Case No. 11-1266

In The Supreme Court of Ohio----------------------------------------------------------------

STATE EX REL. EDWARDS LAND CO., LTD., et al.,Relators,

V.

DELAWARE COUNTY BOARD OF ELECTIONS,Respondent.

OriginalAction in Mandamus and Prohibition

AMICUS CURIAE BRIEF OF REFERENDUM PETITION CIRCULATOR

ROBERT COHEN TO ALLOW THE PEOPLE TO VOTE IN A

REFERENDUM REGARDING REZONING PROPERTY IN THEOLENTANGY HERITAGE CORRIDOR SCENIC BYWAY

Donald J. McTigue (0022849)Mark A. McGinnis (0076275)J. Corey Colombo (0072398)McTigue & McGinnis LLC545 East Town StreetColumbus, Ohio 43215Tel: (614) 263-7000Fax: (614) 263-7078dmctigue nelectionlawgroup.commmc,ginnisna electionlawgroup.comccolomboCa^electionlawgroup.com

Larry H. James (0021773)Andy Douglas (0000006)Laura M. Comek (0070959)Crabbe, Brown & James LLP500 South Front Street, Suite 1200Tel: (614)229-4557Fax: (614) 229-4559liames cbjlawyers.comadouQlaift cbilawvers.colcomekacbilawvers.coCounsel for Relators

^IJ L^ I.^ LJ

Christopher D. Betts (0068030)Assistant Prosecuting AttorneyCarol Hamilton O'Brien (0026965)Prosecuting AttorneyDelaware County, Ohio Prosecutor's Office140 North Sandusky Street, 3rd FloorDelaware, Ohio 43015Tel: (740) 833-2690Fax: (740) 833-2689cbetts@co.delaware.oh.usco'brien@co.delaware.oh.us

Counsel for Respondents

Robert G. Cohen (0041707)1657 Wingate DriveDelaware, Ohio 43015

Tel:rcoh

AuU 10 [O i) Pro

CLERK OF COURTSUPREME COURT OF ®HIO

(614) 462-5492(614) 464-2634n5@columbus.rr.com

e as Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORTTIES ......................................................................................................... 3

I. INTRODUCTION ............................................................................................................. 5

II. FACTUAL BACKGROUND .............. .............................................................................. 6

A. The Land Being Rezoned ...................................................................................... 6

B. Township Approval Of The Rezoning And Submission Of The

Referendum Petition . ............................................................................................ 9

III. LAW AND ARGUMENT . ............................................................................................. 10

A. THE RELATORS CANNOT MEET THEIR BURDEN FORESTABILISHING ENTITLEMENT TO A WRIT OF PROIIIBITION .............. 10

B. THE REFERENDUM PETITION WAS TIMELY FILED .............................. 12

1. The Liberty Township Zoning Resolution Provides A Separate

Referendum Right With Respect To Zoning Amendments That Is

Not Subject To The Thirty Day Requirement .......................................... 22

C. AN APPROPRIATE MAP T'HAT WAS NOT MISLEADING WASFILED WITH THE REFERENDUM PETITION ................................................ 25

III. CONCLUSION ................................................................................................................. 29

CERTIFICATE OF SERVICE ................................................................................................... 30

2

TABLE OF AUTHORITIES

Case Law

Board of Twp. Trustees v. Spring Creek Gravel Co., Inc. (2nd Dist App. 1975), 45 OhioApp.2d 288 ....................................................................................................... 5, 13, 14,17,19, 24

Cicerella v. Jerusalem Twp. Bd. of Zoning Appeals (6th Dist. App. 1978), 59 Ohio App.2d31 ................................................................................................................................................... 24

Crates v. Garlock Bros. Constr. (3rd Dist. App., Oct. 31, 1991), 1991 Ohio App. LEXIS5330 ............................................................................................................................................... 15

Harbour v. Olmsted Twp. (e Dist. App., Jan. 10, 1980),1980 Ohio App. LEXIS 13698.......... 24

Kroeger v. Standard Oil Co. (12th Dist. App., Aug. 7, 1989), 1989 Ohio App. LEXIS 3091.....17

Lakewood Homes, Inc. v. Bd. of Adjustment of City of Lima (3rd Dist. App. 1971), 25Ohio App.2d 125 ........................................................................................................................... 13

Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd. of Elections (2009), 123 Ohio St.3d260 ................................................................................................................................................. 11

S.L Development & Constr., L.L.C. v. Medina Cty. Bd. of Elections (2003), 100 OhioSt.3d 272 ....................................................................................................................................... 11

State ex rel Brown v. Butler Cty. Bd. of Elections (2006), 109 Ohio St.3d 63 ......................... 5, 10

State ex rel. Choices for South-Western City Schools v. Anthony (2005), 108 Ohio St.3d 1 ....... 10

State ex rel Columbia Reserve Ltd. v. Lorain Cty. Bd. of Elections (2006), 111 Ohio St.3d167 ........................................................................................................................... ...17, 25, 26, 27

State ex rel Herdman v. Franklin Cty. Bd. of Elections (1993), 67 Ohio St.3d 593 ..................... 18

State ex rel. Long v. Council of the Village of Cardington (2001), 92 Ohio St.3d 54 .................. 20

State ex rel. McCord v. Delaware Cty. Bd. of Elections (2005), 106 Ohio St.3d 346............ 24, 25

State ex rei. v'Beirne v. Geauga Cy. Bd. of Elections (19197), 50 Ohic St.?d 176 ............... 17,1_R

State ex rel. Ohio General Assembly v. Brunner (2007), 115 Ohio St.3d 103 .................11, 21, 24

Tuber v. Perkins (1966), 6 Ohio St.2d 155 .............................................................................14,16

White v. Clinton Cty. Bd. of Commrs. (1996), 76 Ohio St.3d 416 .......................................... 15, 18

3

Statutes, Rules & Townshin Resolutions

Article XXVII of the liberty Township Zoning Resolution ................................................. 22, 23

Liberty Township Trustees' Resolution 11-071104 ..................................................................... 23

R.C. § 121.22(C) ............................................................................................................................ 12

R.C. §519.12(H) ..................................................................................11,12, 22, 23, 24, 25, 26, 29

R.C. §519.12 ............................................................................................................... 22, 23, 24, 25

S.Ct.Prac.R. 13.1(B) ..................................................................................................................... 11

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I. INTRODUCTION

The legislative approval of the rezoning at issue occurred on the date that the Liberty

Township Trustees approved the written minutes reflecting the rezoning of the property. That

date was May 4, 2011. A Referendum Petition comprised of multiple part-petitions containing

743 signatures of registered voters who are Liberty Township residents and reside in the

unincorporated part of the township was presented at the Liberty Township offices on June 3,

2011, within thirty days after the rezoning approval date. A then current official Liberty

Township zoning map, which included the affected area, accompanied the petition.

