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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 B-8 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 B-7 Same as Hearing Exhibit A
Hearing Exhibit B-8 Same as Hearing Exhibit A
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
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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
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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,
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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
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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
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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
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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?
, - ,
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.
Board Exhibit B-2 was marked for purposes of
identification.
CHAIRMAN BURKAM: Then the Board 3.
MR. MUMFORD: That's from the respondents.
CHAIRMAN BURKAM: Is a letter to the
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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
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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.
Board Exhibit B-7 was marked for purposes of
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.
Board Exhibit B-8 was marked for purposes of
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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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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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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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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CHAIRMAN BURKAM: Thank you.
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,
being first duly sworn, testifies and says as follows:
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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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
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purposes of identification.
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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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purposes of identification.
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
purposes of identification.
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.
CHAIRMAN BURKAM: Thank you.
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.
MR. McTIGUE: I have no further questions.
CHAIRMAN BURKAM: Thank you.
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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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,
being first duly sworn, testifies and says as follows:
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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?
A. Yes.
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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.
MR. McTIGUE: I have no further questions.
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.
MR. TODD: Thank you.
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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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
purposes of identification.
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
purposes of identification.
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.
MR. TODD: 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,
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1 meeting."
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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.
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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 --
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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.
CHAIRMAN BURKAM: Okay.
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.
CHAIRMAN BURKAM: Okay.
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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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
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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.
CHAIRMAN BURKAM: Thank you.
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.
CHAIRMAN BURKAM: Thank you.
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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