in the supreme court of ohiocirculators. and at counsel table with me is tony gioffre, who is one of...

Case No. 11-1266

In The Supreme Court of Ohio----------------------------------------------------

STATE EX REL. EDWARDS LAND CO., LTD., et al.,Relators,

V.

DELAWARE CTY. BD. OF ELECTIONS,Respondent.

Original Action in Mandamus and Prohibition

EVIDENCE OF RELATORSEDWARDS LAND CO.9 LTD., CHARLES P. DRISCOLL,

MRLD FARM, LTD., AND VALERIE KNOWLTON

VOLUME 1 of 2

Donald J. McTigue (0022849)Mark A. McGinnis (0076275)J. Corey Colombo (0072398)MCTiGUE & McGiNNis LLC545 East Town StreetColumbus, Ohio 43215Tel: (614) 263-7000Fax: (614) 263-7078dmctiguena electionlawgroup.commmcginnisp.electionlawf;roup. comccoiorIIbotw e12Ctio1'il^aW Hr ODU. c.3m

Larry H. James (0021773)Andy Douglas (0000006)Laura M. Comek (0070959)CRABBE, BROWN, & JAMES LLP500 South Front Street, Suite 1200s'̂ohamhus,-Mis-432?_5Tel: (614) 229-4557Fax: (614) 229-4559ljamesgcb'1̂ awyers.comadouglas(ctcbj lawyers. comlcomek(acbj lawyers. com.Counsel for Relators

Christopher D. Betts (0068030)Assistant Prosecuting AttoineyCarol Hamilton O'Brien (0026965)Prosecuting AttorneyPROSECUTING ATTORNEY'S OFFICE

DELAWARE COUNTY, OHIO

140 North Sandusky Street, 3`d FloorDelaware, Ohio 43015Tel: (740) 833-2690Fax: (740) 833-2689cbetts n co,delaware.oh,usco' brien,^a co.delaware.oh.us

C(,t,ltk t1F COl1RTSUPREME COURT OF 0Hi0

Counsel for Respondent

Evidence Attached to Volume 1:

July 18, 2011 Hearing Transcript (Pages 1-120 out of 192 pages)

Evidence Attached to Volume 2:

July 18, 2011 Hearing Transcript (Pages 121-192 out of 192 pages, plus index)

Hearing Exhibit A June 3, 2011 Referendum Petitioners' legal counsel's submissionletter to Liberty Township Board of Trustees and Receipt signedby Liberty Township Assistant Zoning Inspector

Hearing Exhibit B Liberty Township Zoning District Map Submitted by ReferendumPetitioners with their Referendum Petition

Hearing Exhibit C January 26, 2011 Amendment to Zoning Application whichspecifies that MRLD Farm, Ltd is the new landowner

Hearing Exhibit D March 15, 2011 Liberty Township Trustee Record of Proceedings

Hearing Exhibit E April 4, 2011 Liberty Township Trustee Record of Proceedings

Hearing Exhibit F May 4, 2011 Liberty Township Trustee Record of Proceedings

Hearing Exhibit G Sample map of area impacted by zoning change that was submittedby Relators to Liberty Township

Hearing Exhibit H Delaware County Auditor real estate pages documenting ValerieKnowlton's transfer of subject property to MRLD Farm, Ltd.

Hearing Exhibit I Petition for Zoning Referendum, part-petition I cover page, whichis representative of all other part-petitions that were filed by

Referendum Petitioners

Hearing Exhibit B-1 Referendum Part-Petitions (Hearing Exhibit I submitted in lieu of

all part-petitions)

Hearing Exhibit B-2 Relator's June 23, 2011 Protest Against Referendum Petition

Hearing Exhibit B-3 Referendum Petitioners' Response to Protest

Hearing Exhibit B-4 Protestor's Pre-Hearing Brief

Hearing Exhibit B-5 Same as Hearing Exhibit B

Hearing Exhibit B-6 June 7, 2011 Petition Transmittal letter

2

Hearing Exhibit B-7 Same as Hearing Exhibit A


Hearing Exhibit C-1 April 18, 2011 Liberty Township Trustee Record of Proceedings

Respectfully submitted,

d J. Mc igu (0022849)A. McGr ' (0076275)

orey Colombo (0072398)McTigue & McGinnis LLC545 East Town StreetColumbus, Ohio 43215Tel: (614) 263-7000Fax: (614) 263-7078dmetigue a electionlawgroup.com.mmcginnisAelectionlawgroup comccolombo(uelectionlawgroup.com

^ • c^c-^

Larry H. Yames (0 773)Andy Douglas (0000006)Laura M. Comek (0070959)CRABBE, BROWN, & JAMES LLP500 South Front Street, Suite 1200Columbus, Ohio 43215Tel: (614) 229-4557Fax: (614) 229-4559li amesgcbi lawyers. eomadouglasncbilawyers.coml comelcacbi lawvers.co m

^^ft-ovu.PO

_Cowmse-Lf r-Re-laters,Edwards Land Co., Ltd., Charles P. Driscoll,MRLD Farm, Ltd., and Valerie Knowlton

3

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was served via electronic mail upon the

following this 12th day of August, 2011:

Counsel for Respondent Board of Elections:

Carol Hamilton O'Brien, Esq. (co'brien a co delaware.oh.us)Christopher D. Betts, Esq. (cbettskco delaware.oh.us)

4

STATE EX REL. EDWARDS LAND CO., LTD., et al.,Relators,

DELAWARE CTY. BD. OF ELECTIONS,Responctent.

Original Action in Mandamus and Prohibition

EVIDENCE OF RELATORS

EDWARDS LAND CO., LTD., CHARLES P. DRISCOLL,MRLD FARM, LTD., AND VALERIE KNOWLTON

Donald J. McTigue (0022849)Mark A. McGinnis (0076275)J. Corey Colombo (0072398)MCTIGUE & McGINrrIs LLC545 East Town StreetColumbus, Ohio 43215Tel: (614) 263-7000Fax: (614) 263-7078dmetigue eleetionlaw¢roun:commmaginnisgelectionlawgro up. com

ccolombo electionlawgroup.co

Larry H. James (0021773)Andy Douglas (0000UU6)

Laura M. Comek (0070959)CRABBE, BROWN, & JAMES LLP

500 South Front Street,Suite 1200Columbus, Ohio 43215Tel: (614) 229-4557

_Fax:.(6I4)-229=.45-59lj ames(a7 cbi lawyers. comadouglasncbilawvers.comlcomekna cbilawyers.com

Counsel for Relators

Christopher D. Betts (0068030)Assistant Prosecuting AttorneyCarol Hamilton O'Brien (0026965)Prosecuting AttomeyPROSECUTING ATTORNEY' S OFFICE

I)ELAWARE COUNTY, OHIO

140 North Sandusky Street, 3`d FloorDelaware, Ohio 43015Tel: (740) 833-2690Fax: (740) 833-2689cbetts(c^co delaware.oh:usco'brienOco. delaware. oh.us

Evidence Attached:

July 18, 2011 Hearing Transcript (192 pages plus index)

Hearing Exhibit A June 3, 2011 Referendum Petitioners' legal counsel's submissiond Recei t signedan ptf T eesrusletter to Liberty Township Board o

by Liberty Township Assistant Zoning Inspector

Hearing Exhibit B Libertv Township Zoning District Map Submitted by Referendum

Petitioners with their Referendum Petition

Hearing Exhibit C

Hearing Exhibit D

Hearing Exhibit E

Hearing Exhibit F

Hearing Exhibit G

Hearing Exhibit H

January 26, 2011 Amendment to Zoning Applicationd wnerospecifies that MRLD Farrn; Ltd is the new lan

March 15, 2011 Liberty Township Trustee Record of Proceedings

April 4, 2011 Liberty Township Trustee Record of Proceedings

May 4, 2011 Liberty Township Trustee Record of Proceedings

Sample map of area impacted by zoning change that was submitted

by Relators to Liberty Township

Delaware County Auditor real estate pages documenting ValerieKnowlton's transfer of subject property to MRLD Farm, Ltd.

Hearing Exhibit I Petition for Zoning Referendum, part-petition 1 cover page, whichis representative of all other part-petitions that were filed by

Referendum Petitioners

Hearing Exhibit B- 1 Referendum Part-Petitions (Hearing Exhibit I submitted in lieu of

all part-petitions)

Hearing Exhibit B-2 Relator's June 23, 2011 Protest Against Referendum Petition

Hearing Exhibit B-3 Referendum Petitioners' Response to Protest

Hearing Exhibit B-4 Protestor's Pre-Hearing Brief

Hearing Exhibit B-5 Same as Hearing Exhibit B

Hearing Exhibit B-6 June 7, 2011 Petition Transmittal letter



Hearing Exhibit C-1 April 18, 2011 Liberty Township Trustee Record of Proceedings

Respectfi.tlly submitted,

o 2ald J. Mctj&e (0022849)k k A. McGinnis (0076275)f

J. Corey Colombo (0072398)McTigue & McGinnis LLC545 East Town StreetColumbus; Ohio 43215Teic (614) 263-7000Fax: (614) 263-7078dmetieuena electioiilaw ou .com^mmc¢inniskelectionlawwoup.eomecolomboCajelectionlawgroup.com

-

Larry H. ^ ames ( 1773)Andy Douglas (0000006)Laura M. Comek (0070959)CRissE,BROwrr, & JAMF-s LLP500 South Front Street, Suite 1200Columbus, Ohio 43215Tel: (614) 229-4557Fax:(614)229-4559liamesna cbilawyers.coinadouglasacbi lawyers:comlcomekQcbjlawyers.corn

Counsel for Relators,Edwards Land Co., Ltd., Charles P. Driscoll,MRLD Farm, Ltd., and Valerie Knowlton

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was served via electronic mail upon the

following this 1 st day of August, 2011:

Counselfor Respondent Board of Elections:

Carol Hamilton O'Brien, Esq. (co'[email protected])Christopher D. Betts, Esq: (cbettsna co.delaware.oh.us)

ey Coi bo;iey at Law

1

BOARD OF ELECTIONS

DELAWARE COUNTY, OHIO

IN RE: PROTEST AGAINST

PETITION FOR ZONING

REFERENDUM FOR LIBERTY

TOWNSHIP REZONING

PROPOSAL LTZ 09-01

PUBLIC HEARING

July 18, 20119:03 a.m.

2079 U.S. Highway 23 North

Delaware, Ohio 43015

Boardman Court Reporting

(614) 716-8202

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ATTENDEES

THE BOARD:

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Jeffrey A. Burkam - Chairman

Edward D. HelveyBruce Burnworth

ON BEHALF OF THE PROTESTORS:

McTigue & McGinnis, LLC

545 East Town Street

Columbus, Ohio, 43215

and

By Donald J. McTigue, Esq.

Crabbe, Brown & James, LLP500 So. Front Street, Suite 1200

Columbus, Ohio, 43215By Laura MacGregor Comek, Esq.

ON BEHALF OF THE CIRCULATORS:

Axelrod Laliberte LLC

137 East State Street

Columbus, Ohio, 43215

By William M. Todd, Esq.

ALSO PRESENT:

Christopher D. Betts, Esq., Asst. Pros. Attorney

Shawn StevensBrian D. Mumford, BOE DirectorKarla R. Herron, BOE Deputy Director

Charles P. Driscoll, Protestor

Anthony Gioffre, Circulator

Rob CohenDavid Anderson, Liberty Township Administrator


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TABLE OF CONTENTS

WitnessesPage

19KATHY MELVIN

Mr. McTigue Direct 1922Mr. Todd - Cross 28

Mr. McTigue - Redirect

TRACEY MULLENHOUR

Mr. McTigue - Direct

Mr. Todd - Cross

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42CHARLES DRISCOLL

43Mr. McTigue - Direct 57

Mr. Todd - Cross 60

Mr. Helvey - Cross 62

Mr. Todd - Further Cross

KATHY MELVIN (RECALLED)

Mr. Todd - Direct

Mr. McTigue - Cross

EXHIBITS

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6667

Ident AdmtdBoard Exhibits

10 188B-1 Petitions

B-2 Protest filed 6/23/11 10 188

11 188B-3 Response

11 188B-4 Protestors' Prehearing Brief

11 188B-5 Zoning Map Attached to

Petitions


(614) 716-8202

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EXHIBITS (CONT'D)

2t'd) Ident

CAdmtd

3 onBoard Exhibits (

4 B-6 Letter from Liberty Township, 13188

6/7/115 14 18 8

B-7 Receipt dated 6/3/11 with

6 sticky note

7 B-8 Letter, Todd to Liberty 15

Township Board of Trustees,

188

8 6/3/11

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11 IdentProtestor Exhibits

Admtd

12 19 64D Liberty Township Trustees

13 Record of Proceedings, 3/15/11

14 E Liberty Township TrusteesRecord of Proceedings, 4/4/11

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15 19 64F Liberty Township Trustees

16 Record of Proceedings, 5/4/11

17 A Letter, Todd to LibertyTownship Board of Trustees,

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18 6/3/I1

19 B Liberty Township Official

Zoning District Map

32 64

20 34 64C Application for Amendment of

21 Zoning Map to Planned Residence

Drstrict (nR) , F-_1 e #LTZ 09-01

22 36 64G Trail's End Title Sheet and

23 Index Map

24 J Trail's End Master Plan54 64


(614) 716-8202

EXHIBITS (CONT'D)

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Protestor Exhibits (Cont'd) Ident Admtd

54 64I Petition for Zoning Referendum

64 64H Parcel Transfer History

Ident AdmtdCirculator Exhibits

65 188C-1 Liberty Township Trustee Record

of Proceedings, 4/18/11


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P R 0 C E E D I N G S

CHAIRMAN BURKAM: We are on the record

now.

