[Cite as Mercer Dev., L.P. v. Mercer Cty. Bd. of Elections, 2010-Ohio-4071.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MERCER COUNTY 

 

MERCER DEVELOPMENT LP, 

 PLAINTIFF-APPELLANT, CASE NO. 10-10-08 

 v. 

MERCER COUNTY 

BOARD OF ELECTIONS, O P I N I O N 

 DEFENDANT-APPELLEE. 

 

Appeal from Mercer County Common Pleas Court 

Trial Court No. 10-CIV-034 

Judgment Affirmed 

Date of Decision: August 30, 2010 

 

APPEARANCES: 

James A. Tesno for Appellant 

Andrew J. Hinders for Appellee 
Case No. 10-10-08 

 -2- 

WILLAMOWSKI, P.J. 

{¶1} Appellant Mercer Development, L.P. (“Appellant”) brings this 

appeal from the judgment of the Court of Common Pleas of Mercer County 

permitting the zoning petitions to be placed on the ballot. Although this appeal 

has been placed on the accelerated calendar, this court elects to issue a full opinion 

pursuant to Loc.R. 12(5). For the reasons set forth below, the judgment is 

affirmed. 

{¶2} On August 25, Appellant submitted two applications for a change of 

zoning to the Franklin Township Zoning Inspector. The first application wanted 

to change the zoning designation from R-2 to RC for a 34.2 acre tract. The second 

application was to change the zoning designation from R-2 to R-3 for 

approximately 18.8 acres in the township. On September 8, 2009, a hearing was 

held on the applications, and each was considered separately. The first application 

passed by a vote of 3-1 and the second passed by a vote of 4-0. The changes were 

then forwarded to the Franklin Township Trustees for review. The hearing on the 

changes was held on November 18, 2009. At that meeting, the changes were 

passed by separate resolution with votes of 3-0 on both. 

{¶3} On December 16, 2009, a referendum petition consisting of nine 

pages of signatures was filed with the Mercer County Board of Elections 

(“Appellee”). Appellant filed its notice of protest to the petition on January 19, 
Case No. 10-10-08 

 -3- 

2010. A hearing on the protest was held on February 10, 2010. Appellee, by a 

vote of 3-1, rejected Appellant’s protest. On February 18, 2010, Appellant filed 

an administrative appeal. By agreement of the parties, no hearing was held and 

the appeal proceeded on the filings alone. On March 23, 2010, the Court of 

Common Pleas of Mercer County entered judgment affirming the decision of 

Appellee to allow the referendum petition on the ballot. Appellant appeals from 

this decision and raises the following assignments of error. 

First Assignment of Error 

[Appellee] erred in not eliminating from count all signatures on 

the page of zoning referendum petition when the circulator of 

that page also signed that page as a petitioner. 

Second Assignment of Error 

[Appellee] erred in not eliminating from count all signatures on 

every page submitted by a circulator where that circulator had 

permitted a person to sign another’s name to one of the pages 

submitted. 

Third Assignment of Error 

Where two separate zoning amendments are combined into one 

issue on a zoning referendum petition, [Appellee] should reject 

the petition as misleading, inaccurate and contains (sic) material 

omissions. 

The Ohio Constitution provides for liberal construction of provisions for 

referendums. See S.I. Dev. & Const., L.L.C., et al. v. Medina Cty. Bd. Of 

Elections, et al., 100 Ohio St.3d 272, 2003-Ohio-5791, 798 N.E.2d 587 and 
Case No. 10-10-08 

 -4- 

Stutzman v. Madison Cty. Bd. Of Elections, 93 Ohio St.3d 511, 2001-Ohio-1624, 

757 N.E.2d 297. 

{¶4} In the first assignment of error, Appellant alleges that when the 

circulator signs a petition as well, all of the signatures on that page should be 

deemed as invalid. The Appellee was required to “[r]eview, examine, and certify 

the sufficiency and validity of petitions and nomination papers, and, after 

certification, return to the secretary of state all petitions and nomination papers 

that the secretary of state forwarded to the board. R.C. 3501.11(K). The 

Secretary of State is responsible for advising boards of election as to how to 

perform their duties. R.C. 3501.05. Pursuant to this statute, the Secretary of State 

issued a directive informing the boards of election how to review petitions. 

“Please note that if a circulator signed his or her own part petition just the 

circulator’s signature is invalid as a signer of the petition.” Directive 2010-01, 

Ohio Secretary of State. In this case, Appellee deemed invalid the circulator’s 

signature, but did not invalidate the others on the page. This procedure was in 

conformance with the directive and is thus not an abuse of discretion. The first 

assignment of error is overruled. 

