CASE NO Appellees. IN THE SUPREME COURT OF OHIO. DAVID RZEPKA, et al., Appellants,

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1 IN THE SUPREME COURT OF OHIO DAVID RZEPKA, et al., Appellants, vs. CITY OF SOLON, et al, Appellees. CASE NO On appeal from the Cuyahoga County Court of Common Pleas Case No. CV Appeal of Rieht From Final Decision In An Election Contest (S.Ct.Prac.R. II, Sec. 1(C)(2)) BRIEF OF AMICUS CURIAE OI-IIO MUNICIPAL LEAGUE IN SUPPORT OF APPELLEE, THE CITY OF SOLON Stephen L. Byron (# ) (COUNSEL OF RECORD) Rebecca K. Schaltenbrand (# ) SCHOTTENSTEIN, ZOX & DUNN CO., L.P.A. Interstate Square Building I 4230 State Route 306, Suite 240 Willoughby, Ohio Phone: (440) Fax: (216) John Gotherman (# ) jgotherman@colwnbus.rr.com OHIO IvIUNICIPAL LEAGUE 175 S. Third Street, #510 Columbus, Ohio Phone: (614) Fax: (614) Stephen J. Smith (# ) ssmith@szd.com SCHOTTENSTEIN, ZOX & DUNN CO., LPA 250 West Street Columbus, Ohio Phone: (614) Fax: (614) Counsel For Amicus Curiae The Ohio Municipal League (H ) 1

2 Robert C. McClelland ( ) David J. Matty ( ) Shana A. Samson RADEMAKER, MATTY, MCCLELLAND & GREVE 55 Public Square, Suite 1775 Cleveland, Ohio Phone: (216) Fax: (216) Counsel For Appellees City of Solon, et al. Solon Taxpayers Against Rezoning Kimberly A. Gerace, Treasurer 6716 Solon Blvd. Solon, Ohio Appellee Jordan Berns ( ) (COUNSEL OF RECORD) Sheldon Bems ( ) Benjamin J. Ockner ( ) Gary F. Werner ( ) Timothy J. Duff ( ) erns o ckner. com BERNS, OCKNER & GREENBERGER, LLC 3733 Park East Drive, Suite 200 Beachwood, Ohio Phone: (216) Fax: (216) Counselfor,lppellants David Rzepka, et al. {H139YJ90.3 ) 2

3 TABLE OF CONTENTS INTRODUCTION...1 STATEMENT OF AMICUS INTEREST...2 STATEMENT OF THE CASE AND FACTS...2 ARGUMENT...2 PROPOSITION OF LAW #1: AN ELECTION CONTEST IS NOT THE APPROPRIATE ACTION TO DETERMINE THE CONSTITUTIONALITY OF A MUNICIPAL CHARTER PROVISION WHEN NO "IRREGULARITIES" ARE ALLEGED IN THE ELECTION PROCESS....2 PROPOSITION OF LAW #2: A MUNICIPALITY'S WARD VETO PROVISION, WHICH REQUIRES VOTER APPROVAL OF A CHANGE OF THE MUNICIPALITY'S ZONING MAP, DOES NOT EXCEED THE REFERENDUM POWERS RESERVED TO THE PEOPLE OF A MUNICIPALITY BY ARTICLE 11, SECTION LF OF THE OHIO CONSTITUTION...4 PROPOSITION OF LAW #3: A MUNICIPALITY'S WARD VETO PROVISION DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE OHIO CONSTITUTION AND DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION AS IT TREATS DISSIMILARLY SITUATED PERSONS IN A DISSIMILAR MANNER...5 PROPOSITION OF LAW #4: THE WARD VETO PROVISION IS A CONSTITUTIONALLY PERMISSIBLE RESERVATION BY THE ELECTORATE OF LEGISLATIVE POWER OTHERWISE GIVEN TO THE LEGISLATIVE BODY...8 CONCLUSION (H ) I

