The Delaware County Board of Elections on Jan. 18 halted a planned ballot referendum seeking to overturn rezoning for a Berlin Township industrial park.

The action took place during a hearing on a protest filed against the referendum, which had been slated for the May 8 ballot.

In the wake of that hearing, the referendum's proponents and opponents are taking steps that could precede potential court litigation seeking to repeal the Jan. 18 ruling.

Berlin Township trustees in October approved the rezoning of 24 acres at 5427 state Route 37 E., at the northwest corner of Route 37 and North Old State Road, from farm residential to planned industrial.

The rezoning was sought by property owner Savko Brothers Properties X LLC, which plans to develop an industrial park at the site.

Township trustees later received a petition seeking the referendum ballot issue to overturn the rezoning. The board of elections Nov. 28 certified the referendum for the ballot.

Attorneys for Savko then filed the protest that was the topic of the Jan. 18 hearing.

Board of elections director Karla Herron said the protest claimed the wording of the referendum's title failed to meet Ohio Revised Code requirements.

The protest also challenged the referendum's summary.

Allegations regarding the summary largely centered on whether it adequately referenced amendments and modifications to Savko's original proposal, Herron said.

Herron said the elections board upheld the claim against the title on a 3-1 vote and split on the protest's claims against the summary with a 2-2 vote.

The 3-1 vote removed the referendum from the May 8 ballot.

"We are pleased the board of elections agreed and sustained our protest," said attorney Joe Miller, who represented Savko at the hearing. "My client's private-property rights were at issue and the petition for referendum was found to be misleading."

Miller -- with Vorys, Sater, Seymour and Pease LLP, Columbus -- said the referendum title failed to identify by number the Berlin Township resolution approving the rezoning, as law requires.

Herron said the Jan. 18 hearing sets other actions in motion.

In the event of a 2-2 vote by a board of elections, Ohio law requires the secretary of state to cast a tie-breaking vote.

Herron said both sides in the case "have two weeks (until Feb. 1) to get their sides to the secretary of state," and they are preparing that paperwork.

Implicit in the requirement for the tie-breaking vote, Herron said, is the possibility court litigation could be filed to appeal the election board's ruling.

A potential court case might consider the protest's two objections against the title and summary, she said, so the tie vote must be resolved.

"Both issues are independent of each other," Herron said.

Under such a scenario, she said, the Ohio Supreme Court potentially could issue a ruling before March 24, when the board of elections is scheduled to put military and overseas ballots in the mail.

Andrew Wecker, an attorney representing the referendum petitioners, declined comment.

Wecker is with Manos, Martin and Pergram Co. LPA, Delaware.

In the event of litigation, Miller said, "We would vigorously defend this decision of the board of elections. The board acted in accordance with Ohio law. We are confident the court would uphold their decision."

Board of elections members Ed Helvey, Steve Cuckler and Shawn Stevens sided with the protest on the referendum's title, with board member Peg Watkins dissenting.

The protest's objections to the summary were upheld by Stevens and Cuckler, while Watkins and Helvey disagreed.

Delaware County Assistant Prosecuting Attorney Christopher Betts said county commissioners Dec. 28 agreed to hire special counsel for the elections board during the hearing, at the elections board's request.

Betts said this was done because the county prosecutor's office represents Berlin Township, and "there could be the appearance of a conflict of interest."

Attorney Laura MacGregor Comek of Columbus was hired at $225 an hour, a fixed rate for such work, Betts said.

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