# Oberer Land Developers Ltd v. Sugarcreek Township, Ohio

> District Court, S.D. Ohio · March 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10375203

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
OBERER LAND DEVELOPERS, .
LTD., et
Plaintiffs,
: Case No. 3:19-cv-82
Vv.
JUDGE WALTER H. RICE
SUGARCREEK TOWNSHIP,
OHIO, et a/., :
Defendants.

eee
DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN
PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE
PLEADINGS (DOC. #7); CONFERENCE CALL SET
eee

Oberer Land Developers, Ltd., and Peter Rammel sued Sugarcreek Township,
Ohio, and its Board of Trustees, challenging their denial of approval of a proposed
development plan. Plaintiffs seek damages under 42 U.S.C. § 1983 for numerous
alleged constitutional violations, as well as claims under state law. They also seek
declaratory and injunctive relief. This matter is currently before the Court on
Defendants’ Motion for Judgment on the Pleadings, Doc. #7.

I. Background and Procedural History
Plaintiff, Oberer Land Developers, Ltd. (Oberer”), was instrumental in
developing the Dille/Cornerstone project in Sugarcreek Township, a political
subdivision located in Greene County, Ohio. The annexation of this large

commercial development by the adjoining City of Centerville spurred years of
litigation between the City and Sugarcreek Township.
Thereafter, Sugarcreek Township identified other areas that were vulnerable
to future annexation, /.e., areas adjacent to an incorporated area or areas adjacent
to public land that is adjacent to an incorporated area. To prevent similar future
annexations, the Township revised its Long-Range Land Use Plan (“LRLUP”) in
2013. Doc. #5-1. By increasing flexibility for development within the Township,
the LRLUP attempted to head off further annexation. The 2013 LRLUP divides the
Township into several Planning Areas. Portions of Planning Area 3, located near
the Sugarcreek Reserve Metropark, are vulnerable to annexation. These “are
priority areas for Planned Residential Development, with densities to be determined
on a case by case basis by the Zoning Commission and Township Trustees.” /d. at
PagelD#44, “This area is a priority area for conservation subdivisions
characterized by the clustering of lots to preserve 50 percent or more of a site.”
Id.
To prevent future annexation, the Township also obtained Non-Annexation
Agreements from several property owners, including Plaintiff Peter Rammel, who
owns three parcels of real property located in Planning Area 3. His property,
consisting of approximately 107 acres, is subject to annexation by the City of
Centerville because it is adjacent to public land that is adjacent to an incorporated
area. His property is currently zoned “E-Rural Estate Residential District.” On July
11, 2014, Rammel signed a Non-Annexation Agreement, agreeing not to seek and

to oppose annexation of any portion of his property for a period of ten years. In
return, the Sugarcreek Township Board of Trustees agreed not to impose tax
increment financing (“TIF”) legislation on his property for the same period. The
Agreement was signed by Barry Tiffany, the Township Administrator, on behalf of
the Board of Trustees. Doc. #1-1, PagelD#16.
On August 24, 2017, Oberer agreed to purchase a portion of Rammel’s
property to develop Elliot Woods, a 113-lot residential area consisting of patio
homes. That purchase, however, was subject to necessary governmental
approvals. In February of 2018, Oberer filed an application to rezone 84.570 acres
of Rammel’s property to a “Residential Planned Unit Conservation Development
District” (“R-PUCD”). Oberer also submitted a preliminary development
application. These applications were reviewed by the Greene County Regional
Planning and Coordinating Commission (“GCRPCC”), which was to make a
recommendation to the Sugarcreek Township Board of Zoning Commission
("BZC").
Rammel’s property is accessible from Wilmington-Dayton Road, a two-lane
road with two 90-degree jogs at the northeast side of the property, near the
intersection of Wilmington-Dayton Road and Conference Road. See Doc. #5-2,
PagelD#57. The Greene County Thoroughfare Plan had long recommended
eliminating these two jogs by extending Wilmington-Dayton Road through
Rammel’s property; however, no road improvements were currently planned. Doc.
#5-2, PagelD#54. The GCRPCC recommended approval of the rezoning request

but recommended that the submitted layout of the proposed development be
reconsidered and that a traffic study be conducted before any final decision was
made. /d. at PagelD#56.
In response to the recommendation, Oberer, with the approval of the Greene
County Engineer, proposed putting a traffic signal at the intersection of Conference
Road and Wilmington-Dayton Road. Township Trustee Michael Pittman allegedly
persuaded the GCRPCC to reject this plan, and to instead require Oberer to
remediate three intersections—eliminating the two 90-degree jogs in Wilmington-
Dayton Road and remediating traffic issues at another intersection located more
than one mile from the proposed development.
These requirements had the effect of eliminating approximately 3.30 acres,
or 15 lots, from the proposed development. Nevertheless, in July of 2018, Oberer
begrudgingly submitted a revised application for 98 building lots. As required by
the Township’s Zoning Resolution, the proposed development set aside at least
50% of the total area for open space. The proposed development had a density of
1.2 units per acre. This was less dense than the nearby developments of
Woodland Ridge (1.5 units per acre) and Black Farm (2.95 units per acre).
However, all of the patio homes in Elliot Woods were to be clustered in one area of
the now-83 acres, away from the realigned road. The GCRPCC recommended
approval of the revised application subject to several conditions, which Oberer
agreed to satisfy. Doc. #5-3, PagelD##112-13.