4 TABLE OF AUTHORITIES CASES Bella Vista Group, Inc. et al. v. City of Strongsville, et al. (2002), 2002 WL (Ohio App. 8 Dist.), 2002-Ohio-4434 at Buchanan v. City ofbolivar, Tennessee (1996), 99 F.3d 1352, 114 Ed. Law Rep. 25, 1996 Fed.App. 0352P...6 Buckeye Community Hope Foundation v. City of Cuyahoga Falls (1998), 82 Ohio St.3d 359, 697 N.E.2d Clements v. Fashing (1982), 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d , 7 Cleveland v. Piskura (1945), 145 Ohio St. 144, 60 N.E.2d 919, 30 O.O Copeland et al. v. Tracy (1996), 111 Ohio App.3d 648, 676 N.E.2d Engquist v. Oregon Department ofagriculture (2008), 128 S.Ct at F.S. Royster Guano Co. v. Commonwealth of Virginia (1920), 253 U.S. 412,40 S.Ct. 560, 64 L.Ed. 989, 4 A.F.T.R Forest City Enterprises, Inc. v. City ofeastlake (1976), 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d , 8, 9 Harsco Corporation v. Tracy (1999), 86 Ohio St.3d 189, 712 N.E. 2d 1249, 1999-Ohio In re Election Contest of December 14, 1999 Special Electian for the Office of Mayor of the City of Willoughby Hills (2001), 91 Ohio St.3d 302, 744 N.E.2d 745, 2001-Ohio In re Election of November 6, 1990 for the Office ofattorney General of Ohio (1991), 58 Ohio St.3d 103, 569 N.E.2d ,4 McMillan v. Ashtabula County Board of Elections (1993), 68 Ohio St.3d 31, 623 N.E.2d 43, 1993-Ohio ,4 Plyer v. Doe (1982), 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786, 4 Ed. Law Rep Rispo Investment Company et al., v. City of Seven Hills et al. (1993), 90 Ohio App.3d 245, 629 N.E.2d 3 at San Antonio Independent School District et al., v. Rodriguez, et al. (1973), 411 U.S. 1, 93 S.Ct. 1278, L.Ed.2d 16 at Srovnal v. Linton (1976), 46 Ohio St.2d 207, 346 N.E.2d State ex rel. Daoust v. Smith (1977), 52 Ohio St.2d 199, 371 N.E.2d 536, 6 0.O.3d State ex rel. Patterson v. Industrial Commission of Ohio et al. (1996), 77 Ohio St.3d 201, 672 N.E.2d 1008, 1996-Ohio State ex rel. Sharpe et al. v. Hitt (1951), 155 Ohio St. 529, 99 N.E.2d 6589, 44 O.O. 489 at ,10 State ex rel. Shriver v. Hayes (1947), 148 Ohio St. 681, 76 N.E.2d 869, 36 O.O State of Ohio ex rel. Andrew R. Ingerson v. Curtis Berry, Junior, Clerk of the Court of Common Pleas of Wyandot County (1863), 14 Ohio St. 315, 1863 WL 19 (Ohio)...3 Tigner v. State of Texas (1940), 310 U.S. 141, 60 S.Ct. 879, 130 A.L.R. 1321, 84 L.Ed Town of Lockport, New Yorly et al. v. Citizens for Community Action At The Local Level, Inc., et al. (1977), 430 U.S. 259, 97 S.Ct. 1047, 51 L.Ed.2d 313 at [H139]390.3 j

5 STATUTES Ohio Revised Code , 3 Ohio Revised Code OTHER AUTHORITIES Article I, Section 2 of the Ohio Constitution... 5 Article TI, Section 1c of the Ohio Constitution... 5 Article II, Section If of the Ohio Constitution... 4, 5, 9 Article II, Section 21 of the Ohio Constitution... 2 Article XVIII, Section 3 of the Ohio Constitution Article XVIII, Section 7 of the Ohio Constitution...9 (H ) iii

6 INTRODUCTION The Ohio Municipal League (the "League"), as amicus curiae on behalf of the City of Solon, Ohio ("City"), urges this Court to uphold the trial court's determination that no "election irregularity" occurred in the March 4, 2008, election on City of Solon Issue 44. Issue 44 asked the electors of the City to approve the rezoning of approximately 204 acres of land, including the preservation of 142 acres of perpetual open space, from a Single Family Residential District to a Two Family Residential Senior Citizen District. Although a majority of the electors of the City approved Issue 44, the Issue failed because a majority of the electors who voted on the issue and reside in the ward of the proposed rezoning, Ward 5, disapproved Issue 44. Section V and Section 22 of Article XIV of the Charter of the City govern voter approval of zoning changes and require approval by both a majority of the electors of the City and approval by a majority of the electors in each ward in which the change is applicable ("ward veto"). 1 Section 1 of Article XIV of the City's Charter provides: "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 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 the property in the ward." 2 Section 2 of Article XIV of the City's Charter provides: "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 until 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 is approved by the majority of the electors voting thereon, in this Municipality and in each ward in which the change is applicable to property in the ward." (H139)350.3 ) I

