Wedgewood Ltd. Partnership I v. Township of Liberty

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0186p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

WEDGEWOOD LIMITED PARTNERSHIP I,

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No. 08-4446

v.

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>

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TOWNSHIP OF LIBERTY, OHIO; BOARD OF

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TRUSTEES OF LIBERTY TOWNSHIP; ROBERT

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MANN, PEGGY GUZZO, and CURT SYBERT, in

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Trustees; and HOLLY C. FOUST, in her official -

their official capacities as Liberty Township

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capacity as Liberty Township Zoning

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Inspector,

Defendants-Appellants. -

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 04-01069—Algenon L. Marbley, District Judge.

Argued: December 4, 2009

Decided and Filed: June 28, 2010

*

Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, District Judge.

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COUNSEL

ARGUED: Michael W. Currie, THOMPSON HINE LLP, Columbus, Ohio, for

Appellants. Joseph R. Miller, VORYS, SATER, SEYMOUR AND PEASE LLP,

Columbus, Ohio, for Appellee. ON BRIEF: Michael W. Currie, Scott A. Campbell,

O. Judson Scheaf, III, Michele L. Noble, THOMPSON HINE LLP, Columbus, Ohio,

Lawrence E. Barbiere, SCHROEDER, MAUNDRELL, BARBIERE & POWERS,

Mason, Ohio, for Appellants. Bruce L. Ingram, VORYS, SATER, SEYMOUR AND

PEASE LLP, Columbus, Ohio, for Appellee.

GRIFFIN, J., delivered the opinion of the court, in which KETHLEDGE, J.,

joined. CARR, D. J. (pp. 21-26), delivered a separate dissenting opinion.

*

The Honorable James G. Carr, United States District Judge for the Northern District of Ohio,

sitting by designation.

1

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 2

_________________

OPINION

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GRIFFIN, Circuit Judge. Defendants Township of Liberty, Ohio, its Board of

Trustees, and its zoning inspector (collectively the “Township”) appeal the district

court’s order enjoining it from applying a set of zoning instructions against a parcel of

property owned by plaintiff Wedgewood Limited Partnership I (“Wedgewood”). This

dispute arose more than six years ago, when Wedgewood applied for a zoning certificate

to develop a Wal-Mart Supercenter (“Wal-Mart”) in Liberty Township’s Wedgewood

Commerce Center. The Township’s residents rallied against the retail giant, hoping to

prevent the store’s construction. Their elected Board of Trustees responded by enacting

zoning instructions that adversely affected Wedgewood’s ability to develop a large

commercial structure on its property. When Wedgewood’s agreement with Wal-Mart

collapsed, it filed this civil rights action pursuant to 42 U.S.C. § 1983.

We hold that the Township violated Wedgewood’s procedural due process rights

when the Township adopted zoning instructions that, in effect, amended the Wedgewood

Commerce Center planned unit development without providing Wedgewood with notice

and an opportunity to be heard. Accordingly, we affirm the order of the district court

granting a permanent injunction.

I.

On November 18, 1991, the Liberty Township Board of Trustees (“Trustees”)

legislatively approved the Wedgewood Commerce Center (“WCC”), a planned unit

development (“PUD”) in Liberty Township, Ohio. A PUD is a unique creature of

zoning because the entire development carries one nominal zoning classification only,

but its subdivisions contain many different kinds of approved land use, including, for

example, zoning for single-family dwellings, multi-family units, schools, recreational

facilities, and commercial developments. The zoning restrictions applicable in each

PUD subdivision “are ascertainable only by referring to the approved plats for

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 3

[] development.” Gray v. Trs. of Monclova Twp., 313 N.E.2d 366, 367, 369 n.4 (Ohio

1974).

Leading up to the November 18, 1991, vote, parameters for the WCC’s land use

were negotiated at length between the Trustees and Charles Ruma & Associates, one of

the applicants seeking approval for PUD re-zoning.1 Before voting to approve the WCC,

Trustee John C. Werner asked whether the WCC development plan, as amended, would

be “incorporated into a document for the Township records.” Mr. David Dye, an

attorney for Charles Ruma & Associates, responded, “Yes, it would.”

On February 20, 1992, a document was received by, and filed with, the Liberty

Township Zoning Commission (“Commission”) entitled “Wedgewood Commerce

Center - Development Standards.” This document contained, among other things,

individual development criteria and zoning information for each subdivision, a map

labeled “WCC Land Use Plan[,]” and Addendum A, entitled “Wedgewood Commerce

Center Summary of Site Data.” According to this document (hereinafter “WCC

Development Plan” or “WCCDP”), only subareas 3, 8, and 9 were zoned for commercial

development.2

Nevertheless, between 1992 and 2003, the owners of subareas 4, 5, 6, and 10,

plats all originally designated for suburban office use only, sought approval for and

obtained permits to build commercial structures. According to the Township, by late

2003, subareas 4, 5, 6, and 10 contained approximately 390,611 square feet of

commercial space.

Wedgewood owns lot 2069, designated as subarea 3, a 32.36 acre plat of land in

the WCC and the subject of the parties’ protracted litigation. According to the WCCDP,

1

Charles Ruma is also the president of Wedgewood. In 1991, Ruma’s company, Charles Ruma

& Associates, applied to re-zone a 345-acre plat of vacant land from “farm residential” to PUD to develop

the WCC.

2

Since it was filed with the Commission, the WCCDP has governed the permissible zoning in

the WCC. Liberty Township’s zoning inspector, Holly Foust, as well as her predecessor, referred to the

WCCDP as the WCC “official book[.]” The WCCDP is also labeled, in handwritten script on the front

page, “Official Book[.]”