As shown below, in order to obtain a writ of prohibition, the Relators have the burden of

showing that the Delaware County Board of Elections "clearly disregarded applicable law."

State ex rel Brown v. Butler Cty. Bd of Elections (2006), 109 Ohio St.3d 63, 66. Relators admit

that they are unable to locate any cases that directly address the dispute between the parties in

this case as to whether the thirty day referendum window begins on the date of the trustee's vote

or the date that the trustees approved the minutes setting forth in writing the action taken. (See

Relators' Merit Brf. at 9.) There is, however, law that contradicts the Relators position. In

Board of Twp. Trustees v. Spring Creek Gravel Co., Inc. (2nd Dist App. 1975), 45 Ohio App.2d

288, the Ohio Court of Appeals held that: "Where there is no record of the adoption of an

amended zoning regulation by the township, such amended zoning regulation did not become

law and does not exist." Id at 292. The court in Spring Creek also expressly acknowledged the

right of referendum and stated that "[t]he failure to record the adoption of an amendment

subs antiaily affects the right to requesi a referendum." Id. at 289. Thus, the only law that

directly addresses the issue now before this Court supports the conclusion that the thirty day

referendum window begins with the approval of the minutes in the instant case, i.e., on May 4,

2011. It is respectfully submitted that where the Board of Elections issues a decision that is

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consistent with the only law on the issue, and where the Relators acknowledge that there is no

case law to the contrary, Relators by definition cannot establish that the Board of Elections

"clearly disregarded applicable law." Accordingly, the extraordinary relief that the Relators seek

must be denied.

The referendum effort in this case complied with the applicable law and was not

misleading. Accordingly, the voters of Liberty Township are entitled to their vote with respect

to the rezoning at issue. This amicus curiae brief is submitted by Robert Cohen, a Liberty

Township resident and one of the petition circulators involved in the referendum effort.

II. FACTUAL BACKGROUND

In addition to the factual/procedural background information directly relevant to the legal

issues presented in this appeal, factual background information is included herein regarding the

underlying rezoning decision itself. I understand that this Court is not deciding how the property

should be zoned, and accordingly no evidence is attached regarding the portion of the

background information herein relating to the underlying rezoning (rather, the publicly available

sources of such information are footnoted). Nevertheless, some understanding of the underlying

rezoning issue helps place this dispute into its practical context.

A. The Land Bein¢ Rezoned

The land that is the subject of the Relators' rezoning effort is commonly known by

residents in the area as the Knowlton Farm or Emerald Farms. The land consists of a little over

216 acres and is located in southern Delaware County, both east and west of Olentangy River

Road and immediately south of Home Road. Tne land is west of, arid abuts, the Olentangy

River. It is comprised of rolling farm land and was once part of the farm where successful

6

businessman, former Cincinnati Reds minority owner, Cincinnati Bengals co-founder, and The

Ohio State University College of Architecture namesake Austin E. Knowlton lived.

The land is currently zoned "Farm Residence" under Liberty Township's Zoning

Resolution. The Relators in this case seek to have the land rezoned to "Planned Residence" and

intend to develop a housing subdivision on the land.

The land sought to be rezoned is part of the Olentangy Heritage Corridor Scenic Byway

("Olentangy Scenic Byway"). There are 27 scenic byways in the State of Ohio.l The scenic

byway program, as well as Liberty Township's own Olentangy Heritage Corridor Scenic Byway

Guidelines2, have the stated purpose of preserving the natural beauty and historic topography and

structures found in the designated scenic byways. The development proposed by the Relators is

not consistent with either the Olentangy Scenic Byway Guidelines or the overall look of

development along the existing Olentangy Scenic Byway.

The Liberty Township Zoning Resolution provides that rezoning decisions should be

based upon the consideration of specified criteria, which include conformance with the

township's Comprehensive Plan.3 The Comprehensive Plan, in turn, requires compliance with

the Olentangy Scenic Byway Guidelines when considering zoning and development requests

pertaining to land within the byway.4 Here, the township officials chose to disregard the dictates

of the Zoning Resolution, the Comprehensive Plan and the Olentangy Scenic Byway Guidelines.

While it is not this Court's role in the current dispute to override the township's rezoning

decision, this background is provided so that the members of the Court understand why citizens

'See http://www.dot.state.oh.us/OhioByways/Pages/default.aspx.2See http://www.libertytwp.org/Downloads/OHC_Guidelines_opt.pdf.3See Liberty Township Zoning Resolution, Article X, §10.06.C. (posted on the LibertyTownship, Delaware County, OH website).4See Liberty Township Comprehensive Plan, §8.32 (posted on the Liberty Township, DelawareCounty, OH website).

7

felt strongly enough that they invested their time, money, effort and other resources into pursuing

a referendum.

Liberty Township's Zoning Resolution requires that a rezoning application be submitted

to the Delaware County Regional Planning Commission ("DCRPC") as part of the rezoning

process. After review of the rezoning application in this case, the DCRPC found that the

proposed development was not consistent with the Liberty Township Comprehensive Plan 5 In

addition, during the rezoning process a substantial number of Liberty Township residents

appeared at meetings and spoke in opposition to the proposed development. There was no

apparent support from residents for the rezoning/development proposal at these meetings. The

Liberty Township Trustees' response to the residents was that they could pursue a referendum if

they didn't like the rezoning decision and the proposed development. That is precisely what the

residents have done. The residents now hope that this Court will allow a vote of the citizens to

decide the issue.

Lastly, it is important to note that the residents that supported the referendum petition

effort understand that development of property cannot be prevented. The property at issue in this

case can be developed under its current Farm Residence Zoning. Indeed, much of the land along

the Olentangy Scenic River Byway has been developed pursuant to Farm Residence zoning.6 At

the same time, the cookie cutter tract homes on one-third acre lots, with stucco backs facing the

Olentangy Scenic River Byway (as proposed for the Relators' development) cannot be built

under the current Farm Residence zoning. The proposed development stands in stark contrast to

nearby homes built on large scenic lots in accordance with Farm Residence zoning standards.

5 See Delaware County Regional Planning Commission ("DCRPC") Minutes 01/29/09 at pp. 5-8,posted on the DCRPC website at http://www.dcrpc.org/files/m®12909.pdf.

The approval of development plans that comply with the current Farm Residence zoning arealso not subject to referendum.

8

The people who purchased and built nearby homes made the decision to buy land adjacent to a

large farm with the understanding that it was zoned Farm Residence. 7

B. Township Approval Of The Rezonine And Subniission Of The ReferendumPetition

The legislation that constitutes the zoning code for Liberty Township is known as the

Liberty Township Zoning Resolution. The Zoning Resolution sets forth the procedure for

rezoning within the unincorporated portion of l.iberty Township and provides for hearings and a

vote of the township trustees following a recommendation from the Zoning Commission. The

facts derived from the written record pertaining to the Liberty Township Trustee's consideration

and approval of the rezoning application include the following timeline:

March 15, 2011 Liberty Township Trustees conduct a public hearing regarding theproposed rezoning8

April 4, 2011 Liberty Township Trustees continue their public hearing regarding theproposed rezoning.9

April 18, 2011 Liberty Township Trustees state that the "[m]inutes for meetings heldMarch 15 and April 4, 2011, will be approved at the May 4, 2011,meeting." (See Exhibit C-1 attached to Relators' Merit Brf.)