We are here on the record for a protest as

to the Rezoning Proposal LTZ 09-01.

Counsel, if you would identify yourselves

for the record.

MR. McTIGUE: Donald McTigue on behalf of

the protesters, and seated at the table with me is one

of the protesters, Charles Driscoll.

Also appearing with me is Attorney Laura

Comek on behalf of the protesters.

CHAIRMAN BURKAM: Thank you.

MR. TODD: I'm Bill Todd on behalf of the

circulators. And at counsel table with me is Tony

Gioffre, who is one of the circulators.

CHAIRMAN BURKAM: Very good.

At this point, I would ask all persons who

think they may be presenting testimony today to rise

and be sworn in by our court reporter, so we-'11 jus-t

have everybody sworn in all at once at the beginning-

So if you think you may be testifying, even if it ends


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up that you're not, that's okay, but if you are

possibly going to be giving testimony, please rise and

please administer the oath.

(The witnesses were sworn.)

CHAIRMAN BURKAM: If you wish to make an

opening statement, please feel free. Although we may

not have read the things from Friday as well as we

might like, I think all of us have looked through

those documents.

Something else from our counsel.

MR. BETTS: Can I make one preliminary

statement? I'm Chris Betts from the Delaware County

Prosecutor's Office. I just want to explain a little

bit about what my position is here. I'm here to not

participate in the decision with the Board, but I'm

here to advise the Board as far as law procedure if

they have any questions.

I have prepared for the Board, just for

the record, a document that is a completely neutral

document that allows them to kind of follow the

various protests that were set out. It's via check

boxes in there as to how they may wish to decide on

this. They can use it or not use it as they see fit.

But I have given it to the Board as a guide, and I do


(614) 716-8202

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1 want to emphasize again it's a completely neutral

2 document. It's just meant as a guide for the Board.

3 They may use it for their decision or they may not.

4 But if the Board has any questions throughout, they

5 can feel freeto interrupt and ask me questions.

CHAIRMAN BURKAM: Thank you, Chris.6

7MR. BETTS: Yes.

CHAIRMAN BURKAM: Anything else? You're8

9 all set?

10MR. BETTS: That's it.

CHAIRMAN BURKAM: Anything else?11

12 Mr. McTigue.

13 MR. McTIGUE: Mr. Chairman, I will waive

14 an opening statement.

15 CHAIRMAN BURKAM: Very well.

16 Do you wish to make any?

17 MR. TODD: I will also waive. Our

18 statements were contained in our letter on Friday.

19 CHAIRMAN BURKAM: Thank you both.

20 Go right ahead, sir.

21 MR. McTIGUE: The first thing is I would

22 like to clarify that there - - that the Board or the

23 petitioner has a copy of the original petition, and my

24 understanding is that's going to be Board Exhibit No_


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CHAIRMAN BURKAM: In fact, probably we

should identify at this point, Chris, with your help,

and, Brian, if you would, let's identify for the

record those things which will be Board exhibits. I

would suggest we have -- let's all use numbers. We'll

use B for Board exhibits, P for protester, and C for

circulator.

MR. TODD: C.

CHAIRMAN BURKAM: And just do l, 2,

if that's acceptable to everyone.

So what all do we have, Brian?

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MR. MUMFORD: That first pile there you

have the protest. I'm sorry, no, you have the

petitions.

CHAIRMAN BURKAM: Okay. Here are the

petitions. What we would have as the Board Exhibit 1

would be the petitions. These are the original

circulated petitions. I'm going to propose that we

use -- we substitute a copy, because I think the Board

needs to retain these originals, but we will

substitute a copy for those. But these are the actual

original petitions that have been examined for their

sufficiency as far as numbers of signatures by the


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Board staff. And that will be B-1.

Board Exhibit B-1 was marked for purposes of

identification.

CHAIRMAN BURKAM: What's next, Brian?

MR. MUMFORD: That's the protest.

CHAIRMAN BURKAM: Here's the protest.

MR. HELVEY: That's not a Board record.

MR. BURNWORTH: We received it.

MR. MUMFORD: It is filed.

CHAIRMAN BURKAM: So we usually use it as

an exhibit, so this will be Board Exhibit 2 unless --

are you comfortable with that, Ed?

MR. HELVEY: That's fine.

CHAIRMAN BURKAM: So that would be the

June 23rd filing relative to the protest.


identification.

CHAIRMAN BURKAM: Then the Board 3.

MR. MUMFORD: That's from the respondents.

CHAIRMAN BURKAM: Is a letter to the


(614) 716-8202

director from, I presume, Mr. Todd.

Is your first name Todd or your last name?

MR. TODD: My first name's Bil1.

CHAIRMAN BURKAM: I'm sorry. All right.

For Mr. Todd we have this response, which would be

Board Exhibit 3.

10CHAIRMAN BURKAM: Board Exhibit 4 would be

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12 then theprotesters' prehearing brief,

which I think

13 I was filed Friday. So that would be Board 4.

14Board Exhibit B-4 was marked for purposes o

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16 identification.

1718 MR. MUMFORD: And then the map.

19 CHAIRMAN BURKAM: Then the map, which is

20 the official zoning map,a copy of which I think was

21 attached to the petitions. This wouldbe Board

22 Exhibit 5.

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24Board Exhibit B-5 was marked for purposes of


(614) 716-8202

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1 identification.

2 - - - - -

CHAIRMAN BURKAM: Have I got them all,3

4 I Brian?

5 MR. MUMFORD: I have some other documents.

6 I don't know if they want to be introduced as

7 evidence.

CHAIRMAN BURKAM: What else do you have8

9 there?

MR. MUMFORD: This is just a letter from10

11 the township telling us that they're filing with us

12 the referendum and documents that show that they had

13 received it with --

14 CHAIRMAN BURKAM: Is that like a cover

15 letter when we got the petition?

16 MR. MUMFORD: Yes.

17 CHAIRMAN BURKAM: Okay.

18 MR. MUMFORD: And then there's a similar

19 document from when the referendum was filed with the

20 township, just showing that they received it.

CHAIRMAN BURKAM: You're probably going to21

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have to speak up, because otherwise the court repo-rter

may not be able to hear you. That's why I'm being

louder than normal.


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So you got the cover letter, and what was

the second one, Brian?

MR. MUMFORD: You have a letter just

from -- it's like a receipt from the township showing

that they received it when the referendum was filed

with the Liberty Township's office.

CHAIRMAN BURKAM: Is there a desire to

have those marked as exhibits by either party? We can

if -- at any point in the future or now if you prefer.

MR. McTIGUE: Yeah, just go ahead -- I'd

suggest just go ahead and mark it as B, B-6, I guess.

CHAIRMAN BURKAM: Okay. I'm looking at

then what is the original letter from Liberty Township

dated June 7th of 2011, which is the cover letter

sending the petitions. We'll make that as B-6.

Board Exhibit 3-6 was marked for purposes of

identification_

CHAIRMAN BURKAM: There are copies up here

of all these exhibits if you need copies.

MR. MUMFORD: And for these items, I'll

just keep the copies here if anybody wants them.

CHAIRMAN BURKAM: Okay. And there's B-6.


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And then --

MR. MUMFORD: This is a receipt.

CHAIRMAN BURKAM: Okay. This is a receipt

dated Friday, June 3rd, 2011, with various

interlineations and that sort of thing. The sticky

note, do you want that on this exhibit, Brian?

MR. MUMFORD: That was part of it.

CHAIRMAN BURKAM: That's the way it came?

MR. MUMFORD: Yes.

CHAIRMAN BURKAM: So this sticky note came

along with this receipt. And we will mark this as

Board 7.


identification.

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CHAIRMAN BURKAM: Which is in essence a

two-part document, the receipt itself and this 3M

sticky note.

MR. MUMFORD: And then this is the letter

that was written by William Todd that was given to the

township along with the petitions.

CHAIRMAN BURKAM: I'm marking then as

Board 8 a letter from Mr. Todd dated June 3rd, 2011,


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addressed to the Liberty Township Board of Trustees

filed with our Board on June the 7th- That would be

B-8.


identification.

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MR. MUMFORD: And this document was --

CHAIRMAN BURKAM: More?

MR. MUMFORD: Well, it's to me as a copy

of the revised code. I'm not sure exactly where it

was filed. It was filed with our office, but

originally Liberty Township, I would imagine, along

with that letter.

MR. BETTS: Should we let the revised code

speak for itself?

CHAIRMAN BURKAM: Well, one would think

so. I'm wondering why -- I'm looking at, gentlemen,

if you want to come up and look at it, it says

"Statement of Circulator." This was filed with us on

June 7th, 2011. It has highlights and brackets on a

portion. There are no signatures on this document

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- - Ifrom actual circulators. I am not certain why or

guess I don't even know who filed this. Do you know


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who did?

MR. ANDERSON: Mr. Chair, I believe that

was an attachment to the Liberty Township cover

letter.

CHAIRMAN BURKAM: Do you wish this to be a

Board -- would you like to take a look at this first?

Do you wish this to be a Board exhibit? I don't -- if

there's some significance, we'11 make it an exhibit.

MR. McTIGUE: I don't -- I mean, I think

it's just a -- it looks like it's just lifted out of

the law, but I'm not sure. I don't really see a

reason for it to be an exhibit.

CHAIRMAN BURKAM: Do you want to review

this, Mr. Todd?

MR. TODD: Just very quickly, thank you.

CHAIRMAN BURKAM: It looks like it's just

the normal statement to be on the petition.

MR. TODD: Yes.

CHAIRMAN BURKAM: You'd like that to be an

exhibit?

MR. TODD: No, that's all right.

CHAIRMAN BURKAM: At least for now, unless

it comes up at some point and becomes significant,

just let us know and we can always mark it as an


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exhibit.

MR. BURNWORTH: B-8 is the last one so

far.

CHAIRMAN BURKAM: B-8's where we're at.

Anything more, Brian?

MR. MUMFORD: No.

CHAIRMAN BURKAM: Brian Mumford is our

director.

I neglected to introduce you, Brian.

Our deputy director is Karla Herron. They

are obviously the people that have been advising us

and dealing with all these things, so we thank both of

you for being here.

With that --

MR. McTIGUE: Mr. Chairman, can I take a

look at B-6 and 3-7?

CHAIRMAN BURKAM: Please, please. They're

right up here and they're -- we don't have -- I think

we have copies that you can have of B-6 already run.

I don't know if we have copies of the others.

Are you ready, sir?

MR. McTIGUE: Yes.

CHAIRMAN BURKAM: Counsel, are you ready?

MR. TODD: Yes, we are. Thank you.

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(614) 716-8202

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1 CHAIRMAN BURKAM: Go right ahead.

2MR. McTIGUE: I'd like to begin by calling

3 Kathy Melvin. Where do you want the witnesses?

4 CHAIRMAN BURKAM: Good question.

5 THE WITNESS: I'm Kathy Melvin.

6MR. McTIGUE: Mr. Chairman, I'm going

go ahead, and I have five sets of exhibits here I

to

was

8 planning on using. Some of these are going to

9 duplicate things we've already talked about here.

10 CHAIRMAN BURKAM: Board exhibits.

11MR. McTIGUE: And they're lettered --

12 they're lettered as -- and I don't have P in front of

13 them.

14 CHAIRMAN BURKAM: That's fine.

15MR. McTIGUE: That's what I get for doing

16 it ahead of time, being efficient.

17CHAIRMAN BURKAM: Well, we intentionally

18 figured that out just to make life difficult for you.

19 But, sure, proceed however you want.

20 MR. McTIGUE: Okay.

21 CHAIRMAN BURKAM: As we say, we try to

22 keep it as informal as we possibly can.

23 MR. McTIGUE: Okay. Did you already state

24 your name?


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THE WITNESS: I did, yes.

MR. BURNWORTH: P-1 then?

KATHY MELVIN,

being first duly sworn, testifies and says as follows:

DIRECT EXAMINATION

BY MR. McTIGUE:

Q. And what is your address, please?

A. 9311 Degood Road, Marysville, Ohio 43040.

Q. And, Ms. Melvin, what's your position with

Liberty Township?

A. I am the secretary to the board of

trustees.

Are you also the clerk to the board of

trustees or --

A. Same.

Q. Same thing?

A. Kind of the same job.

Q. Okay.

A. It was tied in to one clerk.

Protestors' Exhibits D, E, and F were marked

for purposes of identification.


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Q. Okay. I want to show you just a couple

exhibits here. I've marked these as Exhibits D, E,

and F. Can you tell me what those are?

A. D is the Liberty Township Trustees record

of proceeding. It is the minutes that were taken on

March 15th, 2011.

Exhibit E is Liberty Township Trustees

record of proceedings for April 4th, 2011, from the

board of trustees meeting.

And Exhibit F is Liberty Township Trustees

record of proceedings for May 4th, 2011, which was

also a trustees meeting.

Okay.

to the

And now I'd like to direct your

minutes for April 4th and flip to

Tell me, is that where the minutes begin

issue of the rezoning that we're hereaddressing the

on today?

A.It starts with "Continuation of LTZ

Yes.

09-01 Final Public Hearing.,

Q. Okay. And if I move -- that was on page

3. And if I move to page 6, in the middle I see a

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231 paragraph that starts out, "Mr. Mann moved to

24 I approve." Could you just read that short paragraph?


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A. it states, "Mr. Mann moved to approve the

application as amended. The motion was seconded by

Mr. Sybert, and the roll call vote: Miss Carducci,

yes; Mr. Sybert, yes; and Mr. Mann, yes. The motion

passed with a three 'yes' and a zero 'no' vote."

Q. Okay. And that is a motion approving the

application on the rezoning that we're here on today,

correct?

A. Correct.

Q. And looking at the May 4th minutes, which

is Exhibit F, this is the meeting at which the

township trustees approved the April 4th minutes,

correct?