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 4

subarea 3 is zoned for commercial development and is allotted a maximum of 220,857

square feet of commercial building space. The square footage of subareas 3, 8, and 9,

when combined, permit a total of 499,930 square feet of commercial development in the

WCC.3

At a public Trustees meeting in September 2003, a resident of Liberty Township

voiced her “concern[]” about “rumors” that a Wal-Mart or Lowe’s was moving into the

WCC, asserting that the development was becoming too “commercial.” The resident

asked Trustee Werner, “can we do anything about it?” He replied, “those hearings were

. . . years ago, and the public had their shot then, and basically [the WCCDP] was

approved.”

The rumors proved to be true. In October 2003, Wedgewood submitted an

application to the Commission requesting an amendment to the WCCDP, specifically,

six zoning variances to develop a 227,825 square foot Wal-Mart and fueling station on

subarea 3.4 While its variance application was pending, Liberty Township residents

contacted the Commission to express their objection to the proposed Wal-Mart. On

October 22, 2003, the Commission held a public hearing addressing Wedgewood’s

application. After considering statements from several residents, many of whom were

opposed to the Wal-Mart, the Commission denied Wedgewood’s application for an

amendment to the WCCDP that would allow subarea 3*s commercial development to

exceed 220,857 square feet.

Over the next several months, public opposition to the Wal-Mart intensified. To

address the public’s concerns, the Trustees held two public meetings on December 1 and

15, 2003. Trustee Peggy Guzzo also coordinated “petition drive[s]” gathering “a total

3

According to the WCCDP, subarea 8 is a 21.18 acre plat of land zoned for commercial use and

is allotted a maximum of 144,553 square feet of commercial building space. Subarea 9, a 19.71 acre plat,

is also zoned for commercial land use and permits 134,520 square feet of commercial building space. The

total acreage of subareas 3, 8, and 9 is 73.25 acres.

4

Wedgewood sought these variances, in part, because subarea 3 permitted only 220,857 square

feet of commercial development. The proposed Wal-Mart, however, would require an additional 6,968

square feet of commercial space. Thus, Wedgewood needed an amendment to the WCCDP zoning map

to build a commercial structure on subarea 3 that exceeded its allotted square footage.

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 5

of 1,150 signatures” from anti-Wal-Mart residents. After these meetings, the Trustees

asked Liberty Township’s zoning inspector, defendant Holly Foust, to produce a report

detailing the prior zoning certificates issued by the Commission and the combined

square footage of all commercial structures located in the WCC.

On January 19, 2004, the Trustees issued a “Public Statement and Instructions

to Zoning Department Regarding Future Administration of Wedgewood Commerce

Center Development Plan” (hereinafter “Instructions”). These Instructions, which form

the crux of Wedgewood’s constitutional claims, state, in relevant part:

On a general basis, we have certainly heard our constituents’ requests

and desires to do what is possible to deter excessive and regional types

of commercial development in our community. As a Board we, like

other residents in our community, are interested in employing our current

regulations, and developing and adopting new regulations, to avoid, as

possible, and limit, where possible, the burdens that “big box” types of

retail facilities place upon the infrastructure of our community.

***

Extensive review and analysis of the Wedgewood Commerce Center

development plan, the minutes of the meetings which led to the approval

of that plan, the policies that have been followed to date in administering

that plan, and the discernable intent of all of the parties expressed during

the conception and the process which led to the approval of the plan, has

led us to conclude that the ultimately adopted plan imposed a “floating”

maximum of 500,000 sq. ft of “commercial” development in the

Wedgewood Commerce Center. We have found evidence of the

establishment of this limit in a number of different documents.

Moreover, we have found no documents or proof through amendment

processes which modified this “overall” square footage cap, as best as we

can conclude. The subject of whether or not an acreage “cap” also

applies has been more difficult.

***

The analysis reveals that the commercial development completed to date,

and substantially through the approval process, has consumed most of the

commercial square footages [sic] imposed by the development plan as an

overall cap.

***

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 6

Under these circumstances, we have determined that, except for a few

modest projects which have already completed the two-step “major”

administrative review process, all additional applicants seeking to

construct retail or other arguable “commercial” development in the

Wedgewood Commerce Center will be required to seek approval as a

“major” plan of modification. In other words, we are instructing our

zoning department to refrain from issuing zoning certificates for any

additional commercial development in the Wedgewood Commerce

Center, to issue such permits only after an approval through the

“two-step” major process has been completed. Each process will be

considered to be an application to consume any remaining portion of the

square footage limitation, or exceed that limitation, and as a modification

to expand the acreage limitation which we believe has been met.

Six months later, Wedgewood filed its application with the Commission for a

zoning permit to build a smaller, approximately 220,598 square foot Wal-Mart and

fueling station on subarea 3. Unlike its October 2003 application, Wedgewood did not

seek a variance to permit construction that surpassed subarea 3*s 220,857 square feet of

approved commercial space. Wedgewood did not submit its application as a major plan

of modification, as specified in the newly adopted Instructions.

On September 30, 2004, the Commission denied Wedgewood’s application for

a zoning certificate. In its denial letter, the Commission stated that the Instructions were

“made a part of [the Commission’s] decision by [] reference” and articulated several

reasons for denying the permit, including: (1) failure to meet the “requirements of the

currently effective [WCCDP]”; (2) “exceed[ing] the maximum allowable commercial

acreage and [500,000] square footage limitation[] that were expressly made a part of the

development plan”; (3) failure to obtain WCC architectural review committee approval;

and (4) inconsistencies with the governing Liberty Township Zoning Resolution.

Wedgewood appealed the Commission’s denial of its zoning certificate to the Liberty

Township Board of Zoning Appeals (“BZA”). This appeal (“BZA I”) preceded the

ongoing state-court proceedings that have paralleled Wedgewood’s federal litigation.