The Board of Zoning Commission (“BZC”) considered the revised application
at its December 4, 2018, meeting. Doc. #5-5. Approximately 130 people
attended that meeting. Many were strongly opposed to the proposed
development, citing road and traffic issues and population density. At that
meeting, the BZC Chairperson, Mr. Betz, referenced Oberer’s role as the developer
of the Dille/Cornerstone property that was annexed to the City of Centerville. Betz
further noted that, thereafter, the Township updated the LRLUP to decrease the
risk of annexation. Betz also noted that Rammel had signed a Non-Annexation
Agreement. Accordingly, there was no immediate risk that, if this particular
development were not approved, the property would be annexed to the City of
Centerville. Betz indicated that, because of that, he “feels a little different about
this parcel” compared to others they had dealt with. /d. at PagelD#155, After □
vote, the five BZC members unanimously recommended that the Board of Trustees
deny Oberer’s revised application. /d. at PagelD#156.
On March 18, 2019, the Sugarcreek Township Board of Trustees denied
approval of the revised application. They found that the proposed development did
not satisfy all of the criteria set forth in the Zoning Resolution. They cited traffic
and safety concerns, intersection concerns, the clustered high density of the patio
homes, and the strong opposition of local citizens. Doc. #5-6, PagelD#161.
On March 20, 2019, Rammel and Oberer filed suit against the Sugarcreek
Township Defendants. The Complaint alleges seven causes of action. Count |
alleges that the Township's denial of the revised application exceeds the powers

§

delegated by Ohio Revised Code § 519.02 et seg. Counts | through VI seek relief
under 42 U.S.C. § 1983 for violations of Plaintiffs’ procedural and substantive due
process rights, equal protection rights, and Fifth Amendment property rights.
Count VIl seeks declaratory judgment on a variety of federal and state issues.
Plaintiffs also seek compensatory damages, punitive damages, costs and
attorneys’ fees, as well as a mandatory injunction ordering the Township to
approve the revised application and allow the proposed development to proceed.
Doc. #1.
Defendants filed an Answer, Doc. #5, attaching numerous public documents
referred to in Plaintiffs’ Complaint, including the 2013 revised LRLUP, the GCRPCC
recommendation, the Sugarcreek Township Zoning Resolution, and relevant
minutes from the meetings of the BZC and the Board of Trustees. Defendants
then filed a Motion for Judgment on the Pleadings, Doc. #7. That motion is now
tully briefed and ripe for decision.

ll. Fed. R. Civ. P. 12(c)
Motions for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) are analyzed under the same standard as motions to dismiss under Federal
Rule of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. National Collegiate
Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). “For purposes of a motion for
judgment on the pleadings, all well-pleaded material allegations of the pleadings of
the opposing party must be taken as true, and the motion may be granted only if

the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase
Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and
quotation marks omitted). However, the court need not accept as true legal
conclusions or unwarranted factual inferences. /d. (citing Mixon v. Ohio, 193 F.3d
389, 400 (6th Cir. 1999)).
To withstand a Rule 12(c) motion for judgment on the pleadings, “a
complaint must contain direct or inferential allegations respecting all the material
elements under some viable legal theory.” Commercial Money Ctr., Inc. v. Illinois
Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). “The factual allegations in the
complaint need to be sufficient to give notice to the defendant as to what claims
are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the
legal claim plausible, /.e., more than merely possible.” Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. /gbal, 556 U.S.
662 (2009)). A “legal conclusion couched as a factual allegation” need not be
accepted as true, nor are recitations of the elements of a cause of action
sufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Fed. R. Civ. P. 12(d) provides that if, on a motion for judgment on the
pleadings, matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56.
Nevertheless, “matters of public record, orders, items appearing in the record of
the case, and exhibits attached to the complaint” may also be considered.