A. Yes, it is.

Q. Okay.

A. On page 2, and the approval of minutes is

the second paragraph.

Q. And did they make any corrections or

changes to the April 4th minutes?

A. There were no changes made.

Q. Okay. Are you the custodian of the

minutesor are you in charge of making -- of preparing

the minutes?

A. Correct.


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Q. Okay. And keeping them?

A. Correct.

Q. Okay. Now, when the referendum petition

was filed, you did not receive it, correct?

A. I did not.

Q. Okay. Who was it filed with? Or who

received it; do you know?

A. Is that when they came in and somebody

signed --

Q. When they came in, yes.

A. Miss Tracey Mullenhour signed for those.

Q. Okay.

MR. McTIGUE: I have no further questions.

CHAIRMAN BURKAM: Go right ahead,

Mr. Todd.

CROSS-EXAMINATION

BY MR. TODD:

Q- Kathy, good morning. My name is Bill

Todd, and I'm the attorney for the circulators.

A. Good morning.

Q•I'm going to hand you what's been marked

for purposes of identification as Exhibit C, although

I know it's been remarked in the Board's records as


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something, but this is -- appears to be the original

application for zoning that was filed in connection

with this matter.

A_ Okay.

Q. Have you ever seen this before?

A. Honestly, I can't say that I have. If it

is, it's in with the minutes.

Q. Okay. So it's not a document that you

would have referred to then in preparation of the

minutes?

A. No. This is -- this is referred for

zoning only, so this is the zoning -- the zoning

inspector would have received this or the zoning

office.

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Q. Okay. So it would have been in the zoning

office, and it wasn't part of the board of trustees'

record; is that correct?

A. I'm sure it is in the trustees' record,

because it would have been given to the trustees.

Q. Okay. It was given to the trustees.

Would it have been used by you, though, to prepare the

minutes for the April 4th meeting?

A. I'm sure it was given in the packet to the

trustees.


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1 Q•But you don't recall using it to prepare

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the minutes for the meeting for April 4th, do you?

A. I do not.

Q. Okay. Thank you.

Let me have you take a look at what's been

marked for purposes of identification as Exhibit E.

And I believe you've already identified them for the

record as minutes for the April 4th, 2011, board of

trustees meeting; is that correct?

A. Correct.

Q•And you actually prepared those minutes;

is that right?

A. I did_

Q, Do you remember when you prepared those

minutes?

A. Within a week, week and a half, after the

April 4th.

Q. Okay. And when would they have been

reviewed and approved by the board of trustees?

A. Most generally they're approved at the

next meeting.

Q. Okay. And in this case, were the minutes

that we're talking about for the April 4th, 2011,

meeting prepared and approved at the May 4th meeting


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of the board of trustees? Go ahead. Take a look.

You're looking at --

A. I'm looking at Exhibit F.

Q. -- Exhibit F, which is the May 4th

minutes -- or minutes --

A. The minutes from May 4th.

Q. Right.

A. And they were approved at the May 4th

meeting.

Q. Okay. So if I understand the process,

Kathy, what happens is that you have a meeting of the

board of trustees. Sometime afterwards the board of

trustees is provided a copy of minutes from the prior

meeting, and they approve them generally at the next

meeting. Is that right?

A. Yes. There are exceptions.

Q. Sure.

A. If, you know, somebody's out of town.

Q. Yes.

A. Or --

Q, Somebody's not available, something like

that,_

A. Correct.

4• But in this case, this was the normal


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case, the April 4th minutes weren't approved until May

4th, correct?

A. Correct.

Q. When you prepare the minutes for a board

of trustees meeting, do you attach copies of

resolutions that are adopted by the board of trustees?

A. Do I attach them to the minutes for

review?

Q. Correct.

A. No. They've already approved them, but

they are with the minutes for filing.

Q. Okay. Was there a resolution approved for

this particular zoning application that we're talking

about?

A. A resolution approved?

Q. Mm-hmm. Was there a zoning resolution

that you ever saw that was approved for this

particular zoning -- rezoning application?

A. We don't do resolutions for zoning.

Q. Okay. Why not?

A. Because they're usually administrative

reviews or -- I'm not sure what other terms the zoning

office uses, but they're usually -- the zoning is done

differently. It's not a resolution that's drafted by


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the board of trustees.

Q. So -- but when the board of trustees looks

at a rezoning appiication, for example, do they have a

written document or documents in front of them?

A. Yes.

Q. Do they make changes sometimes in those

rezoning applications, sort of during the course of

the meeting?

A. Not usually.

Q. But can they?

I assume they have the power to do that.A.

Q. Okay. When you prepare the minutes for

the -- a particular board meeting, what do you refer

to then when you're trying to determine exactly what

happened in a rezoning application?

A. The audio recording.

Q. The audio recording?

So you listen to an audio recording and

then write your minutes based on that audio recording?

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A. Correct. That's where all of the minutes

come from, is an audio recording.

Q. Now, in most contract matters for the

board of trustees, don't they have written resolutions

in front of them like to approve contracts?


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A. What kind of contracts are you speaking

of?

Q. Purchase contract, for example.

A. Yes.

Q. Purchase of services, purchase of goods,

or something like that.

A. Correct. That is what resolutions are

used for.

Q. Okay. But Liberty Township does not do

any rezoning resolutions, correct?

A. No, not that I have seen.

Q. Okay. Is that record of proceedings, your

audio copy that you use to prepare the minutes,

something that you make publicly available?

A. Correct.

Q. Okay. Thank you.

REDIRECT EXAMINATION

BY MR. McTIGUE:

Q. With regard to the zoning matters, the

trustees do it by motion as opposed to resolution,

correct?

A. Correct.

MR. McTIGUE: Thank you.


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Thank you, ma'am. You can resume your

seat.

THE WITNESS: Thank you.

CHAIRMAN BURKAM: Your next witness,

please.

MR. McTIGUE: Yes. I'd like to call

Tracey Mullenhour.

THE WITNESS: I'm Tracey Mullenhour.

MR. McTIGUE: Could you spell your first

and last name?

THE WITNESS: T-R-A-C-E-Y,

M-U-L-L-E-N-H-O-U-R.

CHAIRMAN BURKAM: I would call upon

counsel, make certain as you're calling witnesses that

they are among those who were sworn in. I know this

lady was one who stood up and was sworn in, so I just

note that for the record. I ask you to keep track of

that if you would, Counsel.

MR. McTIGUE: Okay. Shall we go ahead and

note for the record that Ms. Melvin was sworn?

MS. MELVIN: I was.

CHAIRMAN BURKAM: The record should so

reflect.


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MR. McTIGUE: Okay.

TRACEY MULLENHOUR,


DIRECT EXAMINATION

BY MR. McTIGUE:

Q. What is your address, please?

A. 6340 Steitz Road, that's S-T-E-I-T-Z,

Powell, Ohio 43065.

Q. And what is your position with Liberty

Township?

A. I'm the assistant zoning inspector.

Protestors' Exhibit A was marked for

purposes of identification.

Q. Okay. Now, I'm going to show you some

exhibits. First I'm going to start with what I've

marked as Exhibit A. This duplicates some of the

Board exhibits.

Can you identify what this is?

A. Yes. It was the letter that was attached

to the referendum.

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Q. Okay. Are you the person that physically

received the filing of the referendum petition?

A. Yes, I am.

Q. Okay. And just so the record is clear,

when we say "the referendum petition," we're talking

about the one on the rezoning that we're here on

today?

A. Correct.

Q. Okay. And who brought this in for filing

with you?

A. I believe it was Rob Cohen.

Q. Okay. And so we have this cover letter

signed by Bill Todd or William Todd?

A. Mm-hmm.

Q. And then what is attached to that?

A. It's the receipt that Mr. Cohen asked me

to sign in receipt of the petition.

Q. Okay.

A. Or the referendum.

Q. Okay. And we have some handwritten

changes on there in terms of numbers. Whose

handwriting is that?

A. The ones that are marked "TM" are my

initials. The actual numbers were Rob Cohen's


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figures

Q. Okay. And so with this was -- with this

receipt and cover letter the petitions were also

filed?

A. Yes.

4• And I believe there were, what, 35

part-petitions -- 35 petitions?

A. Correct.

Q. Okay.

MR. McTIGUE: And just for the record, if

I can -- is this the original petition right here?

CHAIRMAN BURKAM: Those are the petitions,

yes.

4•I'm just going to have you identify if

this is the petition that was filed with that letter.

A, I would say yes. To be very honest, I

didn't go through each individual page, but I would

say yes, it is.

Q. Okay. That's good enough. We'll leave it

here for the moment.20

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Protestors' Exhibit B was marked for



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1 Q• Now, I'm going to show you what -- let's

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see -- what's marked as Exhibit B. Let me see what

the -- here we go.

I'm going to show you what I've marked as

Exhibit B. Have you seen this before?

A. Yes, I have.

Q. Okay. Can you tell us, first of all, what

is this?

A. It's the official zoning map for Liberty

Township.

Q. Okay. So it includes all of Liberty

Township?

A. Correct.

Q. Okay. And was this filed at the same time

as the petition?

A. I believe so, yes. Like I said, I didn't

go through, you know, page by page, but I believe it

was probably the very last page of the petition -- or

referendum.

Q. Okay. And the -- in terms of the map that

was filed, this Exhibit B, was it a black-and-white

photocopy or was it a color map?

A. I believe it was a black-and-white copy.

Q• Okay. And the -- let me show you the


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Board exhibit, which is B-5, okay? Is that the same

map?

A. Yes, it is.

Q. Okay. And this one contains a date stamp,

although it would not appear that it came out

completely, but it says "received" and it looks like

June perhaps 7?

A. Mm-hmm.

Q. Is that the date stamp from your office?

A. No, sir.

Q. Okay. That's the Board of Elections?

A. Yes.

Q. Okay. So it's on here twice. Okay.

Do you know -- do you recall if -- well,

you don't recall for sure whether the map was actually

filed with the petition?

A. Not for a hundred percent sure, no.

Q. Okay. Other than this cover letter and

the receipt, the petition -- I think there's 35 parts

to that -- and possibly this map, was anything else

filed at that time when the petition was tendered?

A. No, sir.

Protestors' Exhibit C was marked for


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Q, Okay. Now, I want to show you what's

marked as Exhibit C and ask you if you're familiar

with this.

A. Yes, I am.

Q. Okay. Can you tell us what that is?

A. It's the application that we were -- that

is required to be filed with the rezoning application.

Q. Okay. And I see down at the bottom it has

an original date in terms of, I guess that's -- I

can't read upside down, but it looks like January

12th, '09?

A. Mm-hmm, yes.

Q. Is that the day that it was originally

filed?

A. You mean the original rezoning?

Q. Yes.

A. Yes, sir.

Q. Okay. And then this -- the original

rezoning application was later amended, correct?

A. I'm not sure if it was amended.

Q. Well, were changes made -- I'm showing you

on Exhibit C. For example, we have near the top in


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what appears to be like a black marker the words "MRLD

Farm, Limited" and the word "by." Was that on the

original?

A. I don't believe it was. I think that it

was -- that was added when the zoning inspector

checked the actual records for who the property owner

was. And I believe that was added to it and signed by

Valerie Knowlton.

Q. Okay. At the bottom it says also at the

bottom we have "MRLD Farm, Limited," and then it looks

like "by Valerie Knowlton" with -- and January 26,

2011?

A. Correct.

Protestors' Exhibit G was marked for


Q. Okay. And I'm going to show you now what

I'm going to mark as Exhibit G. If you hold on one

second, I'm going to pass out copies.

I have copies for the members. This is

actually -- if you look at Exhibit G in the packet I

gave you, Exhibit G is a shrunk down one-page document

which is the same as this front page. And then there


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are a bunch of subsidiary pages here as well. That

should be enough.


BY MR. McTIGUE:

Q. Can you identify what this document is?

A. Yes. It was part of the rezoning

application for Trail's End.

Q. Okay. So is this part -- this document

part of the zoning file, then?

A. Yes, it is.

Q. Okay. And looking at the -- just the

first page -- well, basically this is a series of

maps, correct?

A. Yes.

Q•And the first one is called a "title,

street, and index map," correct?

A. Yes.

Q. And what's the date on that?

A. January 20th, 2011.

Q. And do you know what date that was filed

with -- I assume it was filed with the zoning office.

A. Yes.

Q. Okay. Do you know what date that was

filed?

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A. No, I'm not sure.

Q. Okay. But was it filed with the zoning

office prior to the April 4th meeting at which the

township trustees voted?

A. Yes.

Q. Okay.



CROSS-EXAMINATION

BY MR. TODD:

Q• Tracey, as you know, I'm Bill Todd, and

I'm representing the circulators. How are you this

morning?

A. Fine. Thank you.

Q. Let's take a quick look at the official

zoning map, which at least in one version here has

been marked for purposes of identification as Exhibit

B.

A. Mm-hmm.

Q. Now, the official zoning map is prepared

by Liberty Township; is that correct?

A. Yes.

Q. Okay. And when there are amendments to


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the official zoning map, I assume that the township

has to prepare those amendments. Is that correct?

A. Correct.

Q_ Are there any township-prepared amendments

to the zoning map for this proposed subdivision we're

talking about today?

A. As far as this map?

Changing the official zoning map, proposedQ.

amendments?

A. No.

Q. So you did not do any proposed amendments

for the zoning map for this application?

A. Not yet, no.

Q. Okay. So as far as we sit here today,

this official zoning map remains the official zoning

map for Liberty Township, correct?

A. Yes.

Q I'm going to have you turn your attention

to what's been marked for purposes of identification

as Exhibit C. And you've told us that you've seen

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this before; is that right?

