The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HAROLD E. CURRY, et al.,
Plaintiffs,
Case No. 2:22-cv-153
v. JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Elizabeth Preston Deavers
JEROME TOWNSHIP, OHIO,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiffs Harold Curry, Vivian Curry and AMH
Development LLC (collectively, “Plaintiffs”), and Defendant Jerome Township, Ohio’s (the
“Township”) Joint Motion for an Order Adopting and Issuing a Consent Decree. (ECF No. 22.)
For the following reasons, the motion is GRANTED.
I. BACKGROUND
Jerome Township, located between the cities of Dublin and Marysville, has experienced
substantial population growth in the last few decades. Since 2015, the Jerome Township Board of
Trustees approved more than a dozen requests to rezone land within the Township to allow new
development. Jerome Township residents who oppose the developments have initiated nine
referendums to override the Township’s zoning decisions. (Compl. ¶¶ 1, 3, 5, 6.)
This lawsuit is brought by Plaintiffs Harold and Vivian Curry, landowners in the Township,
and AMH, a developer seeking to buy the Curry’s farm. On October 5, 2021, the Township
Trustees unanimously voted to rezone the Curry Farm to “Planned Development.” Two months
after the vote, a group of Township residents certified a referendum petition to undo the
Township’s decision. (Id. ¶¶ 7, 9–11.)
Plaintiffs filed suit on January 18, 2022, asserting that the referendum deprives them of
lawful use of their property, subjects them to unequal treatment under the law, deprives them of
constitutional rights to use their property free from arbitrary and capricious restriction, and
imposes restrictions inconsistent with the Township’s Comprehensive Plan. After Plaintiffs filed
this suit, the Parties engaged in settlement discussions and eventually agreed to the terms in the
Consent Decree. The motion to approve the Consent Decree is ripe for review. There are no
objections filed.
II. STANDARD
Pursuant to O.R.C. § 505.07, the Ohio General Assembly expressly authorized townships
to settle court actions by a consent decree or court-approved settlement agreement—
notwithstanding a voter referendum—which may include an agreement to re-zone the property
involved in the action and the approval of a development plan:
Notwithstanding any contrary provision in another section of the Revised Code,
section 519.12 of the Revised Code, or any vote of the electors on a petition for
zoning 12 referendum, a township may settle any court action by a consent decree
or court-approved settlement agreement which may include an agreement to rezone
any property involved in the action as provided in the decree or court-approved
settlement agreement without following the procedures in section 519.12 of the
Revised Code and also may include township approval of a development plan for
any property involved in the action as provided in the decree or court-approved
settlement agreement, provided that the court makes specific findings of fact that
notice has been properly made pursuant to this section and the consent decree or
court-approved settlement agreement is fair and reasonable.
If the subject of the consent decree or court-approved settlement agreement
involves a zoning issue subject to referendum under section 519.12 of the Revised
Code, the board of township trustees shall publish notice of their intent to meet and
consider and take action on the decree or court-approved settlement agreement and
the date and time of the meeting in a newspaper of general circulation in the
township at least fifteen days before the meeting. The board shall permit members
of the public to express their objections to the consent decree or court-approved
settlement agreement at the meeting. Copies of the proposed consent decree or
court-approved settlement agreement shall be available to the public at the township
fiscal officer's office during normal business hours.
At least ten days prior to the submission of a proposed consent decree or settlement
agreement to the court for its review and consideration, the plaintiff in the action
involving the consent decree or settlement agreement shall publish a notice that
shall include the caption of the case, the case number, and the court in which the
consent decree or settlement agreement will be filed, the intention of the parties in
the action to file a consent decree or settlement agreement, and, when applicable, a
description of the real property involved and the proposed change in zoning or
permitted use, in a newspaper of general circulation in the township.
O.R.C. § 505.07.
Based on the above language, the Court must ensure the following conditions are met
before approving a consent decree:
1) The Board of Trustees published sufficient notice of its intent to meet, consider, and
take action on the Consent Decree at least fifteen days before the meeting;
2) Plaintiffs published sufficient notice at least ten days prior to the submission of the
Consent Decree for this Court’s review and consideration; and
3) The Consent Decree is fair and reasonable.
See id. The three conditions have been satisfied in this case.
