[Cite as Rzepka v. Solon, 121 Ohio St.3d 380, 2009-Ohio-1353.]




      RZEPKA ET AL., APPELLANTS, v. CITY OF SOLON ET AL., APPELLEES.
         [Cite as Rzepka v. Solon, 121 Ohio St.3d 380, 2009-Ohio-1353.]
Elections — Election contest used to challenge ward-majority provision of
        ordinance — Effect of alleged election irregularity not proven by clear
        and convincing evidence — Judgment affirmed.
   (No. 2008-1303 ─ Submitted February 17, 2009 ─ Decided March 31, 2009.)
          APPEAL from the Court of Common Pleas of Cuyahoga County,
                                   No. CV-08-656878.
                                 __________________
        Per Curiam.
        {¶ 1} This is an appeal from the denial of an election contest challenging
the constitutionality of a charter requirement.           Because appellants failed to
establish by the requisite clear and convincing evidence that any claimed election
irregularity affected enough votes to change or make uncertain the contested
election result, we affirm.
 Concurrent-Majority Requirement for Voter Approval of Zoning Changes
        {¶ 2} In May 1988, the electors of appellee the city of Solon, Ohio,
adopted the following provisions requiring voter approval of proposed zoning
changes in both the municipality and in the ward in which the property is located:
        {¶ 3} “ARTICLE XIV
        {¶ 4} “VOTER APPROVAL OF ZONING CHANGES
        {¶ 5} “SECTION 1. ZONING DISTRICT CHANGE.
        {¶ 6} “Any ordinance, resolution or other action, whether legislative or
proposed by initiative petition, effecting a change in the zoning classification or
district of any property within the City of Solon, Ohio, shall not become effective
after the passage thereof, until Council submits such ordinance, resolution or
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other action to the electorate at a regularly scheduled election, occurring more
than sixty days after the passage of the ordinance, resolution or other action and
such ordinance, resolution or other action is approved by a majority of the
electors voting thereon, in this Municipality and in each ward in which the
change is applicable to property in the ward.
        {¶ 7} “SECTION 2. ZONING USE CHANGE.
        {¶ 8} “Any ordinance, resolution or other action, whether legislative or
proposed by initiative petition, effecting a change in the uses permitted in a
zoning use classification or district of the City of Solon, Ohio, shall not become
effective after the passage thereof, until Council submits such ordinance,
resolution or other action to the electorate at a regularly scheduled election,
occurring more than sixty days after the ordinance, resolution or other action [and
such ordinance, resolution or other action] is approved by the majority of the
electors voting thereon, in this municipality and in each ward in which the change
is applicable to the property in the ward.” (Emphasis added.)
                                  The Property
        {¶ 9} Hawthorne Valley Country Club, L.L.C. (“Hawthorne Valley”)
and Hawthorne Golf Estates, L.L.C. (“Hawthorne Golf Estates”) are limited-
liability companies that own property containing about 204 acres of land in Ward
5 of Solon. Hawthorne Valley owns approximately 142 acres of the property,
which is currently being used as a golf course, and Hawthorne Golf Estates owns
the remainder of the property, which is undeveloped. The property is zoned R-1-
D Single Family Residential, which allows for the development of one dwelling
unit per acre.
        {¶ 10} Hawthorne Valley and Hawthorne Golf Estates want to develop
the property so that it has a maximum of 184 cluster senior residences on roughly
62 acres of the property while preserving in perpetuity the remaining 142 acres as
a golf course or a public park protected by a conservation easement.