May 4, 2011 Liberty Township Trustees vote in favor of approving the minutes of theMarch 15, 2011 and April 4, 2011 township trustee meetings lo

June 3, 2011 A Referendum Petition comprised of 35 part-petitions containing a total of743 signatures of individuals who stated that they are qualified electorsresiding in Liberty Township was submitted to the Liberty Townshipoffices, along with the Liberty Township Official Zoning Map.l1

7 While zoning is subject to change, the applicable guidelines require such proposed changes tobe considered in the context of the Comprehensive Plan, and in this case the Olentangy ScenicByway Guidelines. Where a proposed change is not consistent with these guideTmes, the citizensretain a right of referendum regarding rezoning decisions, which serves as a check upon theimproper exercise of the power to rezone property in the community.8 See Exhibit D to Relators' Merit Brief.9 See Exhibit E to Relators' Merit Brief.loSee Exhibit F to Relators' Merit Brief.11 See Exhibit A to Relators' Merit Brief.

9

June 7, 2011 Liberty Township Administrator David Anderson forwards theReferendum Petition to the Delaware County Board of Elections, statingthat "The petitioners are seeking to submit the May 4. 2011 approval ofRezonin¢ Application LTZ 09-01 to the electors of Liberty Townshippursuant to ORC 519.12." (See Exhibit B-6 to Relators' Merit Brf.)(Emphasis added.)

Relators -- both during the protest hearing before the Delaware County Board of

Elections, as well as in their pleadings and evidentiary submission to this Court -- have pointed

to the approved minutes (signed by the Chairman of the Liberty Township Board of Trustees) to

establish the facts relevant to this case. In the absence of a written resolution, such minutes, once

approved, are the only official written record of what occurred at the meeting. The Court may

take judicial notice by reviewing the Liberty Township Trustees (Delaware County, Ohio)

website that certain actions by the trustees are memorialized by written Resolutions. In this case,

the trustees declined to provide any written resolution, leaving the approved minutes as the only

authenticated written record of the action taken.

III. LAW AND ARGUMENT

A. THE RELATORS CANNOT MEET THEIR BURDEN FORESTABILISHING ENTITLEMENT TO A WRIT OF PROHIBITION

In State ex rel Brown v. Butler Cty. Bd. of Elections (2006), 109 Ohio St.3d 63, this Court

explained that in order to "be entitled to" a writ of prohibition "to prevent the board of elections

from submitting [a zoning resolution] to the township electorate":

relators must establish that (1) the board of elections is about to exercise quasi-judicial power, (2) the exercise of that power is unauthorized by law, and (3)denying the writ will result in injury for which no other adequate remedy existsin the ordinary course of the law.

Id. at 65-66 (citing State ex rel. Choices for South-Western City Schools v. Anthony (2005), 108

Ohio St.3d 1). As in the State ex rel Brown case, the focus in this case is upon the second factor

-- whether the exercise of the Board of Elections' power is unauthorized by law.

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This Court has explained the relators' burden in such a case as follows:

Therefore, the dispositive issue for relators' prohibition claim is whether theboard of elections' act of denying Red Pine's protest and submitting theresolution to the electorate was unauthorized by law. In extraordinary actionscontesting a board of elections decision, we must determine whether the boardacted fraudulently or corruptly, abused its discretion, or clearly disregardedapplicable law. Choices for South-Western City Schools, 108 Ohio St.3d 1,2005-Ohio-5362, 840 N.E.2d 582, P32. There is no allegation of fraud orcorruption here, and thus, relators must establish that the board of electionsabused its discretion or clearly disregarded applicable law by denying RedPine's protest. "An abuse of discretion implies an unreasonable, arbitrary,or unconscionable attitude." State ex rel. Cooker Restaurant Corp. v.Montgomery Cty. Bd of Elections (1997), 80 Ohio St.3d 302, 305, 686 N.E.2d

238.

Id. at 66 (emphasis added). S.Ct.Prac.R. 13.1(B) further provides that "[t]he relator shall have

the burden of demonstrating by a preponderance of the evidence that the petition or signatures

thereon do not comply with applicable law." The relators cannot meet their burden here.

Contrary to the Relators' suggestion otherwise, this Court has held:

[Rleferendum provisions should be liberallv construed to permit theexercise of the power. See, e.g., State ex rel. Rose v. Lorain Cty. Bd. ofElections (2000), 90 Ohio St.3d 229, 230-231, 2000 Ohio 65, 736 N.E.2d 886(applying liberal-construction rule for initiative and referendum powersreserved to people of municipalities to township electors).

S.L Development & Constr., L.L.C. v. Medina Cty. Bd. of Elections (2003), 100 Ohio St.3d 272,

275 (emphasis added); see also Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd of Elections

(2009), 123 Ohio St.3d 260, 267 (a township zoning amendment case in which this Court

recognized that "`[t]he constitutional right of citizens to referendum is of paramount

importance,' State ex rel. Ohio Gen. Assembly v. Brunner, 115 Ohio St.3d 103, 2007-Ohio-4460,

873N.-E.2d 1232, 918, and [] we liberally construed R.C. 519.12(li) in favor of the :ight of

referendum ....°'). Here, the petition circulators and the people who signed the Referendum

Petition have complied with the law and eamed the right to vote on this issue.

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B. THE REFERENDUM PETITION WAS TIIVIELY FILED

All parties agree that R.C. §519.12(H) provides for a period of thirty days after the date

of adoption of an amendment to the zoning resolution to present a referendum petition to the

board of township trustees. The dispute here is focused upon when the amendment to the zoning

resolution was adopted.12

Under Ohio law, township trustees are required to promptly record, file and maintain for

public inspection the minutes of any public meeting. See R.C. §121.22(C). It was made clear

during the hearing before the Delaware County Board of Elections that the minutes of the

Liberty Township Trustees' meetings are the official record of what happened and what is used

to determine the action taken by the trustees. As reflected in the protest hearing transcript and

the other documentation filed by Relators with this Court, the Relators have used the minutes of

the board of trustees' meetings, both during the hearing before the Delaware County Board of

Elections and in this Court, to establish the record of what happened. The Secretary to the Board

of Trustees, Kathy Melvin, was called as a witness at the protest hearing. (See 07/18/11 Hrg. Tr.

at p. 19, attached to Relators' Merit Brf.) Ms. Melvin testified that she is the custodian of the

minutes and that she creates and maintains them. (Id. at p. 21-22.) Ms. Melvin testified that she

prepared the minutes of the April 4, 2011 Board of Trustees' meeting "[w]ithin a week, week

and a half, after the April 4th [meeting]." (Id. at p. 24.) Although Ms. Melvin testified that

minutes are "generally [] approved at the next meeting," here we know that despite conducting

another trustees' meeting on April 18, 2011 (the next meeting), the trustees decided to defer any

12 There is no dispute here regarding the duration of time during which the Referendum Petitionwas being circulated and the petition signatures were being obtained. The Referendum part-petitions were circulated, and all signatures on such petitions were obtained, between May 14,2011 and June 1, 2011 - a period of 19 days. (See Affidavit of Robert G. Cohen at 912, includedin the accompanying Appendix.) The dispute in this case is over when the thirty days specifiedin R.C. §519.12(H) began to run.