7 Appellants, 42 electors of the City, commenced an election contest in the Cuyahoga County Court of Common Pleas under R.C et seq. asserting that the ward veto provision of the City's Charter is unconstitutional. The trial court held that no "election irregularity" occurred and denied Appellants' Petition. Appellants subsequently filed this appeal. This appeal should be found to be without merit as Appellants failed to allege an election irregularity, which is the statutory basis for an election contest requirement. Additionally, the City's ward veto provision is constitutionally permissible. STATEMENT OF AMICUS INTEREST The Ohio Municipal League is a non-profit Ohio Corporation composed of a membership of more than 750 Ohio cities and villages. The League and its members have an interest in ensuring that municipal charter referendum processes are upheld as such process reflect the will of the people of the municipal corporation. STATEMENT OF THE CASE AND FACTS The League hereby adopts, in its entirety, and incorporates by reference, the statement of the case and the statement of facts contain within the Merit Brief of the City of Solon. ARGUMENT PROPOSITION OF LAW #1: An election contest is not the appropriate action to determine the constitutionality of a municipal charter provision when no "irregularities" are alleged in the election process. Article II, Section 21 of the Ohio Constitution requires the Ohio General Assembly to "determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted." Ohio Revised Code provides, in part,: "The nomination or election of any person to any public office or party position or the approval or rejection of any (H139]390.3 ) 2

8 issue or question, submitted to the voters, may be contested by qualified electors of the state or political subdivision." To prevail in an election contest, the election contestor must prove 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 election result. In re Election of November 6, 1990 for the Office of Attorney General of Ohio (1991), 58 Ohio St.3d 103, 569 N.E.2d 447, McMillan v. Ashtabula County Board of Elections (1993), 68 Ohio St.3d 31, 623 N.E.2d 43, 1993-Ohio-149, In re Election Contest of December 14, 1999 Special Election for the Office of Mayor of the City of Willoughby Hills (2001), 91 Ohio St.3d 302, 744 N.E.2d 745, 2001-Ohio-45. An election contest pursuant to Ohio Revised Code is the specific remedy for the correction of errors, frauds and mistakes which may occur at an election (Emphasis added). State of Ohio ex rel. Andrew R. Ingerson v. Curtis Berry, Junior, Clerk of the Court of Common Pleas of Wyandot County (1863), 14 Ohio St. 315, 1863 WL 19 (Ohio), State ex rel. Shriver v. Hayes (1947), 148 Ohio St. 681, 76 N.E.2d 869, 36 O.O. 277, State ex rel. Daoust v. Smith (1977), 52 Ohio St.2d 199, 371 N.E.2d 536, 6 0.O.3d 457, Capeland et al. v. Tracy (1996), 111 Ohio App.3d 648, 676 N.E.2d Election contests involve specific irregularities that occur at the election, or during the election process, and have included allegations regarding improper ballot rotation, the use of optical scanners, the process of counting "overvote X" votes (when a voter blackens ovals beside both candidates' names), the process of recounting ballots, the security of ballots, and the issuance of absentee ballots with the name of a candidate who was later declared ineligible. In re Election of November 6, 1990 for the Office ofattorney General (HI39]J90.3 ) 3

