[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Thomas v. Wood Cty. Bd. of Elections, Slip Opinion No. 2024-Ohio-379.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2024-OHIO-379

THE STATE EX REL. THOMAS ET AL. v. WOOD COUNTY BOARD OF ELECTIONS.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Thomas v. Wood Cty. Bd. of Elections, Slip 

Opinion No. 2024-Ohio-379.]

Elections—Prohibition and mandamus—Writs sought to compel board of elections 

to remove zoning-amendment referendum from primary-election ballot—

Relators failed to demonstrate that board of elections abused its discretion 

or disregarded applicable law in certifying referendum for placement on 

ballot—Writs denied.

(No. 2024-0072—Submitted January 31, 2024—Decided February 2, 2024.)

IN PROHIBITION and MANDAMUS.

__________________

Per Curiam.

{¶ 1} In this expedited election matter, relators, Theodore Thomas and T 

Thomas Properties, L.L.C. (“TT Properties”), seek writs of prohibition and 

mandamus to order respondent, the Wood County Board of Elections (“the board”), 
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2

to remove a zoning-amendment referendum from the March 19, 2024 primaryelection ballot. Relators have also filed a motion for leave to amend the caption of 

their complaint to comply with R.C. 2731.04’s requirement that a mandamus claim 

be brought “in the name of the state on the relation of the person applying.”

{¶ 2} We grant relators’ motion for leave to amend the caption of their 

complaint. But because the board did not abuse its discretion or disregard 

applicable law in certifying the referendum for placement on the ballot, we deny 

relators’ request for writs of mandamus and prohibition.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 3} In 2023, Thomas purchased a parcel of real property located at 0 

Bailey Road (the “Bailey Road property”) in Lake Township, Wood County; that

property is zoned “R-2 Residential.” The Bailey Road property is currently an 

abandoned junkyard surrounded by a barbed-wire fence. When the township 

adopted its zoning resolution in 1963, the Bailey Road property was zoned for 

residential use even though a junkyard was already being operated on the property. 

Since 1963, the Bailey Road property has never been used for residential purposes. 

TT Properties, of which Thomas is the manager and sole member, is the current 

owner of the Bailey Road property.

{¶ 4} TT Properties also owns a parcel located at 5826 Woodville Road in 

Lake Township, which is adjacent to and behind the Bailey Road property. A car 

wash is operated on the Woodville Road property, which is zoned “B-2 General 

Commercial.” Thomas would like to combine the Bailey Road and Woodville 

Road properties into one parcel with ingress and egress to the combined parcel 

solely through the Woodville Road property. According to the Lake Township 

zoning map, no parcel fronting Bailey Road is currently zoned B-2 General 

Commercial.
January Term, 2024

3

{¶ 5} In July 2023, Thomas filed an application to change the zoning of the 

Bailey Road property from R-2 Residential to B-2 General Commercial so that he 

could construct self-storage facilities on the property. The application states:

TO THE TRUSTEES OF LAKE TOWNSHIP 

Application is submitted herewith requesting that the Zoning 

Resolution of Lake Township be * * * AMENDED to:

Request zoning change from R-2 Residence to B-2 General 

Commercial.

Address – 0 – Bailey Rd. H28-712-110202027000 

Theodore Thomas (owner) request[s] the change to construct 

self-storage facilities.

The legal description of the property is:

Parcel # H28-712-110202027000

* * *

The request for zoning change is being submitted because:

(state reason or proposed use)

From R-2 – B-2 for new construction of self-storage facilities.

{¶ 6} The Lake Township Zoning Commission voted unanimously that the 

requested zoning amendment should be approved and forwarded its 

recommendation to the Lake Township Board of Trustees. On September 19, the

township trustees adopted the amendment, to become effective 30 days later. As a 
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condition of rezoning, the trustees required that the Bailey Road property be 

combined with the adjacent Woodville Road car-wash property.1 

{¶ 7} On the date of the zoning amendment’s adoption, R.C. 519.12(H), 

which governs the adoption of proposed zoning amendments by township boards

of trustees and referendums on adopted zoning amendments, provided:

The proposed amendment, if adopted by the board, shall 

become effective in thirty days after the date of its adoption, unless, 

within thirty days after the adoption, there is presented to the board 

of township trustees a petition, signed by a number of registered 

electors residing in the unincorporated area of the township or part 

of that unincorporated area included in the zoning plan equal to not 

less than eight per cent of the total vote cast for all candidates for 

governor in that area at the most recent general election at which a 

governor was elected, requesting the board of township trustees to 

submit the amendment to the electors of that area for approval or 

rejection * * *. Each part of this petition shall contain the number 

and the full and correct title, if any, of the zoning amendment 

resolution, motion, or application, furnishing the name by which the 

amendment is known and a brief summary of its contents.

