Petition for Writ of Certiorari — Richmond Road Partners, LLC, et al., Petitioners v. City of Warrensville Heights, Ohio, et al.

Supreme Court briefJul 21, 2025

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No. 25In the

Supreme Court of the United States

RICHMOND ROAD PARTNERS, LLC;

STEP FORWARD,

Petitioners,

CITY OF WARRENSVILLE HEIGHTS; CITY OF

WARRENSVILLE HEIGHTS PLANNING COMMISSION;

CITY OF WARRENSVILLE HEIGHTS BUILDING

COMMISSIONER,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

A nthony J. Coyne

Diane A. Calta

A dam R. Uth

Mansour Gavin LPA

North Point Tower

1001 Lakeside Avenue,

Suite 1400

Cleveland, OH 44114

(216) 523-1500

Wencong Fa

Counsel of Record

Ben Stormes

Beacon Center of Tennessee

1200 Clinton Street,

Suite 205

Nashville, TN 37203

(615) 383-6431

wen@beacontn.org

Counsel for Petitioners

131298

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

In Agins v. City of Tiburon, this Court suggested

in a footnote that “extraordinary delay” plays a central

part in temporary takings cases. 447 U.S. 255, 263, n.9

(1980), abrogated on other grounds by Lingle v. Chevron,

544 U.S. 529 (2005). The Agins footnote has metastasized

into a multifactor test—involving the duration of the delay

and the government’s motives—that courts routinely (but

inconsistently) apply in temporary takings cases. The

decision below deepened a split among state and federal

appellate courts on both questions presented:

(1) Whether the extraordinary delay test applies in

a retrospectively temporary taking, which involves a

once permanent taking that is later cut short by judicial

invalidation, legislative repeal, or other events.

(2) Whether the absence of extraordinary delay

categorically defeats a takings claim, regardless of other

relevant considerations such as impact on economically

beneficial use or interference with investment-backed

expectations.

PARTIES

Petitioners are Richmond Road Partners, LLC, and

Step Forward. Respondents are City of Warrensville

Heights, City of War rensv ille Heights Planning

Commission, and City of Warrensville Heights Building

Commissioner.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Petitioners

Richmond Road Partners, LLC, and Step Forward certify

that they have no parent corporations and no publicly held

company owns 10% or more of the stock of either entity.

STATEMENT OF RELATED PROCEEDINGS

The proceedings in the federal district and appellate

courts identified below are directly related to the abovecaptioned case in this Court.

Richmond Road Partners, LLC v. City of Warrensville

Heights, No. 1:23-cv-01662-PAG (N.D. Ohio May 9, 2024).

Richmond Road Partners, LLC v. City of Warrensville

Heights, No. 1:23-cv-01662-PAG (N.D. Ohio July 22, 2024).

Richmond Road Partners, LLC v. City of Warrensville

Heights, No. 24-3502 (6th Cir. March 7, 2025).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . . iii

STATEMENT OF RELATED PROCEEDINGS . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONSTITUTIONAL PROVISION INVOLVED . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 4

Factual Background . . . . . . . . . . . . . . . . . . . . . . . 4

A. Richmond Road Leases Property

t o S t ep For w a r d t o S e r ve

Disadvantaged Children . . . . . . . . . . . . . . . 4

Table of Contents

Page

B. T he C it y ’s Pe r m it D e n i a l a nd

Subsequent Reversal by the Court

of Common Pleas . . . . . . . . . . . . . . . . . . . . . . 4

C. Procedural History . . . . . . . . . . . . . . . . . . . . 6

II. Legal Background . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. Takings Background . . . . . . . . . . . . . . . . . . . 8

B. The Extraordinary Delay Test . . . . . . . . . . 9

REASONS FOR GRANTING THE PETITION . . . . 12

This Court Should Grant Review to Resolve

a Split on Whether Plaintiffs Who Base

Their Takings Claim on the Government’s

Denial of a Permit Must Also Satisfy

the Extraordinary Delay Test . . . . . . . . . . . . . . 12

A. The Decision Below Deepens a Split

Among Federal Circuit Courts and

State Supreme Courts on Whether

t he Ex t r a or d i n a r y D e l ay Te st

Applies in Cut-Short Takings Cases

Involving Permit Denials . . . . . . . . . . . . . . 12

B. The Decision Below is Inconsistent

with This Court’s Precedents . . . . . . . . . . 16

vii

Table of Contents

Page

II. This Cour t Should Decide W hether

the Absence of Extraordinary Delay in

the Permitting Process Categorically

Defeats a Takings Claim . . . . . . . . . . . . . . . . . . 20

A. Courts are Divided on Whether a

Lack of Extraordinar y Delay in

the Permitting Process by Itself

Defeats a Takings Claim . . . . . . . . . . . . . . 20

B. The Decision Below Contradicts This

Court’s Precedents . . . . . . . . . . . . . . . . . . . . 23

III. This Case Presents an Excellent Vehicle

t o Re solve Unset t led Q ue st ions of

Nationwide Importance . . . . . . . . . . . . . . . . . . . . 25

A. This Case Presents an Excellent

Vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

B. T h e Q u e s t i o n s P r e s e n t e d a r e

Exceptionally Important . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

viii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED MARCH 7, 2025 . . . . . 1a

A P PEN DI X B — M EMOR A N DU M OF

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

N O R T H E R N DI S T R I C T O F O H I O ,

EASTERN DIVISION, FILED MAY 9, 2024 . . . 15a

A PPEN DI X C — M EMOR A N DU M

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

N O R T H E R N DI S T R I C T O F O H I O ,

EASTERN DIVISION, FILED JULY 22, 2024 . . 26a

A PPENDIX D — OPINION AND ORDER

OF THE COURT OF COMMON PLEAS

FOR THE CUYAHOGA COUNTY, OHIO,

DATED OCTOBER 3, 2023 . . . . . . . . . . . . . . . . . . . 41a

TABLE OF CITED AUTHORITIES

Page

CASES:

Agins v. City of Tiburon,

447 U.S. 255 (1980), abrogated on other grounds

by Lingle v. Chevron, 544 U.S. 529 (2005) . . . . . . 1, 10

Aloisi v. United States,

85 Fed. Cl. 84 (2008) . . . . . . . . . . . . . . . . . . . . 11, 21, 28

Appolo Fuels, Inc. v. United States,

381 F.3d 1338 (Fed. Cir. 2004) . . . . . . . . . . . . . . . 20, 21

Armstrong v. United States,

364 U.S. 40 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . 24, 29

B & B Enters. of Wilson County, LLC v.