9 of Ohio, supra, McMillan v. Ashtabula County Board of Elections, supra. Election contests, generally, involve the role, duties, or responsibilities of the Board of Elections. Appellants allege that they are contesting the manner in which votes on a referendum are counted or the result of a referendum is determined. This is incorrect. As the brief makes clear, Appellants are challenging the constitutionality of Section 1 and Section 2 of Article XIV of the City's Charter, which requires zoning changes to be approved by a majority of the electors of the City and by a majority of the electors in the ward in which the zoning change is applicable. This constitutional challenge is not an appropriate election contest. Appellants challenge does not relate to an error, fraud, or mistake that occurred at the election. When an election contest petition is filed with a court, the court is required by Ohio Revised Code to fix a time for trial not less than fifteen nor more than thirty days after the filing of the petition. This expedited trial schedule ensures a timely and adequate review of an election contest issue. Such review is particularly necessary when election contests involve the election of a candidate to a public office. Appellants challenge involves the validity of the charter, an issue that is not of immediate urgency and one which should receive thorough intermediate appellate review, such as is provided in a declaratory judgment action. Appellants seek to use the expedited election contest to obtain a quick determination on the constitutionality of Section 1 and Section 2 of Article XIV of the City's Charter. Such improper use of the election laws should not be permitted, and the trial court's judgment should be affirmed. PROPOSITION OF LAW #2: A municipality's ward veto provision, which requires voter approval of a change of the municipality's zoning map, does not exceed the referendum powers reserved to the people of a municipality by Article II, Section lf of the Ohio Constitution. Article II, Section lf of the Ohio Constitution provides: "the initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such (H139]390.3 ) 4

10 municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law." (Emphasis added). Referendum powers of municipalities are, therefore, limited to questions that are legislative in nature. The approval of a site plan and the granting of a variance to the zoning code have been determined to be administrative actions. Buckeye Community Hope Foundation v. City of Cuyahoga Falls (1998), 82 Ohio St.3d 359, 697 N.E.2d 181, Srovnal v. Linton ( 1976), 46 Ohio St.2d 207, 346 N.E.2d 764. The enactment or amendment of a zoning ordinance, however, is a legislative action and subject to referendum. Forest City Enterprises, Inc. v. City of Eastlake (1976), 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132. Section 1 and Section 2 of Article XIV of the Charter of the City of Solon apply only to zoning district changes and zoning use changes. Such changes are legislative decisions. Consequently, the electorate's review of such amendments is, therefore, consistent with Article II, Section lf of the Ohio Constitution. Appellants also assert that Article II, Section lc of the Ohio Constitution prohibits a ward veto. This section governs the referendum power of the people of the State of Ohio and is not applicable to municipal referenda. There is no constitutional provision prohibiting a ward veto. PROPOSITION OF LAW #3: A municipality's ward veto provision does not violate the Equal Protection Clause of the Ohio Constitution and does not violate the Equal Protection Clause of the United States Constitution as it treats dissimilarly situated persons in a dissimilar manner. The Fourteenth Amendment to the United States Constitution prohibits a State from denying "to any person within its jurisdiction the equal protection of the laws." Article I, Section 2 of the Ohio Constitution provides: "All political power is inherent in the people. Government (H199]J90.3 } 5

11 is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the General Assembly." The Equal Protection Clause requires political subdivisions to treat similarly situated individuals in a similar manner. Buchanan v. City of Bolivar, Tennessee (1996), 99 F.3d 1352, 114 Ed. Law Rep. 25, 1996 Fed.App. 0352P, Plyer v. Doe ( 1982), 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786, 4 Ed. Law Rep. 953, F.S. Royster Guano Co. v. Commonwealth of Virginia (1920), 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989, 4 A.F.T.R. 4741, State ex rel. Patterson v. Industrial Commission of Ohio et al. (1996), 77 Ohio St.3d 201, 672 N.E.2d 1008, 1996-Ohio A political subdivision does not, however, violate the Equal Protection Clause by treating dissimilarly situated persons in a dissimilar manner. Clements v. Fashing ( 1982), 457 U.S. 957, 102 S.Ct. 2836, 73 L.Ed.2d 508, Tigner v. State of Texas ( 1940), 310 U.S. 141, 60 S.Ct. 879, 130 A.L.R. 1321, 84 L.Ed. 1124, Harsco Corporation v. Tracy (1999), 86 Ohio St.3d 189, 712 N.E. 2d 1249, 1999-Ohio-155. In considering whether or not an ordinance violates the Equal Protection Clause, different levels of scrutiny are applied to different types of classifications. When it appears that persons are treated differently under the law, the Equal Protection Clause requires "at least a rational reason for the difference, to assure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions." Engquist v. Oregon Department of Agriculture (2008), 128 S.Ct at When, however, a classification disadvantages a suspect class or impinges upon a fundamental right, the political subdivision must "demonstrate that its classification has been precisely tailored to serve a compelling govemment interest." Plyer v. Doe, supra, at 217. (HI

