WATERVILLE — The Ohio Secretary of State will not allow a referendum on a proposed amphitheater, which will apparently move forward.

Ohio Secretary of State Frank LaRose gave the Lucas County Board of Elections notice Tuesday that he has broken the board’s April 4 split 2-2 decision, in favor of the City of Waterville’s position.

“Accordingly, it is my view that all evidence provided to my Office indicates that Ordinance 10-22 is administrative in nature and not subject to referendum,” LaRose wrote.

The city’s position is that as an administrative act it was administering the code, as a zoning department would ordinarily do as a part of its regular function.

LaRose did not weigh in on whether the amphitheater should be built. He also commented on a simultaneous case in front of the Lucas County Court of Common Pleas.

Proponents of the referendum made the claim that in adding a tax to a conditional use permit granted to DFG Waterville Landing LLC and HB Concerts by the city council on Nov. 28. It allows for operation of a new amphitheater, the action became legislative in nature. Legislative acts are open to a voter referendum, which was requested by a petition with 952 valid signatures, exceeding the required 20% of the city’s registered voters.

LaRose explained in the decision that a new admission tax was not established by Ordinance 10-22, calling it “merely an aspirational goal.” His basis was the lack of terms for the tax and a timeline for establishment of the tax.

He also recognized that the case is confusing, because in a separate ordinance, later in the city council meeting, it did establish an admission tax under a separate ordinance.

Whether intentional or not, these decisions have real consequences for the citizens of Waterville, wrote LaRose of the order of events.

“Allow me to clarify at the outset that the question before my office does not relate to the arguments for or against the underlying matter,” LaRose said. “The opinion stated in this letter applies only to the question of whether the city council’s approval of this development constitutes a legislative action that may be subjected to a vote of the people by referendum.”

He goes on to cite code indicating that citizens who disagree with the administrative action of a legislative body may file an administrative appeal in the local common pleas court.

His final section of the decision references the current case in the Lucas County Court of Common Pleas against an amphitheater.

LaRose wrote, “As the issuance of a Conditional Use Permit is an administrative matter, the Court of Common Pleas is the appropriate forum for citizens to voice their concerns.”

He said that the board of elections may need to revisit this issue depending on the outcome of that case.

Waterville’s attorney, Philip Dombey, weighed in on the result.

“If you create a new law it’s legislative, but if you are just administering, like in this case, a conditional use request is administrative and not referendable,” Dombey said.

He laid out a similar theoretical comparison with what he called “an outrageous result.”

“If you had to get a variance or conditional use for a shed in your yard, if they could referendum it you could be subject to an election on whether or not you can put a shed in your yard,” Dombey said.

(The headline on this story was corrected on April 28.)