Barany—Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v.
Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)). The exhibits attached to
Defendants’ Answer, Doc. #5, fall within the “public record” exception.

lil. Analysis
Defendants have moved to dismiss all claims asserted in Plaintiffs’
Complaint. The Court turns first to the federal claims.
A. Federal Claims
In Counts Il through VI, Plaintiffs assert several claims under 42 U.S.C.
8 1983, which provides a cause of action against any person who, under color of
state law, subjects any citizen to the deprivation of rights secured by the
Constitution and laws of the United States. Local governing bodies are “persons”
for purposes of 8 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690
(1978). Plaintiffs allege that Defendants’ conduct violated their procedural and
substantive due process rights as guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution, and constituted a regulatory taking
of their property without just compensation in violation of the Fifth Amendment.
1. Ripeness
Relying on Williamson County Regional Planning Commission v. Hamilton
Bank of Johnson City, 473 U.S. 172 (1985), Defendants argued, in their Motion
for Judgment on the Pleadings, that Plaintiffs’ takings claim, asserted in Count V,
was not ripe because Plaintiffs had not filed a mandamus action in state court and

had not yet been denied just compensation for the alleged taking. Defendants
further argued that, because the procedural due process and equal protection
claims asserted in Counts II, Ill and IV are ancillary to the takings claim, they are
likewise not ripe and must be dismissed for lack of subject matter jurisdiction.
Nine days after Defendants filed their Motion for Judgment on the Pleadings,
the Supreme Court overruled Williamson County. See Knick v. Twp. of Scott,
-U.S.-, 139 S. Ct. 2162, 2167 (2019) (overruling the state-litigation requirement).
On this basis, the Court rejects Defendants’ claim that dismissal is warranted on
ripeness grounds and turns to the question of whether Plaintiffs have stated one or
more plausible claims for relief.
2. Substantive and Procedural Due Process (Counts II and IV)
The Fourteenth Amendment to the United States Constitution provides that no
state shall “deprive any person of life, liberty, or property, without due process of
law.” U.S. Const. amend. XIV, § 1. The Due Process Clause encompasses both
substantive and procedural due process rights. “Substantive due process prevents
the government from engaging in conduct that shocks the conscience. . . or
interferes with rights implicit in the concept of ordered liberty.” Prater v. City of
Burnside, 289 F.3d 417, 431 (6th Cir. 2002) (internal quotation marks and citation
omitted). “Procedural due process requires that the government's deprivation of
life, liberty, or property, even if consistent with substantive due process, be
implemented in a fair manner.” /d. (internal quotation marks omitted).

Plaintiffs have alleged violations of their substantive and procedural due
process rights. In Count Il, Plaintiffs allege that the Township rejected the revised
application without appropriate justification, failing to follow the criteria set forth in
Ohio Revised Code § 519.02, in its own Zoning Resolution and in the Long-Range
Land Use Plan (“LRLUP”). In Count IV, they further allege that the Township failed
to follow the criteria set forth in Ohio Revised Code § 519.02 when it required
them to remediate the pre-existing road deficiencies. In both Counts, Plaintiffs
allege that the proceedings were negatively impacted by the participation of a
clearly biased decisionmaker on the Board of Zoning Commission (“BZC”).
To prevail on any substantive or procedural due process claim, Plaintiffs
must first prove that they have a protected property or liberty interest. Si/ver v.
Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992) (“To
establish a violation of substantive due process, a plaintiff must first establish the
existence of a constitutionally-protected property or liberty interest.”); EJS Props.,
LLC v. City of Toledo, 651 F. Supp. 2d 743, 755 (N.D. Ohio 2009) (“As with
substantive due process claims, to prevail on a procedural due process claim
brought under § 1983, [a plaintiff] must first allege the existence of a
constitutionally-protected property interest.”).
Plaintiffs allege that Defendants’ conduct deprived them of their protected
property and liberty interests. In their Motion for Judgment on the Pleadings,
Defendants argue, however, that, as matter of law, Plaintiffs have no cognizable

10

property interest triggering due process protections.' As the Supreme Court has
noted, property interests are not created by the Constitution. “Rather they are
created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law.” Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972).
To establish the requisite property interest to support their due process
claims, Plaintiffs must prove that they had a “legitimate claim of entitlement” to
approval of the revised development plan or a “justifiable expectation” that the
Board of Trustees would approve it. Triomphe Inv’rs v. City of Northwood, 49
F.3d 198, 202 (6th Cir. 1995). This can be done only by showing that if Plaintiffs
“complied with certain minimum, mandatory requirements,” the Board of Trustees
had no discretion to deny approval of the plan. Si/ver, 966 F.2d at 1036. See
also Triomphe, 49 F.3d at 203 (holding that because the City Code provided that
the City Council “may” grant a special use permit, plaintiff could not show a
“legitimate claim of entitlement” or a “justifiable expectation”): J.D. P’ship v. Berlin
Twp. Bd. of Trustees, 412 F. Supp. 2d 772, 780 (S.D. Ohio 2005) (holding that a