{¶5} The second assignment of error alleges that if one petition page is 

invalidated, all pages by that circulator should be invalidated. “In a petition for a 

referendum of a township zoning-amendment resolution, a part or part-petition 
Case No. 10-10-08 

 -5- 

refers to each petition circulated for signatures and includes the name and number 

of the proposed zoning amendment, a summary of the amendment, a request to 

submit the amendment to the township electors at an election, spaces for elector 

signatures, and a statement of an elector circulating the part-petition.” State ex 

rel. Gemienhardt v. Delaware Cty. Bd. Of Elections, 109 Ohio St.3d 212, 2006-

Ohio-1666, 846 N.E.2d 1223, ¶34. Each part-petition is individually evaluated. 

R.C. 3501.38. 

An individual is not permitted to sign a name other than his or 

her own name to a petition, except when the individual who 

signed the name of another elector did so as the elector’s duly 

appointed attorney in fact in accordance with R.C. 3501.382 

(R.C. 3501.38(D))[.] If a board of elections determines that an 

individual who is not a duly-appointed attorney in fact signed 

the name of another elector, that signature must be rejected by 

the board of elections. Also, if the board determines that the 

circulator knowingly permitted an individual other than a dulyappointed attorney in fact to sign a name other than his/her own 

name to a petition, the board must invalidate the entire part 

petition. (R.C. 3501.38(F)). 

Directive 2010-01, Ohio Secretary of State. The directive does not require the 

board to invalidate every part-petition circulated by that circulator. Additionally, 

the Ohio Supreme Court has held that prior fraud by a circulator does not support 

a conclusion that all petition papers signed by that circulator are fraudulent. State 

ex rel. Hinkle v. Franklin Cty. Bd. Of Elections (1991), 62 Ohio St.3d 145, 580 

N.E.2d 767. The court held that the court’s function was not to conduct an 

independent evaluation of the petition papers, but rather to determine whether the 
Case No. 10-10-08 

 -6- 

board of elections disregarded the law when making its decision. Id. This court 

notes that Appellant has not provided any legal basis for its argument as to why all 

of the petition papers signed by one circulator should be invalidated when only 

one of them has evidence of fraud. The evidence showed that all of the signatures 

on the other pages were found to be legitimate and that there was no reason for 

invalidating those part petitions. Given this evidence, there is no abuse of 

discretion in validating those signatures. The second assignment of error is 

overruled. 

{¶6} Finally, Appellant claims that the wording of the petition was 

inappropriate because it consolidated two separate zoning resolutions into one 

petition. 

R.C. 519.12(H) requires that each part of a petition seeking a 

referendum on a township zoning amendment shall contain “a 

brief summary of its contents.” “The phrase ‘brief summary of 

its contents' refers to the zoning resolution passed by the 

township trustees.” State ex rel O'Beirne v. Geauga Cty. Bd. of 

Elections (1997), 80 Ohio St.3d 176, 179, 685 N.E.2d 502. “The 

summary must be accurate and unambiguous; otherwise, the 

petition is invalid *175 and the subject resolution will not be 

submitted for vote.” 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. 

State ex rel. Columbia Reserve Ltd. v. Lorain County Bd. of Elections, 111 Ohio 

St.3d 167, 2006-Ohio-5019, ¶38, 855 N.E.2d 815. When a referendum petition’s 

summary of a resolution contains substantially the same wording as the 
Case No. 10-10-08 

 -7- 

resolution, it substantially complies with the brief summary requirement. Id. at 

¶39. 

{¶7} Here, the resolutions stated as follows. 

1. Ronald J. Niekamp moved to approve a change of zoning 

from R-2 medium Density Residential to R-3 High Density 

Residential for 2 parcels containing 18.8 acres; properties are 

located in Section 24, T6S, R4E, Franklin Township, Mercer 

County, Ohio and located between Behm Road and the Big 

Chickasaw Creek and Thomas N. Rose seconded the motion. * * 

* 

2. Ronald J. Niekamp moved and Thomas N. Rose seconded 

the motion to approve a change of zoning from R-2 Medium 

Density Residential to RC Resort Commercial for a parcel 

containing 34.2 acres; properties are located in Section 24, T6S, 

R4E, Franklin Township, Mercer County, Ohio and located 

between Behm Road and the Big Chickasaw Creek. 

Nov. 18, 2009, Minutes of Franklin Township Meeting. The brief summary states 

as follows. 

