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The Daily



10-22-03: Franklin Township issue taken off ballot


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 record.”


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