' Although the Complaint alleges the existence of protected property and liberty
interests, the briefs discuss only property interests. To the extent that Plaintiffs
may argue that the participation of a biased decisionmaker deprived them of a
protected liberty interest, the Court notes that “freedom from submission to a
biased or corrupt decision maker is not itself a liberty interest, but rather
constitutes the manner in which due process has been denied where a plaintiff has
first established a predicate liberty or property interest.” EJS Props., LLC v. City of
Toledo, 736 F. Supp. 2d 1123, 1130 (N.D. Ohio 2010). Plaintiffs in this case
have failed to establish such an interest.
11

protected property interest can exist only “if the law circumscribed the discretion
of the Defendants to such an extent that approval of the particular use was
mandatory once Plaintiffs met certain minimal requirements”).
To determine whether the Board of Trustees had discretion to approve or
reject Plaintiffs’ proposed development plan, the Court turns to Ohio Revised Code
§ 519.02, the Sugarcreek Township Long-Range Land Use Plan (“LRLUP”), and the
Sugarcreek Township Zoning Resolution. See Wedgewood Ltd. P’ship |v. Twp. of
Liberty, 456 F. Supp. 2d 904, 931 (S.D. Ohio 2006) (“This Court must apply state
zoning laws to determine whether a legitimate claim of entitlement or a justifiable
expectation exists.”). Having reviewed the relevant law and documents, the Court
agrees with Defendants that, because the Board of Trustees had discretion to
approve or reject the proposed development plan, Plaintiffs cannot establish that
they have the requisite protected property interest.
Ohio Revised Code § 519.02(A) authorizes the Board of Township Trustees
to regulate, by resolution, building and land use in unincorporated territory. Ohio
Revised Code § 519.021 allows a Township zoning resolution to adopt regulations
for planned-unit developments. Such regulations “shall include standards to be
used by the board of township trustees or, if the board so chooses, by the
township zoning commission, in determining whether to approve or disapprove any
proposed development within a planned-unit development.” Ohio Revised Code
§ 519.021 (emphasis added). Accordingly, the statute, on its face, grants
legislative discretion to the Board of Trustees to approve or reject a proposed

12

development. The only question is whether such discretion is otherwise
circumscribed by the Sugarcreek Township Zoning Resolution or the LRLUP.
The LRLUP for Planning Area 3 provides that “[t]his is a priority area for
conservation subdivisions characterized by the clustering of lots to preserve 50
percent or more of a site.” Doc. #5-1, PagelD#44. Plaintiffs note that the LRLUP
is designed to work together with the Zoning Resolution. The LRLUP provides that
an application to amend the Zoning Resolution that would conflict with the LRLUP
concurrently initiates a modification to the LRLUP. Doc. #9-1, PagelD#219.
Based on this, Plaintiffs argue that the Township’s property owners have a
justifiable expectation that zoning applications complying with the LRLUP’s
planning area recommendations will be approved.
Article 4 of the Sugarcreek Township Zoning Resolution establishes various
Zoning Districts and Use Regulations. One of the designated Zoning Districts is a
Residential Planned Unit Conservation Development District (“R-PUCD"), which is
governed by Article 6 of the Zoning Resolution. Doc. #5-4, PagelD#126-28.
Section 6.06(A)(1) sets forth review procedures for approval of a basic R-
PUCD. The owner of the property must submit a preliminary development
application which “shall meet all of the standards established in [Article 6],” along
with the application for a rezoning to an R-PUCD District. Doc. #5-4, PagelD#135.
The Township then transmits the preliminary application to the Greene County
Regional Planning and Coordinating Commission (“GCRPCC”), which “shall
recommend the approval, approval with modifications, or denial of the proposed

13

map amendment and preliminary development application, and shall submit a
written recommendation to the BZC.” The BZC must hold a public hearing on the
matter. The BZC then “shall recommend the approval, approval with
modifications, or denial of the proposed amendment and preliminary development
application,” and submit it, along with the GCRPCC’s recommendation, to the
Sugarcreek Township Board of Trustees. /d. at PagelD#136. The Board of
Trustees must then hold a public hearing. The Board of Trustees then “shall either
adopt or deny the recommendations of the BZC, or adopt some modification
thereof in accordance with Section 519.12 of the Ohio Revised Code.” Upon
approval of the preliminary development application, the applicant must submit a
final development application. /d. at PagelD#137.
Section 6.06(D) of the Sugarcreek Township Zoning Resolution sets forth
eight criteria that “shall serve as conditions that should be satisfied before the
approval of the preliminary development application” for a R-PUCD. Doc. #5-4,
PagelD#139. Those criteria include the following:
a. The R-PUCD application and preliminary development
application are consistent with the recommendations of the
Sugarcreek Township Comprehensive Development Plan and the
requirements of this Resolution;
b. The preliminary development application is consistent with
the concept plan, if submitted;
c. The internal streets and primary and secondary roads that
are proposed properly interconnect with the surrounding existing road
network, as determined by the Greene County Engineer's Office;
d. The site will be accessible from public roads that are
generally adequate to carry the traffic that will be imposed upon them
by the proposed development and the streets and driveways on the
site will be adequate to serve the residents or occupants of the