On November 5, 2004, before the BZA decided BZA I, Wedgewood filed the

present action pursuant to 42 U.S.C. § 1983 in the United States District Court for the

Southern District of Ohio. Wedgewood’s federal complaint alleged, inter alia, that the

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 7

Trustees’ adoption of the Instructions constituted an unauthorized amendment to the

WCCDP, violating its state and federal due process rights, or, in the alternative, that the

WCCDP was unconstitutionally vague. Several local homeowner associations

intervened and joined the Township’s efforts to dismiss Wedgewood’s federal

complaint. The application of various abstention doctrines was one of many arguments

advanced by the Township and interveners. Thereafter, the district court granted in part

and denied in part the parties’ Fed. R. Civ. P. 12(b)(6) motions and rejected their

arguments for abstention.

Subsequently, the parties filed cross-motions for summary judgment. In

September 2008, almost five years after Wedgewood first applied to construct the Wal-

Mart, the district court granted its motion for summary judgment with respect to its

vagueness and procedural due process claims. The district court’s constitutional rulings

were dependant upon its finding that the Instructions amended the WCCDP without

providing Wedgewood with advanced notice and a hearing in violation of Ohio Rev.

Code § 519.12. The district court’s order enjoined the Township from enforcing the

Instructions and, in particular, the 500,000 square foot floating cap (hereinafter “floating

commercial cap”) against Wedgewood’s property. The Township timely appeals.

II.

We have jurisdiction to decide this interlocutory appeal pursuant to 28 U.S.C.

§ 1292(a)(1) because the district court entered a permanent injunction against the

Township. As a general rule, our jurisdiction is confined to the issues necessary to

determine the propriety of the district court’s injunction. See Gibson Guitar Corp. v.

Paul Reed Smith Guitars, LP, 423 F.3d 539, 545 (6th Cir. 2005); Chambers v. Ohio

Dep’t of Human Servs., 145 F.3d 793, 797 (6th Cir. 1998); 16 Arthur R. Miller, Edward

H. Cooper, Vikram David Amar, Federal Practice & Procedure § 3921.1 (2d ed. 1996

& 2009 Supp.).

Because the scope of our jurisdiction is limited by § 1292(a)(1), we may not

reach the Township’s arguments challenging the district court’s abstention ruling. The

district court’s refusal to abstain is embodied in its order granting in part and denying

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 8

in part the Township’s motion to dismiss, an order that is not presently before us. See

Summers v. Leis, 368 F.3d 881, 889 (6th Cir. 2004). In this regard, we reject the

Township’s perfunctory argument that the district court’s abstention ruling is

“inextricably intertwined” with its order granting injunctive relief. See United States v.

Phinazee, 515 F.3d 511, 520 (6th Cir. 2008) (holding that a party forfeits an issue that

is “adverted to . . . in a perfunctory manner unaccompanied by some effort at developed

argument.”).

In Summers, we described the narrow scope of our pendent appellate jurisdiction:

Pendent appellate jurisdiction refers to the exercise of jurisdiction over

issues that ordinarily may not be reviewed on interlocutory appeal, but,

may be reviewed on interlocutory appeal if those issues are “inextricably

intertwined” with matters over which the appellate court properly and

independently has jurisdiction. Chambers v. Ohio Dep’t of Human

Servs., 145 F.3d 793, 797 (6th Cir. 1998). This circuit has interpreted

“inextricably intertwined” to mean that the resolution of the appealable

issue “necessarily and unavoidably” decides the nonappealable issue.

368 F.3d at 889 (some internal citations omitted).

“The ‘inextricably intertwined’ requirement of pendent appellate jurisdiction is

not meant to be loosely applied as a matter of discretion; rather, such jurisdiction only

may be exercised when the appealable issue at hand cannot be resolved without

addressing the nonappealable collateral issue.” Chambers, 145 F.3d at 797 (citing

Archie v. Lanier, 95 F.3d 438, 443 (6th Cir.1996)). Moreover, we have previously

declined to exercise our pendent appellate jurisdiction over a district court’s abstention

ruling when the resolution of that issue “require[s] the application of [a] separate and

distinct legal standard[.]” Summers, 368 F.3d at 889. Such is the case here. Because we

are able to resolve the propriety of the district court’s injunction without reaching its

abstention ruling, we decline to review it. See Chambers, 145 F.3d at 797.

Despite its status as the appellant, the Township also argues that the issues raised

by this appeal are moot. “Simply stated, a case is moot when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Ford

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 9

v. Wilder, 469 F.3d 500, 504 (6th Cir. 2006) (quoting Powell v. McCormack, 395 U.S.

486, 496 (1969). “The test for mootness is whether the relief sought would, if granted,

make a difference to the legal interests of the parties.” Ford, 469 F.3d at 504 (citation

and internal quotation marks omitted).

The Instructions, as applied to the WCCDP, affect the permissible zoning in

subarea 3. Specifically, the floating commercial cap provision and the major

modification procedure will continue to inhibit Wedgewood’s ability to develop a

maximum of 220,857 square feet of commercial space on its property. Thus, contrary

to the Township’s position, the evaporation of Wal-Mart’s offer to purchase subarea 3

does not extinguish Wedgewood’s legally cognizable interest in securing a judgment that

enforces its right to develop its property according to the WCCDP zoning as it existed

before the Instructions.

In this regard, our mootness analysis highlights a key distinction between

Wedgewood’s federal and state litigation. Wedgewood’s state court proceedings

challenge the zoning inspector’s denial of its application for a zoning certificate to

develop a 220,598 square foot Wal-Mart on subarea 3. In contrast, Wedgewood’s

federal litigation involves its claim that the Trustees violated its procedural due process

rights by enacting the Instructions without notice and a public hearing. Although each

proceeding requires an interpretation of the WCCDP, the harm alleged and the relief

sought are distinct.

III.

“A party is entitled to a permanent injunction if it can establish that it suffered

a constitutional violation and will suffer ‘continuing irreparable injury’ for which there

is no adequate remedy at law.” Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville

& Davidson County, 466 F.3d 391, 394 (6th Cir. 2006) (citing Women’s Med. Prof’l

Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006). “In determining whether a district

court has properly granted a permanent injunction, we review factual findings for clear

error, legal conclusions de novo, and the scope of injunctive relief for abuse of

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 10

discretion.” Gibson Guitar Corp., 423 F.3d at 546 (internal citation and quotation marks

omitted).