City of Lebanon,

318 S.W. 839 (Tenn. 2010) . . . . . . . . . . . . . . . . . . . . . . 18

Boise Cascade Corp. v. United States,

296 F.3d 1339 (Fed. Cir. 2002) . . . . . . . . . . . . . . . . . . 15

Brott v. United States,

858 F.3d 425 (6th Cir. 2017) . . . . . . . . . . . . . . . . . 12, 15

Byrd v. City of Hartsville,

620 S.E.2d 76 (S.C. 2005) . . . . . . . . . . . . . . . . . . . . . . 22

Carlson v. Town of Beaux Arts Village,

704 P.2d 663 (Wash. App. Div. 1 1985) . . . . . . . . . . . 29

Cited Authorities

Page

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Chioffi v. City of Winooski,

676 A.2d 786 (Vt. 1996) . . . . . . . . . . . . . . . . . . . . . . . . 14

Eberle v. Dane County Bd. of Adjustment,

595 N.W.2d 730 (Wis. 1999) . . . . . . . . . . . . . . . . . . . . 16

First English Evangelical Lutheran Church v.

Cty. of Los Angeles,

482 U.S. 304 (1987) . . . . . . . . . . . . . . . . . . . 9, 16, 17, 18

Knick v. Township of Scott,

588 U.S. 180 (2019) . . . . . . . . . . . . . . . . . . . . . 12, 18, 19

Landgate v. California Coastal Commission,

953 P.2d 1188 (Cal. 1998) . . . . . . . . . . . . . . . . . . . 14, 16

Lingle v. Chevron,

544 U.S. 529 (2005) . . . . . . . . . . . . . . 1, 9, 10, 14, 19, 24

Lockaway Storage v. Cnty. of Alameda,

216 Cal. App. 4th 161 (2013) . . . . . . . . . . . . . . 14, 24, 29

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992) . . . . . . . . . . . . . . 2, 8, 9, 16, 17, 18

Okey v. City of All. Plan. Comm’n,

138 N.E.3d 649 (Ohio App. 5th Dist. 2019) . . . . . . . . 26

Cited Authorities

Page

Palazzolo v. Rhode Island,

533 U.S. 606 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 17

Penn Central Transp. Co. v. New York City,

438 U.S. 104 (1978) . . . . . . . . . . 8, 20, 21, 22, 23, 25, 28

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

PruneYard Shopping Ctr. v. Robins,

447 U.S. 74 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Resource Investments, Inc. v. United States,

85 Fed. Cl. 447 (2009) . . . . . . . . . . . . . . . . . . . 15, 17, 21

San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621 (1981) . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

Seiber v. United States,

364 F.3d 1356 (Fed. Cir. 2004) . . . . . . . . . . . . 12, 14, 15

Seven Cnty. Infrastructure Coalition v.

Eagle Cnty., Colorado,

145 S. Ct. 1497 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . 28

Smith v. Town of Wolfeboro,

615 A.2d 1252 (N.H. 1992) . . . . . . . . . . . . . . . . . . . . . 13

Stand. Industries, Inc. v. Dept. of Transp.,

454 N.W.2d 417 (Mich. App. 1990) . . . . . . . . . . . . . . . 10

xii

Cited Authorities

Page

State ex rel. AWMS Water Solutions, LLC v.

Mertz,

165 N.E.3d 1167 (Ohio 2020) . . . . . . . . . . . . . . . . . . . 22

State ex rel. Duncan v. Middlefield,

898 N.E.2d 952 (Ohio 2008) . . . . . . . . . . . . . . . . . . . . 21

Sunrise Corp. of Myrtle Beach v.

City of Myrtle Beach,

420 F.3d 322 (4th Cir. 2005) . . . . . . . . . . . . . . . . . 13, 19

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Regional Planning Agency,

535 U.S. 302 (2002) . . . . . . . . . . . . . . . . . . . . 2, 9, 17, 23

United States v. Gen. Motors Corp.,

323 U.S. 373 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

United States v. Riverside Bayview,

474 U.S. 121 (1985) . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 16

Wild Rice River Estates, Inc. v. City of Fargo,

705 N.W.2d 850 (N.D. 2005) . . . . . . . . . . . . . . . . . . . . 22

Willow Grove, Ltd. v. Olmsted Twp. Bd.

of Zoning Appeals,

207 N.E.3d 779 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Wyatt v. United States,

271 F.3d 1090 (Fed. Cir. 2001) . . . . . . . . . 10, 11, 21, 24

xiii

Cited Authorities

Page

STATUTES AND OTHER AUTHORITIES:

U.S. Const., amend. V . . . . . . . . . . . . . 3, 6, 7, 8, 18, 19, 29

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Ohio Revised Code § 2506 . . . . . . . . . . . . . . . . . . . . . . . . . 5

Executive Office of the President Council of

Economic Advisers, Economic Report of the

President (2024) (March 21, 2024) . . . . . . . . . . . 26, 27

Increasing the Housing Supply by Reducing Costs

and Barriers, National Conference of State

Legislatures (June 7, 2024), https://www.ncsl.

org/human-services/increasing-the-housingsupply-by-reducing-costs-and-barriers . . . . . . . . . . 27

Erikia Kengi, Many canceled weddings later,

the Rusty Pelican is ready to reopen, Tampa

Bay T imes (July 9, 2 02 5) https://w w w.

tampabay.com/news/ business/2025/07/09/

many-canceled-weddings-laterrusty-pelican-is-ready-reopen/ . . . . . . . . . . . . . . . . . 30

Manville, M., Monkkonen, P., Gray, N., & Phillips,

Does Discretion Delay Development? The

Impact of Approval Pathways on Multifamily

Housing’s Time to Permit, Volume 89 Number

3 J. Am. Plan. Assoc. 336 (2023) . . . . . . . . . . . . . . . . 28

xiv

Cited Authorities

Page

Quarterly Survey Of Apartment Construction &

Development Activity, National Multifamily

Housing council (March 27, 2025), https://

w w w.n m hc.org /resea rch-i nsight /n m hc c o n s t r u c t i o n - s u r v e y / 2 0 2 5 /q u a r t e r l y su r vey- of-apa r tment - const r uctiondevelopment-activity-march-2025/ . . . . . . . . . . . . . . 27

Reforming Permitting Requirements to Lower the

Cost of Building New Housing and Increase

Housing Affordability, The White House

(August 13, 2024), https://bidenwhitehouse.

archives.gov/cea/written-materials/2024/08/13/

refor ming-per mitting-requi rements-to lower-the-cost-of-building-new-housingand-increase-housing-affordability/ . . . . . . . . . . . . . 27

Andy Sheen, Developers blame city for delays

in big Bakery Square expansion, CBS News

(July 26, 2024). https://www.cbsnews.com/

pittsburgh /news/developers-blame - citydelays-bakery-square-expansion/ . . . . . . . . . . . . . . . 30

Daniel L. Siegel & Robert Meltz, Temporary

Takings: Settled Principles and Unresolved

Questions, 11 Vt. J. Envtl. L. 480 (2010) . . . . 20, 21, 22

David W. Spohr, Cleaning Up the Rest of Agins:

Br i ng i ng Coherence t o Tempora r y

Takings Jur ispr udence and Jettisoning

“Extraordinary Delay,” 41 Envtl. L. Rep.

News & Analysis 10435 (2011) . . . . . . . . . . . . . 9, 12, 20

PETITION FOR A WRIT OF CERTIORARI

In Agins v. City of Tiburon, this Court held that

a regulation violates the Takings Clause if it does not

substantially advance a legitimate government interest,

and in a lesser-known part of its opinion, suggested

that extraordinary delay may be central to the takings

analysis. 447 U.S. at 260, 263, n.9. This Court subsequently

disavowed the “substantially advances” test because it

says nothing about the burden on the property owner.