14

proposed development, as determined by the Greene County
Engineer's Office;
e. The proposed development will not impose an undue
burden on public services and facilities such as fire and police
protection, the transportation network, the school system, and the
water and sewer services;
f. The minimum common open space areas have been
designated and shall be duly conveyed or deeded to a legally
established homeowners association, where applicable, or have been
addressed in a form permitted in Section 6.05(C)(2);
g. The location and arrangement of residential and accessory
structures, parking areas, walks, pedestrian ways, lighting and
appurtenant facilities shall be compatible with the surrounding land
uses. Any part of a R-PUCD not used for residential and accessory
structures or access ways shall be landscaped or otherwise improved
and identified with proposed uses unless specified as part of an open
space land in accordance with Section 6.05(C) as approved by the
BZC.
h. The preliminary development application has been
transmitted to, and comments received from, all other agencies and
departments charged with responsibility of review.
Doc. #5-4, PagelD#139.
Section 6.04(B)(1) of the Zoning Resolution further provides that:
The maximum permitted number of dwelling units in an R-PUCD
project shall be determined on a case by case basis taking into
consideration the following: (1) Recommendations from the most
recently adopted Comprehensive Development Plan; (b) Adjacent land
uses; (c) Unique features and characteristics of the land; (d)
Development plan layout; (e) Quality and character of the proposed
open space; and (f) The maximum density permitted by the adjacent
incorporated area, as applicable.
ld. at PagelD##129-30.
In arguing that they have a legitimate claim of entitlement to approval of
their application, Plaintiffs rely heavily on the unpublished case of Aitz v. City of
Findlay, No. 3:07cv3716, 2009 WL 1954635 (N.D. Ohio July 6, 2009). The

Is

ordinance at issue in that case provided that the Planning Commission “shall
consider” a list of criteria in reviewing a plan submission. It then had authority to
approve, approve with conditions, or “if appropriate, reject the site plan submission
if it is nonconforming.” /d. at *5. The court held that the use of the word “shall,”
combined with the authority to reject the plan submission “if it is nonconforming,”
provided a “mandate that the Commission must approve conforming applications,
either with or without conditions.” /d. The court held that, because the plaintiffs’
site plan conformed to all listed criteria, they had a justifiable expectation that the
plan would be approved. /d. at *6. Plaintiffs argue that, as in Aitz, Section
6.06(D) of the Sugarcreek Township Zoning Resolution lists eight criteria that
“shall” serve as conditions that should be satisfied before the approval of the
preliminary development application” for a R-PUCD. Doc. #5-4, PagelD#139.
Plaintiffs’ reliance on A/tz is misplaced for two reasons. First, in sharp
contrast to the ordinance at issue in A/tz, nothing in Sugarcreek Township’s Zoning
Resolution limits the authority of the Board of Trustees to reject a plan only if it is
fails to conform to the criteria set forth in Section 6.06(D). The Zoning Resolution
states that the eight criteria “shall serve as conditions that should be satisfied”
before the approval of the application. Doc. #5-4, PagelD#139. However, nothing
indicates that, if all criteria are satisfied, the application must be approved.
Second, Plaintiffs’ argument is based on the presumption that their revised
application met all eight approval criteria set forth in Section 6.06(D) of the Zoning
Resolution. Not all those criteria, however, are objective. For example, the Board

16

of Trustees clearly has discretion to determine whether “[t]he R-PUCD application
and preliminary development application are consistent with the recommendations
of the Sugarcreek Township Comprehensive Development Plan and the
requirements of this Resolution.” /d. The Board, in fact, cited several reasons why
it believed that Plaintiffs’ revised application did not pass muster, most notably
traffic concerns in the immediate area of the proposed development.
The Court finds that the Board of Trustees had discretion to approve or deny
Plaintiffs’ application. Based on the foregoing, the Court finds that Plaintiffs
cannot show that they have a legitimate claim of entitlement or a justifiable
expectation that the proposed plan would be approved. Therefore, as a matter of
law, Plaintiffs cannot establish a protected property interest, and have failed to
state a plausible substantive or procedural due process claim. Although the Court
would typically grant leave to amend the Complaint to cure any alleged defect, any
amendment in this case would be futile given that the claims fail as a matter of
law. Accordingly, the Court SUSTAINS Defendants’ Motion for Judgment on the
Pleadings as to Counts II and IV and dismisses those claims with prejudice.
3. Equal Protection (Count III)
The Fourteenth Amendment to the United States Constitution also provides
that no State shall “deny to any person within its jurisdiction the equal protection
of the laws.” U.S. Const. amend. IV § 1. Here, Plaintiffs do not claim
infringement of a fundamental right or discrimination against a suspect class.
Rather, their claim is based on a “class of one” theory as recognized by the

