The future of three ballot issues aimed at curbing multifamily housing development in Powell is in question after dual rulings by the Delaware County Board of Elections and Powell City Council in the last two weeks.
A group of residents began circulating petitions in mid-July in support of two ballot initiatives and one referendum, all relating to multifamily housing development.
One ballot initiative and the referendum would accomplish the same goal, blocking the development of a downtown apartment complex known as the Center at Powell Crossing. City Council voted unanimously at its Aug. 19 meeting to verify that the petitions for those two ballot issues were valid and sufficient to place the issues on the ballot and forwarded the issues to the board of elections for review.
The board of elections voted 4-0 at its meeting Tuesday, Aug. 26, that both issues were ineligible for the November ballot. The board agreed with the developer of the project, who argued council's approval of the complex's development plan in June was an administrative, not legislative, action because the existing zoning for the property already allowed for the construction of the 64-unit complex.
Administrative actions cannot be the subject of repeal by initiative or referendum, according to the board.
"We are pleased that the board upheld Ohio law in finding that the zoning for the property was already in place and that these measures could not lawfully be put on the ballot," Joseph R. Miller, attorney for the developer, wrote in an email shortly after the ruling.
Christopher Burch, attorney for the petitioners, said Aug. 26 the petitioners were "still considering our options" after the board's rulings in regard to a legal challenge.
The petitioners already are challenging an earlier ruling by Powell City Council that would keep a third election issue from the ballot.
Burch said the group filed suit against council and City Clerk Susie Ross in the Ohio Supreme Court on Friday, Aug. 22, for failing to send the third ballot issue on to the board of elections.
The third petition submitted by the group would allow voters to decide on a proposed charter amendment that would establish a new commission tasked with revising the city's comprehensive plan.
The amendment would put the heads of five Powell homeowners associations in charge of the commission to revise the document, which would be rewritten to prohibit new multifamily development in downtown Powell.
Council unanimously voted against sending that issue to the ballot at its Aug. 19 meeting, agreeing with city Law Director Gene Hollins that such an amendment would be an unconstitutional delegation of council's authority to a private group.
"We believe that delegating the legislative authority to draft a comprehensive plan to five individuals in the community would not withstand a due-process challenge," Hollins said.
Although council's role in reviewing the petitions is limited under the city's charter, Hollins said council has the authority to reject proposals that clearly are unconstitutional.
Councilman Tom Counts said he viewed the proposed charter amendment as "absolutely bad law" and unconstitutional as well.
"It cuts out three-quarters of our community" from the comprehensive-planning process, he said.
Vice Mayor Brian Lorenz agreed.
"I can't support something that doesn't allow me to represent the community as a whole," he said.
Council members also noted the city already has a committee tasked with revising the 20-year-old comprehensive plan that has been meeting since June.
Burch said the city erred by rejecting the proposed charter amendment based on its substance, instead of looking solely at the "sufficiency and validity" of the petitions, as required by the city's charter.
Burch rejected the argument that the amendment was unconstitutional, but added that, even if it were, council would not be the proper body to make that determination. He said the amendment, if passed, could have been challenged in court.
"It's just really premature for a decision about whether (the amendment) is constitutional or not," he said.
Burch also said he believed the courts would uphold the amendment as constitutional, if passed by voters. He said the proposed comprehensive plan commission would be tasked with "preliminary fact-finding" and only offer "non-binding recommendations" to council on the comprehensive plan.
He said council still would have the power to reject the commission's suggestions.
The Ohio Supreme Court is expected to rule on the petitioners' challenge before Sept. 20 as part of its expedited process for election issues. That would allow the issue to be placed on the November ballot if the court sides with the petitioners.
City spokeswoman Megan Canavan said Monday, Aug. 25, that the city would comply with the court's ruling after it is announced.