By SEAN RICE
srice@dailystandard.com
There are 19 issues on Mercer County ballots this year, but
one of those ballot questions for Franklin Township voters is
being challenged in court.
A civil suit filed in Mercer County Common Pleas Court against
the Mercer County Board of Elections seeks to declare invalid
the petition material used to bring a zoning question to the
ballot in Franklin Township. If successful, the referendum question
could be removed or nullified prior to the Nov. 4 election.
Celina Attorney James Tesno filed the suit on behalf of Maria
Stein developer Rick Uppen- kamp in late August after an elections
board hearing determined the referendum issue would be placed
on the ballot, despite irregularities in the petition process
claimed by Tesno.
The referendum question asks voters if they should overturn
a zoning decision by the Franklin Township Trustees, changing
64 acres on Behm Road from an agriculture/residential zoning
to strictly residential zoning. Uppenkamp has plans for a housing
development.
Prior to the trustees’ decision, the Franklin Township
Zoning Commission ruled against the change and denied the request.
Within a month, the trustees overturned this decision.
In an interview in his office this week, Tesno said there are
two issues to be considered by Judge Jeffrey Ingraham: whether
the alleged irregularities are sufficient to deny the petitions,
and whether the elections board hearing was adequate.
Ingraham last week set dates for Tesno to present his argument
in writing and a date for Mercer County Prosecuting Attorney
Andy Hinders to respond on behalf of the elections board. The
judge set the conference date for Oct. 21, when the issue may
be decided.
In June, Uppenkamp and Tesno filed a protest against the referendum
decision, alleging errors in procedure, form and signatures
on the petitions that were circulated to get the issue to the
ballot.
At the August hearing on the protest, elections board members
questioned petitioners Elyse Zimmerman, David Axe and Randy
Wyerick if they fully explained their goal to the signers, and
if they used the correct map to show residents the area in the
zoning change.
Uppenkamp stated he thought the description on the petition
was vague and could have been interpreted as a petition against
developer Steve Klosterman, who had business before trustees
at the same meeting Uppenkamp’s request was granted.
“There’s just enough here to confuse you,”
Uppenkamp said at the hearing.
Although the outcome won’t emerge until nearly Election
Day, both attorneys acknowledged this issue can be seen as moving
quickly through the court. The abundance of facts and recorded
testimonies from the elections board hearing eliminates the
need for more testimonies and extra legwork for the attorneys,
Hinders said Tuesday.
Tesno said he is unsure of the exact procedure of the board
of elections, but he surmised the elections board would take
steps to remove the question from the ballot if the judge decrees
so.
The Ohio Secretary of State’s office requires the local
boards of elections have the ballots prepared before Oct. 1,
Elections Director Toni Slusser said. Also, absentee ballots
already have been prepared and those voting with that method
can request and submit ballots as early as Oct. 1.
Slusser said she has not seen an issue similar to this before
and questions the legality of changing ballots so close to the
election.
Hinders and Tesno said it is possible the votes that come in
on the question simply would not be counted, if the judge nullifies
the question. But, the issue also could be appealed again to
the Third District Court of Appeals in Lima.
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