(Emphasis added.) Former R.C. 519.12(H), 2018 Sub.H.B. No. 500 (effective Mar.

22, 2019) (“H.B. 500”).

1. According to Thomas, the township trustees also required that access to the Bailey Road property 

be only via the Woodville Road car-wash property. However, neither Thomas’s application nor the 

minutes from the township trustees’ meeting at which the amendment was adopted state this 

condition. 
January Term, 2024

5

{¶ 8} In the 30 days following the trustees’ adoption of the zoning 

amendment, circulators obtained signatures on a referendum petition to submit the 

amendment to voters at the March 19, 2024 primary election. On October 3, 

2023—after the trustees adopted the proposed zoning amendment but before the 

referendum petition was submitted—a new version of R.C. 519.12(H) took effect. 

Amended R.C. 519.12(H) increased the number of signatures that must be 

submitted by petition before a referendum on a zoning amendment will be placed 

on a ballot. Under the amended statute, the number of signatures must be equal to

at least 15 percent of the total votes cast for all candidates for governor in that area 

at the most recent gubernatorial election. 2023 Am.Sub.H.B. No. 33 (“H.B. 33”). 

The amendment also changed the language of the petition-for-zoning-referendum 

form to include the 15 percent requirement, but it made no other changes to the 

statute. Id.

{¶ 9} On October 18, Jean Garrison, a resident of Lake Township, 

submitted the petition to the township trustees. The petition consisted of 31 partpetitions containing 470 signatures. The petition summarized the proposed zoning 

amendment as follows:

Rezone from R-2 (Residential District) to B-2 (General 

Business District) Parcel Number H28-712-1100202027000, 

commonly referred to as “0 Bailey Road, Northwood, OH 43619” 

and legally described as:

Lot number thirty-three (33) in Ketcham’s Cresceus Farms, 

an Addition in Lake Township, Wood County, Ohio, excepting 

therefrom the following described parcel: That part of Lot number 

thirty-three (33) described as follows: commencing at a point where 

the north line of said Lot number thirty-three (33) intersects the east 

side of Bailey Road; thence one hundred four and nine tenths(104.9) 
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feet east along said north line of Lot thirty-three (33) to the point 

where said north line turns northeast; thence southwest along a 

continuation of the boundary line between Lots thirty-three (33), 

thirty-five (35), and thirty-six (36) to Bailey Road; thence in a 

northerly direction to the point of beginning, being a triangle out of 

the northwest corner of said Lot thirty-three (33) containing oneeight [sic] (1/8) of an acre, more or less.

Reference: Lake Township Zoning Commission Application 

# 2023-144.

{¶ 10} The township trustees determined that the petition was facially valid 

and certified it to the board in accordance with R.C. 519.12(H). The board 

determined that the petition contained 382 valid signatures, which was more than 8 

percent but less than 15 percent of the number of voters in the unincorporated 

territory of Lake Township who voted in the 2022 gubernatorial election.

{¶ 11} At its regular meeting on December 21, the board considered the 

certification of candidates and issues that would appear on the March 19 ballot, 

including certification of the referendum on the proposed zoning amendment. The 

board voted unanimously to certify the referendum for placement on the ballot.

{¶ 12} On December 29, Thomas filed a protest with the board. Thomas 

protested the validity and sufficiency of the referendum petition on six grounds:

1. The petition does not satisfy the 15 percent signature requirement of R.C. 

519.12(H).

2. The petition violates R.C. 519.12(H) because it does not set forth a brief 

summary of the zoning amendment’s contents.

3. Signatures on the referendum petition were coerced, in violation of R.C. 731.40.

4. The petition does not contain the statutorily mandated election-falsification 

statement.
January Term, 2024

7

5. Any refusal to approve the zoning amendment would result in an 

unconstitutional taking of the Bailey Road property without just compensation.

6. The board failed to provide notice of its December 21 meeting at which it 

certified the referendum for placement on the ballot.

