VI, Section 6.05 of the charter expressly states that where the charter is silent concerning referendum and initiative procedures, state law will govern. Under state law boards of elections are required to, ““[r]eview, examine, and certify the sufficiency and validity of petitions.” As set out in state law, the board was within its statutory authority to conduct the protest hearing.

The Ohio Supreme Court denied the writ filed by the citizens.

Rejection of amendment to zoning ordinance not subject to referendum

by Melanie Thwing and Gary Taylor

Grant County Concerned Citizens v. Grant County Board of Commissioners
(South Dakota Supreme Court, February 2, 2011)

Grant County Concerned Citizens proposed an amendment to the zoning code of Grant County, South Dakota as allowable under SDCL 11-2-28 . This amendment would increase setbacks for Class A, B, C, and D Concentrated Animal Feeding Operations. The amendment was referred to the Planning and Zoning Board for review and recommendation. The Planning and Zoning Board took testimony, deliberated, and ultimately voted unanimously to reject the proposed amendment.  At the County Commissioners’ meeting public comments were again received.  A motion to approve the amendment died for lack of a second, and therefore the amendment was officially rejected.

The petitioners then filed a petition under SDCL 11-2-22 and SDCL §§ 7-18A-15 to -24 to refer the amendment to a public vote. At the next County Commissioners meeting, the request for a referendum petition was rejected on the grounds that the matter was not one that could be referred to the voters under state law.

The petitioners appealed the denial of the referendum in circuit court, which issued a letter agreeing with the Board. It agreed that the amendment was not a legislative decision and could not be referable to a referendum.

The petitioners appeal to the Supreme Court arguing that a proposed amendment to a zoning ordinance that has been rejected by the county commission is referable to a referendum vote.

SDCL §11-2-22 states:

The comprehensive plan, zoning ordinance, and subdivision ordinance may be referred to a vote of the qualified voters of the county pursuant to §§ 7-18A-15 to 7-18A-24.  The effective date of the comprehensive plan, zoning ordinance, or subdivision ordinance on which a referendum is to be held shall be suspended by the filing of the referendum petition until the referendum process is completed.”

The court determines that the language of the statute does not contemplate referring to the referendum process a proposed amendment that was rejected, as suspension of the effective date of the plan or ordinance implies that there must be some affirmative action.

Even if the rejected amendment could be construed to fall under SDCL §11-2-22, it would still need to be consistent with §§ 7-18A-15 to 7-18A-24. These state that an ordinance must be “adopted by a board of county commissioners” to qualify for a referendum.  In this case the board rejected, and did not adopt the amendment.

Further, §§ 7-18A15.1 limits the referendum process to only issues of legislative decisions of a board. It defines a legislative decision as one, “that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers.  Any matter of a permanent or general character is a legislative decision [.]”  Using this definition, the circuit court came to the conclusion that the decision was not legislative because it enacted nothing. The Supreme Court agreed with this decision, stating that for the action to be eligible for referendum it must be an affirmative action that effects some change in an existing ordinance , ultimately it must change the “status quo.”

The court held that the process of referendum is present to serve as a constitutional right for the people to have an act submitted for their approval, which without the action would become law. It is also a means to stop laws which are not in effect to give the people an additional way of expressing their views on a legislative proposition. The circuit court was correct in their decision.

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