In the usual course, a district court should conduct an evidentiary hearing before

issuing a permanent injunction. Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171,

1174 (6th Cir. 1995). However, because “no factual issues remain[ed] for trial, the

district court’s decision to grant a permanent injunction without such a hearing [can] still

be upheld” if it properly granted summary judgment for Wedgewood. See Gibson

Guitar Corp., 423 F.3d at 546 (internal citation and quotation marks omitted).

Accordingly, resolution of the Township’s appeal from the district court’s permanent

injunction requires us to analyze the district court’s summary judgment rulings as to

Wedgewood. Id.

Summary judgment should be granted whenever “there is no genuine issue as to

any material fact and [] the movant is entitled to a judgment as a matter of law.” Fed.

R. Civ. P. 56(c). Thus, only disputed material facts, those “that might affect the outcome

of the suit under the governing law[,]” will defeat summary disposition. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In addition, the standard of review

applicable to cross-motions for summary judgment does not differ from the standard we

apply when reviewing a Fed. R. Civ. P. 56(c) motion filed by only one party. Taft

Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991).

To establish a procedural due process violation under 42 U.S.C. § 1983,

Wedgewood is required to demonstrate three elements: (1) that it had a life, liberty, or

property interest protected by the Due Process Clause of the Fourteenth Amendment;

(2) that it was deprived of that protected interest within the meaning of the due process

clause; and (3) that the state did not afford it adequate procedural rights before depriving

it of its protected interest. See Med. Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th

Cir. 2002).5

5

Procedural due process and vagueness claims brought under the Ohio Constitution are governed

by the same legal standards applicable to the federal constitution. Sorrell v. Thevenir, 633 N.E.2d 504,

511 (Ohio 1994); Warren v. City of Athens, Ohio, 411 F.3d 697, 704 n.6 (6th Cir. 2005). Thus, we analyze

Wedgewood’s state and federal constitutional claims simultaneously.

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 11

Wedgewood will prevail on its procedural due process claim if it:

(1) demonstrates that it was deprived of a liberty or property interest as a result of an

“established state procedure[,]” which itself violates procedural due process rights; or

(2) establishes that the Township deprived it of a liberty or property interest “pursuant

to a random and unauthorized act” and available state remedies would not adequately

compensate it for the loss that it suffered. Mertik v. Blalock, 983 F.2d 1353, 1365 (6th

Cir. 1993); see Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991).

A.

Because the district court’s injunction turned on its conclusion that the

Instructions improperly amended the WCCDP, we begin our analysis with this ruling.

The parties agree that Ohio law governs our interpretation of the WCCDP. See, e.g.,

Miamisburg v. Wood, 739 N.E.2d 410, 412 (Ohio Ct. App. 2000) (relying upon Ohio law

to interpret an Ohio city ordinance).

When interpreting zoning ordinances, or, in this instance, the WCCDP, we must

presume that the WCCDP and Instructions “mean what [they] say[].” Carlsbad Tech.,

Inc. v. HIF Bio, Inc., 129 S. Ct. 1862, 1868 (2009) (Stevens, J., concurring). In addition,

our “interpretation of [the WCCDP] should serve to illuminate its meaning, rather than

to render portions of it meaningless.” Cardani v. Olsten Home Healthcare, No.

97AP1200833, 1998 WL 549374, at *3 (Ohio Ct. App. July 31, 1998).

Article XIV of the Liberty Township Zoning Resolution § 14.06(F) states:

Any significant changes to an Approved Development Plan in a Planned

Commercial and Office District shall be considered an Amendment to the

Zoning Map and shall only be made in accordance with Article XXVII

of this Resolution. [6]

Article XXVII of the Liberty Township Zoning Resolution “is . . . a restatement of

Section 519.12 of the Revised Code of Ohio[,]” which requires advanced notice and a

6

Notably, this provision appears directly below Article XIV subpart F, which specifically

addresses subdivided plats in PUD developments.

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 12

public hearing before the Trustees can adopt an amendment to an existing PUD

development plan.

The Township asserts that the district court erred when it ruled that the

Instructions constituted an amendment to the WCCDP rather than a clarification of its

existing restrictions, including the floating commercial cap. It contends that the true

amendment occurred on November 18, 1991, when the Trustees voted to restrict the

WCCDP to 1,000,000 square feet of office space, 500,000 square feet of commercial

space, and 750 residential units. According to the Township, the 500,000 square foot

floating commercial cap is reflected in the following November 15, 1991, amendment

to the WCCDP:

B. Subarea Development Criteria

1. Criteria Generally

a) Density

***

3) Commercial. Gross square footage of

commercial construction shall not exceed

Five Hundred Thousand (500,000) square

feet.

The Township also claims that the floating commercial cap is memorialized in

Addendum A of the WCCDP:

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WEDGEWOOD COMMERCE CENTER

SUMMARY OF SITE DATA

MAX: GROSS

I. TOTAL LAND USE ACRES BLDG AREA DENSITY

COMMERCIAL 73.26 AC 500,000 S.F. 6,825.00 SF/AC

OFFICE 114.68 AC 1,000,000 S.F. 8,719.92 SF/AC

RESIDENTIAL 104.14 AC

The Township further maintains that the floating commercial cap is recorded in the

November 18, 1991, Trustees meeting notes, wherein it was mentioned that the WCC

would contain “500,000 square feet of commercial development.”

In response, Wedgewood concedes that the WCCDP reflects a total gross

building area of 500,000 square feet of commercial space. It counters, however, that a

floating cap on commercial development was never contemplated by the parties.

According to Wedgewood, any WCC document that reports a total of 500,000 square

feet of commercial space simply reflects a summary of the WCCDP’s approved

commercial land use in subareas 3, 8, and 9 only.