12

approval of the Apri14, 2011 meeting minutes until May 4, 2011.13 (See 07/18/11 Hrg. Tr. at 25-

26; see also April 18, 2011 meeting minutes, attached to Relators' Merit Brf. as Exhibit C-1.)

When presented with the rezoning application and asked if she had seen it, Ms. Melvin testified:

Q. I'm going to hand you what's been marked for purposes of identificationas Exhibit C, although I know it's been remarked in the Board's records assomething, but this is - appears to be the original application for zoning thatwas filed in connection with this matter.A. Okay.Q. Have you ever seen this before?A. Honestly, I can't say that I have. If it is, it's in with the minutes.

(See 07/18/11 Hrg. Tr. at pp. 22-23.)

The written record, approved by the trustees, of action taken at a Liberty Township Board

of Trustees' meeting constitutes "approval" of the re-zoning application. In Board of Twp.

Trustees v. Spring Creek Gravel Co., Inc., 45 Ohio App.2d 288 (2nd Dist App. 1975), Ohio's

Second District Court of Appeals addressed "the question of the existence of an amended zoning

resolution where there is no record of its adoption by the township trustees." Id. at 288. The

court in that case noted that "[n]o effort was made to correct the minutes and it is undisputed that

13 See Lakewood Homes, Inc. v. Bd. of Adjustment of City ofLima (3'd Dist. App. 1971), 25 Ohio

App.2d 125:The description of the Board of Adjustment's procedures as described by itssecretary who testified in the Court of Common Pleas indicates that there is noactual immediate record made at the time of the hearing. Some informal notesor perhaps tape recordings are made for the use of the secretary in preparing, ata later date, the minutes. Such a record is then prepared by the secretary butsubject to the approval of the Board and signature by the president or by anofficer designated by the Board to so sign. (In fact the minutes were signed bya chairman pro tem.) And it is only after approval and signature that a recordof activities has been permanently made and entered on the books of theBoard.* * * *

In the period intervening between August 14th and August 28th these minuteswere prepared but were not a part of the permanent records of the Board. Thisthey became only after approval and signature.

Id. at 132.

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there is no record of the adoption of the amended zoning resolution." Id. at 289. Testimony was

offered by one of the trustees and the clerk in that case that the amendment was adopted

following a public meeting. Id. The court of appeals in that case stated:

It is worthy of note that R.C. 519.12 provides, among other things, for thesubmission of a petition for a referendum vote within thirty days after theadoption of an amendment to a zoning resolution. The failure to record theadoption of an amendment substantially affects the right to request areferendum . . . .

Id. at 289. The court of appeals in Spring Creek went on to hold that zoning amendments are

legislative enactments, id. at 29014, and noted that "[t]he township trustees are governed by ...

R.C. 121.22, which provides that the minutes of a regular or special session or meeting 'shall be

promptly recorded and such records shall be open to public inspection."' Id. The court further

held:

The imperative reasons of public policy that reauire authenticity ofpermanent public memorials of le¢islative acts is well pointed out in State

ex rel. Herron v. Smith (1886), 44 Ohio St. 348, 7 N.E. 447, 12 N.E. 829;Wrede v. Richardson (1907), 77 Ohio St. 182, 82 N.E. 1072; State v.

Kiesewetter (1887), 45 Ohio St. 254, 12 N.E. 807.* * * *

It is not necessary to rely upon the constitutional implications that may be

argued. Simply stated the statutes reauirina a record of action by thetownship trustees are mandatorv when such action is legislative in nature.Where there is no record of the adontion of an amended zonina regulationby the townshin such amended zoning regulation did not become law anddoes not exist. In the absence of such a record, it is conclusively presumedthat the trustees took no action.

Id. at 292 (emphasis added).

The court of appeals' ruling in Spring Creek cites Ohio Supreme Court law for the

proposition that "imperative reasons of pubiic policy [] require authenticity of permanent publ:c

memorials of legislative acts." This concept embodies multiple concepts with respect to

14 See also Tuber v. Perkins (1966), 6 Ohio St.2d 155, 157 ("the action of a Board of Township

Trustees in adopting or amending a zoning regulation is a legislative action").

14

legislative enactments: (1) authenticity of the records of public acts; (2) permanence of the

record of public acts; and (3) public availability of the record of public acts. In the instant case,

authenticity is determined upon a vote of the trustees approving the written record of the action

they are taking. Similarly, the written minutes are used to create a permanent record and to make

a record of what occurred available to the public. None of these objectives can be accomplished

until the trustees vote to authenticate and memorialize what it is that they say occurred.

Just as a Court's ruling does not become an official action until it is memorialized in a

writing; just as a photograph has no legal evidentiary significance until a witness testifies that the

photograph accurately reflects what they saw on a given date and at a given time; just as a

recording is not an official record of anything until the appropriate person or authority

authenticates it as a representation of particular events; so too, the minutes of an official public

meeting reflect, authenticate and memorialize public legislative action when they are approved

by the decision-making body. As the court of appeals went on to hold in Spring Creek: "Where

there is no record of the adoption of an amended zoning regulation by the township, such

amended zoning regulation did not become law and does not exist." Id. at 292. In the instant

case, the rezoning of the land in question "did not become law and [did] not exist" until the

Liberty Township Board of Trustees approved the April 4, 2011 meeting minutes at the May 4,

2011 trustees' meeting.

Subsequent Ohio case law has confirmed the principles of the Spring Creek case. See,

e.g., Crates v. Garlock Bros. Constr. (3rd Dist. App., Oct. 31, 1991), 1991 Ohio App. LEXIS

5330 at *8-*10; see also White v. Clinton Cty. Bd. of Commrs. (1996), 76 Ohio St.3d 416. 'i"ne

court of appeals in Crates specifically noted, among other things, that "[a] necessary element of a

valid ordinance or other legislative measure is that the enactment be reasonably certain and

15

definite." Id. at *8. The court of appeals in Crates went on to hold that in the "absence of an

accurate complete record [] no proper rezoning exists." Id. at *9. Here the Liberty Township

Trustees' acts were particularly confusing, because they orally amended the Relators' rezoning

application and then voted on the application as orally amended despite the objection of the

applicants themselves to the amendment. (See the April 4, 2011 minutes at p. 6, attached as

Exhibit E to the Relators' Merit Brief.)

