Key Points

  • The Supreme Court of Ohio unanimously denied Sommers Development Group's requests for writs of prohibition and mandamus to remove a Mayfield Heights rezoning initiative from the Nov. 3, 2026 ballot.
  • The court held that the Cuyahoga County Board of Elections did not abuse its discretion or clearly disregard applicable law by placing the measure on the ballot despite its certification 55 days before the election, after R.C. 3501.02(F)(1)'s 90-day deadline.
  • The court reasoned that R.C. 3501.02(F)(1)'s 'notwithstanding any provision of the Revised Code' clause does not clearly reach municipal charters, and it relied on home-rule precedent, including State ex rel. Stanley v. Bernon (1933).
  • Reaffirming State ex rel. Sharpe v. Hitt (1951), the court held that voters may use an initiative to repeal a zoning ordinance after the 30-day referendum window closes, and that rezoning is a legislative act subject to initiative.
  • The court rejected the laches defense and held the board acted in a quasi-judicial capacity even though it took no sworn testimony at the protest hearing.

The Ohio Supreme Court on Monday refused to remove a citizen initiative from the Nov. 3 ballot in Mayfield Heights that would reverse a rezoning the city council granted for a planned townhome community, even though the city certified the measure to county election officials after a 90-day state deadline had passed.

In an unsigned, or per curiam, opinion joined by all seven justices, the court denied developer Sommers Development Group, L.L.C.'s request for writs of prohibition and mandamus. Those court orders would have barred the Cuyahoga County Board of Elections from placing the measure on the ballot or compelled the board to take it off. The court held that the board did not abuse its discretion or clearly disregard applicable law when it rejected the developer's protest.

"No party points to any case that has addressed the question whether the Revised Code or a municipal charter controls" when the state's ballot-certification deadline conflicts with a city charter, the court wrote. The court read the state statute as not clearly reaching charter cities, and it reaffirmed that voters may use an initiative to repeal a zoning ordinance after the 30-day window for a referendum has closed.

Sommers has a contract with the landowner, Rockwell Automation, Inc., to redevelop the parcel. On May 27, 2026, the city council rezoned the parcel from a classification for "Headquarters or Executive Offices Park Districts" to one for "Planned Unit Development Districts, Minimum Three Acres."

On July 24, a committee opposed to the project filed an initiative petition to restore the office-park zoning. The council voted 4-3 on Sept. 1 to reject the petition. The committee filed a supplemental petition the next day, and on Sept. 4 the board of elections reported 691 valid signatures, enough to qualify.

On Sept. 9, the council adopted an emergency resolution authorizing the clerk to certify the petition to the board for the November ballot. Sommers protested the next day. The board denied the protest after a Sept. 21 hearing, and Sommers sued in the Supreme Court four days later.

The timing dispute pitted two rules against each other. Ohio Revised Code Section 3501.02(F)(1) provides that, "[n]otwithstanding any provision of the Revised Code to the contrary," a ballot issue must be certified to the board of elections at least 90 days before the election. The council certified this measure 55 days before Election Day. The Mayfield Heights Charter, by contrast, lets a supplemental petition fix an election date at least 60 days after the petition's filing, and the committee filed its supplemental petition 62 days before the election.

The court found the statute's wording significant. "The Revised Code, however, is not a municipal charter," the opinion said, noting that several other statutes have "notwithstanding" clauses that expressly cover charter provisions. Sommers pointed to a neighboring division of the same statute that refers to a "law or charter" as proof that the legislature knows how to reach charters. "This argument carries some persuasive weight, but it does not carry the day," the court wrote.

The court also relied on a long line of cases holding that a city's home-rule authority under the Ohio Constitution includes the method of holding municipal elections. In State ex rel. Stanley v. Bernon, a 1933 decision, the court held that the Cleveland Heights Charter's 40-day deadline for nominating petitions controlled over a 60-day deadline in the state's General Code. The court wrote that "similar logic applies to charter provisions concerning initiative petitions."

Sommers had also argued that the petition was a disguised referendum. A referendum lets voters approve or reject an ordinance the council has passed, and the charter requires referendum petitions within 30 days of passage. The committee filed 58 days after the rezoning. The court rejected the argument, citing its 1951 decision in State ex rel. Sharpe v. Hitt, which held that voters "may by the initiative enact a measure conflicting with or repealing legislation previously passed by the municipal council."

The court added that the two procedures work differently under the charter. "The filing of the referendum petition essentially stays the ordinance," the court wrote, while an initiative leaves existing law in force unless voters adopt the change. The committee members' intent and other actions against the project "cannot control over the language of the initiative ordinance," the opinion said.

The justices also rejected Sommers's argument that the measure was an administrative act, which Ohio's Constitution places beyond the initiative power. Rezoning is legislative, the court said. Sommers contended that a clause giving the restored zoning "precedence" over other city acts would undo its existing approvals. The court responded that "nothing on the face of Section 3 purports to change or eliminate prior approvals Sommers has obtained from the city council."

On procedure, the court held that handing the petition to the mayor's assistant while the clerk of council was out of town did not doom it, because the clerk later sent the part-petitions for signature verification. The court also rejected a defense of laches, which bars claims brought after unreasonable delay, because "Sommers could not have presumed that the initiative ordinance would be placed on the ballot" before the board's Sept. 4 signature report.

The board had argued that its protest hearing was not quasi-judicial, a threshold requirement for a writ of prohibition. The court held otherwise because, even without sworn testimony, "the parties submitted evidence and their attorneys made factual assertions."

Jon J. Pinney of Kohrman Jackson & Krantz, L.L.P. represented Sommers. Cuyahoga County Prosecuting Attorney Michael C. O'Malley represented the board of elections.

The measure will appear on the Nov. 3 ballot, and the council's rezoning remains in effect unless voters adopt the initiative. The court left open any claim that the ordinance would unlawfully strip Sommers of rights retroactively, calling that question premature because it "will depend on whether and how the city council attempts to apply the ordinance, if approved, to the property."