A. Yes.

Q. Okay. And this is an actual application

for an amendment to the zoning map for Liberty


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1 Township, correct?

A. Yes.

3 Q• And as we've talked about, this was

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apparently originally submitted sometime back in

November 2008, correct?

A. Yes.

Q. And at that time, the persons who were

submitting it was an individual by the name of Pamela

Valerie Knowlton, correct?

A. Yes.

Q•And a developer, Edwards Land Company,

Limited, correct?

A. Yes.

Q•At some point someone added in here, in

bold marker, "for trustees' final hearing by MRLD

Farm, Limited," correct?

A. Mm-hmm, yes.

Q, Do you know who added that language?

A. I believe it was of the zoning inspectors.

Q. So it would have been Miss Foust, Holly

Foust?

A. Yes.

Q• And now, you didn't consider this a

material change in the application such as she had to


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go back and do the whole thing again, right?

A. Correct.

Q. In other words, this application with this

change didn't really change from the way it had

originally been submitted, correct? Otherwise you'd

have to go through the whole process again?

A. Right. Before each -- every time we get

in an additional hearing, we check to make sure that

it's the correct property owner that signed for the

application.

Q. Okay. But as we still see here at the

bottom on this application, the original application,

that Pamela Valerie Knowlton is listed as an owner of

the property, correct?

A. Correct.

Q. And she's the one that submitted this

application with Mr. -- or with the Edwards Land

Company, correct?

A. Yes.

Q. One of the questions that came up with

Tracey's cross-examination before was preparation of

zoning resolutions for board of trustees' meetings.

A. Mm-hmm.

n_ Does the zoning department in Liberty


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Township regularly prepare a zoning resolution for the

benefit of the trustees so that they can have a

concrete written document in front of them to vote on

when they go to meeting?

A. No, sir.

So in other words, they're just told a4•

bunch of stuff at the meeting, and it then afterwards

is reduced to writing, correct?

A. They're given packets of whatever we

receive for the application.

Q. But not necessarily the final resolution

that they vote on? In other words, there's no written

resolution of zoning change, correct?

A. Correct.

MR. TODD: Thank you.

No further questions.

MR. McTIGUE: No further questions.

CHAIRMAN BURKAM: Thank you. Thank you

for your attending and your testimony.

MR. McTIGUE: I call Charles Driscoll.

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CHARLES DRISCOLL,



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DIRECT EXAMINATION

BY MR. McTIGUE:

Q. Would you state your name and spell it for

the record?

A.

Q.

A.

43215.

Q.

Charles Driscoll, D-R-I-S-C-O-L-L.

Mr. Driscoll, what is your address?

495 South High Street, Columbus, Ohio

Okay. And, Mr. Driscoll, can you -- you

hold a position with the Edwards Land Company,

correct?

A. Correct.

Q• What is your position?

A. President.

Q. Okay. And for how long have you been --

how long have you been with the company?

A. Thirty-three years.

Q. Okay. And then I'm going to ask you if

you can -- you're obviously involved in this

application for rezoning, correct?

A. Correct.

Q. In fact, you're the Charlie Driscoll

that's mentioned in the application?

A. Yes.

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And can you for the record tell us who

Valerie or Pamela Valerie Knowlton is?

A .She was the property owner at the time we

originally filed for the rezoning.

Okay• And can you tell us who MRLD Farm,4•

Limited, who or what that is?

A. Miss Knowlton had transferred the assets

into an LLC during the rezoning.

Q. Okay. Did she retain any personal

ownership or was a hundred percent transferred?

A. 100 percent was transferred.

Q. And showing you Exhibit C, have you seen

this before?

A. Yes.

Q. Okay. And do you know who -- in the bold

lettering at the top, it says "for trustees' final

hearing," and then further down "MRLD Farm, Limited,"

and the word "by." Do you know who inserted that?

A . No, I do not.

Q. Okay. Did you notify the township about

t_he_ transfer in ownership?

A. The ownership was corrected before the

final planning and zoning commission hearing.

Q. Okay. And by "corrected" you mean it was


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updated to reflect MRLD Farm?

A. Correct.

Q. Okay. Now, I'm going to hand you what's

marked as Exhibit G. And this has already been

identified by the previous witness.

And before we forget, have you been sworn?

A. I have been sworn.

Q. Thank you.

With regard to just looking at the first

page of this multipage document, does this outline the

location of the area that was rezoned pursuant to the

application filed here?

A. Yes.

Q. Okay. And is any of the area to the

north -- any of the area that was rezoned, is any of

it to the north of Home Road?

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A. No.

Q, So it's all to the south?

A. Correct.

Q. Okay. And could you just point out how to

fol_1_ow on here or if there's any lines that delineate

what the rezoned area is? Well, you'll have to speak

out loud.

How do I point out if I'm speaking outA.


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loud?

Q_ Is there a bold --

A. There is a bold line around the site

that's being rezoned.

Q- Okay. And it's essentially sort of like

an inverse L or almost like a foot or a boot?

A. Yes.

Q. Okay. And most of it -- most of the area

seems to be to the west of 0lentangy River Road?

A. Yes.

Q- And there's a smaller portion to the east

of Olentangy River Road?

A. Yes.

Q. But, again, none of that is to the north

of Home Road?

A. Correct.

Okay. Now, showing you again Exhibit C,4-

there's a statement in here, about in the middle, that

the acreage proposed to be rezoned, it says 216.3. Is

that the actual area that was rezoned, the actual

acreage?

A. Yes, yes.

Q. Okay. It didn't increase?

A. No.


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Q. Wasn't 217?

A. No.

Q. Wasn't 218?

A. No.

Q. Okay. It wasn't 603 acres?

A. No.

Q. Okay. Now, I want to direct your

attention to the March 15 minutes that were already

identified, of the township trustees. And I'm going

to direct your attention to page 5. And there's a

heading that says "Motion." And then there's some

paragraphs under that where it appears that there were

two motions made by Mr. Mann, one of the trustees.

Do you see that?

A. Yes.

Q. Okay. Can you tell us what the first

motion was?

A. Mr. Mann moved that we amend the plan to

19 require that the applicant petition Delaware County

20 Engineer's Office for a ruling that Pillion Way would

21 not need to be connected and that Red Emerald will not

22 need to be connected into our site.

23 Q. Okay. And did that motion pass?

24 A. Yes.


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Q. Okay. And was there another motion made?

A. Second amendment, Mr. Mann further amended

the motion to include requesting access to be provided

off of Home Road. And that was also approved.

Q. Okay. And now showing you Exhibit 15,

which is the May 4th minutes, and directing your

attention to -- I'm sorry, not May 4th. The April

4th -- April 4th minutes, which is Exhibit E. Okay.

And directing your attention to page 6, and you see

the first -- to the first full paragraph and the

second full paragraph on that page. Were these

further amendments made?

A. Yes.

Q. Okay. What was the first one?

A. Mr. Mann moved that Pillion Way be stubbed

and not be connected, and if for any reason it is

required to be connected by another authority at a

later date, that the connection be restricted to

emergency vehicle access only.

Q. Okay. And did that pass?

4•

That was approved.

Okay. And what was the next motion?

A. Mr. Mann moved that Red Emerald Way be

restricted to emergency vehicle access only, that it


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be gated or have such other device as to only allow

emergency vehicle access.

Q. Okay. And did that pass?

A. That was approved.

Q. Okay. Now, with respect to these motions

that we've discussed, was there -- what was the reason

for those motions, those changes?

A. I believe the trustees were trying to

satisfy some of the neighbors who were objecting to

these roads being connected during the entire two

years of the rezoning.

Q. Okay. So was that a contentious issue,

the connection of those roads?

A. Very contentious.

Okay. I assume there had been public4-

hearings held with regard to this application.

Correct?

A. Yes.

Okay. Did the zoning and planning4-

commission hold hearings? Or maybe it goes by another

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A. 1 think the zoning commission had five or

six hearings.

Q, Okay. Public hearings?


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A. Public hearings.

Q. Okay. At which neighbors commented or

testified?

A. Correct_

Q•Okay. And then the township trustees

themselves, did they -- they had obviously a public

hearing as well, correct?

A. I believe there were two.

Q. Two public hearings?

A. Two hearings.

Q. Okay. And did neighbors testify or

comment at those?

A. Yes.

Q. Okay. And was the subject of these roads

being connected to the development part of the

testimony or raised as concerns?

A. Every single hearing.

Q. Okay. So you believe that the changes

were then necessary -- or I don't want to say

"necessary" but that the trustees adopted these

changes in order to accommodate those concerns?

CHAIRMAN BURKAM: Counsel, I'd like us if

we could to take a break for a moment. One of our

members apparently needed a drink. He's got some


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problems.

MR. McTIGUE: Certainly.

CHAIRMAN BURKAM: So 1et's just take about

a five-minute recese.

(A short recess was taken.)

CHAIRMAN BURKAM: I guess we'll continue

then with the witness. Go right ahead, sir.

BY MR_ McTIGUE:

Q. Mr. Driscoll, in addition to the meetings

held by the township trustees and the township zoning

commission, did you as a developer hold meetings or

public meetings or meetings with neighbors?

A. Again, over the two or three years we had

several meetings with the neighbors.

Q. Okay.

A . May not have been all the neighbors but

different groups.

Q. Okay. And these were open meetings that

anyone was entitled to -- could come to?

A. I don't know if I would call them that.

We had specific people we wanted to meet with.

Q. Okay. And at these meetings that -- where

you met with neighbors, were concerns expressed at

those meetings regarding these same roads that we


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talked about before being connected to the

development?

A. Very much so.

Q. Okay.

A. People were concerned about construction

traffic and extra traffic in their neighborhoods.

Q, And do you believe that then the

amendments made were key to gathering some -- at least

support from some of the neighbors?

A. I can't answer that.

Q. Okay. But it was a concern that was

expressed?

A. It was definitely a concern expressed.

Q. Okay. And let me ask you about the -- you

said you worked for the Edwards Land Company?

A. Yes.

4•Is there any company that you're aware of

known as the Edwards Land Development?

A. No.

Q. So if I-- showing you in the -- this is a

copy of the referendum petition. And you'll see in

the top paragraph -- or, I'm sorry, not the top

paragraph but the actual title or what -- right under

where it says "Petition for Zoning Referendum," and

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the end of the second line it says, "and Charles

Driscoll for Edwards Land Development, Developer."

A. Yes.

Q•There is no company called Edwards Land

Development, correct?

A. Correct.

Now, earlier I had shown you this exhibit

which I believe was G, which is the map. Here it is.

Were there other maps submitted during the course of

this two-year process, submitted by your office, your

company?

A. Yes. We were requesting a specific site

plan approval for zoning. It wasn't a general zoning.

It was a very specific zoning. And the map changed a

number of times during the process.

Q. Okay. And during that process, though, of

submitting those maps, did the boundaries of the area

to be zoned ever change?

A. No.

Q. Okay. So it never -- it always stayed at

the 216.3 acres?

A. Yes.

Q. And the boundaries were exactly the same?

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1 Q. And those boundaries were shown on each of

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those maps?

A. Yes.

Q. Okay- And you filed those with the zoning

office?

A. Yes.

Protestors' Exhibits I and J were were

marked for purposes of identification.

Q. Okay. And then lastly, I'm going to show

you what I'll mark as Exhibit J. And, I'm sorry, I

only have one copy of this.

If you can identify what this is.

A. This is a rendering of the same zoning

plan.

Q. Okay.

A. It doesn't have all the exact dimensions

on it. A colored-up drawing of this.

Q. It's a colored version?

A. Yes.

Q. Okay. And, again, it shows the boundaries

of the -- you can -- basically the lighter green area

with the trees along the border shows the area where


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1 it's being rezoned, correct?

2 A. Yes.

3 Q. Now, was this filed with the township?

4 A. Yes.


5CHAIRMAN BURKAM: Mr. Todd, before you

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7 begin, I think a couple of our previous witnesses were

8 subpoenaed, were they not, Mr. McTigue?

9MR. McTIGUE: Yes.

CHAIRMAN BURKAM: Do they need to be10

11 subject to recall or can they be excused? They're

12 welcome to stay, but I just wanted to make sure that

13 if they had other things they needed to do that we're

14 not boring them here.

15MR. TODD: We have nothing further for

16 them, so they're free to go from our standpoint.

17 MR. COHEN: Can I ask a question -- I'm

18 Rob Cohen -- in terms of evidentiary nature?

19 CHAIRMAN BURKAM: Sure.

20 MR. COHEN: Were the minutes of the April

21 $th meeting marked as an exhibit? That's the meeting

22 between the meeting on the 4th and the --

CHAIRMAN BURKAM: No, we have the 4th and23

24 March -- April 4th and March 4th. I don't think


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anyone has introduced -- May 4th. Did I say May? So

no one has introduced them.

MR. COHEN: Well, I'd like to introduce

them at some point_

CHAIRMAN BURKAM: Well, respectfully, sir,

I don't think you're a party here.

MR. COHEN: You have to be a party to do

it?

CHAIRMAN BURKAM: Yes, sir.

MR. COHEN: Okay.

CHAIRMAN BURKAM: You'1l have time for

public comments if you want to make comments, but --

MR. COHEN: Okay.

MR. McTIGUE: Mr. Chairman, I'd request

that the two subpoenaed witnesses stay for a little

while longer until we see if we need them for

rebuttal.

CHAIRMAN BURKAM: They're your subpoenas.

It's within your rights, sir. Go right ahead.

I'm sorry, Mr. Todd, whenever you're

ready.


CROSS-EXAMINATION


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BY MR. TODD:

Mr. DriscOll, good morning. My name's4•

Bill Todd. I have just a few questions for you.

