WATERVILLE — Efforts to pull the plug on the proposed Waterville amphitheater have continued to keep the future of the facility in question, based on a split decision from the Lucas County Board of Elections.

“They rendered a split, 2-2, decision, which was no decision,” said Philip Dombey, who is Waterville’s attorney. “So now it will go to the Ohio Secretary of State and they are supposed to transmit it within 14 days.”

Passage of a conditional use permit would have allowed the project to move forward.

The Lucas County Board of Elections met on April 4 to discuss a request for a voter referendum on that conditional use permit issued by the City of Waterville on Nov. 28. It would have allowed the amphitheater proper zoning.

Under question is whether the ordinance allowing the zoning was legislated or administrated.

The residents against allowing the conditional-use permit claim that Waterville established an admission tax “not approved by a prior enabling ordinance.” It further claims that “the admission tax is a permissive tax entitled to a referendum by the voters, as it is a legislative act.” The group believes that it is entitled to a referendum placed on the ballot for granting that permit.

The city’s position is that code is an administrative act, something a zoning department would ordinarily do as its regular function.

“Basically, it has been the city’s stance, and I believe correctly so, that all they were doing is enforcing their zoning code in granting a conditional use permit, which is an administrative action, not subject to a referendum,” Dombey said. “A legislative action would be creating a new law.”

The argument from the city’s opponents is that the admission ticket tax is not a permissible zoning action and as a new tax, it is subject to referendum.

The record of ordinances submitted to the board includes transcripts which indicate the development team agreed to a city ticket tax “starting at 3% and escalating over time up to 5%.”

“They said we’re going to talk about a ticket tax sometime with the applicant, and that was the only reference to it, but they managed to cloud the decision with question marks,” Dombey said. “It’s not the law. It’s not what the Supreme Court has said, nor the other courts, but we will see. Now it’s down to Columbus.”

There were 952 residents of city who signed the petition requesting the referendum.

Documents referenced by the board of elections indicate an acceptance by the developer of an admission tax, “to offset any indirect costs incurred by the city due to the operation of the amphitheater site.”

The amphitheater maximum capacity would be 9,375.

A traffic impact study from the Waterville engineer’s office, submitted to the Lucas County Board of Elections shows the majority of traffic, 80%, using Ohio 64 westbound, leaving an event and 40% using the northbound U.S. 24 ramp, with 5% traveling westbound to Whitehouse. That report also indicates several options for road modification to adapt to the changed traffic patterns.

An administrative appeal of the granting of the permit is also in front of the courts, which is separate and unrelated to the referendum question.

Dombey said that the civil court case is in Lucas County Common Pleas Court and he does not know when that case might be heard or set for pre-trial discovery.

He said that building of the amphitheater cannot start until the referendum is decided, but could take place before the courts have rendered a decision.

“They would be building at their own risk, if you will. I believe that the court case will be in favor of the city and there is the appropriate evidence to show that the considered all the factors,” Dombey said. “If they start and the appeal is lost, they probably would have spent some money doing some groundwork that will not bear fruit.”