Relators' Merit Brief states: "At its May 4, 2011 meeting the Township Trustees

approved the minutes of the Apri14, 2011 meeting. [] The minutes were approved without any

correction, additions, or deletions to any action taken on Apri14, 2011." (Relators' Merit Brief

at 3.) These facts recited by the Relators serve only to highlight the fallacy of their argument

that the thirty days began to run on Apri14, 2011. The point is, until the minutes are approved,

the trustees have not authenticated any record of what occurred, and they can change their action

or correct the record of their action. The lack of authentication by the trustees alone is a basis for

finding that a zoning amendment has not been approved until there is a written authenticated

record of the trustees' action. This is true whether or not the approval of the minutes includes

any changes.

The fact that the zoning amendment by the trustees constitutes legislative action also

serves to emphasize the importance of a written, authenticated record of the legislative action

that was taken by the trustees. See, e.g., Tuber v. Perkins (1966), 6 Ohio St.2d 155, 157 ("the

action of a Board of Township Trustees in adopting or amending a zoning regulation is a

legislative action.") The normal practice when legislative action is taken is to adopt a formal

written resolution. See, id at 157 ("Thus, a Board of Township Trustees in adopting zoning

resolutions is acting in a legislative capacity." (Emphasis added.)); see also State ex rel.

16

O'Beirne v. Geauga Cty. Bd. of Elections (1997), 50 Ohio St.3d 176 (quoting the township's

written zoning amendment resolution); State ex rel Columbia Reserve Ltd v. Lorain Cty. Bd. of

Elections (2006), 111 Ohio St.3d 167, 168-169 (quoting the township's written zoning

amendment resolution); Kroeger v. Standard Oil Co. (12th Dist. App., Aug. 7, 1989), 1989 Ohio

App. LEXIS 3091 at *19 ("In this case, the township clerk performed his duties and accurately

recorded the resolution adopted by the board of trustees amending the zoning of Sohio's

property. Thus, the zoning resolution was valid."). In this case, the testimony before the Board

of Elections during the protest hearing revealed that the Liberty Township Trustees seem to hold

the mistaken belief that rezoning decisions are administrative, rather than legislative:

Q. Mm-hmm. Was there a zoning resolution that you ever saw that wasapproved for this particular zoning - rezoning application?A. We don't do resolutions for zoning.0. Okay. Why not?A. Because they're usually administrative reviews or -- I'm not sure whatother terms the zoning office uses, but they're usually - the zoning is donedifferently. It's not a resolution that's drafted by the board of trustees

(See 07/18/11 Hrg. Tr. at 26-27.) The court of appeals in Bd. of Twp. Trustees v. Spring Creek

Gravel Co., Inc. (2nd Dist. App. 1975), 45 Ohio App.2d 288, specifically noted that "[a] clear

distinction must be made between [] administrative activities and those which assume the nature

and importance of legislative acts . . . ." Id. at 290. With respect to the legislative act of

township trustees in adopting an amended zoning regulation, the Spring Creek court held that

without a record of adoption the "zoning regulation did not become law and does not exist." Id.

at 292.

In the instant case, if there had been a clear written and dated resolution adopting the

rezoning, there would be no issue regarding when the thirty-day period began to ran. In the -

absence of this clear written resolution, the trustees' adoption of the writieri minutes reflecting

17

the rezoning decision was the only record authenticated by the trustees upon which a member of

the public could rely. As this Court held in White v. Clinton Cty. Bd. of Commrs. (1996), 76

Ohio St.3d 416, "keeping full minutes allows members of the public who are unable to attend the

meetings in person to obtain complete and accurate information about the decision-making

process of their government " Id. at 420.

As the Delaware County Board of Elections found: "The adoption date [of the rezoning

amendment] is either May 4, 2011 or so ambiguous as to be impossible to determine." (See

Findings of Fact and Conclusion and Decision of the Delaware County Board of Elections,

attached as Exhibit B to the Cohen Affidavit and 43 of that Affidavit.) The foregoing is a factual

finding, and there is nothing about it that constitutes an abuse of discretion or clear disregard of

applicable law.15 It is also important to note that any ambiguity with respect to the adoption date

of the rezoning amendment creates a "Catch-22" for the citizens who desire to pursue a

referendum. If residents begin to collect signatures prior to the date determined to be the

approval date of the rezoning, those signatures are outside of the time period when a referendum

petition can be circulated. Indeed, one might argue it is inherently misleading to potential

petition signers to present them with a petition seeking to put trustee action to a referendum vote

before the trustee action has occurred. Here, the citizens had to comply with this very short

thirty-day referendum window provided by Ohio law, despite the delay in approval of the

minutes, despite the lack of a formal written resolution, despite the failure of the applicants or the

township to prepare a proposed zoning map reflecting the rezoning, etc. The court of appeals in

Spring Creek expressly recognized that if there is no clear record of the township's action from

ls See State ec rel O'Beirne v. Geauga Cty. Bd. of Elections (1997), 80 Ohio St.3d 176, 181

("We will not substitute our judgment for that of a board of elections if there is conflicting

evidence on an issue." (citing State ex rel Herdman v. Franklin Cty. Bd. of Elections (1993), 67

Ohio St.3d 593, 596)).

18

which the referendum time period begins to run, then the referendum right can be effectively

denied to the people. The Spring Creek court, accordingly, looked to the minutes as the official

record establishing the date when a zoning amendment is adopted. Id., 45 Ohio App.2d at 289,

292.

Relators attack the reasoning of the Delaware County Board of Elections by selectively

quoting from the statements of the members during the hearing. (See Relators' Merit Brf. at 11-

12.) First, Relators credit the rationale of member Helvey, who dissented from the Board's

conclusion regarding the timeliness of the submission of the Referendum Petition. Mr. Helvey

expressed his opinion that when the Board of Elections made employment decisions, he believed

such decisions were effective at the time the Board voted. (See 07/18/11 Hrg. Tr. at 133-134 and

Relators' Merit Brf. at 11.) Notwithstanding the Relators' alignment with Mr. Helvey, the

rationale of Mr. Helvey is not in line with the law. Indeed, the court of appeals in Spring Creek

discussed the distinction between ministerial administrative acts like employment decisions, as

contrasted with the legislative act of enacting a zoning amendment. Spring Creek, 45 Ohio

App.2d at 290. With respect to the latter, an official, authenticated record is imperative.