III. ANALYSIS
First, the Court finds that the Board of Trustees published sufficient notice of its intent to
meet, consider, and take action on the Consent Decree at least fifteen days before the meeting. On
April 5, 2022, Jerome Township published notice in the Marysville Tribune that a public meeting
on the proposed Consent Decree would be held before the Board of Trustees sixteen days later on
April 21, 2022. (See ECF No. 22-2.) This Court recently found in a similar case that notices
published in the Marysville Journal Tribune constitute sufficient notice in the Township. See Scott
v. Jerome Twp., Ohio, 2:21-cv-3993, 2021 WL 6143654, at *5 (S.D. Ohio Dec. 30, 2021)
(approving a consent decree and finding the Marysville Journal Tribune notices were sufficient).
Second, the Court finds that Plaintiffs published sufficient notice at least ten days before
submitting the Consent Decree to the Court. On April 25, 2022, Plaintiffs published notice in the
Marysville Tribune that the Parties intend to jointly file a proposed consent decree with this Court
to approve the rezoning of certain land, approve a specified development plan and regulation text,
and to settle this litigation. (See ECF No. 22-3.) The Parties filed this Joint Motion to Approve the
Consent Decree fourteen days later on June 8, 2022.
Third, the Consent Decree is fair and reasonable. The Consent Decree rezones the Curry
Property to “Planned Development” and approves the Curry Farm Preliminary Development Plan.
(Consent Decree ¶ 16, ECF No. 22-1.) In exchange, Plaintiffs must dismiss this action with
prejudice subject to the Court maintaining jurisdiction for purposes of enforcement and
interpretation of the Consent Decree. (Id. ¶ 19.) The Consent Decree lists certain landscaping
specifications Plaintiffs must follow to buffer future development from neighboring properties.
Finally, Plaintiffs will donate $22,500 to the Township for parks and bike path improvements. (Id.
¶¶ 17, 27.) The Parties submitted affidavits swearing that the Consent Decree is fair and reasonable
from Plaintiff Harold Curry, the AMH Director of Land Acquisition, and the Chair of the Jerome
Township Board of Trustees. Moreover, each party was represented by counsel who attest that the
agreement is fair and reasonable. Counsels’ opinion is “entitled to considerable weight.” See
Benalcazar v. Genoa Twp., Ohio, No. 2:18-CV-01805, 2020 WL 4933797, at *7 (S.D. Ohio Aug.
24, 2020), aff’d, 1 F.4th 421 (6th Cir. 2021) (citing Hainey v. Parrott, 617 F. Supp. 2d 668, 675
(S.D. Ohio 2007)). Despite the notice described above, no other party has objected to the proposed
consent decree. Accordingly, the Court is satisfied that the Consent Decree is fair and reasonable
and should be approved under Ohio Revised Code § 505.07.
There were no intervenors or objections to the Consent Decree. Still, the Court recognizes
that this settlement seemingly minimizes Jerome Township residents’ referendum efforts. Ohio
law explicitly permits Jerome Township to settle with Plaintiffs in this way,
“[n]othwithstanding…any vote of the electors on a petition for zoning referendum.” Benalcazar,
1 F.4th at 427 (quoting O.R.C. §505.07). Just as a referendum “is the city itself legislating through
its voters,” City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 678 (1976), Jerome
Township Trustees’ decision to enter this Consent Decree is the city itself legislating through
elected legislators. The conflict is not without remedy. In response to intervenors in a similar case,
the Sixth Circuit recently stated:
In this setting, any lingering frustration of the residents of Genoa Township requires
them either to change this state law or to exercise their franchise to defeat the
trustees who approved the initial zoning proposal and who approved this
settlement.
Id. Finally, it is worth nothing that the Consent Decree contains materially different terms than the
original development plan rejected by voters. In addition to changes to the development plan, the
Consent Decree requires Plaintiffs to pay $22,500 and follow certain measures at Curry Farm
Development that will generally benefit all Township residents.
IV. CONCLUSION
For the reasons stated above, the Parties’ Joint Motion for an Order Adopting and Issuing
a Consent Decree (ECF No. 22) is GRANTED. The Consent Decree (ECF No. 22-1) is
APPROVED. The Court retains jurisdiction to enforce and interpret the Consent Decree.
IT IS SO ORDERED.
6/27/2022 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE