Background
Quintin Koger Kidd and Susan Croutwater submitted an initiative petition proposing a new chapter of Wilmington’s zoning code to regulate data centers and data-center campuses. The proposed ordinance established standards governing matters including noise, lighting, emissions, generator testing, water use and discharge, and heat generation.
Although the proposal gave the city primary enforcement responsibility, it also conferred a “private right of action” on certain nearby residents and property owners. The Clinton County Board of Elections unanimously declined to certify the measure for the November 3, 2026 general-election ballot, concluding that it created a private civil cause of action beyond Wilmington’s legislative authority. Kidd and Croutwater sought a writ of mandamus compelling certification.
The Court’s Holding
The Supreme Court of Ohio denied the writ. Applying its prior decisions, the court held that the board properly determined that the proposed ordinance fell outside the municipal initiative power because municipalities lack authority to create new causes of action.
The court rejected the relators’ contention that the proposal merely incorporated existing remedies under state law and Wilmington’s zoning code. Unlike those remedies, the proposed cause of action would eliminate the requirement that a neighboring property owner show special damage and would authorize additional relief, including civil penalties of up to $10,000 per day payable to the city. The court also rejected the relators’ free-speech challenge, concluding that they had not established that the governing ballot-review statute violated the federal or Ohio constitutions.
Justice Fischer dissented, reasoning that allowing an elections board to make a substantive, preenactment legal assessment of a proposed ordinance violates the separation-of-powers doctrine. He would have granted the writ.
Key Takeaways
- A municipal initiative cannot be placed on the ballot when any part of it exceeds the municipality’s legislative authority.
- A proposal creates a new cause of action when it materially expands who may sue or what remedies are available, even if related statutory or local enforcement mechanisms already exist.
- The relators failed to show that the board’s statutory authority to review initiative petitions violated federal or Ohio free-speech protections.
Why It Matters
The decision confirms that Ohio boards of elections may screen municipal initiatives to determine whether their subject matter falls within the municipal initiative power. Initiative proponents cannot avoid that review by characterizing a newly created private enforcement mechanism as an incorporation of existing zoning or nuisance remedies.
The dissent highlights a continuing disagreement within the court over whether substantive preelection review belongs to elections boards and courts or should occur only after voters enact a measure.