12 Appellants argue that the City's ward veto provision impinges upon "the right to vote", a fundamental right. This argument, however, is flawed as Section 1 and Section 2 of Article XIV of the City's Charter do not penalize the exercise of a constitutional right or result in "unjustifiable governmental interfere with an individual's right to speak and to vote". San Antonio Independent School District et al., v. Rodriguez, et al. (1973), 411 U.S. 1, 93 S.Ct. 1278, L.Ed.2d 16 at 36. Section 1 and Section 2 of Article XIV of the City's Charter require a vote of the City's electorate and the electorate of the impacted ward on ordinances which amend the zoning within the ward. The Charter, essentially, requires two elections or two votes on proposed zoning changes and uses. One election is to provide an opportunity for the electors of the City to approve the proposed zoning change or use and the other election is to provide an opportunity for the electors of the impacted ward to approve the proposed zoning change or use. The City's Charter does not require the Board of Elections to value one person's vote over that of another person. As Section 1 and Section 2 of Article XIV of the City's Charter do not impinge upon the "right to vote", the appropriate level of scrutiny is rational basis where "classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the State's goals and only if no grounds can be conceived to justify them." Clements, supra, at 963. By requiring majority approval of all City electors and electors residing in the ward of the proposed zoning change, the City's Charter treats electors residing in the ward of the proposed zoning change differently. Such electors are, however, dissimilarly situated and, therefore, there is a rational basis for the City's requirement that a proposed zoning change or use obtain the approval of both the City's electors and the electors residing in the ward of the proposed zoning change. (HI ) 7

13 The United States Supreme Court, in upholding the constitutionality of a New York law requiring a county charter to be approved by a majority of voters living within the city limits and a majority of voters living outside the city limits, stated: [S]eparate voter approval requirements are based on the perception that the real and long-term impact of a restructuring of a local government is felt quite differently by the different county constituent units that in a sense compete to provide similar governmental services. Voters in these constituent units are directly and differently affected by the restracturing of county government, which may make the provider of public services more remote and less subject to the voters' individual influence. The provisions of the New York law here in question no more than recognize the realities of these substantially differing electoral interests * * * we are unable to conclude that they violate the Equal Protection Clause of the Fourteenth Amendment. Town of Lockport, New York, et al. v. Citizens for Community Action At The Local Level, Inc., et al. (1977), 430 U.S. 259, 97 S.Ct. 1047, 51 L.Ed.2d 313 at The City's Charter provisions requiring City-wide elector approval and ward elector approval of a proposed zoning change or use do not violate the Equal Protection Clause as the electors residing in the ward have unique interests and are differently affected by the change or use. PROPOSITION OF LAW #4: The ward veto provision is a constitutionally permissible reservation by the electorate of legislative power otherwise given to the legislative body. The legislative powers vested in the legislative body of a municipal corporation cannot be surrendered, bargained away, or delegated. Cleveland v. Piskura (1945), 145 Ohio St. 144, 60 N.E.2d 919, 30 O.O The United States Supreme Court, however, has held that zoning referendum is not a delegation of legislative power as the power of referendum is specifically reserved to the people under the Ohio Constitution. Forest City Enterprises, Inc., supra. (H)39]390.3 ) 8

14 In Forest City Enterprises, Inc., a real estate developer challenged a city charter provision requiring the approval of any land use changes by a fifty-five percent (55%) favorable vote of all votes cast in the election. The Court in upholding the charter requirement and concluding that a referendum is not a delegation of legislative power stated: In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters which might otherwise be assigned to the legislature. The reservation of such power is the basis for the town meeting, a tradition which continues to this day in some states as both a practical and symbolic part of our democratic processes. The referendum, similarly, is a means for direct political participation, allowing the people the final decision, amount to a veto power, over enactments of representative bodies. The practice is designed to give citizens a voice on questions of public policy. Forest Ciry Enterprises, Inc., supra, at Article II, Section I f of the Ohio Constitution provides that municipal referendum powers "shall be exercised in the manner now or hereafter provided by law." Consistent with Article XVIII, Section 73 of the Ohio Constitution and Article XVIII, Section 34 of the Ohio Constitution, the electors of the City, by enacting the ward veto provision of the Charter, chose to establish a process that requires both the electors of the City and the electors of the ward to approve a zoning change or use. This Court has held that municipal initiative and referendum charter provisions "should be liberally construed in favor of the power reserved so as to permit rather than preclude the exercise of such power, and the object clearly sought to be attained should be promoted rather than prevented or obstructed." State ex rel. Sharpe et al. v. Hitt 3 Article XVIII, Section 7 of the Ohio Constitution provides: "Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all powers of local self-government." 4 Article XVIII, Section 3 of the Ohio Constitution provides: "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." {H ) 9