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            Passage of Proposed Ordinance to Rezone the Property
       {¶ 11} On December 17, 2007, the Solon City Council passed Ordinance
No. 2007-295, which enacted a new zoning classification designated as R-2-A
Two Family Residential Senior Citizen Zoning District and, conditioned upon a
majority affirmative vote of electors in both the city and Ward 5, amended the
zoning code and map to rezone the property from R-1-D Single Family
Residential District to R-2-A Two Family Residential Senior Citizen Zoning
District. Ordinance No. 2007-295 provided:
       {¶ 12} “SECTION 1. That the new Chapter 1270 of the Solon Zoning
Code, a copy of which is attached hereto as Exhibit ‘A’ is hereby enacted.
       {¶ 13} “SECTION 2. That conditioned upon a majority affirmative vote
of the electors throughout the City and in Ward 5, the Solon Zoning Code and the
Zoning Map be and the same hereby are, amended to rezone an approximately
204 acre area located near the southeast intersection of Aurora Road and
Richmond Road, from the current R-1-D Single Family Residential District to the
R-2-A Two Family Residential Senior Citizen District, a legal description of
which area to be rezoned is attached hereto as Exhibit ‘B’ and a map thereof is
attached as Exhibit ‘C’ and incorporated herein fully as if by reference.
       {¶ 14} “SECTION 3. That pursuant to the Solon Charter Article XIV,
Section 1, the Clerk of Council be, and she hereby is, authorized and directed to
forward a certified copy of this Ordinance to the Cuyahoga County Board of
Elections for submission to the electors at the March 4, 2008 Primary Election.
       {¶ 15} “SECTION 4. That the ballot language for the proposed rezoning
issue shall read as follows:
       {¶ 16} “ ‘PROPOSED ORDINANCE
       {¶ 17} “ ‘CITY OF SOLON
       {¶ 18} “ ‘A Majority Affirmative Vote
       {¶ 19} “ ‘throughout the City and in Ward 5 is necessary for passage




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          {¶ 20} “ ‘Shall the Ordinance rezoning an approximately 204 acre area
located at the southeast intersection of Aurora Road and Richmond Road from the
R-1-D Single Family Residential District to the R-2-A Two Family Residential
Senior Citizen District which includes approximately 142 acres of perpetual open
space be approved?
          {¶ 21} “ ‘Yes.
          {¶ 22} “ ‘No.’ ” (Emphasis added.)
                               March 4, 2008 Election
          {¶ 23} The proposed ordinance was placed on the March 4, 2008 election
ballot as Issue 44. Although a majority of the electors in the city who voted on
the issue voted in favor of the proposed ordinance by a margin of 4,556 to 3,606,
a majority of electors in Ward 5 who voted on the issue voted against it, 828 to
598. On April 4, 2008, consistent with the charter and the proposed ordinance,
the Cuyahoga County Board of Elections certified the rejection of the ordinance.
                                  Election Contest
          {¶ 24} On April 15, 2008, appellants, a group of 42 city residents who had
voted in the March 4 election, filed a petition in the Cuyahoga County Court of
Common Pleas contesting the election pursuant to R.C. 3515.08 et seq. The
petitioners requested a judgment that the ordinance had been approved by the
voters.    They claimed that the city charter’s ward-majority requirement was
ineffective because it violated Section 1f, Article II of the Ohio Constitution
(addressing the power of municipalities) as well as the Equal Protection and Due
Process Clauses of the United States and Ohio Constitutions.
          {¶ 25} On June 19, 2008, the common pleas court denied the contest
because the election result did not constitute a voting irregularity:
          {¶ 26} “Pursuant to [R.C.] 3515.08 et seq. contestors are challenging the
results of the March 4, 2008 election on the city of Solon Issue 44. In an election
contest the court must consider was there fraud or irregularity at the election in