Lingle, 544 U.S. at 542. Yet the extraordinary delay

standard has metastasized into a multi-factor test—

involving the duration of the delay and the motives of

government officials—that courts routinely apply in

temporary takings cases.

The Sixth Circuit used that test to deny relief to

Petitioners, who were denied a permit for a school in an

area zoned for educational purposes. A state court later

reversed the city’s denial as arbitrary, unreasonable, and

unsupported by evidence. App. 50a. But applying the

extraordinary delay test, the Sixth Circuit ruled against

Petitioners on grounds that they did not allege bad faith,

the delay was too short, and part of the delay resulted from

Petitioners’ choice to appeal Warrensville’s erroneous

decision. App. 10a.

The decision below contravened this Court’s precedents

and deepened a divide among state and federal appellate

courts on both questions presented. First, the Sixth

Circuit joined four other courts and split with the Federal

Circuit and Wisconsin Supreme Court in applying the

extraordinary delay test to retrospectively temporary

(“cut-short”) takings cases involving permit denials. As

this Court has explained, a takings claim accrues when

the government denies a permit. See United States v.

Riverside Bayview, 474 U.S. 121, 127 (1985). And although

a once “unconditional and permanent” taking can be cut

short by legislative repeal or judicial invalidation, it can

never be undone by later events. Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1012 (1992).

Second, the decision below joined the Federal Circuit

and split with three state supreme courts in concluding

that the lack of extraordinary delay relieves the court

from evaluating any of the relevant factors in a takings

case. Yet this Court has explained that the duration of

the government regulation informs the takings analysis

rather than supplants other relevant considerations, such

as diminution of economically beneficial use or interference

with investment-backed expectations. See Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 535 U.S. 302, 342 (2002).

This case presents a clean vehicle to decide questions

of paramount importance. But for the Sixth Circuit’s

resolution of the questions presented, there would have

been no basis to affirm judgment on the pleadings against

Petitioners. And the issues presented could hardly be more

important. Permit delays of any length can cause property

owners significant harm and force builders to forgo their

projects altogether. There is never a bad time to correct

a constitutional wrong, but this Court’s intervention is

even more important here because that wrong is a likely

culprit in the housing crisis plaguing the country today.

OPINIONS BELOW

The Sixth Circuit’s decision (App. 1a–14a) is published

at 2025 WL 737342. The district court’s decision granting

Respondents’ Motion for Judgment on the Pleadings

(App. 15a–25a) is published at 2024 WL 2080737, and its

decision denying Petitioners’ Motion for Reconsideration

(App. 26a–40a) is published at 2024 WL 3495316. The state

court’s separate decision in favor of Petitioners in their

appeal of Respondents’ denial of their permit application

is unpublished but included here at App. 41a–50a. None

of the decisions is published in an official report.

JURISDICTION

The United States Court of Appeals for the Sixth

Circuit entered judgment on March 7, 2025. This Court

granted an extension to file the Petition for Certiorari to

July 21, 2025. This Court’s jurisdiction rests on 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the U.S. Constitution

provides, “nor shall private property be taken for public

use, without just compensation.” U.S. Const. amend. V.

STATEMENT OF THE CASE

Factual Background

Richmond Road Leases Property to Step

Forward to Serve Disadvantaged Children

Petitioner Richmond Road Partners, LLC, owns

property in the city of Warrensville Heights that it agreed

to lease to Petitioner Step Forward for use as a preschool.

App. 2a. Step Forward is a 501(c)(3) nonprofit organized for

the stated purpose of education. See Complaint, ECF No.

1-1, Richmond Road v. City of Warrensville, 23-cv-1662,

at ¶ 7 (N.D. Ohio, Aug. 25, 2023). The nonprofit provides

early education services for disadvantaged children in the

Cleveland area. App. 16a. The students who enroll in Step

Forward’s Head Start and early Head Start programs

are from low-income families, id., and many are students

with disabilities. See Complaint, ECF No. 1-1, Richmond

Road, 23-cv-1662, at ¶ 6 (at least 10 percent of the school’s

enrollment must be students with disabilities). Step

Forward sought to use Richmond Road’s property as a

school for underprivileged children between three and five

years old in the Head Start program and disadvantaged

children between six months and two years in the Early

Head Start program. Id. at ¶¶ 8–9.

B. The City’s Permit Denial and Subsequent

Reversal by the Court of Common Pleas

In November 2022, Petitioners applied to the

Warrensville Heights Planning Commission for site plan

approval to use the property as a school or a nonprofit

educational agency.1 App. 17a; see also App. 2a (noting that

Warrensville, in denying the site plan application, denied

Petitioners a permit). The property is zoned as U-7A,

which permits “[p]ublic and private schools, universities,

colleges, professional schools, vocational schools, and

related education facilities” or “[n]onprofit educational

and scientific research agencies.” See App. 2a–3a. But the

Planning Commission and then the City Council denied

the application. Id.

Petitioners appealed the City Council’s denial to the

Cuyahoga County Court of Common Pleas. See App. 3a;

Ohio Revised Code § 2506 (allowing the court to hear

appeals from and reverse, modify, or vacate final decisions

by political subdivisions). The court, after finding that

the denial was arbitrary, unreasonable, and unsupported

by the preponderance of submitted evidence, directed

Warrensville Heights to grant Petitioners’ application.

App. 50a. In so doing, the court noted ample evidence that

the site would be used for a school or nonprofit educational

agency. App. 45a–46a (noting that Step Forward is a

nonprofit that planned to employ 33 educators with

degrees in early childhood education, provide classrooms,

provide a curriculum, and follow a typical school year

from September through June). As the court observed,

statements from planning commissioners acknowledged

that the proposed use “may be that of a school,” but

expressed their subjective view that the location was not

“an appropriate site” for that purpose. App. 46a–47a;

1. About two months earlier, Petitioners applied for approval to

use the property as a daycare pursuant to the mayor’s instructions.

See Appellants’ Opening Br., 24-3502, at 6 (filed Sept. 16, 2024).

Warrensville’s denial of that application does not form the basis for

Petitioners’ takings claim.

see also App. 3a (“The Commissioners provided little

explanation” for their denial and merely voiced “that they

did not think this was an appropriate location for a school

despite its being zoned as such.”) (internal parenthesis

omitted). As a result, Richmond Road lost a 10-year lease

totaling over three million dollars, and Step Forward was

forced to find another location for the school. See Pltfs’

Opp. to Mot. for Judgment on the Pleadings, 23-cv-1662,

ECF No. 13, at 8, 13 (Feb. 29, 2024).

Procedural History

Petitioners filed their complaint in this case while

their appeal of the city’s denial in the court of common

pleas was still pending. 2 As relevant here, Petitioners

argued that Warrensville violated the Fifth Amendment’s

Just Compensation Clause, and requested relief they

could not have obtained in the state court appeal: a

mandatory injunction directing Warrensville to start

state appropriations proceedings to compensate Richmond

Road for lost rents. App. 3a.