A proposal to amend the zoning map of the unincorporated area 

of Franklin Township, Mercer County, Ohio, adopted 

November 18, 2009 to rezone property owned by Mercer 

Development of approximately 18.8 acres from Medium-Density 

Residential District (R-2) to High-Density Residential District 

(R-3), and of approximately 34.2 acres from Medium-Density 

Residential District (R-2) to Resort Commercial District (RC). 

The properties are located in Section 24, T6S, R4E, Franklin 

Township, Mercer County, Ohio, and located between Behm 

Road and the Big Chickasaw Creek. 

Petition for Township Zoning Referendum. Although the petition combined both 

resolutions into one referendum, the language of the petition was substantially the 
Case No. 10-10-08 

 -8- 

same as that in the resolutions. Appellant argues that by combining the two 

resolutions into one, the petition became ambiguous because a voter may 

agree/disagree with only one of the resolutions, not both. However, Appellant has 

not provided any legal authority as to why the two resolutions cannot be 

combined into one petition for referendum. This court sees no legal basis for 

precluding the combination of two resolutions. The mere fact that the resolutions 

were combined does not make the brief summary inaccurate, confusing, or 

ambiguous. If the voter does not agree with the entire petition, they are free to 

vote against it. Thus, Appellee did not abuse its discretion in approving the 

petition. The third assignment is overruled. 

{¶8} Since Appellant followed the directives of the Secretary of State in 

making its decision, the judgments reached are not unreasonable, arbitrary or 

capricious and the trial court did not err in determining that Appellant did not 

abuse its discretion. Accordingly, for the aforementioned reasons, it is the order of 

this Court that the Judgment Entry of the Court of Common Pleas of Mercer 

County be, and hereby is, affirmed. 

Judgment Affirmed

PRESTON, J. concurs. 

/jlr 
Case No. 10-10-08 

 -9- 

ROGERS, J., concurring in part, dissenting in part. 

{¶9} I concur with the majority in its analysis and result reached in the 

first two assignments of error, but I respectfully dissent regarding its disposition of 

assignment of error number three. 

{¶10} As stated in the majority opinion, R.C. 519.12(H)’s mandate that a 

referendum petition on a township zoning amendment contain a brief summary of 

the zoning amendment resolution’s contents specifically requires that the summary 

be ‘“accurate and unambiguous.’” State ex rel. Columbia Res. Ltd., 111 Ohio 

St.3d 167, at ¶38, quoting S.I. Dev. and Constr., LLC, 100 Ohio St.3d 272, at ¶17. 

Specifically, the “purpose of requiring a summary is ‘to present fairly and 

accurately the question or issue to be decided in order to assure a free, intelligent 

and informed decision by the persons to whom it is presented.’” State ex rel. 

Hamilton v. Clinton Cty. Bd. of Elections (1993), 67 Ohio St.3d 556, 559, quoting 

Nunneker v. Murdock (1983), 9 Ohio App.3d 73, 77. Furthermore, “[i]f the 

summary is misleading, inaccurate, or contains material omissions which would 

confuse the average person, the petition is invalid and may not form the basis for 

submission to a vote.” Shelly and Sands, Inc. v. Franklin Cty. Bd. of Elections

(1984), 12 Ohio St.3d 140, 141, citing Markus v. Bd. of Elections (1970), 22 Ohio 

St.2d 197. 
Case No. 10-10-08 

 -10- 

{¶11} In reviewing the language contained within the petition, the wording 

substantially follows that of the two separate zoning resolutions. However, the 

combining of the two resolutions into one petition prevents voters from deciding 

on each resolution separately. For example, some voters may feel compelled to 

vote for the petition, despite the fact that they disagree with one of the resolutions, 

solely on the basis that they desire to approve the other resolution and see no other 

alternative to accomplishing that goal. In order for a voter to be able to make a 

“free, intelligent and informed decision,” and for the petition to “fairly and 

accurately” present the resolutions for a vote, I would find that each resolution 

must be presented in a separate petition. 

{¶12} Furthermore, I would find that the combining of two resolutions in 

one referendum petition is contrary to law. R.C. 519.12(H) provides no authority 

for combining two resolutions in one referendum petition, and the Appellee has 

cited none. 

{¶13} The statute provides, in pertinent, part as follows: 

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 * * * 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. 
Case No. 10-10-08 

 -11- 

R.C. 519.12(H). 

{¶14} The statute speaks in terms of a single amendment and a single 

resolution, referring to the amendment in the singular, and the zoning amendment 

resolution in the singular. I would find that combining multiple resolutions in one 

petition violates the language and intent of the statute, and would reverse the 

decision of the trial court. 

/jlr