Relators also selectively quote from the hearing transcript regarding statements of the

Chairman of the Delaware County Board of Elections. However, during the hearing the

comments from the other Board members included the following:

• Discussion of a letter in the record from the Liberty Township Administrator stating that

May 4, 2011 was the approval date of zoning application LTZ 09-01 (07/18/11 Hrg. Tr.

at 136-137);

• Statements of the other two members of the Board of Elections that they believed the

approval date was May 4, 2011 (07/18/11 Hrg. Tr. at 134, 139, 142-143);

19

• Discussion of an analogy to the situation where a court rules from the bench, but can only

take official action through its judgment entries (07/18/11 Hrg. Tr. at 90-91); and

• Discussion that a member of the public who wasn't at the meeting would not know what

was approved until it was adopted in some written form (07/18/11 Hrg. Tr. at 89-90)16

With respect to the last point above, the Relators took the position during the protest hearing

that just because the township trustees failed to create a formal written resolution and failed to

timely record written minutes of their action -- and even if the effect of this was to deprive the

citizens of their abIlity to pursue a referendum -- this was not an issue to be addressed by the

Board of Elections. (See 07/18/11 Hrg. Tr. at 121-123.) According to the Relators, if the

citizens are effectively denied the right of referendum because the statutory framework or the

practical workings of Liberty Township government fail to clearly define the time period during

which a referendum may be pursued, this is a problem that the legislature is required to address.

(Id. at 122-123.) However, in State ex rel. Ohio General Assembly v. Brunner (2007), 115 Ohio

St.3d 103, this Court took a very different position.

16 It was mentioned during the protest hearing that the township trustees record their meetings.However, there was no testimony entered into the record during the protest hearing regarding

whether any of the specific meetings pertinent to this case (i.e., Apri14, 2011; March 15, 2011;

May 4, 2011) were recorded, nor was any recording submitted to the Board of Elections duringthe hearing. In any event, without authentication, a recording would be meaningless, and therewas no testimony that any recordings are reviewed by the trustees or authenticated to verify

accuracy. The only publicly available records regarding action taken by the trustees that arereviewed, authenticated, approved by the trustees and posted on the township website orotherwise made available to the public are the minutes of the meetings. Like a photograph usedin-a__trial, a recording means nothing without authentication establishing that the recordingaccurately represents a complete audio record of what occurred during an identified event. l^To

such evidence was offered at the protest hearing regarding any recording of the meetings at issue

here. See also State ex rel. Long v. Council of the Village of Cardington (2001), 92 Ohio St.3d

54, 57 (rejecting recordings as minutes where "[a]t the beginning of regular council meetings, thecouncil reviews and approves the written minutes, not the tapes, of prior meetings" and where"absent a transcript of each audiotape, a member of the public might not know the identities of

the speakers.")

20

In Brunner, this Court recognized the importance of the citizens' right to a referendum:

As the United States Supreme Court has observed, "The referendum * * * is ameans for direct political participation, allowing the people the final decision,amounting to a veto power, over enactments of representative bodies. Thepractice is designed to `give citizens a voice on questions of public policy."'Eastlake v. Forest City Ents., Inc. (1976), 426 U.S. 668, 673, 96 S.Ct. 2358, 49

L.Ed.2d 132, quoting James v. Valtierra (1971), 402 U.S. 137; 141, 91 S.Ct.

1331, 28 L.Ed.2d 678.This reserved power of referendum applies to every law passed in this

state and provides an important check on actions taken by the government.

See State ex rel. Ohio AFL-CIO v. Voinovich (1994), 69 Ohio St.3d 225, 234,

1994 Ohio 1, 1994 Ohio 2,1994 Ohio 3, 631 N.E.2d 582.

Id.at 104-105. This Court went on to recognize that due to the unique facts presented in the

Brunner case:

The simple fact remains that in this case, citizens were not put on notice thatAm.Sub.S.B. No. 117 was a valid law subject to referendum until August 1,2007. In pursuing the proper resolution of the constitutional issue before us,we unintentionally deprived the citizens of the right to referendum that theywould have enjoyed were it not for the unavoidable delays associated withjudicial review. This result is unacceptable.

Id. at 106. In Brunner, this Court recognized that the applicable 90-day referendum clock in that

case began to run when the bill in question was filed with the Secretary of State. Id. at 105.

However, the then Governor subsequently vetoed the bill, and that veto was later judicially

determined to be invalid. Id. Noting that the procedural requirements for a referendum are

strictly construed, the Court acknowledged that a citizen opposed to the bill would not have

known to pursue a referendum when the Governor had vetoed the bill. Id. Notwithstanding any

obligation of "strict construction," this Court was not willing to allow the practical factual

circumstances to eliminate the citizens' referendum right. Thus, contrary to the Realtors'

position as stated during the protest hearing, it is not simply the view of the courts that the law

can be construed to deprive citizens of the very referendum right it purports to grant them.

21

Here, in the application of R.C. §519.12(H) to the real facts of how township government

operates, it is important to recognize that fonnal governmental action must include a proper,

authenticated written record of the trustees' action. This provides citizens with the notice and

certainty necessary to begin calculating the thirty-day referendum time period, and thereby

ensures that citizens' right to pursue a referendum is preserved. This is not a matter of "strict

construction." Here, the petition circulators met the requirements of R.C. §519.12(H), strictly

construed. The statute requires that the Referendum Petition be presented to the township

trustees within thirty days of approval of the rezoning. This Court is not being asked to expand

or change the time period. Rather, the question presented is simply when the "approval"

occurred based upon the facts and law applicable to this case.

Based upon the facts presented to the Board of Elections during the hearing and the

applicable law cited hereinl7, there is no support whatsoever for a conclusion that the Board of

Elections clearly disregarded applicable law when they denied the Relators' protest regarding the

timing of the presentation of the Referendum Petition.

1. The Liberty Township Zonine Resolution Provides A Separate ReferendumRi¢ht With Respect To Zonina Amendments That Is Not Subiect To TheThirty-Day Reauirement

The unincorporated area of Liberty Township is subject to the Liberty Township Zoning

Resolution ("Zoning Resolution"). A current version of the Zoning Resolution can be found on

the Liberty Township (Delaware County, OH) website. Article XXVII of the Zoning Resolution

in effect at the time of the April 4, 2011 trustee meeting stated: "This article is intended to be a

restatement of Section 519.12 of the Revised Code of Ohio (most recently amended 3anuary 1,

17 Many of the legal authorities cited herein were provided to the Delaware County Board ofElections in advance of the protest hearing through the submission of the petition circulators'response to the protest. (See Exhibit B-3 to Relators' Merit Brf.)

22

1992) and is adopted herein for the convenience of the Citizens of Liberty Township. Any

amendments to Section 519.12 adopted by the Ohio Legislature shall be considered adopted

herein ....°' (See Affidavit of Robert Cohen at 44, and Article XXVII of the Zoning Resolution

attached as Exhibit C attached to such Affidavit.) The actual language of Section 519.12 of

Article XXVII of the Zoning Resolution, however, is not identical to the language in R.C.