We agree with Wedgewood’s interpretation of the WCCDP. Accepting the

Township’s position, i.e., that Addendum A’s reference to a “max. gross bldg. area” of

500,000 square feet reflects the parties’ intent to apply a floating commercial cap to all

subdivisions within the WCC would render meaningless the WCCDP’s express

designation of subareas 3, 8, and 9 as the only commercial subareas. Put another way,

if commercial development were permissible or intended in subareas other than subareas

3, 8, or 9, it would have been superfluous to assign a specific land use category to each

subarea. In addition, the Township’s interpretation of the WCCDP would require us to

ignore the strong correlation between Addendum A’s reported 500,000 square feet of

commercial building space and the combined square footage of subareas 3, 8, and 9,

which totals 499,930 square feet.

Moreover, Addendum A’s density calculation is telling. It divides 500,000

square feet of gross commercial building space by a total acreage area of 73.26 acres, the

total acreage of subareas 3, 8, and 9 (within one-hundredth of one point), for a total

density of 6,825 square feet of commercial space per acre. Thus, Addendum A

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 14

specifically configures its commercial density calculation by dividing the total amount

of commercial building space permitted in those subareas with the total acreage of

subareas 3, 8, and 9. This calculation directly contradicts the Township’s claim that the

500,000 square feet of approved commercial development within the WCC was not

specifically tethered to subareas 3, 8, and 9.

We conclude, as the district court did, that the WCCDP, as amended,

contemplated commercial development in subareas 3, 8, and 9 only; therefore, there was

no “floating” commercial cap in the WCCDP before the enactment of the Instructions.

In this regard, we agree with the district court’s conclusion that, even though the

Township and Wedgewood “turn[ed] a blind-eye toward the [specific] location

requirements for commercial development expressed in the [WCCDP] for thirteen

years[,] [it] does not somehow change the maximum allowable commercial development

[permitted] in subareas 3, 8, or 9.”

The Township’s enactment of the floating commercial cap provision, as

articulated in the Instructions, effectively reduced the total square footage of commercial

space permitted in subarea 3. We therefore hold that the Instructions constituted a

“significant change[] to an approved Development Plan[,]” thus requiring an

“Amendment to the Zoning Map[.]” See Liberty Township Zoning Resolution § 14.06

(F).

For these reasons, we conclude that the district court did not err in ruling that the

Instructions constituted an amendment to the WCCDP that triggered Ohio Rev. Code

§ 519.12*s advance notice and public hearing requirements.

B.

Next, the Township argues that the district court erred in ruling that Wedgewood

had a protected liberty interest in the amendment procedures discussed above.

Wedgewood, however, has abandoned the district court’s liberty-based analysis and

requests that we affirm the district court’s favorable ruling on its procedural due process

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 15

claim on the separate ground that it had a property interest in subarea 3*s zoning before

the Trustees enacted the Instructions.7

“Property interests, of course, 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 – rules or understandings that secure

certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents

of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

“In determining whether [Wedgewood] established a vested property interest, we

must look to substantive state zoning laws.” Dorr v. City of Ecorse, 305 F. App’x 270,

275 (6th Cir. 2008) (unpublished) (citing Silver v. Franklin Twp. Bd. of Zoning Appeals,

966 F.2d 1031, 1036 (6th Cir. 1992)). In Silver, we stated that a party obtains a

protected property right under the Fourteenth Amendment when it can demonstrate a

“‘legitimate claim of entitlement’ or a ‘justifiable expectation’ in the approval of his

[building] plan.” Silver, 966 F.2d at 1036 (citations and quotation marks omitted).

In Ohio, it is well-established that a landowner’s right to an existing zoning

classification vests upon his submission of an application for a building or zoning

certificate. Gibson v. Oberlin, 167 N.E.2d 651, 654 (Ohio 1960). However, vesting

does not occur unless the

property owner has complied with all the legislative requirements for the

procurement of a building permit and his proposed structure falls within

the use classification of the area in which he proposes to build it, [– if

these conditions are met] he has a right to such permit, and there is a duty

on the part of the officer charged therewith to issue it.

7

In its appellate brief, Wedgewood requests this court to review its case “under the property wing

of procedural due process.” Moreover, Wedgewood has not provided a liberty-based argument for our

consideration and has therefore forfeited the issue. See Phinazee, 515 F.3d at 520 (holding that a party

forfeits an issue that is “adverted to in a perfunctory manner unaccompanied by some effort at developed

argument”).

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 16

Zaremba Dev. Co. v. Fairview Park, 616 N.E.2d 569, 571 (Ohio Ct. App. 1992)

(quoting Gibson, 167 N.E.2d at 654).8

It is uncontested that Wedgewood submitted its application for a zoning

certificate on June 29, 2004, after the Trustees adopted the Instructions. Because

Wedgewood submitted its application post-Instructions, the Township argues that

Wedgewood cannot demonstrate a vested property interest in its zoning classification

under Gibson and Zaremba Dev. Co. We disagree.

The salient issue before us “is whether the Zoning Commission had the authority

under Ohio law to take the action that it did.” Stile v. Copley Twp., 115 F. Supp. 2d 854,

865 n.21 (N.D. Ohio 2000). In Stile, a zoning commission eliminated a formerly

permitted land use classification in a PUD where the plaintiff owned property. Id. at

859. The plaintiff intended to sell a section of his property to an automobile dealership,

but the sale collapsed when the parties discovered that the township’s zoning

commission had eliminated the “community/regional sales” zoning classification as a

“permitted use” in the PUD. Id.

The Stile court ruled that the plaintiff had demonstrated a protected property

interest in the “community/regional sales” zoning classification because:

the change made . . . by action of the Township Zoning Commission was

in the nature of a zoning amendment . . . . [and the] action was beyond

the scope of the Zoning Commission’s authority, since the legislative

action of amending a zoning classification can only be taken by the

Township Board of Trustees after following the notice and hearing

procedures set forth in Ohio Rev. Code § 519.12.

