A citizen initiative to add data center regulations to the city of Wilmington’s zoning code cannot appear on the Nov. 3 general election because the initiative improperly contains a provision allowing private citizens to sue the data centers for zoning violations, the Supreme Court of Ohio ruled today.

A Supreme Court majority found the Clinton County Board of Elections could reject the placement of the proposed ordinance on the ballot because the proposal would create a “private cause of action,” which is not within the city’s power to enact.

In a per curiam opinion, the Court explained that the Ohio Constitution allows voters in a municipality to enact new ordinances through ballot initiatives. However, the ballot proposals are limited to issues that a municipality is empowered by the Ohio Constitution to enact by legislation. The Court ruled in a 2018 case that establishing a private right of action to sue to enforce a municipal ordinance is beyond a municipality's power.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined the per curiam opinion.

Justice Jennifer Brunner concurred, noting that because boards of elections act in a quasi-judicial capacity in hearing protests of candidacies and ballot issues and because this Court should recognize that there is public expense for elections that will ultimately be invalidated, she joins the majority’s opinion. She also stated she understood the valid points made by the dissent, and recognizes that this Court remains constitutionally empowered to check the authority of boards of elections if they overstep their authority

In a dissenting opinion, Justice Patrick F. Fischer stated that the law allowing the board of elections to determine whether the language of a ballot issue is legal is unconstitutional. He wrote that a court, and not the board, should determine whether a proposed ordinance is legal, and that should occur if voters were to approve the measure.

Residents Seek Data Center Restrictions
In July, Quintin Koger Kidd and Susan Croutwater submitted a petition to Wilmington city officials proposing to add a new chapter to the city zoning code. The stated intent was to “regulate data centers and data center campuses in a manner that fully protects public health, safety, and welfare by preventing adverse impacts.”

The ordinance would establish enforceable standards for noise, lighting, airborne emissions, generator-testing frequency, water use and discharge, heat generation, and other issues. The ordinance noted issues that would be considered code violations, including discharge of any undisclosed or unapproved chemical, and any measured exceedance of specified noise limits.

The proposed ordinance stated that the city would have primary responsibility to enforce the standards, but it also would confer “a private right of action on affected residents.” The proponents explained that the right to sue is modeled after the federal Clean Water Act and Clean Air Act, which allow citizen lawsuits to enforce violations of those laws. The proposal would allow a court to issue fines of $5,000 or $10,000 per day to a data center operator, suspend a data center’s certificate of occupancy, or revoke the conditional use of the land for data-center operation. A private citizen could also recoup reasonable attorney fees and costs if the lawsuit were successful.

The board of elections verified that the petitions had enough valid signatures to be placed on the November ballot. Two days later, Wilmington Law Director Desmond Cullimore sent a letter to the board, asking it to determine whether the proposed ordinance was within the city’s authority to enact by a ballot initiative.

Cullimore cited the Court’s 2018 decision in State ex rel. Bolzenius v. Preisse, and expressed that the proposed ordinance could not be placed on the ballot because of the provision allowing citizen lawsuits.

In August, the board of elections conducted a special meeting and agreed with the city’s position. The board unanimously voted not to certify the initiative for the general election ballot. Kidd and Croutwater asked the Court for a writ of mandamus to compel the board to place the measure on the ballot.

Supreme Court Analyzed Ballot Language
In 2016, the General Assembly enacted House Bill 463, which gave boards of elections the responsibility for reviewing the language of initiatives and determining whether they fall within the scope of a city’s authority to enact legislation. The bill also stated that a petition is invalid if any portion of it is not within the power of a municipality’s voters to enact.

Kidd and Croutwater argued the statutes created by H.B. 463 are unconstitutional because they violate the separation of powers doctrine. They also argued that the proposal does not create a new cause of action.

The opinion explained that before the passage of H.B. 463, the state law that is now R.C. 3501.11(K)(1) gave boards of elections the power to review, examine, and certify the “sufficiency and validity of petitions.” The Court interpreted the statute, as it had before H.B. 463, to allow boards to determine if the ballot initiative exceeded the scope of municipal powers. Because the Court relied on pre-H.B. 463 case law, it did not decide whether the statutory amendments introduced by H.B. 463 were or were not constitutional.

The Court noted the circumstances in its 2018 Bolzenius case are very similar to the Wilmington issue. In Bolzenius, citizens proposed a ballot issue for the city of Columbus to ban “hydrocarbon-extraction” activities within the city limits. The initiative would have permitted “any resident” to “enforce the rights and prohibitions” of the law. The board of elections refused to certify the measure for the ballot, and the Court agreed, finding that municipalities lack the power to create a new cause of action.

The Wilmington proponents argued their proposal does not create a new cause of action but incorporates causes of action already available to city residents. Under state law, R.C. 713.13, if someone builds or uses a structure in violation of a city zoning ordinance, the city or the owner of any neighboring property may institute a lawsuit to obtain an injunction to rectify the violation if they were “especially damaged.”

The Court noted the Wilmington proposal goes beyond state law. It does not require a neighboring property owner to prove they were “especially damaged” by a data center violation, and the proposal offers more and different remedies if the citizen prevails. R.C. 713.13 allows a court to order an injunction to resolve the zoning violation, but the Wilmington proposal allows courts to impose fines and revoke the centers' rights to operate, the opinion noted.

Courts, Not Election Boards, Resolve Legal Issues, Dissent Maintained
In his dissent, Justice Fischer wrote that the Court continues to sidestep the question of whether laws that allow the board of elections to determine the legality of ballot issues are constitutional.

“We should not continue to rely on precedent that allows a board of elections to make some substantive determinations on the legality of a proposed ordinance but not others, especially when doing so usurps the reviewing power of this court,” he wrote.

He cited his opinions in prior cases that held that allowing election boards to make legal evaluations of ballot initiatives before their passage was an unconstitutional violation of the separation of powers doctrine. He explained that a board of elections cannot deny placement of an initiative on the ballot based on a legal determination, just as the Court cannot stop the General Assembly from considering a proposed law.

However, once a law is enacted, only the judicial branch has the power to determine whether a law is legal, he noted.

2026-1165. State ex rel. Kidd v. Clinton Cty. Bd of Elections, Slip Opinion No. 2026-Ohio-3663.

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