17

Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562 (2000). To
succeed on such a theory, they must show that: (1) they were “intentionally
treated differently from others similarly situated”; and (2) “there is no rational basis
for the difference in treatment.” /d. at 564.
Count Ill of the Complaint alleges that, in denying Oberer’s application, the
Township treated Plaintiffs differently than similarly-situated owners and
developers, and that the Township’s actions are not rationally related to a
legitimate purpose. Defendants argue, however, that the factual allegations are
insufficient to support a plausible claim for relief.
The first question is whether Plaintiffs have pled sufficient facts to support a
finding that they were intentionally treated differently than similarly-situated
owners and developers. Plaintiffs cite to the “high rate of growth and
development experienced in the Township over the last decade.” Doc. #1,
PagelD#9. This implies that the Board of Trustees has recently approved plans of
several other owners and developers but says nothing about whether they were
similarly situated.
Plaintiffs then allege that the Township has admitted that, in deciding
whether to approve development plans, it treated property owners who signed
Non-Annexation Agreements differently than those who did not. As an example of
disparate treatment, Plaintiffs cite to the Black Farm development, which was
approved by the Township in 2018. /d. The Complaint further notes that the

18

Black Farm and Woodland Ridge developments both have higher density rates than
the proposed density rate for Elliot Woods. /d. at PagelD#5.
Defendants acknowledge that Plaintiffs need not show an exact correlation
between themselves and others; however, Plaintiffs “must show that they were
treated differently than those similarly situated in all material respects.” Loesel/ v.
City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012). Defendants argue that
Plaintiffs’ Complaint is deficient in this respect. Density is just one of many
factors considered in determining whether to approve a preliminary development
plan and, although the total number of units per acre in Plaintiffs’ proposed
development may be less than in other residential developments, Plaintiffs’ patio
home units are all clustered in one area of the property. Defendants further note
that, in denying Plaintiffs’ revised application, the Board of Zoning Commission and
Board of Trustees also cited traffic and safety issues, roads, intersections and the
strong opposition of citizens. Plaintiffs’ Complaint, however, makes no mention of
whether the other residential developments faced similar obstacles.
In the Court's view, these arguments are better addressed in a summary
judgment motion where all relevant evidence concerning the circumstances
surrounding the Township’s approval of these other developments can be
considered. Accepting Plaintiffs’ allegations as true, the Court finds that Plaintiffs
have pled sufficient facts to support a finding that they were intentionally treated
differently than similarly-situated owners and developers.

19

The next question is whether Plaintiffs have pled sufficient facts to support
a finding that there is no rational basis for the difference in treatment. To satisfy
this element, Plaintiffs must either negate “every conceivable basis which might
support the government action” or demonstrate “that the challenged government
action was motivated by animus or ill-will.” Warren v. City of Athens, 411 F.3d
697, 711 (6th Cir. 2005).
Viewing Plaintiffs’ Complaint as whole, the Court finds that Plaintiffs have
adequately pled that the denial of the revised application was motivated by animus
or ill will. They allege that, during the December 4, 2018, meeting, the BZC
Chairperson referenced the litigation stemming from the annexation of Oberer’s
Dille/Cornerstone project, and the subsequent steps that the Township had taken
to prevent similar future annexations, including revisions to the LRLUP and the
Non-Annexation Agreements with property owners whose land was vulnerable to
annexation. Plaintiffs further allege that this sentiment was echoed by the
Township Trustees at the later public meetings. Doc. #1, PagelD##3, 6.
In the Court's view, these allegations support a finding that Defendants had
“some pre-existing bias or motive to retaliate against the plaintiff.” S/usher v.
Delhi Twp., No. 1:08-cv-273, 2009 WL 2145608, at *7 (S.D. Ohio July 14,
2009). See also Olech, 528 U.S. at 563 (recognizing a “class of one” equal
protection claim where the village’s demand for a larger easement to connect
plaintiff's property to the municipal water supply was allegedly “motivated by ill

