Posted by: Patricia Salkin | August 19, 2009

Court Upholds Electors Rejection of Golf Course Rezoning to Cluster Housing for Seniors

Hawthorne Valley Country Club, L.L.C. (“Hawthorne Valley”) and Hawthorne Golf Estates, L.L.C. (“Hawthorne Golf”) own property containing about 204 acres of land in Ward 5 of Solon.  Hawthorne Valley owns about 142 acres, which is currently being used as a golf course, and Hawthorne Golf owns the remainder, which is undeveloped.  The property is zoned as an R-1-D Single Family Residential, which allows for one dwelling unit per acre.  Hawthorne Valley and Hawthorne Golf wanted to develop so that the property had a maximum of 184 cluster senior residences on about 62 acres, while preserving the remainder as a golf course or public park.  The Solon City Council passed Ordinance No. 2007-295 on December 17, 2007, and enacted a new zoning classification, R-2-A, Two Family Residential Senior Citizen Zoning District, which was conditioned upon a majority affirmative vote of electors in both the city and Ward 5 property from R-1-D to R-2-A.  The ordinance provided: § 2- “Conditioned upon a majority vote throughout the City and in Ward 5, the Solon Zoning Code and Zoning Map are amended to rezone approximately 204 acres from R-1-D to R-2-A.”  A majority affirmative vote throughout the city and Ward 5 was necessary for passage and the proposal was placed on the ballot on March 4, 2008.  A majority of electors in the city voted in favor of the proposal by a margin of 4,556 to 3,606, however a majority of electors in Ward 5 voted against the proposal 828 to 598.  On April 4, 2008, consistent with the charter and proposal, the Cuyahoga County Board of Elections certified the rejection of the proposal.  On April 15, 2008, appellants, a group of 42 city residents who had voted, filed a petition in Cuyahoga County Court of Common Pleas contesting the election under R.C. 3515.08 et seq.  They requested a judgment of approval of the ordinance and claimed that the charter regulating elections was ineffective because it violated § 1f, Art. II of the Ohio Constitution, as well as the Equal Protection and Due Process clauses of the U.S. Constitution and Ohio Constitution.  The lower courts found that the election results did not constitute a voting irregularity because the process utilized was consistent with the procedure the electors in Solon mandated prior to approving rezoning issues. 

The Supreme Court held that even if the appellants were correct about the unconstitutionality of the election charter, the contest was properly denied.  The Court said that even if the appellants were correct that the ward-majority section of the charter’s concurrent-majority voting requirement is unconstitutional, the proposed ordinance they sought to enforce itself contained a concurrent-majority requirement: (§ 2) “That conditioned upon a majority vote of the electors in the City and in Ward 5. . . .”  So, the Court concluded that because the Solon City Council expressly conditioned the effectiveness of the rezoning sought by appellants on the concurrent-majority requirement, the fact that the charter provision could be unconstitutional does not allow the appellants to receive any relief.

Further, the Court commented that even if the argument could be interpreted to challenge the ward-majority requirement of the ordinance, the provisions are so interconnected with the scope of the ordinance, that it would be impossible to understand the legislative intent behind the ordinance without the provisions.  Therefore, because the effectiveness of the zoning was made expressly conditional upon the concurrent-majority requirement, severability of the ward-majority provision of the ordinance was not possible.  Because appellants could not establish by clear and convincing evidence that any election irregularity affected enough votes to change or make uncertain the election result, that the zoning amendment failed and the judgment of the court of common pleas was affirmed. 

Rzepka v City of Solon, 2009 WL 875052 (Ohio 5/31/2009). 

The opinion can be accessed at:

For an article on affordable senior housing click here

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