Hearing set to see if referendum will be placed on May ballot

Mercer County Board of Election members are holding a formal hearing next week to decide whether a recently submitted notice of protest to a referendum petition in Franklin Township should be upheld.

The hearing - in which witnesses will be subpoenaed - is scheduled for 11 a.m. Wednesday in the Mercer County Courthouse auditorium. If board members need additional time, a decision could be rendered as late as 9 a.m. Feb. 12 in the auditorium.

The hearing relates to a petition for a township zoning referendum presented in January to board of elections members. The referendum would allow Franklin Township voters to decide whether a zoning resolution adopted in November 2009, should stand. The board, at its Feb. 23 meeting, will determine if the referendum is eligible for the May Primary ballot.

The protest states the referendum language is neither accurate nor unambiguous and would tend to mislead or confuse the average voter. It questions whether there are enough signatures on the referendum petition, and states it does not contain the number or full title of both zoning resolutions in question.

Celina attorney James Tesno, representing Mercer Development LP, which filed the protest, and St. Marys attorney Jeffrey Squire, representing petitioners in Franklin Township, met with board of election members Wednesday morning.

At the suggestion of Mercer County Prosecuting Attorney Andy Hinders, board members asked Tesno and Squire to compile a witness list by noon Friday. Those on the list will be subpoenaed to attend the hearing.

Failure to attend could result in arrest, Hinders said.

"I don't anticipate that's going to be a problem," he said.

Hinders said the subpoenas will make it easier for the witnesses to take off work and hopefully ensure their presence at the hearing.

Once board members make a decision, the losing side will likely file an appeal in Mercer County Common Please Court, Hinders said.

In November, Franklin Township Trustees unanimously upheld a recommendation by the township's zoning commission for new zoning that would allow Rick Uppenkamp to put duplexes and recreational vehicles on his land between Behm Road and the Big Chickasaw Creek. Uppenkamp is involved with Mercer Development LP.

The decision was met with opposition from several residents of the township.

The zoning resolution approved in November would change an 18.8-acre parcel from R-2 medium density residential to R-3 high density residential and a 34.2-acre parcel from R-2 medium density to R-C - resort commercial.

According to trustee Tom Rose, R-3 high density zoning allows Uppenkamp to build duplexes and R-C resort commercial allows for an RV park as a conditional use.

Rose has said Uppenkamp already has an RV park on the east side of the creek. The rezoning allows additional RVs on the west side of the creek - about 600 feet away from any homes, he said.