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question, and if there was fraud or irregularity present, was it so great and flagrant
as to render the election results doubtful. Contestors allege that the dual majority
requirement constitutes a voting irregularity when a majority of city wide voters
of the city of Solon approved Issue 44 yet, the issue failed to pass because the
majority [of] voters within Ward 5 rejected the passage of the issue. Plaintiffs[’]
chief complaint about the [charter’s] dual majority provision was enacted and
approved by the voters of the city of Solon [sic]. Moreover the dual majority
requirement applies to the entire city of Solon and is not for the benefit of a single
ward. The court finds the election results did not constitute a voting irregularity
as the process utilized in the vote is consistent with the procedure the electors in
Solon mandated prior to approving rezoning issues.”
        {¶ 27} This cause is now before the court upon the appeal as of right by
the group of residents that instituted the election contest.1                       S.Ct.Prac.R.
II(1)(C)(2).
                                Merits of Election Contest
        {¶ 28} Appellants contest the March 4, 2008 election on the proposed
zoning amendment, claiming that an election contest is the proper way to
challenge the constitutionality of the method of tabulating votes of a referendum
ordinance. To prevail on their election contest, appellants “had to establish by
clear and convincing evidence that one or more election irregularities occurred
and that the irregularity or irregularities affected enough votes to change or make
uncertain the result of the * * * election.” Maschari v. Tone, 103 Ohio St.3d 411,
2004-Ohio-5342, 816 N.E.2d 579, ¶ 21.                 Appellants assert that the court of
common pleas erred in denying their election contest because the alleged

1. While this appeal was pending, on October 15, 2008, we dismissed a mandamus action brought
by the property owners, who were represented by the same counsel as appellants here, seeking to
compel Solon officials to amend the city’s zoning map to reflect the zoning amendment that had
been approved by a majority of the city’s voters but rejected by a majority of Ward 5 voters at the
March 4, 2008 election. State ex rel. Hawthorne Valley Country Club, L.L.C. v. Patton, 119 Ohio
St.3d 1482, 2008-Ohio-5273, 894 N.E.2d 1241.




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unconstitutionality of the ward-majority provision did not constitute an election
irregularity cognizable in an election contest. For the following reasons, however,
even if appellants are correct that the charter requirement is unconstitutional and
that it constitutes an election irregularity, their contest was properly denied.
        {¶ 29} First, even if appellants are correct that the ward-majority portion
of the charter’s concurrent-majority voting requirement for zoning changes ─
necessitating approval by both a majority of the voters in the city and the ward in
which the zoning amendment is applicable ─ is unconstitutional, the proposed
ordinance that they seek to enforce itself contained a concurrent-majority
requirement:
        {¶ 30} “That conditioned upon a majority affirmative vote of the electors
throughout the City and in Ward 5, the Solon Zoning Code and the Zoning Map
be and the same hereby are, amended to rezone an approximately 204 acre area
located near the southeast intersection of Aurora Road and Richmond Road, from
the current R-1-D Single Family Residential District to the R-2-A Two Family
Residential Senior Citizen District, a legal description of which area to be rezoned
is attached hereto as Exhibit ‘B’ and a map thereof is attached as Exhibit ‘C’ and
incorporated herein fully as if by reference.” (Emphasis added.)
        {¶ 31} Because the Solon City Council expressly conditioned the
effectiveness of the rezoning sought by appellants on the concurrent-majority
requirement, the mere fact that the charter provision may be unconstitutional does
not entitle appellants to the requested relief.
        {¶ 32} Second, even if appellants’ argument could be interpreted to also
attack the ward-majority requirement of the ordinance, this provision is so
interconnected with the general scope of the ordinance so as to make it impossible
to give effect to the apparent legislative intent without it. Cf. State v. Sterling,
113 Ohio St.3d 255, 2007-Ohio-1790, 864 N.E.2d 630, ¶ 40-41; see also Frecker
v. Dayton (1950), 153 Ohio St. 14, 26, 41 O.O. 109, 90 N.E.2d 851 (“rule, as to