Stile, 115 F. Supp. 2d at 865 (footnote omitted). Like the Township here, the township

in Stile asserted that the plaintiff did not have a vested property interest in the existing

zoning classification under Zaremba Dev. Co. Id. at 865. The district court

characterized the township’s argument as “a red herring[,]” noting that the proper issue

was whether the zoning commission had the authority to eliminate the zoning

8

It is unclear under Ohio law whether Wedgewood’s October 2003 application qualifies as a

building permit under Gibson and Zaremba Dev. Co.

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 17

classification without complying with § 519.12*s notice and hearing requirements. Id.

The district court concluded that the zoning commission’s actions were improper and

granted the plaintiff’s request for injunctive relief. Id. at 866.

In SuperValu Holdings, Inc. v. Jackson Ctr. Assocs., LP, Nos. CA2005-09-085,

CA2005-09-089, 2006 WL 1843588, at *4 (Ohio Ct. App. July 3, 2006), the Ohio Court

of Appeals acknowledged the property right discussed in Stile:

In Stile, a township zoning commission eliminated a “permitted use” in

a Planned Development District where the plaintiff owned property. Id.

at 858-859. The plaintiff had intended to sell part of his property to an

automobile dealership, but such a sale was not feasible following the

elimination of “community/regional sales” as a “permitted use.” Id. In

Stile, state action affected the plaintiff’s property rights by restricting

how the plaintiff could use his property.

Id. at *4. Although SuperValu Holdings, Inc., does not expressly adopt Stile’s holding,

it acknowledged that a protectable property interest can arise under Ohio law when a

government entity restricts a landowner’s ability to use his property. Id. The facts in

Stiles are similar to the facts in this case.

For these reasons, we conclude the Ohio courts would hold that, consistent with

Roth, Silver, Stile, and SuperValu Holdings, Inc., Wedgewood had a “justifiable

expectation” that its zoning classification – its right to develop up to 220,857 square feet

of commercial space on subarea 3 – was vested unless or until the Commission and

Trustees passed an amendment to the WCCDP comporting with the notice and hearing

requirements set forth in Ohio Rev. Code § 519.12. See Silver, 966 F.2d at 1036

(quoting Roth, 408 U.S. at 577, and Olim, 461 U.S. at 245); Dorr, 305 F. App’x at 275.

Specifically, Articles XIV § 14.06 (F) and XXVII of the Liberty Township Zoning

Resolution, Ohio Rev. Code § 519.12, and the WCCDP itself, provided the “rules” and

“understandings” under Ohio law “that secure[d] . . . [its] claim[] of entitlement” to its

zoning classification. See Roth, 408 U.S. at 577. Similar to the plaintiffs in Stile,

Wedgewood possessed a protected property interest in subarea 3*s zoning,

notwithstanding the Trustees’ ultra vires amendment. See generally, Cole v. Twp.

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 18

of Clinton, No. 17-91-6, 1991 WL 274246, at *4 (Ohio Ct. App. Dec. 19, 1991)

(unpublished).

C.

Finally, we must analyze whether the Township’s enactment of the Instructions

without providing notice and a hearing deprived Wedgewood of a protected property

interest within the meaning of the Due Process Clause. In this regard, it is well-

established that violations of state law do not “automatically translate into a deprivation

of procedural due process under the United States Constitution.” DePiero v. City of

Macedonia, 180 F.3d 770, 788 (6th Cir. 1999). The Supreme Court has described “the

root requirement” of the Due Process Clause as notice and an opportunity to be heard

before one is deprived of a significant property interest. Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542 (1985).

In Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890 (6th Cir.

1991), a plaintiff-landowner claimed that the city counsel violated his procedural due

process rights by enacting a zoning amendment designed to prevent him from

proceeding with his proposed commercial development. Id. at 891. The district court

granted summary judgment in favor of the city and denied the landowner’s request for

an injunction prohibiting the enforcement of the new zoning ordinance against his

property. Id. at 893. We reversed, holding that the landowner “was not provided with

notice of a proposed change in the zoning ordinance, a change that would exert a

severely detrimental impact on his ability to use the property in a manner consistent with

his legitimate expectations – expectations that the City, itself, had encouraged.”

Nasierowski Bros. Inv. Co., 949 F.2d at 895. We held:

Governmental determinations of a general nature that affect all equally

do not give rise to a [Constitutional] due process right to be heard. But,

when a relatively small number of persons are affected on individual

grounds, the right to a hearing is triggered. Falling into that latter

category is the situation where, during the [zoning] amendment process,

a governmental unit singles out and specifically targets an individual’s

property for a zoning change . . . .

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 19

***

Thus, in these circumstances [the plaintiff-landowner] had a right to

notice and hearing prior to [the] Council’s vote on [the] proposed

amendment. The City’s failure to afford [the plaintiff-landowner] an

opportunity to be heard constituted a denial of procedural due process.

Nasierowski Bros. Inv. Co., 949 F.2d at 896 (footnote omitted).

We find the reasoning of Nasierowski Bros. Inv. Co. persuasive. Here, there is

ample evidence in the record to support the district court’s conclusion that the

Instructions were not “general [in] nature[,]” but rather targeted or singled-out

Wedgewood’s ability to construct a Wal-Mart on its property. Nasierowski Bros. Inv.

Co., 949 F.2d at 896. Thus, to satisfy the Due Process Clause, the Township was

required to apprise Wedgewood of the pendency of the Instructions and provide

adequate notice and an opportunity to present their objections. DePiero, 180 F.3d at

788. The Township failed to do so.

Accordingly, we hold that the Instructions, which purported to clarify the

WCCDP, unlawfully amended it without affording Wedgewood adequate notice and a

hearing in violation of the Due Process Clause and Ohio Rev. Code § 519.12.