15 (1951), 155 Ohio St. 529, 99 N.E.2d 6589, 44 O.O. 489 at 535. In upholding a charter municipality's rezoning referendum procedure requiring a majority vote city-wide and a majority vote in the ward where the property was situated, the Eighth District Court of Appeals held "[t]hose persons who are primarily affected by the rezoning of the property from residential use to commercial use are the voters who reside in Ward 1, not the city-wide electorate. A process which gives these voters such deciding weight in regard to the rezoning of the property is not unreasonable in and of itself." Bella Vista Group, Inc. et al. v. City of Strongsville, et al. (2002), 2002 WL (Ohio App. 8 Dist.), 2002-Ohio-4434 at 35. In an action challenging the constitutionality of ward approval requirements for zoning changes in the City of Seven Hills and the City of Fairview Park, the Eighth District Court of Appeals upheld the charter provisions stating: [A]lthough appellees argue the ward approval requirement impermissibly gives absolute, unconfined and undirected power to both legislative and administrative action of the city to a minority of residents, in actuality it is a procedure for reserving to the people of the municipality their power to approve a change in the existing zoning standards. There is nothing in the United States Constitution or the law as promulgated by the United States Supreme Court which indicates a consent procedure such as a referendum which exists in the cases sub judice is an impermissible delegation of legislative power. Rispo Investment Company et al., v. City of Seven Hills et al. (1993), 90 Ohio App.3d 245, 629 N.E.2d 3 at 259. On May 3, 1988, the electors of the City enacted Section 1 and Section 2 of Article XIV of the Charter of the City and in so doing chose to provide the electors residing in the ward of the proposed zoning change or use with the power to veto a proposed zoning change or use approved by the City Council and/or the City-wide electors. This choice of the electors and power of the ward electors should not be obstructed. ;ri] ) 10

16 Appellants argue that the City's ward boundaries are unrelated to zoning legislation and land use and, therefore, the electors of Ward 5 should not be permitted to control the outcome of a zoning referendum election. If the electors of the City concur with such argument, they may amend the City Charter in accordance with the charter amendment process. The power to eliminate the ward veto resides with the electors of the City. CONCLUSION Based upon the foregoing, the League respectfully requests this Court to affirm the judgment of the trial court and enter judgment on behalf of the City of Solon. Respectfully submitted, tephen J. Smith (# ) ssmithqszd.com SCHOTTENSTEIN, Zox & DUNN Co., LPA 250 West Street Columbus, Ohio Phone: (614) Fax: (614) Counsel for Amicus Curiae The Ohio Municipal League {H j 11

17 CERTIFICATE OF SERVICE A copy of the foregoing Brief Of Amicus Curiae Ohio Municipal League In Support Of Appellee, City Of Solon has been sent via regular U.S. mail, postage pre-paid this i9 d y of December, 2008 to: Jordan Berns, Esq. Sheldon Bems, Esq. Benjamin J. Ockner, Esq. Gary F. Wemer, Esq. Timothy J. Duff, Esq. BERNS, OCKNER & GREENBERGER, LLC 3733 Park East Drive, Suite 200 Beachwood, OH Counsel for Appellants David Rzepka, et al. Robert C. McClelland, Esq. David J. Matty, Esq. Shana A. Samson, Esq. RADEMAKER, MATTY, MCCLELLAND & GREVE 55 Public Square, Suite 1775 Cleveland, OH Counsel For Appellees City of Solon, et al. Solon Taxpayers Against Rezoning Kimberly A. Gerace, Treasurer 6716 Solon Blvd. Solon, OH Appellee Stephen J. Smith (# ) Counsel for Amicus Curiae The Ohio Municipal League (H ) 12