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the severability of statutes and the elimination of unconstitutional provisions,
applies to municipal ordinances”).       That is, the city council imposed the
concurrent-majority requirement as an express condition on the effectiveness of
the rezoning. See, e.g., Thompson v. K.F.B. Ins. Co. (1993), 252 Kan. 1010,
1023-1024, 850 P.2d 773 (constitutional portion of statute cannot be severed from
unconstitutional portion where the latter portion is a condition of the former);
South Carolina Tax Comm. v. United Oil Marketers, Inc. (1991), 306 S.C. 384,
388, 412 S.E.2d 402 (if constitutional and unconstitutional parts of act are so
connected with each other that they depend or are conditioned on each other, the
entire act is void).
        {¶ 33} Therefore, the ward-majority requirement of the ordinance is
incapable of being severed from the remainder of the ordinance. Consequently,
even if appellants were able to establish that the charter requirement is
unconstitutional and that this constitutes an election irregularity, they would not
be entitled to the requested amendment to the zoning map because they do not
attack the validity of the same requirement in the ordinance that they request to be
enforced. Moreover, that requirement is not capable of being severed from the
remainder of the ordinance because the city council expressly conditioned the
effectiveness of the rezoning on the concurrent-majority requirement.
                              Constitutional Claim
        {¶ 34} By so holding, we need not decide appellants’ constitutional claim.
“[C]ourts decide constitutional issues only when absolutely necessary.”         See
Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 54. Nor
need we determine whether the claim, if true, would constitute an election
irregularity. See In re Election Contest of Democratic Primary Held May 4, 1999
for Clerk, Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 267, 725 N.E.2d
271 (court need not determine both prongs of election-contest claim if contestor
fails to establish one of them by the requisite clear and convincing evidence).




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This result is consistent with the “ ‘cardinal principle of judicial restraint─if it is
not necessary to decide more, it is necessary not to decide more.’ ” State ex rel.
Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262, 2005-Ohio-6432, 838
N.E.2d 658, ¶ 34, quoting PDK Laboratories, Inc. v. United States Drug
Enforcement Administration (C.A.D.C.2004), 362 F.3d 786, 799 (Roberts, J.,
concurring in part and in the judgment); see also State ex rel. Lorain v. Stewart,
119 Ohio St.3d 222, 2008-Ohio-4062, 893 N.E.2d 184, ¶ 39.
                                       Conclusion
         {¶ 35} Based on the foregoing, appellants cannot establish by the requisite
clear and convincing evidence that any claimed election irregularity affected
enough votes to change or make uncertain the election result that the zoning
amendment failed. Squire v. Geer, 117 Ohio St.3d 506, 2008-Ohio-1432, 885
N.E.2d 213, ¶ 36. Therefore, we affirm the judgment of the court of common
pleas denying the election contest.
                                                                  Judgment affirmed.
         MOYER, C.J., and LUNDBERG STRATTON, O’CONNOR, O’DONNELL,
LANZINGER, and CUPP, JJ., concur.
         PFEIFER, J., dissents.
                                   __________________
         PFEIFER, J., dissenting.
         {¶ 36} I would hold that the relators appropriately brought this case as an
election contest. At heart, this case is about the counting of votes. Specifically,
the issue is whether Ward 5 votes should have been counted as part of the
municipality-wide vote on Issue 44 or whether they should have been granted
extra significance and counted as part of an essentially separate election. I would
hold that no special significance should have been given to the Ward 5 votes and
that they should have been counted equally with the rest of the municipality’s
votes.




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                             __________________
       Berns, Ockner & Greenberger, L.L.C., Jordan Berns, Sheldon Berns,
Benjamin J. Ockner, Gary F. Werner, and Timothy J. Duff, for appellants.
       Rademaker, Matty, McClelland & Greve, Robert C. McClelland, David J.
Matty, and Shana A. Samson, for appellees.
       Schottenstein, Zox & Dunn Co., L.P.A., Stephen L. Byron, Rebecca K.
Schaltenbrand, and Stephen J. Smith; and Ohio Municipal League and John
Gotherman, urging affirmance for amicus curiae Ohio Municipal League.
       The Law Offices of Walter Mendenhall, Inc., Walter Mendenhall, and
Jacquenette S. Corgan, urging affirmance for amicus curiae Peter K. Ormond.
                          ______________________




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