I'11 first have you look at what's been

marked for purposes of identification here as Exhibit

C. And other witnesses have identified that as a

proposed amendment to the zoning map for Liberty

Township, correct?

A. Yes.

Q. You recognize what that document is?

A. Yes.

Q. And is that your signature here towards

the bottom?

A. Yes.

Q. Apparently at the time this application

was filed, it was filed by Edwards Land Company and

Pamela Valerie Knowlton, correct?

A. Yes.

And at some point later someone added to

the application an MRLD Farm, Limited, correct?

A. Yes .

And do you have an ownership position with4•

respect to the real property we're talking about here?

A. No.

4•


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4•Does Edwards Land have an option or any

2 type of relationship with MRLD?

We have an option for the property.3 A.

4 Q. And MRLD is an Ohio limited liability

5 company?

6 A. I don't know what it is.

7 Q. Okay. Valerie Knowlton, as indicated

8 here, is a member of the limited liability company,

9 correct?

10 A. Yes.

Are there any other members that you're11 Q-

12 aware of of that limited liability company?

13 A. No.

14 Q. So this is just sort of a shell that was

15 created for the development, correct?

16 MS. COMEK: Objection.

17 Go ahead and answer.

MR. McTIGUE: Objection.1819 CHAIRMAN BURKAM: The record can note the

20 objection, but I will overrule it and permit him to

21 answer if he can.

Do you know why MRLD was created?22 4-

23 A. No.

24 Q. Were you involved in the discussions


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regarding the creation of it?

A. No.

Q. But as far as you know, there's no other

owners of MRLD other than Valerie Knowlton, correct?

A. Correct.

Q. Mr. Driscoll, I'm going to show you what's

been marked for purposes of identification as Exhibit

E, and that's the Liberty Township minutes from the

April 4th, 2011, meeting.

And you've seen these minutes before,

correct?

A. Yes.

Q. I'm going to ask you to turn your

attention to page 3, which is a discussion of the

zoning application that we're talking about in this

particular case, correct?

A. Yes.

Q. Does it not say there that the real estate

involved is, quote, owned by Pamela Valerie Knowlton?

Correct?

A. Yes.

Q. And there's no name -- any other name in

that resolution or motion adopted by the trustees at

that meeting, correct?

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A. correct.

MR. TODD: Nothing further. Thank you.

MR. HELVEY: I have a couple questions, if

I could.

CROSS-EXAMINATION

BY MR. HELVEY:

Q. Just to make sure I'm understanding all

this, does Pamela Valerie Knowlton have an ownership

interest in the property now?

A. Not to my knowledge.

Q. So the sole owner is MRLD Farm, Limited?

A. Yes.

Q. As far as you know?

And then I was trying to follow along with

the amendments that were made at the trustee meeting.

Is it my understanding that once those amendments were

approved, that the only way in or out of this

development would be on Hickory Lane?

A. The main entrance was on Olentangy River

Road.

Q•Onto a road that's proposed to be called

Hickory Lane?

A. I'm not sure where Hickory Lane is. Do


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you want to show me?

Q. Looks to me the way it was initially

proposed is you can get in through the neighborhood

here, here, and here, but after these two

amendments

A. And here.

Q. Oh, okay.

A. And here.

Q. Where does this go?

A. Doesn't go anywhere, but it's another --

4-Okay. But as far as existing roads, these

two were blocked off to only allow for emergency

vehicles?

A. Yes.

4-And so the main way in and out is from

Olentangy Road onto this road here?

A. Yes.

Q. Okay.

MR. TODD: May I follow up with one more

question after --

CHAIRMAN BURKAM: Certainly, in relation

to that point.

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24FURTHER CROSS-EXAMINATION


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BY MR. TODD:

Q. Mr. Driscoll, we've noted that the motion

approved by the Board of Trustees at the May 4th

meeting regarding its rezoning application indicates

that the property is owned by Pamela Valerie Knowlton.

If you're indicating it was actually owned by someone

else, does that mean that that motion is void and

you've got to start the process all over again?

MR. McTIGUE: Objection. Calls for a

legal conclusion.

CHAIRMAN BURKAM: I understand your

objection. We'11 overrule it. He can answer if he

can_

MR. McTIGUE: Right. Also I'd like to

also take exception. I think he said the May 4th

. And I think he meant -- did you meanminutes, right'

the April 3rd minutes?

MR. TODD: Exhibit E.

MR. McTIGUE: Exhibit E, April 3rd, okay.

MR_ TODD: April 4th, which is when the

motion --

MR. McTIGUE: April 4th.

MR. TODD: Which is when the motion was

made.


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MR. McTIGUE: Right.

THE WITNESS: I have no idea.

CHAIRMAN BURKAM: Anything further,

Mr. McTigue?

MR. TODD: Nothing further. Thank you.

CHAIRMAN BURKAM: Either of you? You're

fine?

MR. McTIGUE: No.

CHAIRMAN BURKAM: And I have been told

this and I apologize. Is it McTigue or McTigue?

MR. McTIGUE: Long "I," McTigue.

CHAIRMAN BURKAM: My apologies for

mispronouncing your name.

MR. McTIGUE: It's quite okay.

CHAIRMAN BURKAM: Again, can this witness

be -- well, you're going to stay because you're rather

involved. So thank you very much, sir. You can

resume your seat.

And further witnesses?

MR. McTIGUE: No further witnesses. I

would just like to move admission of my Exhibits A

through --

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CHAIRMAN BURKAM: I have A through G. Is

that correct?


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MR. McTIGUE: Well, we have A through --

yes, A through G, and then J, which is that color map.

CHAIRMAN BURKAM: Okay.

MR. McTIGUE: The only exhibit that I

probably should comment on is Exhibit H, which we did

not have any witnesses testify about, but it's a

public record from the county auditor's website which

is self-authenticating that shows the transfer of the

three -- you'll see it's the same three parcel numbers

that are the subject of the rezoning.

Protestors' Exhibit H was marked for


CHAIRMAN BURKAM: Mr. Todd, do you have

any objections to A through J?

MR. TODD: I have no objections.

CHAIRMAN BURKAM: without objection, they

will be admitted.

MR. McTIGUE: Thank you.

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ProtestOrs'Exhibits A through J were

admitted into evidence.


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CHAIRMAN BURKAM: Mr. Todd, are there

witnesses you wish to call, sir?

MR. TODD: Yes. We'd like to recall Kathy

Melvin.

CHAIRMAN BURKAM: You have testified

before, ma'am, and you are still under oath.

THE WITNESS: Okay.

Circulators' Exhibit C-1 was marked for


MR. TODD: This is sort of a last-minute

addition so we don't have copies of it prepared, but

I'll be happy to circulate it to everyone. It is a

copy of the minutes of the Board of Trustees of

Liberty Township, Delaware County, Ohio, for the date

of April the 18th, 2011.

CHAIRMAN BURKAM: Okay. Either of you

want to take a look at that before it's submitted?

And what number did you assign to that,

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Mr_. Todd?

MR_ TODD: C-1. We're actually following

the rule.

24 I MR. BURNWORTH: The rule.


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CHAIRMAN BURKAM: We're very flexible.

MR. HELVEY: Thank you.


KATHY MELVIN (RECALLED),

being first duly sworn, testifies and says further as

follows:

DIRECT EXAMINATION

BY MR. TODD:

Q. Kathy, I want to just hand you what's been

marked for purposes of identification as Exhibit C-1

for this hearing. And can you tell everyone what this

is?

A. Liberty Township trustees' record of

proceedings, April 18th, 2011.

And I just want to focus your attention on4•

one particular sentence and that is regarding approval

of minutes.

Can you tell the members of the Board of

Elections what that "Approval of Minutes" section

says?

"Minutes for meetings held April 15th andA.

April 4th will be approved at the May 4th, 2011,


(614) 716-8202

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1 meeting."

Q•And that's what happened, to the best of2

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your recollection?

A. Correct.

Q. Okay.

MR. TODD: Thank you. I have nothing

further.

CHAIRMAN BURKAM: Any questions, Counsel?

Mr. McTigue?

MR. McTIGUE: Just one quick question

here.

CROSS-EXAMINATION

BY MR. McTIGUE:

Q. These minutes do not reflect any change,

do they, of the April 4th motion approving the

rezoning?

A. Correct. They were just postponed.

Q. Correct, they show no change?

A. Correct, they show no change.

MR. McTIGUE: Thank you. No further

questions.

CHAIRMAN BURKAM: Any follow-up, Mr. Todd?

MR. TODD: No, thank you.


(614) 716-8202

Further witnesses, sir?

MR. TODD: We have no further witnesses.

CHAIRMAN BURKAM: Okay. At this point,

gentlemen, do you wish to make some closing statements

and arguments to the Board?

MR. McTIGUE: Yes.

CHAIRMAN BURKAM: Go right ahead. Hold

10 on. Let me stop, okay? Because I did indicate I was

11 going to permit some sort of public comment unless any

12 Board members object.

MR. BURNWORTH: No objections.1314 CHAIRMAN BURKAM: Are there members of the

15 public that have any comments relative or anything

16 that they wish to bring to the Board's attention?

Can you identify yourself, please?1718 MR. COHEN: Yeah, I'm Rob Cohen. I live

19 I at 1557 Wingate.

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MR. COHEN: I have been sworn in.

CHAIRMAN BURKAM: Do you wish to be sworn?

CHAIRMAN BURKAM:Thank you, sir.

23MR. COHEN: One of the things that arises,

24 I and I know the question came up, I know you have to


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keep the order of the meeting when someone else starts

trying to talk, but in a case where you have a

referendum petition that's been circulated by

residents of the township, it raises the question of

who is the party. I was one of the circulators. I

mean, am I any less a party? I'm a resident of the

township. I live in maybe half a mile, quarter mile,

half a mile south, you know, of the site that's

proposed to be rezoned.

So a couple things I wanted to say just to

give you a little background. And I understand your

focus on the legal issues, and I very much understand

what those issues are with respect to timing of the

petition in this case.

You have statements that are made at a

meeting on April 4th. The township defers approving

those minutes at the next meeting and doesn't approve

the record of proceedings, as they referred to them,

and what they referred to in their testimony is when

you say, was this relied upon? They say, I'd have to

look. If it's attached to the minutes -- you know,

and that's their record of proceedings.

And when you look at the case law in the

Spring Creek case, what you see is they say the record


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of proceedings, the minutes, are the act that is the

approval.

And so --

CHAIRMAN BURKAM: Do you have a -- has a

copy of that case been provided in the briefs?

MR. TODD: It's in the briefing.

CHAIRMAN BURKAM: It has, okay.

MR. COHEN: Just to give you a little bit

9 of practical background -- and I don't know if this

10 places right directly into the legal issues, but just

11 to get a little feel for the interplay that happened

12 in terms of some of the meetings before the trustees

13 and the planning and zoning.

14 When we -- and I didn't attend all of

15 them, but I attended one of the planning and zoning

16 meetings, and I attended two of the trustees'

17 meetings.

18 And the trustees' meetings there were

19 objections voiced by folks who lived in Woodland Hall

20 and Woodland Glen, which is just west of the property,

21_maybesouth and west of the property that's being

22 rezoned. And they were concerned about Red Emerald

23 Way and Pillion Way being connected. That was

24 definitely an objection that was stated. There were a


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lot of other objections stated to this development

along the scenic byway.

At those last two meetings of the township

trustees, the township trustees left the impression

with everyone there that they had no control over

whether or not Red Emerald Way and Pillion would be

connected. What they said is they would make

recommendations to the county engineer's office, but

they had no control over that issue.

And in fact, in fact when signatures were

being collected for the referendum petition, people in

Woodland Hall and Woodland Glen, I want to say 140

people signed the petition. And then some lawyers

talked to them and said if the petition goes through

and you get a referendum, and that stays farm

residential zoning, then Red Emerald Way and Pillion

Way are going to get connected. And the township has

no say on that.

And so they refused to submit the

signatures because they -- they didn't want the

development, but they were very concerned by what they

were being told by different lawyers that if this

zoning petition was successful and the referendum was

successful and the voters said that they wanted to


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keep it farm residence, then that meant that those two

roads were going to go through.

CHAIRMAN BURKAM: Can I clarify what

you're telling us here?

MR. COHEN: Yes.

CHAIRMAN BURKAM: I presume you're telling

me that those lawyers you believe somehow were

connected with the land development company?

MR. COHEN: Well, I don't know that. I

don't know that. I think --

CHAIRMAN BURKAM: So you don't know who

the lawyers were?

MR. COHEN: You know, I can't say. I'd

tell you if I knew exactly who it was. I mean, one of

the rumors was it was a lawyer that was connected with

one of the trustees.

CHAIRMAN BURKAM: But you don't know?

MR. COHEN: I don't.

CHAIRMAN BURKAM: Did you actually hear

these statements?

MR. COHEN: No, it's hearsay.

CHAIRMAN BURKAM: It's rumor and --

MR. COHEN: It is.

CHAIRMAN BURKAM: I just want to make sure


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we know.

MR. COHEN: I'm not casting it otherwise,

but I'm just telling you they did have a whole bunch

of signatures and then they refused to submit them.

And that made me curious about exactly who

had control over Red Emerald Way and Pillion Way and

whether or not they went through. And I was going to

talk to the county engineers, who explained that that

was a solely a Liberty Township trustee decision,

contrary to what they were saying in the meetings,

that they make recommendations. That was solely their

decision and had nothing to do with whether it was

zoned farm residence or planned residence.

In other words, whether it retained its

farm residence zoning or whether or not it got changed

through this process, it would still be up to the

trustees to determine whether or not those roads went

through. But that wasn't what people were being told,

supposedly.

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And whether it's true or not, it caused

them to retract all those signatures, okay?

