By SEAN RICE
Mercer County Common Pleas Court Judge Jeffrey Ingraham reversed
a county elections board decision and ordered a zoning question
for Franklin Township be removed from the November ballot.
The issue of rezoning 64 acres near Behm’s Landing outside
of Montezuma for residential development has seen a roller coaster
of bureaucracy, being denied and revived twice.
The issue vacated Monday from the ballot by Ingraham was a Franklin
Township Trustee decision to rezone 64 acres owned by Maria
Stein developer Rick Uppenkamp from an agriculture/residential
zone to a medium-density residential zone, which would allow
housing on smaller lots. The zoning change was approved by trustees,
but then numerous residents objected and signed petitions to
give all township voters the final say in deciding the issue.
Uppenkamp protested the petition process used by the residents
to bring it to a referendum ballot. In July, the Mercer County
Board of Elections upheld the residents petition process and
later placed the issue on the ballot.
But then on Monday, Ingraham declared the petition misleading
and ordered the question be removed from the ballot. He also
said any votes received should not be counted. The ballots already
have been printed so stickers will be placed over the issue.
Back in April when the township trustees approved the zoning
change, that decision was a reversal of the Franklin Township
Zoning Commission, whose members denied the request in February.
Franklin Township resident David Axe, who was instrumental in
bringing this and another zoning question to the ballot, was
thoroughly upset with the outcome.
“Now we’ve had both issues knocked off the ballot,”
Axe said, also speaking of the second zoning issue for Franklin
voters, which did not make it onto the ballot correctly.
Celina attorney James Tesno, who worked the case for Uppenkamp,
argued the petitions used by Axe and others were flawed. He
claimed the zoning change in question was not accurately named
or summarized in the petitions and could have been confused
with other zoning issues. Also the map was incorrect, he claimed.
“The Ohio Supreme Court has ruled the zoning referendum
petition summary must be accurate and unambiguous,” Tesno
said in his written argument in the case file.
Also, Tesno argued the high court has stated the average person
needs to be able to understand the point of the referendum.
The petition summary simply stated “please see attached.”
More than a dozen pages were attached, showing zoning applications,
meeting minutes and maps.
“There is no clear and unambiguous statement that would
tell the average person what was being requested to vote on.
Was it the Klosterman request, the Uppenkamp request, or perhaps
even some other change to the zoning code voted on at the April
9 meeting,” Tesno’s argument continued.
Mercer County Prosecuting Attorney Andy Hinders argued on behalf
of the county election board decision. He rebutted each of Tesno’s
arguments that the petition was vague.
“ ... The referendum petition in this matter is clear
and unambiguous,” Hinders argued.
Judge Ingraham disagreed.
“The court finds that Mr. Uppenkamp’s appeal is
well taken,” Ingraham wrote. “The court specifically
concludes that the decision of the Mercer County Board of Elections
is illegal, unreasonable, and unsupported by a preponderance
of substantial, reliable and probative evidence on the whole