{¶ 13} In addition to Thomas’s protest, the township trustees passed a 

resolution “to protest the [board’s] acceptance of the referendum petition as it 

relates to [the Bailey Road property].” In their protest, the trustees asserted three 

of the same grounds that Thomas raised (the signature requirement, notice of the 

board’s meeting, and unconstitutional taking of property). The trustees also 

protested on the grounds that (1) the referendum “stands to disrupt the operation 

and legal development of private property” in the township and (2) the zoning 

change approved by the township trustees does not pose any threat to the health, 

safety, or welfare of the immediate area.

{¶ 14} On January 9, 2024, the board held a hearing on the protests. The 

board heard sworn testimony from three witnesses and arguments from counsel 

representing Thomas and the township trustees and counsel representing the 

referendum petitioners. The board also allowed the parties to submit various 

exhibits as evidence.

{¶ 15} The board did not consider the argument that denying a zoning 

change to the Bailey Road property would constitute a taking without just 

compensation, noting that “it [was] outside of the powers granted to [the board] to 

consider.” For the same reasons, the board did not consider the township trustees’ 

objections that the referendum petition would disrupt the operation and 

development of private property in the township and that the approved zoning 

change did not pose a threat to health, safety, or welfare of the immediate area. 

Following the hearing, the board unanimously overruled the remainder of 

Thomas’s and the township trustees’ arguments and affirmed its certification of the 

referendum for placement on the March 19 ballot.
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{¶ 16} Relators commenced this action on January 12, 2024, seeking writs 

of prohibition and/or mandamus ordering the board to sustain Thomas’s protest and 

to prevent the board from certifying the zoning-amendment referendum for 

placement on the March 19 ballot.2 We sua sponte designated this case as an 

expedited election matter under S.Ct.Prac.R. 12.08 and set an expedited schedule 

for the board to file an answer to the complaint and for the parties’ to submit

evidence and merit briefs. 172 Ohio St.3d 1448, 2024-Ohio-136, __ N.E.3d __. 

Relators filed a motion for leave to amend the caption of their complaint to include 

“State ex rel.” before their names, indicating that they are bringing this action in 

the name of the state on their relation, in compliance with R.C. 2731.04.

{¶ 17} Relators and the board have filed evidence and merit briefs. Amici 

curiae Joseph Zemenski and Garrison, registered electors in Lake Township who 

are proponents of the referendum petition at issue in this case, have filed a brief 

urging denial of the writs.

II. MOTION FOR LEAVE TO AMEND CAPTION

{¶ 18} Relators move to amend the case caption to specify that this action 

is being brought in the name of the state on their relation. The board did not file a 

response to the motion but argues in its merit brief that relators’ complaint should 

be dismissed because a “complaint for an extraordinary writ must be brought by 

petition in the name of the state on relation of the person applying.”

{¶ 19} As an initial matter, there is no requirement that a complaint for 

extraordinary relief in prohibition be brought in the name of the state on the relation 

of the applicant. Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 

N.E.2d 420, ¶ 16. R.C. 2731.04 does require that an application for mandamus be 

brought in the name of the state on relation of the applicant. The failure of a relator 

in mandamus to do so is a ground for dismissal of the complaint. Litigaide, Inc. v. 

2. The board of township trustees, though a protestor before the board, is not a party in this action. 
January Term, 2024

9

Custodian of Records for Lakewood Police Dept., 75 Ohio St.3d 508, 664 N.E.2d 

521 (1996).

{¶ 20} However, before the board sought dismissal for this defect, relators 

filed their motion to amend. This court has granted such motions in the past, noting 

the policy “favoring liberal amendment of pleadings and the resolution of cases on 

their merits rather than upon pleading deficiencies.” State ex rel. Rust v. Lucas Cty. 

Bd. of Elections, 100 Ohio St.3d 214, 2003-Ohio-5643, 797 N.E.2d 1254, ¶ 6, citing 

State ex rel. Huntington Ins. Agency, Inc. v. Duryee, 73 Ohio St.3d 530, 533, 653 

N.E.2d 349 (1995). We therefore grant relators’ motion to amend the caption of 

their complaint.

III. ANALYSIS

{¶ 21} To obtain a writ of prohibition, relators must show that (1) the board 

exercised quasi-judicial power, (2) the exercise of that power was unauthorized by 

law, and (3) relators have no adequate remedy in the ordinary course of the law. 

State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-

Ohio-4758, 835 N.E.2d 336, ¶ 27. A board of elections exercises quasi-judicial 

authority when, as here, it decides a protest after a mandatory hearing that includes 

sworn testimony. State ex rel. Moscow v. Clermont Cty. Bd. of Elections, 169 Ohio 

St.3d 161, 2022-Ohio-3138, 202 N.E.3d 684, ¶ 15; see also State ex rel. Barney v. 