So in the end what you --

CHAIRMAN BURKAM: How were those

retracted, sir? Did they get --


(614) 716-8202

MR. COHEN: The homeowners

association,president refused -- no, they weren't on

the petitions, you see, they were on part-petitions

that they then refused to submit.


MR. COHEN: Okay. So they filled out

part-petitions, and then when they were all being

gathered they said, no, we're not going to submit them

because of this issue.

Okay. It's just a sidelight, but the10

11 point is that a lot of people were opposed to the

12 development, and the feeling was that the voters ought

13 to be able to decide the issue. And my personal

14 involvement in it was because I cared about the way

15 that the scenic byway looked.

But once I started going out and getting16

17 signatures, you get personally vested in it. You go

out18 out, you're talking to people, you go and get the

19 signatures, you want to make sure that it meets the

20 limit, that it's done properly, and that the voters

21_, get a vote on it.

22And the issues that are being raised in

23 the protest -- and, you know, I've read through it --

24 I mean, I think there's one issue and the issue is the


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timing. I've read the other issues. They're neither

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here nor there. I mean, the petition has to be

timely. No one debates that.

And the other piece of it is that the

petition can't be ambiguous or misleading. I think

the other points that are raised are small points that

don't affect that issue.

I point out a couple other things. You

know, during this process, if it's unclear when the

time period starts to run, the problem is if you start

collecting the signatures too early and they're not in

the 30-day window, then those signatures aren't valid.

So if you're being told that the written

record is going to be the approval of the minutes,

which doesn't occur until May 4th, if after the April

4th meeting you sat there and you listened to it, you

go out and you start collecting your signatures, those

are prior to the window, so those signatures now get

thrown out.

So it becomes very, very important what

the demarcation line is.

On May 23rd we get this.

CHAIRMAN BURKAM: What is this, sir?

MR. COHEN: It came from Board of


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Elections. What does it say? I think it says "the

guidelines for referendum petition."

CHAIRMAN BURKAM: Okay• And when you say

"we," who -- is it you who received it?

MR. COHEN: I think it went to -- Bill

Todd sent me a copy of it.


MR. COHEN: So that's being circulated on

May 23rd, okay? So if the 30 days runs from May 4th,

the date of the approval of the minutes, then the

petition's due, what, June 4th? And this is, you

know, May 23rd we're getting the guidelines, you know,

from the Board of Elections on the signatures, in that

window. That's the only point that I'm making by

that.

The number of signatures on that wasn't

correct, but we figured out the correct number of

signatures and we got them.

There were a lot of things being said in

this that make it very difficult for citizens to

prese_nt something to a vote of the township trustees,

and I think the people ought to have that vote.

I don't know which way it's going to go-

I think that people wouldn't want it rezoned, but I


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don't know that. It may go a different way. It may

well be that the parties that are the proponents of

the rezoning have enough resources that they'll make a

presentation in connection with the elections itself,

that they'll be successful. But people really ought

to have the opportunity to vote on this.

Then just one last point I'd make. If you

look at the township zoning resolution which is on

their website, the Liberty Township website, and you

go to the section that talks about when zoning becomes

effective and the referendum option, and I believe

what it's intended to do is track the Ohio Revised

Code Section 519.12, but it doesn't.

And they put in different language in the

zoning resolution. And so what the zoning resolution

says is, "Within 20 days after such public hearing,

the Board shall either adopt or deny the

recommendations of the zoning commission or adopt some

modification thereof. In the event that the Board

denies or modifies the recommendation of the township

zoning commission, the unanimous vote of the Board

shall be required.

"Such amendment adopted by the Board shall

become effective in 30 days. After the adoption of


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the amendment, there is presented to the board of

township trustees a petition, signed by a number of

registered electors residing in the unincorporated

area of the township, or part thereof, included in the

zoning plan equal to not less than 8 percent of the

total vote cast for all candidates for governor in

such area at the last preceding general election at

which a governor was elected, requesting the board of

township trustees to submit the amendment to the

electors of such area for approval or rejection at a

special election to be held on the day of the next

primary or general election."

That's what it says. It doesn't say that

the signatures have to be gathered within the 30-day

period following the approval of the minutes, as the

statute does. I'm not sure what the significance of

that is, but the point is it's yet one other thing.

That's the official zoning resolution of Liberty

Township, and it too says something different.

And through all that, it's been navigated

to submit 700-and-something signatures in the hopes

that the residents of Liberty Township are going to

get to decide this issue. And I'd ask you to let them

decide it.


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CHAIRMAN BURKAM: Let me make certain I'm

correct. There's not an issue at this point. The

staff has checked the signatures and there are

sufficient signatures under the statute?

MR. MUMFORD: There is.

CHAIRMAN BURKAM: So we don't have an

issue with the number of signatures or with them being

validated by the Board; am I correct?

MR. MUMFORD: Correct.

CHAIRMAN BURKAM: Okay. I will ask if

either of you have any responses or any further

testimony or witnesses.

And certainly, Mr. McTigue, I indicated

that you would have an opportunity to present any

rebuttal testimony if you wished.

MR. McTIGUE: Sure.

CHAIRMAN BURKAM: Do either of you --

let's start with you, Mr. Todd.

MR. GIOFFRE: I'd like to say something if

they're done.

CHAIRMAN BURKAM: Have you been sworn in,

sir?

MR. GIOFFRE: Yes.

CHAIRMAN BURKAM: And your name, please?


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80

MR. GIOFFRE: My name's Tony Gioffre. I

property. What they're against is there's not one

subdivision or a planned community coming into that

feedback I received is that people are not against a

And I was one of the circulators. And the

own the property to the south of this development.

I've been to, I would say, 95 percent of the zoning

meetings, plus I went to every one of the -- sorry,

maybe one I missed of the trustees.

10 thing that has complied to the 315 area.

11 The zoning meetings I went to, I tell you

12 you might as well -- it was deaf, too, because the

13 people there did not listen to -- the zoning

14 commission did not listen to anybody.

15 I mean, it was the trustees that made the

16 decisions, but what really aggravated me was that I

17 had the attorney who represents the trustees tell me

18 that I can't talk to the trustees of the township.

19 I'm a citizen of Delaware County. I'm a resident of

20 Liberty Township. And I was not allowed to talk to

21 the trustees because of this problem.

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And, you know, that's -- it's ridculous

what's happening with this subdivision. It's like --

- - not onethey've been working on it two years before


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resident knew they've been working with the

subdivision for two years. Then it comes out the only

people to get a notice is within 200 feet of the

property.

This is actually a zoning problem for the

whole township, not just for people who live within

200 feet. And then the people in Woodland Hall,

Woodland Glen, was like threatening them about this

roadway coming in that attaches to the subdivision.

Their road, anyways, going into Woodland Hall is too

narrow to accept any more traffic. And Woodland Glen

can't take any more traffic coming through it.

It's just -- this whole subdivision

problem is something that we need to look at. And the

voters need to look at this, too. And they're the

ones that are going to make the decision. If they

want it, that's fine with me. But they should be the

one to say, yes, we want or we don't want it. Because

they're the residents of Liberty Township and citizens

of Delaware County.

Not having a developer from out of town

come in and try to do something here that doesn't work

for that corridor, that 315 corridor. And, you know,

that's all I have to say.

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But I want you to take it into

consideration. There's 700 signatures there, and we

could have had more signatures if we had -- you know,

if we had the Woodland Glen and Woodland Hall

involved, too. We'd have over a thousand signatures.

You know, it's this -- the people talking

now, you've got to listen to the people, you know, not

because these two attorneys here are trying to figure

out if we did something wrong or right. We did

something right, we got signatures and they're the

voting public. That's why you're sitting here, that's

why everybody in this office here has something to do

with the city. You're Delaware County election board,

and that's what you need to be here, is look at the

citizens of this county. Thank you.

MR. HELVEY: Mr. Gioffre, you mentioned

the 315 corridor. Is there a generally accepted

standard for development along that corridor? Is

there a formalized standard? I know that in areas of

Columbus they have area commissions that approve

z9ning standards. Someone's shaking their head yes?

MR. COHEN: It's the scenic byway

guidelines for the heritage corridor, yes. I think

you can get it off the Liberty Township website. I

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might have a copy here if you want to put a copy into

this.

MR. TODD: Yes.

MR. COHEN: But the way that they

interconnect are that you have the zoning resolution

for Liberty Township. If somebody asks to have

something rezoned, then you look to the area plan. I

think that's what it's called, the area plan or the

development plan, for Liberty Township. And when you

go to the development plan, it says if you're dealing

with one of these areas like the heritage corridor,

then you look to the heritage corridor bylaws -- or

guidelines, I'm sorry.

That was the subject of a lot of

discussion because this proposal wasn't consistent

with it.

MR. HELVEY: So the heritage guideline

would say you have to have so much setback and so much

barrier between different roads and things like that.

MR. COHEN: It does. But even it talks

about, you know, facing the road and the size of the

lots that are along Olentangy River Road to make it

look, you know, consistent all the way along.

24 I But I'd also point out that the Delaware


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County Regional Planning Commission said that this was

not consistent with the development plan.

CHAIRMAN BURKAM: Mr. McTigue?

MR. McTIGUE: Mr. Chairman, I'd like to

make a -- I always say "brief," but sometimes I talk

longer than the witnesses, so --

MR. TODD: I know Mr. McTigue very well.

Put a timer on him.

MR. McTIGUE: That's right.

I appreciate and I'm sensitive to the

comments by Mr. Cohen and Mr. Gioffre.

Mr. Cohen indicated that, you know, the

voters should be allowed to decide this issue.

Mr. Gioffre said something similar.

The fact of the matter is that voters do

have an opportunity to decide this issue if they

follow what the law says. Their right to have a say

on this at the ballot box is a policy decision that

was made by the General Assembly. The General

Assembly could say no right of referendum at all.

Th-ere's nota constitutional right to a township

zoning referendum. There is with regard to municipal

but not township, because the General Assembly has

made the policy determination.

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And they've said, yes, we are going to

allow citizens this right, but we have to balance

rights of property owners, the property owners who

have the right to determine the best use of their

land. If they want to develop their land, they should

have a right to apply for a zoning change. And the

township trustees will have oversight in looking at

the plan, making sure it's consistent, and ultimately

you've got the zoning commission and the trustees, all

these public bodies that are going to review it. And

they're going to make those determinations through

that process.

And when they are -- when they finally

vote, the citizens then have a procedure under the law

that the General Assembly has granted them. But they

have to follow that procedure, because, as I said, the

General Assembly has balanced the rights of the

community to vote on these things against the rights

of individual property owners to develop their land.

And the question -- some of the other

issues that were raised about whether it's consistent

or inconsistent with existing provisioris governiisgthe-

Olentangy scenic riverway and questions about whether

or not access should be -- should or shouldn't be


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permitted or how many points of access should be

permitted, those, again, are decisions not for this

Board but decisions that are made at the township

level.

9

This Board really only has to determine

whether or not the petitioners followed the law, the

petitioners followed the law, not whether the zoning

is right or wrong or good or bad as an idea, but

whether the petitioners followed the law and the

requirements imposed on them.

The first is that they have to file this

petition, as the statute says. It says, "The proposed

amendment if adopted by the board of trustees shall

become effective in 30 days after the date of its

adoption unless within 30 days after the adoption

there is presented to the board of township trustees a

petition," and then it sets out requirements for that

petition.

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In my mind, this is very, very clear. You

have to -- the actual zoning change becomes effective

by the statute, becomes effective within -- in 30

days, not within 30 days, in 30 days after it was

adopted, not after minutes are approved after it was

adopted. Unless -- how do you stop it from taking


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effect? Unless within that time before the zoning

becomes effective the petition -- a sufficient

petition is filed, okay?

If we take the argument of the committee

or the circulators that they have 30 days from when

the minutes were approved to file their petition, then

you have to also say that the 30-day clock for the

zoning change to take effect doesn't start until the

minutes are approved, all right? Because that's what

the statute says. It's the same 30-day period, the 30

days, the waiting period for it to become effective,

is the same as the 30 days during which you can

circulate and then file your petition.

No action that I'm ever -- that I have

ever been aware of of a public body is effective based

on when you approve the minutes. When you terminate

an employee effective immediately and you pass a

motion, does that employee get to continue to be an

employee even though it was effective immediately

until you get around to approving the minutes?

When you certify candidates to appear on

the ballot, are they not certified as of that date, or

do we have to wait till the board gets around to

approving the minutes at a later meeting?


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If something is effective -- if it can

only be effective when minutes are approved, then a

public body can essentially delay the effective date.

The township trustees could vote to rezone and not

approve the minutes for six months, a year, two years,

maybe never, even though they voted to do the

rezoning.

I think the law is very clear. We do cite

a case which we -- in fact, very difficult to actually

find a case directly on point, and I would argue the

reason it's so hard to find a case directly on point

is because it's pretty obvious what the answer is in

terms of when does the action occur. Does the action

occur when you voted or does the action occur when you

get around to approving the minutes?

But we did find a case which we think is

helpful, court of appeals case, that says minutes

serve as records of actions, not as actions

themselves. And we've cited that here.

Now, based on this in applying, you know,

just common sense and the clear language of the

statute, the 30 days ran from the April 4th meeting --

they had 30 days to file a petition. They don't get

60 days to file a petition.


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We also raise the appropriate map issue.

What was --

CHAIRMAN BURKAM: Let me ask you a

question as it relates to that before we move on.

MR. TODD: Yes.

CHAIRMAN BURKAM: As I understand it,

there is not a written resolution voted upon in these

kind of situations as there would be as I think as

you -- I'm not even sure which one of you pointed out,

apparently it was Mr. Todd, relative to like a

purchase order. How is the public to know, unless

they're at the meeting, what is in and what has

actually been approved until that's written out?