A fter the court of common pleas rendered its

decision instructing the government to grant Petitioners’

application, the government filed a motion for judgment

on the pleadings in this case. It asserted that “[a]bsent

extraordinary delay, a governmental entity’s application

of its administrative process for making zoning decisions

cannot result in a state or federal taking claim” and

that the roughly year-long delay between the time when

Petitioners submitted the site plan application and the

2. Petitioners initially filed their case in state court, but

Respondents removed the case to federal court. App. 3a.

time in which the state court ordered the government to

grant it did not suffice. See App. 22a–23a. The district

court agreed. It held that Petitioners could not establish

a Fifth Amendment violation since there was no property

interest to support a takings claim and, even if there

were, no extraordinary delay to establish a taking. App.

23a–24a; but see Riverside Bayview, 474 U.S. at 127

(indicating that a taking may occur if the government’s

denial of a permit prevents economically viable use of the

land in question). 3

The Sixth Circuit affirmed. The court assumed that

Warrensville’s denial implicated a protected property

interest under the Takings Clause and based its affirmance

on the absence of extraordinary delay. See App. 7a–10a.

The Court opined a one-year delay was not extraordinary

in “the bureaucratic world,” App. 10a, and even if it

were, Warrensville could not be faulted for “how quickly

the case moved” through “the various judicial appeals

processes” after Petitioners appealed the city’s denial of

their application. Id. The Sixth Circuit also noted that

Petitioners did not allege bad faith on the government’s

part even though the government’s motives were relevant

in assessing whether there was extraordinary delay. See

3. The district court later denied Petitioners’ Motion for

Reconsideration. In that order, it clarified that its earlier sua sponte

comment that Petitioners’ claims may be barred under res judicata,

App. 24a & n.8, did not “serve[] as the basis for the Court’s dismissal

of any of Plaintiffs’ claims,” and wouldn’t have affected Petitioners’

taking claim anyway. App. 31a & n.3 (suggesting that res judicata

would only bar Petitioners from prevailing on their first cause of

action, which sought a declaration that Warrensville’s permit denial

was arbitrary, since Petitioners sought (and received) the same relief

in its appeal to the court of commons pleas).

App. 8a, 10a. Having concluded that Petitioners failed to

satisfy the extraordinary delay test, the court held that

Petitioners could not prevail on their takings claim without

any discussion of the other factors that typically come

into play in regulatory takings cases, including the extent

to which government’s denial of Petitioners’ application

affected Petitioners’ economically beneficial use of their

property. See App. 10a.

II. Legal Background

Takings Background

The Takings Clause of the Fifth A mendment,

applicable to the States through the Fourteenth

Amendment, prohibits government from taking private

property for public use without just compensation.

See Cedar Point Nursery v. Hassid, 594 U.S. 139, 147

(2021). Physical appropriations of property, such as when

government takes possession of property without taking

title to it or when government effects a physical taking

by recurring flooding as a result of building a dam, make

up the “clearest sort of taking.” Id. at 147–48 (quoting

Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)).

Government can also take property if it goes “too far”

in restricting property rights. Pennsylvania Coal Co. v.

Mahon, 260 U.S. 393, 415 (1922). A court may determine

that government action effects a taking by conducting an

“ad hoc, factual inquiry” into factors such as economic

impact, effect on the property owner’s “reasonable

investment backed expectations,” and the “character of

the governmental action,” Penn Central Transp. Co. v.

New York City, 438 U.S. 104, 124 (1978), or by finding that

government action had completely deprived the owner of

“all economically beneficial us[e]” of her property. Lucas,

505 U.S. at 1019. These types of “regulatory takings”

require just compensation because they are “functionally

equivalent to the classic taking in which government

directly appropriates private property or ousts the owner

from his domain.” Lingle, 544 U.S. at 539.

“It is well established that temporary takings are as

protected by the Constitution as are permanent ones.”

Lucas, 505 U.S. at 1033 (Kennedy, J., concurring in

judgment) (citing First English Evangelical Lutheran

Church v. Cty. of Los Angeles, 482 U.S. 304, 318 (1987)).

One type of a temporary taking is a retrospectively (or

cut short) temporary taking. A retrospectively temporary

taking may take place where government action was

“unconditional and permanent” when it occurs, Lucas,

505 U.S. at 1012, but is then cut short by statutory

repeal, judicial intervention, or the like. A prospectively

temporary taking may occur where a moratorium on

development is expressly temporary at the time it was

enacted. See Tahoe-Sierra, 535 U.S. at 316 (development

moratoria were “intended to be temporary from the

beginning”).

B. The Extraordinary Delay Test

Many courts today, including the Sixth Circuit below,

require a property owner to show that the government

has committed “extraordinary delay” before the property

owner may prevail on a temporary takings claim. See

generally David W. Spohr, Cleaning Up the Rest of Agins:

Bringing Coherence to Temporary Takings Jurisprudence

and Jettisoning “Extraordinary Delay,” 41 Envtl. L. Rep.

News & Analysis 10435 (2011).

In Agins v. City of Tiburon, this Court held that the

“application of a general zoning law to particular property

effects a taking if the ordinance does not substantially

advance legitimate state interests” or “denies an owner

economically viable use of his land.” 447 U.S. 255, 260

(1980), abrogated by Lingle, 544 U.S. 529. This Court

later disavowed the “substantially advances” test, noting

that it was “not a valid method of discerning whether

private property has been ‘taken’” because it “reveals

nothing about the magnitude or character of the burden a

particular regulation imposes upon private property

rights.” Lingle, 544 U.S. at 542 (emphasis in original).

Agins also rejected a secondary claim, mentioned only

in a series of footnotes, that the city’s precondemnation

activities related to its subsequently abandoned eminent

domain proceedings worked a taking. Agins, 447 U.S. at

263, n.9. Yet this footnote has metastasized into a test that

federal circuit courts and state supreme courts regularly

(but inconsistently) apply in temporary takings cases.

The extraordinary delay test asks courts to “weigh

all relevant factors, including the length of the delay, bad

faith on the part of the government, and any delay that

the interestholder’s conduct caused.” App. 8a (internal

quotation marks omitted). As for duration, courts have

declined to deem delays extraordinary—even where

they have stretched many years. See Stand. Industries,

Inc. v. Dept. of Transp., 454 N.W.2d 417, 419 (Mich. App.

1990) (eleven-year delay not extraordinary delay); Wyatt

v. United States, 271 F.3d 1090, 1097–1100 (Fed. Cir. 2001)

(same for seven-year delay). The extraordinary delay test

also calls for an inquiry into the government’s motives.

App. 8a. As “it is the rare circumstance that [courts]

will find a taking based on extraordinary delay without

a showing of bad faith,” Wyatt, 271 F.3d at 1098, the test

places a “high burden of proof” on property owners “to

overcome the well-established rule that government

officials are presumed to act in good faith.” Aloisi v.

United States, 85 Fed. Cl. 84, 95 (2008). Finally, courts

factor in “any delay that the interestholder’s conduct

caused,” App. 8a, and decline to attribute the time that

the case moves “through the various judicial appeals

processes” to the government. App. 10a.