We also conclude that the Trustees’ enactment of the Instructions constituted “an

established state procedure” that itself violated Wedgewood’s procedural due process

rights. An “established state procedure” is defined as “the mechanism that effects a

deprivation or contributes to cause a deprivation[.]” Vinson v. Campbell County Fiscal

Court, 820 F.2d 194, 199 (6th Cir. 1987) (citation and internal quotation marks omitted).

In Zinermon v. Burch, 494 U.S. 113, 132-39 (1990), the Supreme Court stated that a

government act constitutes “an established state procedure” when officials with the

authority to supply a hearing fail to provide one even though they should have foreseen

the need to provide such procedural protections. See also Harris v. City of Akron, 20

F.3d 1396, 1401-02 (6th Cir. 1994); Erwin Chemerinsky, Federal Jurisdiction, § 8.9 at

581 (5th ed. 2007). Here, the Commission and Board of Trustees are the government

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 20

entities that should have foreseen, and could have provided, the exact procedural

protection that Wedgewood claims it was denied.

IV.

We conclude that the district court properly granted summary judgment in favor

of Wedgewood on its procedural due process claim.9 Dixon v. Clem, 492 F.3d 665, 673

(6th Cir. 2007) (“[W]e may affirm on any grounds supported by the record even if

different from the reasons of the district court.”) (citation and internal quotation marks

omitted). Further, we affirm the permanent injunction because Wedgewood suffered a

constitutional violation and will continue to suffer irreparable injury for which there is

not an adequate remedy at law, Deja Vu of Nashville, Inc., 466 F.3d at 394, and that the

scope of the district court’s injunction does not constitute an abuse of discretion, Gibson

Guitar Corp., 423 F.3d at 546.10

For these reasons, we affirm the district court’s order granting a permanent

injunction against the Township.

9

Because we hold that the district court properly granted summary judgment in favor of

Wedgewood on its procedural due process claim, our holding is sufficient to affirm the district court’s

permanent injunction. Thus, we do not reach the district court’s alternate holding that the WCCDP is

unconstitutionally vague. See United States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002) (“Courts should

avoid [deciding] unnecessary constitutional questions.” (citing Spector Motor Serv., Inc. v. McLaughlin,

323 U.S. 101, 105 (1944)).

10

We reserve judgment regarding whether the Township may re-enact the Instructions or their

equivalent if it affords Wedgewood adequate notice and a hearing.

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 21

_______________

DISSENT

_______________

JAMES G. CARR, District Judge, dissenting. Because my understanding of the

law controlling an aspect of the case before us differs from that of the majority, I

respectfully dissent.

The Due Process Clause of the Fourteenth Amendment provides that no State

shall “deprive any person of life, liberty, or property without due process of law.” U.S.

Const. Amend. XIV, § 1. To establish a procedural due process violation under

42 U.S.C. § 1983, Wedgewood must show that “‘(1) [it] had a life, liberty, or property

interest protected by the Due Process Clause; (2) it was deprived of this protected

interest; and (3) the state did not afford [it] adequate procedural rights prior to depriving

[it] of the property interest.’” Waeschle v. Dragovic, 576 F.3d 539, 544 (6th Cir. 2009)

(quoting Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006)); see

also Med. Corp. v. City of Lima, 296 F.3d 404, 409 (6th Cir. 2002).

“To have a property interest in a benefit, a person clearly must have more than

an abstract need or desire for it. He must have more than a unilateral expectation of it.

He must, instead have a legitimate claim of entitlement to it.” Bd. of Regents of State

Colls. v. Roth, 408 U.S. 564, 577 (1972).

In sum, “a party cannot possess a property interest in the receipt of a benefit

when the state’s decision to withhold the benefit is wholly discretionary.” Med. Corp.,

296 F.3d at 409. To assert a property interest, a party must point to a “policy, law, or

mutually explicit understanding that both confers the benefit and limits the discretion of

the City to the rescind the benefit.” Id. at 410.

“Property interests, of course, 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-rules or understandings that secure certain

benefits and that support claims of entitlement to those benefits.” Roth, 408 U.S. at 577.

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 22

In Ohio, a property owner’s right to an existing zoning classification vests “upon

the filing of the application for the [building or zoning] permit.” Gibson v. City of

Oberlin, 167 N.E.2d 651, 654 (Ohio 1960); Zaremba Dev. Co. v. City of Fairview Park,

616 N.E.2d 569, 571 (Ohio Ct. App. 1992).

Wedgewood did not have an application for a zoning permit or certificate

pending at the time the Trustees enacted the Instructions. The Commission denied

Wedgewood’s variance application and Wedgewood subsequently withdrew it prior to

the Trustees’ enactment of the Instructions.

The parties do not dispute that Wedgewood submitted its second application for

a certificate on June 29, 2004, after the Trustees enacted the Instructions.

Because Wedgewood did not have an application pending at the time of the

amendment, it did not, under Gibson and Zaremba, have a vested property interest in the

zoning classification of the parcel at issue.

I understand the majority opinion to hold that Articles XIV § 14.06 (F) and

XXVII of the Liberty Township Zoning Resolution, Ohio Rev. Code § 519.12, and the

WCCDP itself, with the accompanying notice and hearing requirements, create a

property interest in the zoning classification. This is so, the majority indicates, because

the procedural requirements which the corresponding legislative bodies prescribe serve

as a “limit on discretion” sufficient to create procedural due process rights and, ergo, a

property interest results.

Limits on discretion create property interests, according to my understanding,

only when those limits are substantive. Experimental Holdings, Inc. v. Farris, 503 F.3d

514, 520 (6th Cir. 2007) (“state procedural requirements cannot be the types of “limits

on discretion” that are sufficient to find a property interest. In order for limits on

discretion to create property interests, they must be substantive limits on discretion.”)