MR. McTIGUE: Well, first of all, there

are -- there is the recording. We had testimony that

the minutes are tape-recorded. Those tape recordings

are public records.

And we've also had testimony that

there's -- there have been quite a few public

hearings, quite a few neighbors who testified at these

public meetings- If you are -- you can't -- you know,

the maxim in law, you can't sleep on your rights,

right? You might have to exercise some due diligence.

it's not up to the trustees to mail you a copy of the

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1 minutes or a copy of the resolution. If they -- let's

2 say they had passed a resolution. If you don't go ask

3 for it, you're not going to know about it, or if you

4 weren't at the meeting, you're not going to know about

5 it.

6 If you are concerned about what's going

7 on, then you can't sit on your hands. You're going to

8 have to exercise some due diligence and ask to at

9 least see what the record is. In this case we have a

10 tape recording of the meeting. We may have had

11 citizens at the meeting who circulated this petition.

12 We didn't present evidence of that because ultimately,

13 Mr. Chairman, it's irrelevant in terms of what your

14 task is.

15 Your task is to apply the law as it is

16 written, which is when was -- you have to say, when

17 was this adopted? Was it adopted when the minutes

1s were approved, or was it adopted when they voted?

19 And, yes, you bring up a -- you know, a

20 legitimate policy question, how are citizens to know,

21 necessarily, right? How are they to know? Tnlell,

22 that's an interesting policy question. It is not for

23 this Board to determine. It would be up to the

24 General Assembly.


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If the process is too hard, it is a policy

decision to be determined by the appropriate

legislative body, not by an administrative body.

And as I said, you just have to apply the

law as it's written. When was it effective? 0r when

was the action taken? Was the action taken when they

voted or was the action somehow taken when they

approved the minutes?

CHAIRMAN BURKAM: In that regard, Counsel,

the closest analogy I've been able to come up with for

this situation is when a trier of fact, court, a

judge, gives a ruling from the bench, but my

understanding is until that's a journal entry, really

what was said from the bench doesn't mean a whole lot

because the Court speaks only through its judgment

entries.

If there's nothing written, my

understanding is that Court hasn't spoken yet. How is

this situation not analogous to that? Because

obviously you would want to argue that it's not.

MR. MCTIGUE: Sure. We11, it is -- when a

judge rules -- when a judge rules from the bench, I

believe, although I'm subject to being corrected on

this, but I believe that there is a rule in the civil


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rules, a requirement, that judgment entries have to be

filed and they're not effective until they're filed.

So it's written in the rules.

We don't have anything in this zoning

referendum law that says that a zoning change approved

or announced, voted on, by the trustees does not

become effective until, say, the trustees sign the

minutes. You don't have that.

You do have that in the civil rules

governing the courts in terms of those entries not

being -- or those decisions not actually being

effective until that time. True, in the meantime you

proceed at your own peril whether you listen to what

the judge said.

CHAIRMAN BURKAM: You better follow it, in

my experience, so --

MR. McTIGUE: So I think it's different

because the rules are different there because -- and,

again, those -- that policy decision was made by the

Supreme Court when they promulgated the civil rules,

that it's not going to be effective until you file the

paperwork, until the judge signs it and it's filed.

We don't have that here. All the General

Assembly has said is that a zoning change is effective


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30 days after it is adopted.

And it was adopted, the change was made

when they voted. And in this particular case there

was -- and there was no subsequent change at the late

meetings, the two meetings that occurred later.

Now, with regard to the next issue, the

appropriate map, first of all, the evidence isn't

really clear that they filed a map. The assistant

zoning inspector who received the petition says she

10 thinks they filed that map. Okay. So assuming that

11 they did file a map, the one that we're talking about

12 is a copy of the entire township, the zoning map for

- - the13 the entire township. That is not what is

14 Supreme Court has said is an appropriate map.

The Supreme Court has said -- and we've15

16 cited the cases in our brief -- said to be an

17 appropriate map you have to highlight or somehow

18 designate on that map the area that's being proposed

lg to be rezoned or that was rezoned. Okay?

If you look at that map by itself,there's

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21_no way you can tell what part of the township was

22 rezoned. You can't tell that. And you have to be

23 able to tell that from the map itself.

24So the law is very clear on this. And, in


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fact, two of the leading cases on appropriate map

issues actually involved this Board of Elections.

The third issue is the title. The law

requires that you have the -- you have the full and

correct title and number of the application. We don't

have that here. And this is not a substantial

compliance issue, a strict compliance issue.

What we have here is a couple of different

errors with regard to the title.

And looking at -- the first error refers

to Valerie Knowlton as the owner. But as the evidence

shows that Valerie Knowlton, while she was the owner

at the beginning, she was not the owner at the end.

And although there's some discussion later in the

minutes about referring to her as the owner, the

evidence shows that she clearly was not the owner.

And, in fact, the -- if you look at the

beginning part of the minutes, which is what's curious

here because the petitioner seems to have essentially

copied from the first paragraph of these minutes,

although not word for word, but they've copied

significant parts from the first paragraph of these

minutes that deal with the resolution, some of the

language. And what that -- what the minutes say, it


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says "final" -- and I'm referring to right now the

March 15th minutes. Says, "Final public hearing on

application LTZ 09-01 regarding the rezoning

application filed by Charles Driscoll on behalf of

Edwards Land Company and by Valerie Knowlton on behalf

of MRLD Farms, Limited." It's there. It's the very

first sentence.

But when they prepared their petition,

they changed that. First of all, they -- they

actually have two changes- One is they changed

Edwards Land Company to Edwards Land Development, and

they changed where it says "Valerie Knowlton on behalf

of MRLD Farms," they left out "on behalf of MRLD

Farms." It's right there in the very first notice in

both sets of minutes, both -- at the final public

hearing of the trustees.

I don't know why they changed it, but they

did. And that is the title, and it has to be true and

accurate.

I point that out for one reason, about it

2-1-I beir.-g str-ict c9-mp1_iance_, because it's not up to you to

22 determine whether anybody was misled or could be

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misled by that. That has to be accurate. It's not a

matter of substantial compliance.


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But then we get to the summary. They're

required to prepare a summary. There the standards

are a little different. There the standard by the

Court is -- that the Supreme Court has established is

that the summary may not be false or misleading and

may not contain material omissions. And they've gone

on to say false or misleading in the sense of it -- or

inaccurate in the sense that it would mislead the

average person.

And this is a -- not a subjective test.

It's an objective test that you determine as the

Board, whether or not, objectively speaking, signers

could be misled by something that is inaccurate.

Now, we point out several -- in the

summary several inaccuracies.

The first is the date that the amendment

was adopted_ It says May 4th. It wasn't adopted May

4th. I'm not going to repeat that discussion on the

timeliness issue. That's just outright wrong, and

people could be misled by that.

The date of adoption, by the way, in the

summary is actually something that is required by the

petition form that is set out in the Revised Code. It

actually requires you to put the adopted date.


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They didn't use the form, and I'm not

saying they were required to use the prescribed form,

but there is a prescribed content for that form in the

statute. And it requires that date of adoption, which

is wrong here.

Second, the summary is, we believe,

ambiguous and misleading as it refers to 216-plus

acres. This we believe is a matter of looking at a

number of different things, but two things in

particular. The actual -- and, again, I don't know

why they changed this, but if you actually go to the

minutes, again in those first paragraphs in the two

final hearing minute meetings -- meeting minutes, it

refers to 216.3 acres. It says, "a district to rezone

from Farm Residence District to Planned Residence

District, 216.3 acres." Okay?

But here they drop the point 3 and they

just put a plus sign, creating ambiguity, creating

ambiguity that could mislead the average person.

What's 216? Is it 217? 218? What is it? Is it 300?

Why didn't they just use what was there? They were

using other parts that were in the minutes, but that

one they changed.

And that's compounded by the fact that


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later in that same paragraph, though, it is talking

about -- later in the summary, which is also in the

paragraph, it talks about 603.6 acres being the number

of acres on one particular tract. Okay? We didn't

cite that, their including that in their summary. We

didn't cite that as an independent error because it is

wrong, it's wrong in the minutes.

But the point is when they took the 216

and added a plus sign and then put in these other

acres of 603.6 acres, confusing and misleading to.the

average person signing this petition.

If they had just said 216.3 acres, they

would have been fine on this.

And then next has to do with the area

impacted or -- by the rezoning. They -- in their

summary, they say that the area being rezoned is at

the intersection of Home Road and 0lentangy River

Road. It is at that intersection, but it's -- they

stopped right there. That could be four different

quadrants of the intersection. As we've had -- the

evidence has shown, all of that -- all of the rezoned

area is completely to the south of Home Road. They

didn't say at the intersection of Home Road and

Olentangy River Road to the south of Home Road. They


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didn't say that. They simply say that this is where

it is. And then on the map they file, they don't

highlight the area, which also would show that it was

all to the south.

Taking those things together can mislead

people into thinking, well, this is a development that

could be both below Home Road and above Home Road.

But it isn't. They have to be more specific.

And they added that language, by the way,

about it being at that intersection. I don't -- that

is not actually in those minutes in the first

paragraphs that describe this.

And then lastly, because I think I heard

my timer go off, lastly is the failure to include the

amendments that were made by the township trustees.

We've had plenty of testimony about why these

amendments were made, that this -- the number of

entrances into the development was a concern of some

people, and obviously enough of a concern that the

township trustees on their own decided to amend the

zoning a-p-pl-ication that they approved to deal with

several of those entranceways or roads connecting.

The standard, as I said a few moments ago,

is that a summary cannot contain misleading statements


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or false statements or material omissions. I think

the evidence here shows that this is a material

omission, to not put that into the summary in some

fashion.

So based on all this, we respectfullY

request that you find that the petition does not

comply with the requirements of the law, and for that

reason, based on the law as passed by the General

Assembly of Ohio, that the issue cannot be submitted.

Thank you.

CHAIRMAN BURKAM: Mr. Todd?

MR. TODD: Mr. Chairman, members of the

Board, ladies and gentlemen, I thank you for the

opportunity to address you.

One of the things I want to point out at

the outset here is the complex type of arguments that

Mr. McTigue is making about what is, what isn't going

in the petition is impossible to do before you have

something in writing. One of the things that we were

handicapped in this whole process was the township

f-a-ile-d t-o havaan application together with a zoning

resolution indicating precisely what was being done by

way of rezoning and the map.

And, again, Mr. McTigue in his argument

Boardinan Court Reporting

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points out very clearly that unless and until you have

something in writing, how do you craft a petition?

And here what's a very interesting point

is the board of trustees didn't even meet for 30 days

until after the April 4th meeting, so that it would

have been impossible to have the language for the

petition before the 30 days had run under

Mr. McTigue's scenario, because you wouldn't know

exactly what was said, what was in the resolution,

what you were supposed to put in the petition.

The law contemplates a clear statement of

action by a board of trustees and that that clear

statement of action on a rezoning matter explain

exactly what they did and then it is put into the

petition. It's explained to the best of the ability

of the people who wish to formulate the petition and

try to do so in a -- not a confusing, misleading, or

ambiguous manner.

Again, without a clear statement here,

because there was nothing in writing, it's hard to

- cr-a-ft a pet_ti_nn.21 -

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I would point out one other -- and I think

it's a very interesting thing. One is it points out

how insignificant the matters are that they've raised


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in terms of being confusing and misleading. And

another is to show that this is not a good process to

follow to formulate a rezoning resolution, and that's

the issue of who owns this property.

Clearly in the actual resolution which was

adopted by the board of trustees on May 4th, 2011, the

board of trustees says the land is owned by Pamela

Valerie Knowlton. Says nothing about ownership by

Emerald Farms, LLC. It is stated here that it's owned

by Pamela Valerie Knowlton. I would submit in part

that's due to the fact that there was this ambiguity

out there caused by all this discussion.

Now, whose responsibility is it to clear

up this ambiguity? We would submit it's the

responsibility of the property owner and the developer

to, one, come forward with a clearly stated, clearly

understood resolution to present in the zoning

process, and ultimately the board of trustees, so the

people and the public knows what's actually happening

in the process.

Similarly, this issue of the zoning map,

the Ohio law clearly contemplates that there wi71 be a

revised zoning map prepared at the time that the

resolution is made final. And because there was no


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prepared revised zoning map by the township or the

developer or the owner, there's still today, as Tracey

Mullenhour told us, still no revised zoning map that

you could have attached to this petition, so that the

only official zoning map, which is what the law

requires, that could be attached was the zoning map

which was actually filed with the Board of Elections.

With regard to the issue of timeliness,

again, I think the law is very clear here is that the

public has an opportunity to challenge a decision of a

public body once they know what it is. What was the

decision of this public body?

I think that the process that is followed

by Liberty Township contemplates final adoption of a

rezoning resolution at the point in time that it is

actually approved in the minutes, because it's the

first time that we see a clear written statement of

what actually happened, and it's the first time that

the trustees actually even see a clear written

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statement of the motion that they received or made

orally at th-epri-or he_aring. So that they never have

a copy of a written statement until they see it before

them in the minutes, and then they can choose to amend

or accept the minutes as written. So that's the first


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time the board of trustees actually saw what they

approved.

And I think that that is clear evidence

that their process contemplates adoption of the

resolution at the point in time that the minutes are

approved and that's what they decide.

Let me posit another situation for you.

Since there was nothing in writing at April 4th, let's

suppose that a board of trustees member said, well,

that's not what we agreed to on April 4th. Nothing in

writing. We've got to change this. We've got to

change this resolution on May 4th because what I

thought we voted on approved was X, Y, and Z, not A,

B, and C.

At that point, that's when the board of

trustees can finally change and alter the resolution

to reflect what the actual action is to be taken by

the board and memorialized in the minutes.

Until that point, until the adoption of

this resolution in the minutes, there is just no way

to -kr-roca' w-h-_a_t their final action is because it's not

final.