This case presents two unresolved questions about the

extraordinary delay test. First, whether the extraordinary

delay test applies in retrospectively temporary takings

cases in which a final and permanent government action

alleged to have effected a taking is later made temporary

through legislative repeal, judicial invalidation, or the

like. Second, even if the extraordinary delay test applied,

whether the absence of extraordinary delay mechanically

defeats a takings claim or whether it should be considered

in conjunction with other relevant factors such as a

regulation’s economic impact or its interference with a

property owner’s investment-backed expectations.

REASONS FOR GRANTING THE PETITION

This Court Should Grant Review to Resolve a Split

on Whether Plaintiffs Who Base Their Takings

Claim on the Government’s Denial of a Permit Must

Also Satisfy the Extraordinary Delay Test

The Decision Below Deepens a Split Among

Federal Circuit Courts and State Supreme

Courts on Whether the Extraordinary Delay

Test Applies in Cut-Short Takings Cases

Involving Permit Denials

The decision below deepens a split among federal

courts of appeals and state supreme courts.4 The Sixth

Circuit joined the Fourth Circuit, the New Hampshire

Supreme Court, the Vermont Supreme Court, and the

Supreme Court of California in holding that plaintiffs

must show “extraordinary delay” even in cut-short takings

cases involving permit denials. The Federal Circuit and

the Wisconsin Supreme Court have reached the opposite

conclusion. In those jurisdictions, “[e]xtraordinary delay is

not, under established law, an element in such a cut-short

scenario.” Spohr, supra, at 10449 & n.237 (citing Seiber

v. United States, 364 F.3d 1356, 1365 (Fed. Cir. 2004)).

1. The Sixth Circuit expressly relied on precedents

from the Fourth Circuit and the New Hampshire Supreme

Court in reaching its conclusion. See App. 8a–9a. The

4. In the decades before this Court’s decision in Knick,

takings cases against state and local governments were confined to

state court. See Knick, 588 U.S. at 185 (overruling state-litigation

requirement). Takings cases against the federal government

typically proceed in the Court of Federal Claims and the Federal

Circuit under the Tucker Act. See Brott v. United States, 858 F.3d

425, 428–29 (6th Cir. 2017).

Fourth Circuit used the extraordinary delay test to rule

against property owners alleging a cut-short taking in

Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420

F.3d 322, 329–30 (4th Cir. 2005). The plaintiffs in Sunrise,

as here, based their takings claim on damages resulting

from the city council’s denial of their permit application.

See id. at 325–26. The property owners appealed the

decision to state court, which reversed the council’s

decision because it was arbitrary, subjective, and without

evidentiary support. Id. Yet the Fourth Circuit held that

the property owners were not entitled to any remedy—in

part because “the delay . . . was not extraordinary.” Id.

at 330. As here, the Fourth Circuit faulted the property

owners for delays stemming from their appeal of the city

council’s erroneous decision and thought it relevant that

nothing in the record suggested that it “acted in bad faith

or engaged in deliberate delay.” Id.

The New Hampshire Supreme Court reached the

same conclusion in Smith v. Town of Wolfeboro, 615 A.2d

1252, 1258 (N.H. 1992). The alleged taking there arose

from a town planning board’s denial of two property

owners’ application to certify their lot for residential

development. Id. at 1253–55. A state court reversed

the board’s decision and awarded compensation to the

property owners for the temporary taking. See id. The

Supreme Court reversed the damages award and affirmed

in all other respects—noting its view that the owners’

right to “petition the trial court to review and reverse

planning board decisions” was “their sole remedy.” Id.

at 1254, 1257. Adding its own gloss on this Court’s dicta

in Agins, the New Hampshire Supreme Court viewed

appeals to the superior court and the Supreme Court as

“one of the incidents of ownership” that “must be borne

by the property owner.” Id. at 1258.

In Chioffi v. City of Winooski, 676 A.2d 786, 787–89

(Vt. 1996), the Vermont Supreme Court refused to award

compensation to a property owner for losses he incurred

“during the time between the denial of the zoning permit

by the city zoning board” and the issuance of the permit

pursuant to a court decision. The court considered judicial

proceedings initiated by the property owner as a part of

the city’s regulatory process, which does not itself give

rise to a takings claim. Id. at 788–89.

The California Supreme Court ruled against a

property owner alleging a cut-short taking in Landgate

v. California Coastal Commission, 953 P.2d 1188 (Cal.

1998). The property owner sought compensation for the

delay caused by the California Coastal Commission after

the Commission’s decision to deny the owner’s permit

application was set aside by a court. See id. at 1189–94.

The California Supreme Court denied compensation using

similar reasoning as its counterparts in New Hampshire

and Vermont. The court viewed litigation as merely “a

normal part of the development process” and dismissed

any resulting delay as “an incident of property ownership.”

Id. at 1203–04. Although the California Court of Appeals

has questioned the continued vitality of Landgate in light

of this Court’s decision in Lingle, see Lockaway Storage

v. Cnty. of Alameda, 216 Cal. App. 4th 161, 188–91 (2013),

the California Supreme Court has never overruled that

decision.

2. On the other side of the split are the Federal Circuit

and the Wisconsin Supreme Court, which do not apply

the extraordinary delay test in cut-short takings cases.

In Seiber v. United States, the Federal Circuit stressed

important differences between retrospectively temporary

(or cut-short) takings, such as later rescinded permit

denials, and prospectively temporary takings such as

development moratoria. 364 F.3d 1356, 1364–65 (Fed. Cir.

2004) (“Each of these categories of temporary takings is

governed by its own standards.”); See supra at 9 (describing

differences). The court held that the property owners were

not required to show extraordinary delay because that

showing is not required of plaintiffs (like the Seibers)

alleging a cut-short takings claim based on the eventual

grant of a permit that was initially denied. See Seiber,

364 F.3d at 1365; see also Boise Cascade Corp. v. United

States, 296 F.3d 1339, 1349 (Fed.Cir.2002) (“[A]bsent

denial of the permit, only an extraordinary delay in

the permitting process can give rise to a compensable

taking.”). “[T]hat the taking was ‘cut short’ does not

transmute the interests that” the government “had taken,

but instead informs the amount of just compensation.”

Resource Investments, Inc. v. United States, 85 Fed. Cl.

447, 484 (2009).

That the Federal Circuit differs from five courts

of last resort is more reason for this Court to hear this

case. Under the Tucker Act and the Little Tucker Act,

the Federal Circuit is the exclusive venue for appeals

in takings cases for compensation against the federal

government. See Brott v. United States, 858 F.3d 425,

428–30 (6th Cir. 2017). Thus, Americans in the 12 states

covered by the five courts on the other side would confront

one rule when the federal government works a taking

through a permit denial and another when state and local

governments do the same. This Court’s review is needed to

ensure that fundamental property rights do not wax and

wane based on the identity of the government defendant.

