SOLON, Ohio — The Ohio Supreme Court has ordered the placement of a rezoning initiative for the proposed Kerem Lake winery and multi-use development on the Nov. 6 ballot.
The ruling came down Friday (Sept. 7) in Columbus, well ahead of any final deadlines cited by the Cuyahoga County Board of Elections for getting its ballots printed and mailed out to military personnel and overseas later in the month.
Election board officials were unavailable for comment Monday as Solon Clerk of Council Carol McConoughey delivered the initiative petitions containing 870 valid signatures, in what the Supreme Court deemed a “taxpayer demand” for placement on the ballot.
“Because of the proximity of the election, the (petition) committee has no adequate remedy at law,” the 15-page majority opinion states. “We therefore grant a writ ordering (City Finance Director Matt) Rubino to certify the sufficiency and validity of the initiative petition to the (election) board for placement on the November 2018 ballot.”
Barring any late-breaking requests for a declaratory judgment from a different court, the city’s “home ward veto” provision will remain in effect. Attorneys for the petition-circulating committee also sought to have that declared unconstitutional.
In its ruling, the Supreme Court noted that the circulated petition was filed with the city on July 12. As required under state law, Rubino held the signatures for 10 days, then forwarded them to the board of elections on July 23.
On July 30, the election board certified that there were more than enough signatures to qualify the petition for the ballot, and then it was retrieved by the city the next day.
The sequence of events after that was what led the petition committee — five residents circulating the petition on behalf of the owner and developer, Yisrael Harris and BNH Enterprises Corp. — to seek legal relief from the state’s high court.
With an Aug. 8 deadline for the city to certify the petition and send it back to the board of elections, the formality was left up to city council.
“Neither Rubino nor city council met this deadline,” the Supreme Court opinion stated, citing council’s decision introduce the ordinance on first reading at its Aug. 6 regular meeting, with two more readings to follow.
This was done instead of going with passage on first reading as emergency legislation, which would have allowed enough time to forward the petition to the county.
The court’s opinion also refers to Third Ward Councilman Jeremy Zelwin’s request back on July 2 that the three-reading rule not be waived.
Attorneys for the petition-circulating committee sent a “taxpayer-demand letter” to City Law Director Tom Lobe on July 20 arguing that three readings of a certification ordinance were not necessary and that Lobe should get a court order for Rubino or council to forward the signatures.
Lobe refused on July 30 and on Aug. 9, one day after the election board’s initial deadline passed, attorneys Jordan Berns and Majeed G. Makhlouf filed the Writ of Mandamus action with the Ohio Supreme Court.
The high court determined that it lacks jurisdiction to rule on casting aside the “home ward veto” as unconstitutional, which would require a declaratory judgment from a different venue.
As it stands now, the rezoning request will have to pass not only citywide but in Ward Three, where many neighbors have strongly objected to the notion of turning 102 acres zoned “single-family residential” on one-acre lots into a “multi-use district.”
The Supreme Court opinion notes that “if created, the mixed-use district would permit development of the property to include single- and multi-family dwellings, a winery, a spa, a boutique hotel, certain retail uses, a senior-living facility, and an underground parking garage.”
Developers have stated that the rezoning initiative would allow no more than 500 residential units, although the figure would be considerably less in the proposal’s current form.
While some opponents have argued that the request amounts to “spot-zoning,” Berns and Makhlouf cited a legal precedent where the sheer size of the tract of land in question here negates that connotation.
The 6-1 ruling from the Supreme Court also included a nearly 6-page dissenting opinion from Justice R. Patrick DeWine.
“Today, the majority disregards the home-rule rights of Solon and its citizens and insists that state law, rather than the city charter, controls its local zoning initiatives,” DeWine wrote.
DeWine agreed with the city’s position that it was not a question of whether the committee’s initiative petition would go on the ballot, but when.
“I would conclude that the City of Solon was under no clear legal duty to meet the committee’s timeline for placing the initiative on the November 2018 ballot,” DeWine added.
While he concurred with the majority on the overall opinion, Justice Patrick F. Fischer went on the record that he would have denied the committee’s request for attorney fees.
The majority granted that request, but made it clear that in assessing reasonable attorney fees, there would be no payment for pages 21-28 of the petition committee’s final reply brief on Aug. 27 because they exceeded the 20-page limit and were stricken.
The Kerem Lake case was decided in less than a month’s time as an “expedited election matter,” qualifying it for placement on what is also known as the high court’s “rocket docket.”
- Maharashtra Govt Formation: Supreme Court Orders Floor Test On Nov 27 Without Secret Ballot, To Be Telecast Live; 10 Points
- Supreme Court orders live telecast of Maharashtra floor test, secret ballot | 10 points
- Supreme Court orders Maharashtra floor test tomorrow; all eyes on who will be Protem Speaker
- Supreme Court orders Maharashtra floor test tomorrow through open ballot
- Maharashtra: Supreme Court orders floor test before 5 pm tomorrow
- Top news of the day: Devendra Fadnavis resigns after Supreme Court orders floor test, Sabarimala activist attacked in Kochi, and more
- Supreme Court order on Maharashtra floor test today
- Maharashtra government formation: Supreme Court orders floor test to be held tomorrow
- India's Supreme Court orders floor test in Maharashtra
- Explained: Supreme Court orders Maharashtra floor test tomorrow, what next?