Union Cty. Bd. of Elections, 159 Ohio St.3d 50, 2019-Ohio-4277, 147 N.E.3d 595, 

¶ 12 (R.C. 3501.39 requires a quasi-judicial hearing on a protest to a referendum 

petition).

{¶ 22} To obtain a writ of mandamus, relators must establish by clear and 

convincing evidence (1) a clear legal right to have the board remove the zoningamendment referendum from the ballot, (2) a clear legal duty on the part of the 

board to do so, and (3) the lack of an adequate remedy in the ordinary course of the 

law. State ex rel. Clark v. Twinsburg, 169 Ohio St.3d 380, 2022-Ohio-3089, 205 

N.E.3d 454, ¶ 16.
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{¶ 23} In this case, relators lack an adequate remedy in the ordinary course 

of the law because the election is less than two months away. Id. As to the 

remaining elements for obtaining a writ of prohibition or mandamus, relators must 

show that the board engaged in fraud or corruption, abused its discretion, or clearly 

disregarded applicable law in denying their protest. State ex rel. Jacquemin v. 

Union Cty. Bd. of Elections, 147 Ohio St.3d 467, 2016-Ohio-5880, 67 N.E.3d 759, 

¶ 9. Relators have not alleged fraud or corruption here. Therefore, the relevant 

inquiry is whether the board abused its discretion or clearly disregarded applicable 

law in denying Thomas’s protest and certifying the referendum for placement on 

the ballot.

A. Jurisdiction over the Mandamus Claim

{¶ 24} The board argues that relators’ mandamus claim is a disguised claim 

for a declaratory judgment and a prohibitory injunction and that this court should 

therefore dismiss it for want of jurisdiction. The board contends that relators seek 

an order preventing it from placing the referendum on the March 19 ballot. See 

Whitman v. Hamilton Cty. Bd. of Elections, 97 Ohio St.3d 216, 2002-Ohio-5923, 

778 N.E.2d 32, ¶ 8-10 (dismissing mandamus claim for lack of jurisdiction because 

it was “an ill-disguised request for prohibitory injunctive relief: to prevent [a 

candidate’s] candidacy at the November 5, 2002 general election”).

{¶ 25} Notwithstanding Whitman, we have held that “[e]xtraordinary relief 

in mandamus is appropriate to keep a measure from the ballot when there is a 

‘failure to comply with statutory ballot-access requirements.’ ” State ex rel. Fritz 

v. Trumbull Cty. Bd. of Elections, 165 Ohio St.3d 323, 2021-Ohio-1828, 179 N.E.3d 

67, ¶ 12, quoting State ex rel. Cornerstone Developers, Ltd. v. Greene Cty. Bd. of 

Elections, 145 Ohio St.3d 290, 2016-Ohio-313, 49 N.E.3d 273, ¶ 22. This is the 

relief that relators seek in their mandamus claim. Relators seek an affirmative act 

of the board: they seek a writ of mandamus ordering the board to sustain Thomas’s 

protest, which would result in removing the referendum from the ballot, because 
January Term, 2024

11

they claim that the referendum petition does not meet certain statutory 

requirements. Accordingly, relators have stated a proper mandamus claim over 

which we have jurisdiction.

B. Validity of the Referendum Petition

{¶ 26} Relators argue that the board abused its discretion or disregarded 

applicable law in four ways. First, they argue that the referendum petition is invalid 

under R.C. 519.12(H) because it does not contain enough signatures to qualify for 

placement on the ballot. Second, they contend that the referendum petition failed 

to contain a valid “brief summary” of the zoning amendment at issue. Third, 

relators argue that a “refusal to amend the zoning” of the Bailey Road property 

would constitute an unconstitutional taking of their property without just 

compensation. Finally, relators argue that the board’s decision to certify the 

referendum for placement on the ballot is invalid because the board failed to give 

proper notice under R.C. 121.22(F) of its December 21, 2023 meeting. None of 

relators’ arguments has merit.

1. The Petition-Signature Requirement

{¶ 27} The parties dispute the number of signatures required to qualify the 

referendum for placement on the ballot. The board agreed with the referendum 

petitioners’ argument at the protest hearing that the applicable signature 

requirement was the one in effect on September 19, 2023, the date that the township 

trustees adopted the proposed zoning amendment. Under the law in effect on that 

date, to qualify for placement on the ballot, a referendum petition on a zoning 

amendment needed to contain a number of signatures equal to at least 8 percent of 

the total votes cast for governor in the township at the most recent gubernatorial 

election. See Former R.C. 519.12(H), H.B. 500. Under this version of R.C. 