The Wisconsin Supreme Court also saw no need to

require property owners to show extraordinary delay

before they can state a valid temporary taking claim based

on a permit denial that is later invalidated by a court. See

Eberle v. Dane County Bd. of Adjustment, 595 N.W.2d

730, 747 (Wis. 1999). Relying on this Court’s precedents in

Lucas and First English, the Wisconsin Supreme Court

explained that there was no basis to exclude government

“actions reversed by courts from the pool of actions which

might qualify as unconstitutional temporary takings.” Id.

at 742. In reaching its conclusion, the Court was unmoved

by the dissent’s invocation of all three state supreme

court cases on the other side of the split, see id. at 748

(Abrahamson, C.J., dissenting), and expressly rejected

the California Supreme Court’s opinion in Landgate as

inconsistent with this Court’s decision in First English.

Id. at 742, n.25 (majority opinion).

In all, the Federal Circuit or the Wisconsin Supreme

Court would not have applied the extraordinary delay test

against Petitioners. In those jurisdictions, extraordinary

delay is irrelevant where, as here, the property owners

allege that the government had worked a taking by

denying them a permit.

B. The Decision Below is Inconsistent with This

Court’s Precedents

The decision below erred in applying the extraordinary

delay test to a retrospectively temporary taking arising

from a permit denial. As this Court has explained, when

a regulatory taking arises from a permit denial, the

taking accrues when a permit is denied. See Riverside

Bayview, 474 U.S. at 127 (“Only when a permit is denied

and the effect of the denial is to prevent ‘economically

viable’ use of the land in question can it be said that a

taking has occurred.”). In contrast to a scenario in which

the government delays in its review of a permit application,

a “final decision by the responsible state agency,” such

as Warrensville’s denial of Petitioners’ application here,

“informs the constitutional determination whether a

regulation has deprived a landowner of ‘all economically

beneficial use’ of the property or defeated the reasonable

investment-backed expectations of the landowner to the

extent that a taking has occurred.” Palazzolo, 533 U.S. at

618 (internal citations omitted). Warrensville’s denial of

Petitioners’ application was “unconditional and permanent”

when the government issued its decision. Lucas, 505 U.S.

at 1012. It thus constituted a “prospectively permanent

restriction on economically viable use [that] effected a

taking of the parcel as a temporal whole, regardless of

the interests that reverted to the landowner” as a result

of subsequent events. Resource Investments, 85 Fed.

Cl. at 481; cf. Tahoe-Sierra, 535 U.S. at 316, 332 (noting

that, by contrast, government action “intended to be

temporary from the beginning” allows a fee simple estate

to “recover value as soon as the prohibition is lifted”).

This Court’s precedent confirms that the government

cannot rely on later events to undo an earlier taking. In

First English, for instance, this Court recognized that

“[i]nvalidation of the ordinance . . . though converting the

taking into a ‘temporary’ one, is not a sufficient remedy

to meet the demands of the Just Compensation Clause.”

482 U.S. at 319. “[W]here the government’s activities

have already worked a taking of all use of property, no

subsequent action by the government can relieve it of the

duty to provide compensation for the period during which

the taking was effective.” Id. at 321. In Lucas, this Court

rejected the government’s contention that changes to the

challenged statute rendered the property owner’s claim

unripe. 505 U.S. 1010–13. Those changes—like the state

court’s decision vacating Warrensville’s denial—merely

morphed an “unconditional and permanent” taking into

a temporary one. Id. at 1012. As Justice Kennedy put it,

the “potential for future relief does not control” because

“whatever may occur in the future cannot undo what

has occurred in the past.” Id. at 1032–33 (Kennedy, J.,

concurring); see also Knick v. Township of Scott, 588

U.S. 180, 190 (2019) (“The Fifth Amendment right to full

compensation arises at the time of the taking, regardless

of post-taking remedies that may be available to the

property owner.”). Put another way, the relevant question

here is whether Warrensville’s denial itself effected a

taking—not whether there has been an extraordinary

delay since the denial.

The particulars of the extraordinary delay test

confirm that it is a poor fit for retrospectively temporary

takings cases. Because the taking accrues when a permit

is denied, a property owner who waits for an extraordinary

delay risks being time-barred from bringing a takings

claim. See B & B Enters. of Wilson County, LLC v. City

of Lebanon, 318 S.W. 839, 843 (Tenn. 2010) (property

owner was time-barred from bringing a takings claim

because “the statute of limitations began to run when

the planning commission declined to approve the final

subdivision plans”); see also id. at 847–48 (rejecting

argument that the statute of limitations was tolled

because the property owner pursued judicial review of

the Planning Commission’s decision in a timely manner).

Nor should the government get a free pass for the time it

takes a court to conclude that its actions worked a taking.

Cf. App. 10a (Sixth Circuit’s refusal to fault Warrensville

for “how quickly the case moved” through “the various

judicial appeals processes” after Petitioners appealed

the city’s denial of their application) (citing Sunrise, 420

F.3d at 330). A state court decision cannot be viewed as

a part of the city’s regulatory process—especially since

property owners need not “exhaust[] state remedies”

before bringing a takings claim in federal court. App.

5a and n.2 (citing Knick, 588 U.S. at 194). And property

owners who vindicate their right to just compensation in

any forum are entitled to interest from the time that the

property was taken. See Knick, 588 U.S. at 190.

The extraordinary delay test improperly puts

property owners to the task of proving bad faith on the

part of government officials. See App. 8a. Such a test is

“not a valid method of discerning whether private property

has been ‘taken’ for purposes of the Fifth Amendment.”

Lingle, 544 U.S. at 542. Instead, the relevant focus in a

takings case is on the “magnitude or character of the

burden a particular regulation imposes upon private

property rights.” Id. (emphasis in original). This Court

has explained that an inquiry into whether a regulation

“substantially advance[s] legitimate state interests” is

“not a valid takings test.” Id. at 531, 545. It should say

the same about the government’s motives, which like the

“substantially advances” test, says “nothing about the

actual burden imposed on property rights.” Id. at 543. This

Court should grant the petition to make it clear that the

extraordinary delay test has no place in cases involving

retrospectively temporary takings.

II. This Court Should Decide Whether the Absence

of Extraordinary Delay in the Permitting Process

Categorically Defeats a Takings Claim

Courts are Divided on Whether a Lack of

Extraordinary Delay in the Permitting Process

by Itself Defeats a Takings Claim

The decision below deepens a split among courts and

commentators alike on whether a court must (1) deny

relief to every plaintiff who cannot show an extraordinary

delay in the permitting process or (2) consider permitting

delays alongside the rest of its Penn Central analysis in

regulatory takings cases. Compare Daniel L. Siegel &

Robert Meltz, Temporary Takings: Settled Principles

and Unresolved Questions, 11 Vt. J. Envtl. L. 480, 492

(2010) (contending that a delay must be extraordinary

to ripen a takings claim), with Spohr, supra, at 10453

(contending that “if the applicant can meet Penn Central,

the government should pay compensation, whether or not

it was guilty of extraordinary delay”). The lower courts

are divided—with the Sixth Circuit joining the Federal

Circuit on one side of the split and the supreme courts of

Ohio, South Carolina, and North Dakota on the other. See

Siegel & Meltz, supra, at 488–93 (cataloging the split).

