The Warren County Board of Elections can place a Wayne Township rezoning referendum on the May 7 ballot regarding a proposed 42-acre housing development, the Ohio Supreme Court ruled today.

The Supreme Court unanimously rejected a challenge to the referendum by landowners John and Sherry Federle. The couple argued the property on Lytle Road in Wayne Township was already zoned for a planned-unit development and Wayne Township merely approved their development plan, which was not subject to referendum.

In a per curiam opinion the Court explained the property lies within a “Village Transition Planned-Unit Development District” and that under Ohio law, a township has the option of adopting a plan that does not require rezoning approval of properties that are eventually developed. The Court ruled the Federles failed to present “clear and convincing evidence” that they showed the board of elections sufficient evidence that Wayne Township’s plan did not require rezoning approval and the board of elections was within its right to accept a challenge to the change.

Land Use Change Sought
Townships have the authority to adopt planned-unit developments (PUDs) under R.C. 519.021 to promote township planning and building in a way that is more flexible than permitted by conventional zoning regulations. Wayne Township adopted two plans to use PUDs for development within the township, including the Village Transition PUD, which could be applied to properties within a “district” of land roughly encircling the village of Waynesville.

Wayne Township adopted a three-step plan to change land use for its PUDs that begins with a rezoning process where property owners complete a rezoning application form. The township trustees have to make a “legislative” decision to approve the application.

In June 2018, the Federles filed an application on a form titled, “Application for Zoning Map Amendment” and indicated they sought to reclassify about 41 acres they owned and 1 acre owned by neighbors from residential single family to Village Transition PUD.

In July 2018, the township trustees prepared and adopted a resolution to approve the request to “rezone” the Lytle Road property. Less than a month later, township residents submitted a petition to challenge the approval through a referendum. The township sent the petitions to the Warren County Board of Elections, which certified that enough valid signatures were supplied to put the issue on the ballot.

In November, John Federle protested the board’s placement of the referendum on the ballot. He argued the township’s classification of the change as a rezoning was a mistake and that his request was to develop the property according to preexisting zoning that went into place when Wayne Township adopted the Village Transition PUD regulations in 2015. He argued the 2018 resolution adopting the change was not a “legislative” act the voters could challenge through referendum.

The board rejected Federle’s protest and placed the issue on the May 7 primary election ballot.

Property Owner Challenges Decision
The Federles challenged the board of elections’ decision by filing for a writ of prohibition with the Ohio Supreme Court to prevent the board from putting the referendum on the ballot, and a writ of mandamus to order the board to find the  referendum petition was “legally insufficient” to put the issue on the ballot.

Citing the Court’s 1994 State ex rel. Zonders v. Delaware Cty. Bd. of Elections decision, the opinion explained that when a township votes to rezone a property it is a legislative act that is subject to a referendum. When a township votes to approve a new development that is in compliance with existing zoning requirements, it is an “administrative” act that is not subject to a voter challenge.

The Court explained that under R.C. 519.021 it was possible for Wayne Township to have rezoned the entire Village Transition PUD district, which included the Federle property, when it adopted the Village Transition PUD regulations in 2015. However, the Court noted the law gives townships options on how to proceed with PUDs and can require rezoning approval for PUDs.

Because Wayne Township has a three-step process that included the use of a rezoning application that had to be approved by the trustees, the Court stated that much of the evidence is inconsistent with the claim that the township rezoned all the property in 2015.

The opinion noted that the Federles did not even discuss the issue of the township’s options under the state law, which did not “clearly eliminate the possibility that the 2018 resolution was a rezoning.” The Court concluded the board of elections did not abuse its discretion when it placed the issue on the ballot.

2019-0104. State ex rel. Federle v. Warren Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-849.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.