519.12(H), the referendum petition had enough signatures to qualify for placement 

on the ballot.
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{¶ 28} In contrast, relators argue that the version of R.C. 519.12(H) that 

became effective on October 3, 2023, controls the validity of the referendum 

petition at issue. Amended R.C. 519.12(H) increased the signature requirement for 

a zoning-referendum petition to at least 15 percent of the total votes cast for 

governor in the township at the most recent gubernatorial election. And because 

the referendum petition was filed with the trustees on October 18, 2023, relators 

contend that the version of R.C. 519.12(H) that became effective on October 3 is 

the controlling version. Relators note that although H.B. 33, which amended R.C. 

519.12(H), was enacted on July 4, 2023, the amendment did not go into effect until 

90 days later (i.e., October 3, 2023). This 90-day period, say relators, gave the 

public ample time to become aware of the impending change in the law, leaving 

the referendum petitioners no excuse for noncompliance with the amended statute. 

And if amended R.C. 519.12(H) controls this case, then the referendum petition 

does not qualify for placement on the ballot.

a. Prospective Application of R.C. 519.12(H)

{¶ 29} Effective October 3, 2023, R.C. 519.12(H) provides: 

The proposed amendment, if adopted by the board [of 

township trustees], shall become effective in thirty days after the 

date of its adoption, unless, within thirty days after the adoption, 

there is presented to the board of township trustees a petition, signed 

by a number of registered electors residing in the unincorporated 

area of the township or part of that unincorporated area included in 

the zoning plan equal to not less than fifteen per cent of the total 

vote cast for all candidates for governor in that area at the most 

recent general election at which a governor was elected * * *.”
January Term, 2024

13

{¶ 30} Under the statute, the date of the township trustees’ adoption of a 

proposed zoning amendment determines the effective date of the amendment and 

is also used to determine the deadline for submitting referendum petitions. The 

requirements of the referendum petition are tied specifically to the date of the 

adoption of the zoning amendment. Applying amended R.C. 519.12(H) only to 

zoning amendments adopted after the effective date of the amended statute—and 

referendum petitions associated with such amendments—gives effect to the plain 

meaning of the statute, as well as to the rule that “[a] statute is presumed to be 

prospective in its operation unless expressly made retrospective,” R.C. 1.48. See 

Estate of Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 

N.E.2d 35, ¶ 19-21.

{¶ 31} Relators do not argue that amended R.C. 519.12(H) was expressly 

made retrospective by the General Assembly. They argue, however, that this court 

“has had occasion to review claimed retroactive changes in the law and held under 

circumstances similar to the circumstances in this case that the change in the law 

did not preclude the Petitioners from obtaining the requisite number of signatures.” 

The only case relators cite for this proposition is State ex rel. Ohioans for Secure 

& Fair Elections v. LaRose, 159 Ohio St.3d 568, 2020-Ohio-1459, 152 N.E.3d 267 

(“Ohio-SAFE”). But there is nothing about Ohio-SAFE that remotely resembles 

the issue before us in this case. There was no statute addressing petition-signature 

requirements at issue in Ohio-SAFE, much less a statutory change in the number of 

signatures needed for a petition to qualify for placement on a ballot.

{¶ 32} Relators have failed to demonstrate that the board acted in clear 

disregard of applicable law in determining that the version of R.C. 519.12(H) that 

was in effect on the date the township trustees adopted the zoning amendment 

(September 19, 2023) controlled the number of signatures required for a 

referendum petition (i.e., a number equal to at least 8 percent of the total votes cast 
SUPREME COURT OF OHIO

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in the township for governor at the most recent gubernatorial election). The 

referendum petition in this case satisfied that requirement.

b. Article II, Section 28 of the Ohio Constitution is not implicated

{¶ 33} The board and amici also argue that if the amended version of R.C. 

519.12(H) applies to the referendum petition at issue, the statute would be 

unconstitutionally retroactive. “Section 28, Article II of the Ohio Constitution 

prohibits the General Assembly from passing retroactive laws that, when applied, 

act to impair vested rights.” State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, 

772 N.E.2d 1172, ¶ 13.

{¶ 34} It is unnecessary for us to reach the constitutional retroactivity 

arguments in this case. “Inquiry into whether a statute may be constitutionally 

applied retrospectively continues only after an initial finding that the General 

Assembly expressly intended that the statute be applied retrospectively.” Id. at ¶ 

14. Since the General Assembly did not express that amended R.C. 519.12(H) be 

retroactive, any constitutional analysis under Section 28, Article II is unnecessary. 