1. Like the Sixth Circuit, the Federal Circuit

requires property owners to show that there has been

an extraordinary delay in the permitting process before

the court will even apply Penn Central. See Appolo Fuels,

Inc. v. United States, 381 F.3d 1338, 1351–52 (Fed. Cir.

2004). Appollo Fuels involved a company’s contention

that the government’s 18-month delay in processing a

petition, which exceeded the time frame mandated by

statute, led to a temporary taking of the company’s mining

rights. Id. at 1351. In rejecting that claim, the Federal

Circuit opined that delay “in the regulatory process

cannot give rise to takings liability unless the delay is

extraordinary.” Id. Relying on precedent in which “there

was no extraordinary delay despite a nearly ten-year

permitting process,” the court held that the “eighteenmonth delay here is far short of extraordinary.” Id. at

1351–52 (citing Wyatt, 271 F.3d at 1097–100). Although the

court applied the Penn Central factors elsewhere in its

opinion, it suggested that the Penn Central analysis is only

appropriate “if the delay were considered extraordinary.”

Id. at 1352. 5 Although the Federal Circuit disagrees with

the Sixth Circuit on whether the extraordinary delay test

is proper in cut-short takings, both courts view a lack

of extraordinary delay as not just the beginning of the

analysis, but the end of it too.

2. By contrast, the Supreme Court of Ohio “weigh[s]

all relevant factors under the Penn Cent. test, one of

which is the length of any delay.” State ex rel. Duncan

v. Middlefield, 898 N.E.2d 952, 956 (Ohio 2008). In

Middlefield, the court did not end its analysis after

concluding that neither of the delays suffered by the

property owner was extraordinary. See id. at 957. Instead,

the Court ruled against the property owner only after

applying Penn Central and considering any adverse

5. Although the Federal Circuit has not been consistent

about the rule that it applies, see Siegel & Meltz, supra, at 488–92,

more recent cases from the Court of Federal Claims indicate that

Appollo Fuels provides the governing standard. See Aloisi, 85

Fed. Cl. at 93 (noting that the court applies Penn Central only if it

first determines there is extraordinary delay by the government);

Resource Investments, 85 Fed. Cl. at 494–95.

economic effect caused by the delay and whether the

delay interfered with the owner’s investment-backed

expectations. See id.; see also State ex rel. AWMS Water

Solutions, LLC v. Mertz, 165 N.E.3d 1167, 1188–90 (Ohio

2020) (considering delay as part of the Penn Central

analysis). Thus, property owners like Petitioners face

different standards depending on whether their case

proceeds in state or federal court. That Petitioners’

takings claim was vanquished only because it could not

show extraordinary delay is a result not of uniformity in

the lower courts, but of Respondents’ choice to remove it

to federal court.

In Byrd v. City of Hartsville, 620 S.E.2d 76, 81

(S.C. 2005), the Supreme Court of South Carolina also

examined delays as part of its Penn Central analysis.

There, the Court did not reach its decision based solely on

whether there had been extraordinary delay but evaluated

how the delay affected the property owner’s economically

beneficial use or interfered with his investment-backed

expectations. See id. at 81–82; see also Siegel & Meltz,

supra, at 490 (Byrd “assumed that any permitting delay

is ripe for takings review, and that the delay is considered

as part of a Penn Central analysis.”). In Wild Rice River

Estates, Inc. v. City of Fargo, 705 N.W.2d 850, 857–59

(N.D. 2005), the North Dakota Supreme Court similarly

considered delays as part of its Penn Central analysis. If

Petitioners raised their claim in the state courts of North

Dakota, South Carolina, or even their home state of Ohio,

the lack of a delay that the court considered extraordinary

could not have categorically defeated their takings claim.

B. The Decision Below Contradicts This Court’s

Precedents

This Court’s precedents reject the notion that a

property owner must show extraordinary delay to mount

a successful takings challenge. As this Court noted in

Tahoe-Sierra, “the duration of the restriction” is not

dispositive, but “one of the important factors that a

court must consider” in a regulatory takings case. 535

U.S. at 342. Thus, courts must evaluate prospectively

temporary takings by “relying on the familiar Penn

Central approach” rather than by fashioning a new rule.

Id.6 The decision below refused to apply Penn Central

and instead affirmed judgment for the government

after concluding that Petitioners failed to meet the

extraordinary delay test. But there is no reason why

length of time should play a dispositive role in a takings

claim or why the government’s motives should play any

role in it.

Start w ith length. A lthough the duration of a

restriction on property may inform a “landowners’

investment-backed expectations” or “the actual impact” of

the restriction, there is no basis to decline to evaluate those

factors merely because the duration of the government’s

restriction is short. The duration-above-all theory of the

Takings Clause conflicts with both law and logic. Courts

have refused to deem delays extraordinary even when they

last many years. See supra at 10. Yet even short delays

could result in significant harm to the property owner. A

6. Nor did the Sixth Circuit’s analysis in this case track the

analysis in the Tahoe-Sierra dissent, which looked to whether the

moratoria at issue “resemble[d] any traditional land-use planning

device.” 535 U.S. at 343 (Rehnquist, C.J., dissenting).

30-month-long delay in California, for example, caused the

property owner to suffer over half a million dollars in lost

profits and over $300,000 more in increased construction

costs. See Lockaway Storage, 216 Cal. App. 4th at 173.

That the extraordinary delay test makes bad faith

all but a requirement also makes it a poor fit for any

type of a temporary takings case. See Wyatt, 271 F.3d at

1098 (Fed Cir. 2001) (“[I]t is the rare circumstance that

[courts] will find a taking based on extraordinary delay

without a showing of bad faith.”). As discussed above

(at 19), the “notion that such a regulation nevertheless

‘takes’ private property for public use merely by virtue

of its ineffectiveness or foolishness is untenable.” Lingle,

544 U.S. at 543. Instead, the Takings Clause calls for an

inquiry about the objective “magnitude or character of

the burden a particular regulation imposes upon private

property rights,” Id. at 542 (emphasis in original), rather

than the subjective motivations of any government

employee. Regardless of whether a property owner

suffers a taking at the hands of an official who is malicious,

apathetic, or just busy, the Takings Clause “bar[s]

Government from forcing [the property owner] alone to

bear public burdens which, in all fairness and justice,

should be borne by the public as a whole.” Armstrong v.

United States, 364 U.S. 40, 49 (1960).

In sum, the decision below was wrong to provide a

functional safe harbor for government officials who take

property in good faith or for a short time. This Court’s

precedents make it plain that extraordinary delay is the

beginning of the analysis and not the end of it.

III. This Case Presents an Excellent Vehicle to Resolve

Unsettled Questions of Nationwide Importance

This Case Presents an Excellent Vehicle

This case presents an excellent vehicle for this Court

to resolve unsettled issues surrounding the extraordinary

delay test. First, without the Sixth Circuit’s application of

the extraordinary delay test to Petitioners’ permit denial,

there would be no basis for granting Warrensville’s motion

for judgment on the pleadings. As the Sixth Circuit noted,

if the delay were considered extraordinary, Petitioners

would have had a cognizable takings claim. See App.