(emphasis in original). State procedural requirements are not sufficient. Id.; see also

Ziegler v. Aukerman, 512 F.3d 777, 787 (6th Cir. 2008) (holding that failure to provide

a procedure required by state law does not inherently amount to a federal due process

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 23

violation); Brown v. City of Ecorse, 322 F. App’x 443, 446 n.7 (6th Cir. 2009)

(unpublished disposition) (“[Plaintiff] could not bootstrap himself into Fourteenth

Amendment protection by claiming a property interest in certain procedures that he

charges were not followed by [defendant].”).

The fact that the state provides procedural rights, such as notice and a hearing,

to protect substantive rights does not change this fact. Experimental Holdings, 503 F.3d

at 520. For example:

There would be a substantive limit on discretion if, for instance, a state

could not refuse to renew a certain occupational license unless the

licensee overcharged customers. The fact that the state gives the licensee

certain procedural rights in determining the substantive right (e.g., an

oral hearing, appointed counsel, or two administrative appeals) does not

turn those procedural rights into federal due process rights. Nor could it,

without simply rendering state procedural law enforceable in federal

court.

Id.

In the district court case relied on by the majority, Stile v. Copley Twp., 115 F.

Supp. 2d 854, 865 (N.D. Ohio 2000), the court held that a zoning commission’s

amendment of the zoning code violated due process because the township had not

provided adequate notice and hearing procedures. Id.

In a footnote – and in response to defendants’ argument that plaintiff’s rights had

not vested under Zaremba because he had not “compl[ied] with all the legislative

requirements for the procurement of a [zoning certificate]” – the court in Stile found

“the argument of defendants to be no more than a red herring.” Id. at 865 n.21. The court

stated “here, the issue is whether the Zoning Commission had the authority under Ohio

law to take the action that it did.” Id.1

1

I note parenthetically that immediately preceding the quote on which the majority relies, the

court in Stile also stated in response to defendants’ argument:

However, the Township Zoning Regulations also require action on an application within

30 days. The township has offered no explanation as to why the Zoning Inspector chose

to sit on the application rather than extending the applicant the courtesy of a telephone

call to tell him that his application was not in compliance with the regulations.

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 24

The majority relies on the court’s statement as support for its contention that a

property right exists in the instant case. The majority also states that in SuperValu

Holdings, Inc. v. Jackson Ctr. Assoc., LP., 2006 WL 1843588, at *8 (Ohio Ct. App.), the

Ohio Court of Appeals confirmed the property interest found by the court in Stile. For

three reasons, I do not believe that Stile and SuperValu support the outcome reached by

the majority.

First, the plaintiff in Stile had an application pending for a zoning certificate

when the Zoning Commission amended the development plan. In fact, the court in Stile

stated: “Under Ohio law, a property owner’s right to an existing zoning classification

vests upon the submission of an application for a building or zoning certificate.” 115 F.

Supp. 2d. at 865 n.21 (citing Zaremba, 616 N.E.2d at 571). This fact distinguishes the

circumstances in Stile from those here, where Wedgewood had no application pending

when the Trustees changed the rules.

That the court in Stile then discounted defendants’ argument that plaintiff’s

property right “did not vest under Zaremba because he did not comply with all the

legislative requirements for the procurement of a zoning certificate,” id., is inapposite

here. The district court’s citation of Zaremba shows it was not disregarding the

application requirement of Zaremba, even assuming it could have done so.

Most simply put, the landowner in Stile was not, as Wedgewood does here,

asserting it had a property right, absent a pending application for a building or zoning

certificate, when the change in zoning occurred.

Second, though I agree with the majority that the Ohio Court of Appeals

recognized the holding of Stile in SuperValu Holdings, I disagree with the majority’s

interpretation of this recognition.

The Ohio Court of Appeals simply distinguished Stile, stating:

115 F. Supp. 2d at 865 n.21 (internal quotation omitted).

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 25

The principal case cited by appellant, Stile, is inapplicable. In Stile, a

township zoning commission eliminated a “permitted use” in a Planned

Development District where the plaintiff owned property. The plaintiff

had intended to sell part of his property to an automobile dealership, but

such a sale was not feasible following the elimination of

“community/regional sales” as a “permitted use.” In Stile, state action

affected the plaintiff's property rights by restricting how the plaintiff

could use his property. In this case, Union Township's enactment of its

zoning amendments did not affect Supervalu's property rights.

Specifically, the enactment of the amendments did not affect the validity

or the enforceability of the restrictive covenants.

SuperValu Holdings, 2006 WL 1843588, at *4.

Although the court in SuperValu recognized, in passing, the property right

identified in Stile, it did not mention Zaremba, or Gibson. Had the court in SuperValu

interpreted Stile as broadly as the majority seems to envision – as overruling or

distinguishing the Zaremba/Gibson requirement that property rights vest only on

submission of an application for a zoning permit or certificate – one would expect at

least a passing reference to these cases. This is particularly true with regard to Gibson,

as it is an Ohio Supreme Court case and binding authority.

Third, and most importantly, were the decision of the district court in Stile as

broad as the majority suggests, that holding would contradict binding Sixth Circuit law,

as exemplified by and enunciated so clearly in Experimental Holdings, 503 F.3d at 520.

To repeat what that court stated and so clearly, emphatically and unequivocally declared:

“state procedural requirements cannot be the types of ‘limits on discretion’ that are

sufficient to find a property interest. In order for limits on discretion to create property

interests, they must be substantive limits on discretion.”

So established and stated, this rule draws the proverbial bright line for all –

landowners, developers and governmental bodies.

Because Wedgewood had no application pending at the time of the amendment,

and because procedural limits on discretion cannot, under the law of Ohio and

precedents of this Court, create a property interest, Wedgewood did not have a vested

No. 08-4446 Wedgewood Ltd. P’ship v. Twp. of Liberty, et al. Page 26

property interest in any particular zoning classification. It, therefore, cannot establish a

due process violation.

For these reasons, I respectfully dissent.