§519.12.

The Liberty Township Trustees very recently amended Article XXVII of the township's

Zoning Resolution. The recent amendment confirms the township trustees' own view that its

Zoning Resolution imposes separate requirements from those imposed by R.C. §519.1218 (See

Affidavit of Robert Cohen at 45, and Liberty Township Trustees' Resolution 11-071104, adopted

July 11, 2011, attached as Exhibit D to such Affidavit.)

Pertinent to the issues addressed herein, Section 519.12(H) of the Zoning Resolution does

not include a thirty-day window in which to present a zoning referendum petition:

Within twenty (20) days after such public hearing, the Board shall either adoptor deny the recommendations of the Zoning Commission or adopt somemodification thereof.* * * *

Such Amendment adopted by the Board shall become effective in thirty (30)days. After the adoption of the Amendment, there is presented to the Board ofTownship Trustees a Petition, signed by a number of registered electorsresiding in the unincorporated area of the Township, or part thereof, includedin the Zoning Plan equal to not less than eight percent (8%) of the total votecase for all candidates for governor in such area at the last preceding General

1sThe amendment included a change to Article XXVII of the Zoning Resolution regarding theunanimity requirement with respect to votes to reject a recommendation of the ZoningCommission. The fact that the Township Zoning Reso"lution imposes bbiigatiuns independe:.t of§519.12(H) is confirmed by: (1) the fact that the Ohio Legislature changed this requirement in2008, but Liberty Township continued to impose such requirement under its own ZoningResolution through the votes that are at issue in this case; and (2) the fact that the townshiptrustees adopted a formal resolution to amend the Zoning Resolution, despite the fact that theZoning Resolution already stated that Section 519.12(H) of the Zoning Resolution was intended

to restate R.C. §519.12(H) and to include future amendments.

23

Election at which a governor was elected, requesting the Board of TownshipTrustees to submit the Amendment to the electors of such areas for approval orrejection at a special election to be held on the day of the next Primary or

General Election.

(See Article XXVII, Section 519.12(H) of the Zoning Resolution, Exhibit C attached to the

Cohen Affidavit; see also 07/18/11 Hrg. Tr. at 77-78.)

Although the variance between the Zoning Resolution language and the actual language

of R.C. §519.12 may simply be the result of a printing/drafting mistake, this is precisely where

the directive of "strict construction" found in the case law and trumpeted by the Relators is

relevant. See, e.g., State ex rel. Ohio General Assembly v. Brunner (2007), 115 Ohio St.3d 103,

105 ("courts are to `strictly constrae applicable requirements for initiative and referendum"'

(quoting State ex rel. McCord v. Delaware Cty. Bd. of Elections (2005), 106 Ohio St.3d 346));

Cicerella v. Jerusalem Twp. Bd. of Zoning Appeals (6`b Dist. App. 1978), 59 Ohio App.2d 31, 36

("A strict construction is generally accorded statutes and other legislative enactments which

impose restrictions upon the use of private property."); Harbour v. Olmsted Twp. (8th Dist. App.,

Jan. 10, 1980), 1980 Ohio App. LEXIS 13698 at *6 ("`[T]he statutory and mandatory steps

leading to such legislative enactments must be strictly construed."' (quotingBoard of Twp.

Trustees v. Spring Creek Gravel Co., Inc.,45 Ohio App.2d at 290)). There is no way to strictly

construe Section 519.12(H) of the Liberty Township Zoning Resolution to include a thirty-day

requirement for the filing of a referendum petition. No such requirement is written in the Zoning

Resolution. Assuming the terms of the Zoning Resolution are "strictly construed" and followed,

they would create a separate right of referendum with respect to zoning amendments that is

independent of the procedure under R.C. §519.12 and that does not require that the referendum

petitions be presented within thirty days.

24

Because a separate referendum right exists under Liberty Township's own Zoning

Resolution - which is the precise legislation pursuant to which the rezoning amendment in

question was enacted - this Court could choose not to decide the separate referendum issues

under R.C. §519.12. Rather, the need for a writ of prohibition could be found to be rendered

moot by the fact that the Board of Elections is required pursuant to Liberty Township's own

Zoning Resolution to place the referendum issue on the ballot, notwithstanding any timing

arguments raised by the Relators pursuant to R.C. §519.12.

C. AN APPROPRIATE MAP THAT WAS NOT MISLEADING WAS FILEDWITH THE REFERENDUM PETITION

R.C. §519.12(H) provides that "[t]he petition shall be filed with the board of township

trustees and shall be accompanied by an appropriate map of the area affected by the zoning

proposal." This Court has held that "`[a] map accompanying a referendum petition should be

considered appropriate or suitable for purposes of R.C. 519.12(H) if it does not mislead the

average person about the area affected by the zoning resolution."' State ex rel Columbia Reserve

Ltd. v. Lorain Cty. Bd. of Elections (2006), 111 Ohio St.3d 167, 173 (quoting State ex rel.

McCord v. Delaware Cty. Bd. of Elections (2005), 106 Ohio St.3d 346, 357).

Relators argue that by attaching the official Liberty Township Zoning Map to the

Referendum Petition, the petition became misleading because as a result of the failure to

"highlight[] the relevant portion of the map, the map overstates the area affected by the rezoning

by including the entire township." (Relators' Merit Brf. at 14.) The suggestion that anyone

would believe that the Referendum Petition sought to rezone the entirety of Liberty Township

from Farm Residence to Planned Residence is not credible. No reasonable person could think

this.

25

The Referendum Petition itself explains that the area subject to rezoning is "216+ acres at

the intersection of Home Road and Olentangy River Road and goes on to provide street

addresses and parcel numbers. (See Exhibit I to Relators' Merit Brf.) The map filed with the

Referendum Petition was printed directly from the Liberty Township website on the date the

Referendum Petition was filed and was much clearer than the several generation copy attached as

Exhibit B to the Relators' Merit Brief. This Court held in State ex rel. Columbia Reserve Ltd.,

supra, that there is no requirement that a zoning map be part of the petition circulated for

signatures. Id. at 173. See The State ex rel. Columbia Reserve Ltd. v. Lorain Cty. B& of

Elections, 111 Ohio St.3d 167, 173 (2006). Accordingly, the issue is not whether the petition

signers were misled by the map. Rather, the question is presumably whether an interested person

could look at the official Liberty Township Zoning Map for a reference regarding the affected

property in relation to other property within the township. The attached map was suitable for

this purpose and was not misleading.