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will resulting from the Olech’s previous filing of an unrelated, successful lawsuit
against the Village”).
For the reasons explained above, the Court finds that Plaintiffs’ allegations
are sufficient to state a plausible “class of one” Equal Protection claim. The Court
therefore OVERRULES Defendants’ Motion for Judgment on the Pleadings with
respect to Count Ill.
4, Takings (Count V)
Count V of the Complaint alleges that the Township’s denial of the zoning
application, and its requirement that Plaintiffs remediate pre-existing road
deficiencies, constitute an appropriation of Plaintiffs’ property for its own use,
without paying just compensation, in violation of the Fifth Amendment.
Other than arguing that this claim is not ripe—an argument that, as
discussed above, is no longer viable— Defendants do not argue that Plaintiffs have
failed to state a plausible claim. Accordingly, Count V survives the Motion for
Judgment on the Pleadings.
5. § 1983 (Count VI)
Count VI of the Complaint alleges that the Township’s denial of the zoning
application constitutes a denial of rights under the Fifth and Fourteenth
Amendments of the United States Constitution in violation of 42 U.S.C. § 1983.
Section 1983, however, is not itself a statute that can be violated. Rather, it is
simply the vehicle through which persons can seek relief for constitutional
violations.

Counts Il, Ill, IV, and V already seek relief under § 1983 for alleged
violations of Plaintiffs’ constitutional rights. Count VI asserts no additional claims
and serves no useful purpose. Accordingly, the Court SUSTAINS Defendants’
Motion for Judgment on the Pleadings as to Count VI.”
B. State Claims
1. Supplemental Jurisdiction
Defendants argue that if the Court dismisses all federal claims, it should
decline to exercise supplemental jurisdiction over the state claims. Given that
some of the federal claims survive the Motion for Judgment on the Pleadings, this
argument is no longer applicable.
Ultra Vires (Count 1)
In Count | of the Complaint, Plaintiffs correctly note that Sugarcreek
Township’s powers with respect to zoning issues are limited to those expressly
delegated to it under Ohio Revised Code § 519.02 et seg. Plaintiffs allege that: (1)
the grounds asserted for denying their application exceed such delegated powers
and that the denial is therefore u/tra vires, unlawful and void; (2) the denial had no
rational relationship to the public health and safety of the citizens of the Township;
(3) the denial is not in accordance with the LRLUP; and (4) the denial is arbitrary,

* Dismissal of Count VI does not preclude Plaintiffs from recovering attorneys’
fees under 42 U.S.C. 8 1988 if they prevail on any of their § 1983 claims.

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capricious, discriminatory, and unreasonable. This claim is closely related to
Plaintiffs’ § 1983 due process claims.
To the extent that Plaintiffs, in Count |, ask the Court to void the
Township’s denial of the application for the proposed development, the Court finds
that Plaintiffs have failed to state a plausible claim for relief. As discussed above,
Ohio Revised Code §§ 519.02 and 519.021 give the Township Board of Trustees
authority to regulate, by resolution, building and land use in unincorporated
territory, and to adopt planned-unit development regulations. Such regulations
“shall include standards to be used by the board of township trustees... in
determining whether to approve or disapprove any proposed development within a
planned-unit development.” Ohio Revised Code § 519.021.
In accordance with § 519.021, the Sugarcreek Township Zoning Resolution
sets forth “conditions that should be satisfied before the approval of the
preliminary development application.” Doc. #5-4, PagelD#139. The minutes from
the BZC meeting and the public hearing held by the Board of Trustees indicate that
both entities considered whether Plaintiffs had satisfied these criteria. Ultimately,
the Board of Trustees, exercising its discretion, determined that concerns about
traffic and safety, intersections, population density, and community opposition all
counseled against approval of the preliminary development plan.
Plaintiffs have failed to plead any facts to support a claim that the
Township’‘s denial of Plaintiffs’ application was an u/tra vires, arbitrary,
unreasonable and void exercise of the Township's zoning powers. Accordingly,