And for the reasons explained above, under a prospective application of amended 

R.C. 519.12(H), the 15 percent signature requirement does not apply to the 

referendum petition at issue in this case.

2. Summary of Zoning Amendment

{¶ 35} Relators next argue that the referendum petition lacks an adequate 

summary of the zoning amendment. R.C. 519.12(H) requires each part-petition 

calling for a referendum on a zoning amendment to contain “a brief summary of 

[the amendment’s] contents.” A referendum petition must strictly comply with this 

requirement. State ex rel. Quinn v. Delaware Cty. Bd. of Elections, 152 Ohio St.3d 

568, 2018-Ohio-966, 99 N.E.3d 362, ¶ 30.

{¶ 36} The phrase “brief summary of its contents” in R.C. 519.12(H) “refers 

to the zoning resolution, motion, or application passed or approved by the board of 

township trustees.” E. Ohio Gas Co. v. Wood Cty. Bd. of Elections, 83 Ohio St.3d 
January Term, 2024

15

298, 300-301, 699 N.E.2d 916 (1998); see also State ex rel. Barney v. Union Cty. 

Bd. of Elections, 159 Ohio St.3d 50, 2019-Ohio-4277, 147 N.E.3d 595, ¶ 31. The 

summary must be accurate and unambiguous. S.I. Dev. & Constr., L.L.C. v. Medina 

Cty. Bd. of Elections, 100 Ohio St.3d 272, 2003-Ohio-5791, 798 N.E.2d 587, ¶ 17. 

If a summary is misleading, inaccurate, or contains material omissions that would 

confuse the average person, the petition is invalid and the referendum may not be 

submitted for a vote. State ex rel. Gemienhardt v. Delaware Cty. Bd. of Elections, 

109 Ohio St.3d 212, 2006-Ohio-1666, 846 N.E.2d 1223, ¶ 38.

{¶ 37} No written zoning resolution was submitted as evidence in this case. 

The record reflects that instead of passing a resolution, the township trustees simply 

approved Thomas’s application for a zoning amendment. Thus, the relevant inquiry 

is whether the petition accurately summarized Thomas’s application, which 

contained (1) a request to change the zoning of the Bailey Road property from “R2 Residence” to “B-2 General Commercial,” (2) the address and legal description 

of the property, and (3) a statement that Thomas intended to construct self-storage 

facilities on the Bailey Road property.

{¶ 38} We have held that the referendum-petition summary of a zoning 

amendment must (1) identify the location of the relevant property and (2) inform 

the reader of the present zoning status of the land and the precise nature of the 

requested change. State ex rel. Donaldson v. Delaware Cty. Bd. of Elections, 166 

Ohio St.3d 55, 2021-Ohio-2943, 182 N.E.3d 1135, ¶ 14-15. If material information 

is omitted, resulting in a summary that would confuse the average person, the 

referendum petition is invalid. State ex rel. T-Bill Dev. Co., L.L.C. v. Union Cty. 

Bd. of Elections, 166 Ohio St.3d 250, 2021-Ohio-3535, 185 N.E.3d 50, ¶ 16.

{¶ 39} Relators argue that the referendum petition’s summary was defective 

because it failed to apprise readers of (1) the present zoning status of the Bailey 

Road property, (2) the precise nature of the requested change, and (3) the present 

use of the Bailey Road property. The first two of these contentions are without 
SUPREME COURT OF OHIO

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merit because they are belied by the text of the referendum-petition summary. The 

summary in this case identified the property affected by the zoning change by its 

street address, parcel number, and legal description, and it stated that the proposed 

amendment would rezone the property “from R-2 (Residential District) to B-2 

(General Business District).” This statement includes both the present zoning status 

and the nature of the zoning change, and relators do not contend that the statement 

was inaccurate in this respect.

{¶ 40} Relators also contend that the referendum-petition summary is 

invalid because it does not include any information about the present or historical 

use of the Bailey Road property. Though currently zoned residential, relators argue 

that petition signers should have been apprised of the facts that (1) the most recent 

approved conditional use for the Bailey Road property was for baseball batting 

cages, (2) the property had historically been used as a junkyard, and (3) the property 

is currently surrounded by a six-foot-high fence. For this argument, relators rely 

on Donaldson, in which we found a referendum petition’s summary deficient 

because, among other reasons, it did not describe “the current use of the property.” 