With regard to the overall concept, again,

the petition process in Ohio is sort of a -- I don't


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know if we go from the sublime to the ridiculous or

the ridiculous to the sublime with petitions, but

there's a lot of confusing law out there.

I think that the specificity of the kinds

of arguments that Mr. McTigue has made very well is

not really what the law contemplates. What the law

really contemplates is would a reasonably prudent

elector know what they were signing when they signed

this petition. That's what all this language is about

about what is confusing, what is misleading or

ambiguous.

We submit that this petition, based on

this record, is about as clear a statement as to what

was being proposed in this rezoning application as

any.

You know, for example, one of the things

that was very interesting in his argument, Mr. McTigue

suggested, well, you know, there should have been a

discussion there about these -- well, which road was

going to be connected and which road wasn't going to

h-e-connectQ_d. W-ell, guess what, that's why you need a

written resolution. Those materials should have been

in a written resolution, and they should have appeared

at some point and the decision should have appeared in

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writing at some point before a -- before the May 4th

vote.

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The reality is all you have is what you

are required to put in, and that is what was the

resolution adopted by the board of trustees. And we

would simply submit that the resolution adopted by the

board of trustees is that reflected in the May 4th,

2011, minutes.

There's no way to have known what their

final decision was before that time because they never

reduced to writing exactly what they were voting on.

They simply didn't have before them either a written

resolution prepared by anyone, nor did they have a

proposed zoning map reflecting what the changes would

be vis-a-vis either the overall development plan

for -- and their zoning resolution for Liberty

Township or anything, in fact there's nothing in the

final here regarding the scenic byway issues.

With that, we would submit that this

petition -- that the protest of the protesting parties

]ae o-ver-r-u-l-e-d and that the Board confirm this decision

that this matter should be certified for the ballot.

Thank you.

CHAIRMAN BURKAM: Can I ask you a


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question, Mr. Todd?

MR. TODD: Certainly.

CHAIRMAN BURKAM: Obviously it's

supportive of your position. What -- I don't think

either side has briefed the issue of the error in

identifying the owner in the actual adoption. Do you

know of any case law in this area? I'm assuming I'm

asking you off the top of your head, and if I were in

your shoes, I certainly would know, but I feel like I

have to ask the question. What do you think is the

significance, if any, of that?

MR. TODD: Mr. Chairman and members of the

Board, I think the significance of that really points

out the sort of picayune nature of the objections that

have been raised by the protester here. The reality

is that Pamela Valerie Knowlton owned the property

when the application was filed. At some point she

transferred it to what appears to be a wholly owned

LLC. If anyone on the developer/owner side thought it

was a material change in the application or affected

th-e a7p-p-l-r-ca-ti-o-n i-n any sianif_icantway, then they

should have filed an amended application, which they

didn't. They just added a name on there. I don't

think it really changes anything. I think that the


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actual -- that the actual --

CHAIRMAN BURKAM: If you need a moment to

review something, go ahead and take that.

MR. TODD: Well, we did have -- there's

one point, and I'll conclude with that.

But I think it comes to that everyone knew

here that they were talking about the Emerald Farms

that had been owned by Valerie Knowlton, that in fact

just because she made a paper transfer at some point

to a wholly owned LLC, that wasn't a sigriificant

change in the application process.

Obviously the board of trustees didn't

think it was important enough to put the new owner in

the final resolution. I mean, and no one amended --

no one has suggested once the minutes came out that

they should -- that the Board should accurately

reflect the actual legal owner of the property.

That certainly would have been the time

you would have thought if anyone thought it was really

material that either the owner, the attorney for the

owner, or the developer, or the attorney for the

developer would have come forward at that time and

ensured that the minutes were properly reflective of

the actual ownership. So I just don't think it's


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relevant. I don't think it's material.

CHAIRMAN BURKAM: Are you done, Mr. Todd?

MR. TODD: Yes.

CHAIRMAN BURKAM: Did you have questions?

MR. McTIGUE: Can I address that question?

CHAIRMAN BURKAM: Sure. I'm going to give

you the opportunity to discuss it. I just want to

make -- do any of the board members have questions of

Mr_ Todd?

MR. HELVEY: Yeah, I've got -- but I think

we better do it subject by subject, so go ahead.

MR. McTIGUE: I think, Mr. Chairman, we

should look at the minutes themselves, page 6, just to

address this question.

CHAIRMAN BURKAM: Which exhibits are you

referring to?

MR. McTIGUE: I'm sorry. This is Exhibit

B.


MR. McTIGUE: Page 6. Paragraph about in

the mi_dd1e, it says, "Mr. Mann moved to approve the

application as amended. Motion was seconded by

Mr. Sybert and the roll call vote" -- and then it

lists the vote.


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You'l1 notice it doesn't say Mr. Mann

moved to approve the application of owner Valerie

Knowlton or of the farm. it just says "moved to

approve the application as amended." it does not

refer to the owner one way or the other there, okay?

So in terms of the legal action they took,

that's the legal action they took. They didn't

specify the owner in the actual motion.

MR. TODD: I would simply point out that

the motion that they adopted says that the land is

owned by Pamela Valerie Knowlton. Again, I think

we're getting into --

CHAIRMAN BURKAM: What are you reading

from there?

MR. TODD: I'm reading from Exhibit E, the

actual minutes of the April 4th, 2011, Board of

Liberty Township Trustees meeting where it says that

this application for --

CHAIRMAN BURKAM: What page, sir?

MR. TODD: Page 3.


MR. TODD: And it's under the paragraph

which begins, underlined, "Continuation of LTZ 09-01

Final Public Hearing." And the second full sentence

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says, "This application proposes to rezone from Farm

Residence (FR-1) District to the Planned Residence

(PR) District 216.3 acres owned by Pamela Valerie

Knowlton.... .. No one ever moved to change that.

That's what they approved.

MR. McTIGUE: But, Mr. Chairman, I mean,

it's -- it also says, the line before that says,

"filed by Charles Driscoll on behalf of Edwards Land

Company and by Valerie Knowlton on behalf of MRLD

Farms, Limited."

MR. TODD: But it doesn't say "ownership"

there, John.

MR. McTIGUE: Well, I understand that, but

the point is the minutes there are saying, you know,

what they say, obviously, but that's not the motion.

MR. TODD: It has to be.

MR. McTIGUE: The motion is later, okay?

CHAIRMAN BURKAM: Let him finish, please.

MR. McTIGUE: The motion is to approve the

application. It's to approve the application. What

d-ces tt:-e--a-pp-1ic-a-t-i-on- say-, oka-y? Y-ou can lookat the

application and decide for yourself. Okay, that's one

of the exhibits. But that -- the actual action taken

was to approve the application as amended, okay?


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CHAIRMAN BURKAM: Mr. Todd, do you want to

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respond?

MR. TODD: Mr. Chairman and members of the

Board, again, I think what this highlights -- and the

debate back and forth over picayune, relatively,

matters, is not what the petition process is about. I

think we all would have been better served had there

been a clearly stated resolution prepared by the board

of trustees that we knew exactly what had been done,

that they had prepared the -- the township had

prepared an amended zoning map and submitted that

along with the final resolution for consideration, but

they didn't do those things.

So all we have is a vaguely worded motion.

Apparently, according to Mr. McTigue, the petition

would have been enough to say Trustee Mann approved a

rezoning application, that would be enough if he

thinks that's the motion. I disagree. I think we

have to look to the application itself.

CHAIRMAN BURKAM: Ed?

M_R_ _gFLVE.y: I'vagot a_. couple auestions

about the maps.

Is this the map that was purported to have

been attached to all the petitions?


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MR. TODD: Mr. Chairman, Member Helvey, it

was not attached. We did not circulate the petition

with the maps. The law is very clear on that that you

do not need to attach a map to the petitions, that

they simply need to be filed with the board of

trustees at the point in time that it is actually

filed.

MR. HELVEY: Okay. So this is then

purported to have been attached to the petitions when

it was filed with the trustees?

MR. TODD: Correct.

MR. HELVEY: And this map was presented --

was prepared by your company, but was it on file with

the trustees?

MR. DRISCOLL: Yes.

MR. HELVEY: As part of the application

process?

MR. DRISCOLL: Yes.

MR. HELVEY: So it's available as a public

record?

M-R-._BURN?dQ-R-T_H: But that wouldn't have

been available in 2008 when Valerie filed the original

request for rezoning, correct? That would have been

sent later.


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MR. DRISCOLL: We filed that map every

single meeting.

MR. BURNWORTH: As an amendment, right.

MR. DRISCOLL: Because that's what we were

requesting, those specific lots.

MR. BURNWORTH: Okay. So what was the

summary that the referendum petition is inaccurate

because it failed to indicate rezoning proposal

amendments? What -- clarify that for me.

MR. McTIGUE: Certainly. If I could,

before I address that.

MR. BURNWORTH: Sure, sure.

MR. McTIGUE: I want to respond to

Mr. Helvey's questions.

The law requires that an appropriate map

of the area affected by the rezoning be -- accompany

the filing of the petition, so Mr. Todd's correct.

You don't have to have it when you circulate the

petition, an appropriate map_ And the Court has said

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what it means by "appropriate," you know, which is you

have to somehow highli_ght on there the area that is

being rezoned.

I want to -- Mr. Todd said that what they

filed was the existing zoning map of the township that


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you have to file -- he said you have to file the

official zoning map. No, the law doesn't say you have

to file the official zoning map. It says you have to

file an appropriate map of the area to be affected --

that is being affected by the rezoning.

And what the courts have said is that you

can take that from a public record, you can make your

own map, as long as it's accurate and shows the area

being affected.

You don't have to wait for the township to

update their, quote, official zoning map; okay?

Even if they had updated the official

zoning map to indicate the new zoning designation for

that area, that wouldn't be enough because it doesn't

highlight where the area is that was affected by this

particular resolution.

I just want to correct that where he said

that you have to file the official zoning map. That's

not what the law requires.

Now, with regard to the summary?

MR,BURNWORT_H: Apparently there were

some, I'll say motions that were made that were

amended prior to the original zoning approval.

MR. McTIGUE: Yes, there were, I think,


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four amendments made, basically all related to access

or terminating access or limiting access from various

roads.

What the Supreme Court has said is that a

summary may not contain material omissions. You have

to determine, using an objective standard, what is a

material omission. Clearly there's an omission here

because the summary doesn't mention any of these

amendments.

Now, sometimes amendments aren't that

material. Sometimes they are. You have to determine

that using your judgment, applying an objective

standard. Were these changes made by the trustees

material to the decision that was made? Would they

have been material information to would-be or

prospective signers of the petition?

And we respectfully submit that it was

material, given the testimony and the evidence today

as to the concerns by citizens and neighbors regarding

those very issues. And so we believe they were

material and, therefore, the omission is a material

omission and the summary's insufficient for that

reason.

We also raise a couple other deficiencies


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on the summary, but that was the final one.

MR. TODD: If I may respond to that.

There are a couple of problems with that. One is that

the amendments that Mr. McTigue's talking about don't

appear anywhere other than a discussion in the Board

meeting., Again, the failure of the developer and the

owner to put anything in writing regarding this.

But more importantly, they're not issues

of zoning. They're issues of connectivity of roads,

but they don't relate to the actual application. They

were not in the original application. They're not in

any amended application. And the only place they

appear again is in some of these discussions. Hard to

put a discussion into writing.

One of the things I would point out to the

members of the board is we did cite a case, S.I.

Development & Construction, LLC, vs. Medina County

Board of Elections.

And the Ohio Supreme Court heard this case

a few years ago, and they said something which I think

i-s ver-y p-ertinent to the discussion that we're getting

into as we get deeper and deeper into the weeds, and

that is, quote: Relators suggest that a referendum

summary must be more accurate than the resolution


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being summarized. Relators apparently believe that

the language in the resolution is sufficient for it to

be effective concerning their requested zoning

amendment, but when the same language is used by

referendum petitioners, it is insufficient to submit

the amendment to the electorate. We will not permit

this absurd result."

MR. BURNWORTH: I was kind of curious as

to the timeline of the amendments. If it was the May

18th trustee meeting, then that really cuts into the

30-day date that you guys were talking about earlier.

That's why I brought that up.

MR. TODD: Mr. Chairman, members of the

board, it happens to be a May 4th meeting.

MR. BURNWORTH: Well, there was March --

MR. TODD: Or April 4th meeting. There

was a discussion at the April 4th meeting, but, again,

we don't see that until the minutes are finalized on

the -- at the May 4th.

MR. McTIGUE: Well, if I can address that.

Fir-st -of al1 -

MR. BURNWORTH: Oh, I see. Never mind. I

stand corrected.

MR. McTIGUE: A couple of the amendments


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are reflected in the March 15th, so --

MR. BURNWORTH: Okay.

MR. McTIGUE: March 15th, okay? That was

Exhibit E. And this is more than a discussion. And

Mr. Todd keeps calling it some sort of discussion.

They were votes, roll call votes, okay? And they are

reflected in the April 4th minutes, two more

amendments; not just discussions, votes, separate

votes. And then only after these votes on amendments

did they then make the motion, did one of the trustees

make the motion to approve the application as amended.

So nothing further happened after they

voted to approve the application other than 30 days

later they approved the minutes without changing any

of the action or correcting any of the action that

they took on April 4th.

MR. TODD: But those are not zoning

matters.

MR. BURNWORTH: Correct.

MR. McTIGUE: Well, I think that that's an

argument that you can make, but, you know, I think

that the trustees here treated them as amendments.

The board can, I think, address that issue.

CHAIRMAN BURKAM: I'm not sure if I


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in the supreme court of ohiocirculators. and at counsel table with me is tony gioffre, who is one of...

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