Relators argue that this Court's decision in State ex rel. Columbia Reserve Ltd. v. Lorain

Cty. Bd. of Elections, 111 Ohio St.3d 167 (2006), stands for the proposition that failure to

highlight the affected area on the attached map renders it misleading and insufficient to satisfy

the requirement of R.C. §519.12(H). (See Relators' Merit Brf. at 13-14.) The facts in the

Columbia Reserve Ltd. case, however, were different. In that case, no map was submitted with

the referendum petition itself. Id. at 169. Moreover, the Court's objection to the map submitted

later the same day by the referendum petitioners in Columbia Reserve Ltd. was that it was more

akin to the development maps that Relators argue in this case should have been attached. Id. at

174. In Columbia Reserve Ltd. the Court noted that there was a proper map with the affected

area highlighted that was attached to the formal resolution of the township trustees that was the

26

subject of the referendum. Id. at 168, 174. Accordingly, in that case this Court noted that the

referendum petitioners could have simply attached to their petition the map prepared by the

township that was attached to the subject zoning resolution. Id. at 174. That same option did not

exist in the instant case, because the township trustees never prepared a formal written

resolution, delayed approving the minutes and never prepared any map reflecting the proposed

zoning changes.

In fact, throughout the rezoning process, no maps were prepared by either the applicants

(Relators) or Liberty Township that accurately reflect the rezoning amendment approved by the

Liberty Township Trustees. (See 07/18/11 Hrg. Tr. at 38-39 regarding the lack of township

maps.) The Relators argue that the Referendum Petition circulators could have attached one of

the applicants' development maps to the Referendum Petition. (See Relators' Merit Brf. at 4 and

Exhibit G attached thereto.) However, the attachment of any of the development maps suggested

by Relators would have been expressly misleading. First of all, a number of the development

maps in Exhibit G to Relators' Merit Brief show area outside of the borders of the land proposed

to be rezoned. If the suggestion is that such maps (because they are focused primarily upon the

area to be developed) show only the area to be rezoned, it would be misleading. While residents

would know full well that the entire township was not being rezoned, a development map

comprised 90% of the area to be rezoned, with 10% of additional area outside of the

development site, could mislead residents as to what was intended to be represented by the map.

In addition, a number of the maps suggested by the Relators (and included in Exhibit G) fail to

include the entire area of land proposed to be rezoned, something that is expressly misleading

and contrary to the statutory requirement. See State ex rel Columbia Reserve Ltd. v. Lorain Cty.

Bd. of Elections (2006), 111 Ohio St.3d 167, 174 (holding that a map is inaccurate and

27

misleading where it does not include all of the area affected by the zoning resolution). Finally,

the maps attached as Exhibit G to the Relators' Merit Brief show Red Emerald Way and Pillion

Way as connecting through streets. These streets were the subject of extended discussion during

the public meetings on the rezoning application and considerable opposition from nearby

residents. (See Exhibit D, p. 5, and Exhibit E, pp. 3-4, 6, attached to Relators' Merit Brf.; see

also 07/18/11 Hrg. Tr. at 49.) Ultimately, the approved April 4, 2011 minutes reflect that the

rezoning decision included an amendment to the application (approved despite the applicants'

objection) such that Red Emerald Way and Pillion Way were not connected as through streets.

(Relators' Merit Brf., Exhibit E, p. 6.) Unlike the farcical notion that someone would believe

that attachment of Liberty Township's official zoning map to a Referendum Petition would

mislead someone into believing that the whole township was being rezoned, the attachment to

the petition of a map that showed Red Emerald Way and Pillion Way as connecting through

streets as part of the rezoning would be directly misleading. Indeed, during the hearing before

the Delaware County Board of Elections, the Relators expressly argued that the failure to explain

in the Referendum Petition that the trustees had amended the rezoning proposal to prevent Red

Emerald Way and Pillion Way from being through streets was itself misleading. (See Exhibit B-

2, p.5, attached to Relators' Merit Brf.; see also 07/18/11 Hrg. Tr. at pp. 99-100.)

The petition circulators sought a formal written resolution and map from the township to

simplify the preparation of the Referendum Petition and avoid the very arguments that are being

presented now. Unfortunately, the information was not provided. The petition circulators used

the best information that they had available to accurately present the issue. If they had attempted

to highlight portions of a printed map, Relators would undoubtedly be arguing that the width of

the highlighter marks encompassed many yards of territory beyond the boundary of the area

28

sought to be rezoned and that such markings were therefore misleading. Unlike the petition

circulators in Columbia Reserve Ltd., the circulators here did not have any better available map

to include with the Referendum Petition. They included the best map they had - it included the

affected area and there was nothing about it that was misleading. Strictly construed, R.C.

§519.12(H) requires nothing more than "an appropriate map of the area affected by the zoning

proposal." The map that accompanied the Referendum Petition is an accurate map, and it

includes the affected area. Accordingly, the map satisfied the statutory requirement.

III. CONCLUSION

As this Court is well aware, the issue of whether the land in question should be rezoned is

not the issue before this Court. Rather, as a Referendum Petition circulator, the undersigned is

seeking the opportunity to let the residents of Liberty Township decide that issue in a vote. For

the reasons stated above, the Referendum Petition complies with the law and is sufficient to

allow the citizens that right to vote. The undersigned urges this honorable Court to let the

citizens exercise that right. The Relators have failed to carry their burden of establishing by a

preponderance of the evidence that the Delaware County Board of Elections clearly disregarded

applicable law. The record does not support such a conclusion. Accordingly, the undersigned

respectfully asks this Court to deny Relators' request for a writ of prohibition.

Robert G. Cohen (0941707)1657 W4-ngate-D_r_iv-eDelaware, Ohio 43015Tel: (614) 462-5492Fax: (614) 464-2634Email: rcohen5CoJcolumbus.rr.com

Pro Se as Amicus Curiae

29

CERTIFICATE OF SERVICE

The undersigned hereby certifies that trae and accurate copies of the foregoing were

served by regular U.S. mail and email, postage prepaid, this 19`h day of August, 2011, upon:

Donald J. McTigue (0022849)Mark A. McGinnis (0076275)J. Corey Colombo (0072398)McTigue & McGinnis LLC545 East Town StreetColumbus, Ohio 43215Tel: (614) 263-7000Fax: (614) 263-7078dmctigue(Welectionlawgroup.commmcp,innis(@electionlawgropp.comccolombona electionlawgroup.com

Christopher D. Betts (0068030)Assistant Prosecuting AttorneyCarol Hamilton O'Brien (0026965)Prosecuting AttomeyDelaware County, Ohio Prosecutor's Office140 North Sandusky Street, 3`a FloorDelaware, Ohio 43015Tel: (740) 833-2690Fax: (740) 833-2689cbetts(a7co.delaware.oh.usco'brien@co.delaware.oh.us

Larry H. James (0021773)Andy Douglas (0000006)Laura M. Comek (0070959)Crabbe, Brown & James LLP500 South Front Street, Suite 1200Tel: (614) 229-4557Fax: (614) 229-4559li ames@cbj lawyers.comadou as(&cbjlawyers comIcomekCa cbilawyers.com

Counsel for Relators

Counsel for Respondents

Robert G. Cohen

30