Id., 166 Ohio St.3d 55, 2021-Ohio-2943, 182 N.E.3d 1135, at ¶ 15. Relators also 

emphasize language from State ex rel. O’Beirne v. Geauga Cty. Bd. of Elections, 

80 Ohio St.3d 176, 685 N.E.2d 502 (1997), a case in which this court stated that 

the “present use” of property was “material” information and that its omission 

renders a referendum-petition summary invalid. Id. at 181.

{¶ 41} Both cases are distinguishable. In Donaldson, the board of elections 

sustained a protest to a referendum petition because the petition’s summary of a 

proposed zoning amendment was deficient in numerous respects. Our observation 

that the summary did not describe “the current use of the property” came within a 

larger discussion of the referendum petition’s failure to “describe the nature of the 

zoning amendment.” Id. at ¶ 15. We held that “the petition must summarize the 

contents of the zoning amendment passed by the township trustees.” Id. at ¶ 13. 
January Term, 2024

17

Thus, the better reading of Donaldson is that the absence of a description of the 

current use rendered the referendum-petition summary deficient because the 

current use was part of the zoning amendment as passed by the township trustees. 

Here, the zoning amendment adopted by the trustees did not describe the current 

use of the property.

{¶ 42} O’Beirne is similarly distinguishable. In that case, the reason the 

property’s present use was material information and was thus required to be 

included in the referendum-petition summary is that the zoning resolution included 

that information. Id. at 181. Indeed, the zoning resolution at issue in O’Beirne had 

incorporated the application for the zoning amendment, id. at 176, which included 

a page that detailed “the present use and zoning of the property” at issue, id. at 181. 

The referendum-petition summary, however, did not include that information. Id. 

In contrast here, Thomas’s application, as approved by the township trustees, did 

not contain any information about the present use of the property. The referendum 

petitioners in this case were not required to include information about present use 

that was not contained in the approved zoning-amendment application.

{¶ 43} Relators also argue that the referendum-petition summary omitted 

the fact that after the zoning amendment and proposed development, access to the 

Bailey Road property would only be from the Woodville Road property. However, 

this information was not contained in Thomas’s application for a zoning

amendment; nor was it contained in the trustees’ approval of Thomas’s zoningamendment application. Accordingly, there was no reason for the referendumpetition summary to include this information.

{¶ 44} For the foregoing reasons, the board did not abuse its discretion or 

disregard applicable law in concluding that the referendum-petition summary 

satisfied R.C. 519.12(H).
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3. Constitutionality of the Referendum

{¶ 45} Relators also argue that the board should not have certified the 

referendum for placement on the ballot because any refusal to amend the Bailey 

Road property’s zoning to commercial use would “constitute an unlawful taking of 

property without just compensation.” In other words, relators argue that the 

referendum, if approved by the voters, would be unconstitutional.

{¶ 46} The board did not abuse its discretion or disregard applicable law in 

certifying the referendum for placement on the ballot, despite relators’ protest of its 

constitutionality. “The boards of elections * * * do not have authority to sit as 

arbiters of the legality or constitutionality of a ballot measure’s substantive terms.” 

(Emphasis deleted.) State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 

144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, ¶ 11. “An unconstitutional 

amendment may be a proper item for referendum or initiative. Such an amendment 

becomes void and unenforceable only when declared unconstitutional by a court of 

competent jurisdiction.” Id.; see also State ex rel. Cramer v. Brown, 7 Ohio St.3d 

5, 6, 454 N.E.2d 1321 (1983) (“this court will not consider, in an action to strike an 

issue from the ballot, a claim that the proposed amendment would be 

unconstitutional if approved, such claim being premature”). Accordingly, relators’ 

objection to the constitutionality of keeping the Bailey Road property zoned for 

residential use is not a proper basis to invalidate the referendum petition.

4. Notice of the Board’s December 21 Meeting

{¶ 47} Relators also contend that the referendum should not qualify for 

placement on the ballot because the board failed to provide sufficient notice that it

would consider the referendum petition at its December 21, 2023 meeting.

{¶ 48} R.C. 121.22(F) provides:

Every public body, by rule, shall establish a reasonable 

method whereby any person may determine the time and place of all 
January Term, 2024

19

regularly scheduled meetings and the time, place, and purpose of all 

special meetings. A public body shall not hold a special meeting 

unless it gives at least twenty-four hours’ advance notice to the news 

media that have requested notification, except in the event of an 

emergency requiring immediate official action.