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the Court SUSTAINS Defendants’ Motion for Judgment on the Pleadings with
respect to Count I. Given that any amendment of the factual allegations
supporting this claim would futile, the Court DISMISSES Count | WITH PREJUDICE.
3. Declaratory Judgment (Count VII)
In Count VII of the Complaint, Plaintiffs seek declaratory judgment, under
Ohio Revised Code 8 2721.01 et seq., on a variety of issues that largely mirror the
claims asserted in Counts | through VI.
To the extent that Plaintiffs request a declaration that (1) the Township's
actions in denying the application are unlawful, unconstitutional, and void, and (2)
the Township has violated Plaintiffs’ due process rights, the Court, for reasons
previously explained, SUSTAINS Defendant’s Motion for Judgment on the
Pleadings and DISMISSES these portions of Count VIl WITH PREJUDICE.
To the extent that Plaintiffs request a declaration that (1) the Township
violated their equal protection rights, (2) the Township has taken their property for
public use without just compensation in violation of the Fifth Amendment, and (3)
they are entitled to punitive damages, and attorneys’ fees under 42 U.S.C.
§ 1988, the Court finds that Plaintiffs have stated plausible claims for relief.
Accordingly, the Court OVERRULES this portion of Defendants’ Motion.
Plaintiffs’ other request for declaratory relief is unrelated to the claims
asserted in Counts | through VI. Plaintiffs seek a declaration that the Non-
Annexation Agreement is void and unenforceable because: (1) an Ohio township
lacks authority to execute non-annexation agreements with private property
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owners; (2) Barry Tiffany, as Township Administrator, lacked authority to enter
into the Non-Annexation Agreement on behalf of the Board of Trustees; and (3) no
consideration existed for the Agreement.
Although the Court makes no determination at this time whether the first
two grounds asserted by Plaintiffs render the Non-Annexation Agreement void and
unenforceable, the Court, for reasons discussed below, finds that Plaintiffs have at
least stated a plausible claim for relief. The third ground asserted by Plaintiffs,
however, is clearly baseless. In exchange for Rammel’s promise not to seek or to
oppose annexation for a period of ten years, the Township agreed not to impose
TIF legislation on Rammel’s property for the same period of time. Nothing
suggests that this would not constitute adequate consideration.
As to the Township’s authority to execute Non-Annexation Agreements with
private property owners, Defendants note that Ohio law provides that townships
may “receive and hold real estate by devise or deed, or receive and hold personal
property for the benefit of the township for any useful purpose. The board of
township trustees shall hold such property in trust for the township for the purpose
specified in the devise, bequest, or deed of gift.” Ohio Revised Code § 503.01.
Defendants maintain that the Non-Annexation Agreement confers a nonpossessory
interest in Rammel’s property in the form of a restrictive covenant. Section
503.01, however, speaks only of real estate being received and held “by devise or
deed.” The Non-Annexation Agreement therefore appears to fall outside the scope
of this statute.

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Moreover, as Plaintiffs point out, Ohio Revised Code § 709.192 specifically
governs non-annexation agreements. It states that a municipality and a township
may enter into an agreement providing for “[a]ny periods of time during which no
annexations will be made and any areas that will not be annexed.” Ohio Revised
Code § 709.192(A) and § 709.192(C)(2). This statute, however, grants a
township no similar authority to enter into a non-annexation agreement with a
private property owner. For this reason, the Court finds that Plaintiffs have stated
a plausible claim that the Non-Annexation Agreement between the Township and
Rammel is void and unenforceable.
Plaintiffs also argue that, assuming arguendo that the Township had
authority to enter into the Non-Annexation Agreement with Rammel, Township
Administrator Barry Tiffany lacked the authority to draft and execute that
Agreement on behalf of the Board of Trustees. By statute, a township
administrator shall, among other enumerated duties, “[a]ssist in the administration,
enforcement, and execution of the policies and resolutions of the board.” Ohio
Revised Code § 505.032(A). In addition, the administrator may “[plerform such
additional duties as the board may determine by resolution.” Ohio Revised Code
§ 505.032(G). Plaintiffs argue that, because drafting and signing a Non-
Annexation Agreement is not an “administrative” function, Tiffany had no authority
to enter into such an agreement, absent a specific resolution by the Board of
Trustees.

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Nevertheless, in addition to the duties specifically enumerated in the statute,
the Board may also assign to the administrator any “duties under its control.”
Ohio Revised Code § 505.032. Defendants maintain that, because receipt of the
Township's interest in the restrictive covenant was a duty within the Board's
control, the Township was permitted to assign Tiffany responsibility for executing
the Non-Annexation Agreement on its behalf.
Defendants’ argument, of course, presumes that the Township itself had
authority to enter into the Non-Annexation Agreement with Rammel. Given that
the Court has already found that Plaintiffs have stated a plausible claim that the
Township had no such authority, the Court likewise finds that Plaintiffs have
stated a plausible claim that Tiffany lacked authority to draft and execute the
Agreement on behalf of the Board.
In short, to the extent that Plaintiffs seek a declaration that the Non-
Annexation Agreement is void and unenforceable, the Court concludes that
Plaintiffs have stated a plausible claim for relief. Accordingly, the Court
OVERRULES Defendants’ Motion for Judgment on the Pleadings with respect to
this portion of Count VII.

IV. Conclusion
Defendants’ Motion for Judgment on the Pleadings, Doc. #7, is SUSTAINED
IN PART and OVERRULED IN PART. Count | (U/tra Vires Claim), Counts Il and IV
(Due Process Claims), Count VI (8 1983 Claim), and portions of Count VII

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(Declaratory Judgment) are dismissed with prejudice. Count III (Equal Protection
Claim), Count V (Takings Claim), and portions of Count VII (Declaratory Judgment)
remain viable.

The Court will hold a conference call on April 3, 2020, at 5:00 p.m., to
discuss the viability of the September 14, 2020, trial date.

Date: March 25, 2020 (Jewe uae
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375203. Public record. Not legal advice.