{¶ 49} Relators argue that the board was required to provide notice “of the 

time, place, and purpose of the meeting” at which the referendum petition was 

going to be considered. They further contend that individualized notice was 

required to be given to relators, the township trustees, the county prosecutor, and 

the township police chief, all of whom were “interested” in the petition. Relators 

argue that because the board failed to satisfy these notice requirements, its

certification of the referendum for placement on the ballot is invalid.

{¶ 50} Relators’ argument rests on the incorrect premise that the board was 

required to give individualized notice of its December 21 meeting, including a 

specific description of the matters that would be discussed at that meeting. But 

R.C. 121.22(F) does not require that such notice be given. The December 21 

meeting was a regular meeting of the board. All that the statute requires for a 

regular meeting is that a public body give notice through “a reasonable method” it 

has established, “whereby any person may determine the time and place of all 

regularly scheduled meetings.” R.C. 121.22(F). In this case, the board found that 

the December 21 regular meeting “was noticed in the normal fashion, both with 

public posting and on the [board’s] website,” which relators do not dispute. Indeed, 

Thomas testified at the protest hearing that he saw the notice of the December 21 

meeting on the board’s website.

{¶ 51} Moreover, though not required for regular meetings, the meeting 

notice on the board’s website included a link to yet another notice that stated that 

the December 21 meeting was for the purpose of “certifying candidates and issue 
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20

petitions to the 2024 primary election.” Thus, any person who saw the board’s 

notice of its December 21 regular meeting could have also learned that the board 

would consider the certification of candidates and issue petitions at that meeting. 

Relators have not established that the board violated R.C. 121.22(F)’s meetingnotice requirement.

{¶ 52} Relators contend that even if the board’s notice satisfied statutory 

requirements, the notice was insufficient and it violated their procedural-dueprocess rights. But this argument is flawed for at least two reasons. The first 

requirement of a procedural-due-process claim is a right or interest that is entitled 

to due-process protection. State ex rel. Emhoff v. Medina Cty. Bd. of Elections, 153 

Ohio St.3d 313, 2018-Ohio-1660, 106 N.E.3d 21, ¶ 35. In this case, relators have 

not articulated the right or interest that they were deprived of by virtue of the 

board’s holding a meeting without specifically informing them that the 

referendum’s certification for placement on the ballot would be considered. And 

even assuming that the right to appear at the December 21 meeting to oppose 

certification of the referendum for placement on the ballot is a protected liberty or 

property interest for due-process purposes, relators cannot establish that they have 

been deprived of this right without due process of law. This extraordinary-writ 

proceeding, wherein relators are afforded the opportunity to challenge the board’s

action, provides all the process that relators are due. See State ex rel. Nauth v. 

Dirham, 161 Ohio St.3d 365, 2020-Ohio-4208, 163 N.E.3d 526, ¶ 24.

III. CONCLUSION

{¶ 53} For the foregoing reasons, we grant relators’ motion to amend the 

case caption of their complaint and deny the writs.

Writs denied.

KENNEDY, C.J., and FISCHER, DEWINE, and DETERS, JJ., concur.

STEWART, J., concurs, with an opinion joined by DONNELLY and BRUNNER, 

JJ.
January Term, 2024

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STEWART, J., concurring.

{¶ 54} I join the majority opinion in full but write separately to point out 

that applying amended R.C. 519.12(H) to proposed zoning amendments that were 

adopted before the statute’s effective date would effectively change the signature 

requirement for a referendum petition during the period that petitioners are 

obtaining signatures. This would be inconsistent with our instruction to apply R.C. 

519.12(H) liberally in favor of the citizens’ right of referendum. See State ex rel. 

Miller Diversified Holdings, L.L.C. v. Wood Cty. Bd. of Elections, 123 Ohio St.3d 

260, 2009-Ohio-4980, 915 N.E.2d 1187, ¶ 36.

DONNELLY and BRUNNER, JJ., concur in the foregoing opinion.

_________________

The Law Office of Norman A. Abood, Norman A. Abood, and Tyler J. 

Lantzsch, for relators.

John A. Borell, Special Wood County Prosecuting Attorney, for respondent.

Nolan Law, L.L.C., and Joshua J. Nolan, urging denial of the writs, for 

amici curiae Jean Garrison and Joseph Zemenski.

_________________