10a–11a, n.4 (“Should Warrensville continue to refuse

Richmond Road its court-ordered permit, its delays might

become extraordinary and constitute a taking, though

that question is not before us.”). If the Sixth Circuit had

instead refused to apply the extraordinary delay test in a

retrospectively temporary takings case involving a permit

denial or considered the government’s delay as a factor in

the Penn Central analysis, rather than a prerequisite for a

regulatory takings claim, Petitioners would have properly

alleged a regulatory takings claim. Cf. App. 19a–20a

(noting that a motion for judgment on the pleadings is

generally reviewed under the same standard as a motion

to dismiss). In short, the Sixth Circuit’s resolution of the

questions presented was dispositive to its affirmance of

the judgment below.

Second, given the procedural posture of this case,

there are no factual or legal issues that could hinder this

Court’s review. It is now settled that Richmond Road owns

the relevant property, that Petitioners’ proposed use was

permitted under the City’s Ordinances, and that the City

unlawfully denied Petitioners’ permit under Ohio Law.

See App. 42a, 50a. Although the district court initially

suggested that extraordinary delay was necessary to

establish a cognizable property interest, see App. 23a,

it later appeared to walk back any reliance on that part

of its opinion. See App. 36a, n.6 (declining to challenge

Petitioners’ contention that they have alleged “a cognizable

property interest based on their lost rental income”).

In any event, the Sixth Circuit correctly assumed “that

Richmond Road had a property interest” protected

by the Takings Clause. App. 7a. Warrensville’s denial

of Petitioners’ permit implicated cognizable property

interests because it prevented them from using and

leasing its property as permitted under the City’s zoning

ordinances. See PruneYard Shopping Ctr. v. Robins, 447

U.S. 74, 83, n.6 (1980) (“the term ‘property’ as used in

the Taking Clause includes the entire ‘group of rights

inhering in the citizen’s [ownership],’ including the ‘right

to possess, use and dispose of it.’”) (citing United States

v. Gen. Motors Corp., 323 U.S. 373, 378 (1945)); see also

Okey v. City of All. Plan. Comm’n, 138 N.E.3d 649, 652

(Ohio App. 5th Dist. 2019) (noting that the permitted

use here, in contrast to a conditional use, is allowed as a

matter of right).

B. The Questions Presented are Exceptionally

Important

The issues presented are important, recurring, and of

national significance. As the President’s 2024 Economic

Report details, the United States is suffering from a

massive housing shortage of between 1.5 million to 3.8

million units. Executive Office of the President Council

of Economic Advisers, Economic Report of the President

(2024) at 148 (March 21, 2024). The decline of smaller

homes and low-cost rental units has been especially

pronounced. Id. at 149. Construction of single-family

homes under 1,400 square feet has “declined from 40

percent in the early 1970s to about 7 percent in the early

2020s.” Id. And the supply of low-cost rental units “fell

from 26.7 percent in 2011 to 17.1 percent in 2021,” which

is “equivalent to the loss of 3.9 million affordable units in

the last decade after adjusting for inflation.” Id.

Permitting is the number one cause of construction

delay.7 Permitting delays contribute to the housing

shortage “by increasing the cost of new housing

development, leading would-be deals to not pencil out.”8 As

this Court recently noted, complex and lengthy permitting

7. The National Multifamily Housing Council’s Quarterly

Survey of Apartment Construction and Development Activity in

March 2025 found that 79% of reported delays in construction

were delays due to permitting. Quarterly Survey Of Apartment

Construction & Development Activity, National Multifamily Housing

council (March 27, 2025), https://www.nmhc.org/research-insight/

nmhc-construction-survey/2025/quarterly-survey-of-apartmentconstruction-development-activity-march-2025/; see also Increasing

the Housing Supply by Reducing Costs and Barriers, National

Conference of State Legislatures (June 7, 2024), https://www.ncsl.

org/human-services/increasing-the-housing-supply-by-reducingcosts-and-barriers (reporting that 97% of developers experienced

delay and that 83% of the delays were due to permitting).

8. Reforming Permitting Requirements to Lower the Cost of

Building New Housing and Increase Housing Affordability, The

White House (August 13, 2024), https://bidenwhitehouse.archives.

gov/cea/written-materials/2024/08/13/reforming-permittingrequirements-to-lower-the-cost-of-building-new-housing-andincrease-housing-affordability/

processes hinder construction projects, resulting in more

expensive development and fewer jobs. See Seven Cnty.

Infrastructure Coalition v. Eagle Cnty., Colorado, 145

S. Ct. 1497, 1513–14 (2025) (discussing the negative social

and economic costs of “delay upon delay” in the context of

permitting under the National Environmental Policy Act).

Permitting requirements for private land use similarly

increase the cost of development by “increasing soft

costs, administrative burdens, uncertainty, and delays.”9

For example, even a single month of delay can increase

the cost of a building by $4,400.10 And in cities like Los

Angeles, “where new apartments can average $600,000

per unit and the cost of capital averages 8%, a month of

delay would add $4,000 per unit.”11

The extraordinary delay test adopted by the decision

below—and decisions of other appellate courts on its

side of the split—exacerbates the problem of permitting

delays. The test requires property owners to satisfy one

multi-factor test, which all but requires a showing of bad

faith, before satisfying another under the Penn Central

framework. This requirement of piecemeal litigation is

not just unfounded in precedent, see supra at 23–24,

but burdensome in practice. See Aloisi, 85 Fed. Cl. at 96

(property owners must “overcome the strong presumption

that the government acted in good faith”). The only thing

more expensive than a permitting delay might be the

expense it takes to litigate it.

9. Id.

10. Id.

11. Manville, M., Monkkonen, P., Gray, N., & Phillips, Does

Discretion Delay Development? The Impact of Approval Pathways

on Multifamily Housing’s Time to Permit, Volume 89 Number 3 J.

Am. Plan. Assoc. 336, 338 (2023) (emphasis added).

The Sixth Circuit’s decision to apply the extraordinary

delay test to retrospectively temporary takings involving

permit denials undermines the Fifth Amendment’s

promise of securing Just Compensation for property

owners. The test essentially asks property owners to

make do with a court’s reversal of the permit denial.

Yet the mere invalidation of a taking typically falls “far

short of fulfilling the fundamental purpose of the Just

Compensation Clause,” which “was designed to bar the

government from forcing some individuals to bear burdens

which, in all fairness, should be borne by the public as a

whole.” San Diego Gas & Elec. Co. v. City of San Diego,

450 U.S. 621, 656 (1981) (Brennan, J., dissenting) (citing

Armstrong, 364 U.S. at 49). And it is no answer to force

the property owner to bear the burden of a judicial review

process that it had to initiate because of the government’s

taking. See App. 10a. That process can itself involve

multiple appeals that ultimately pile on expenses in the

form of attorneys’ fees (and other costs) and take years

to resolve. See, e.g., Willow Grove, Ltd. v. Olmsted Twp.

Bd. of Zoning Appeals, 207 N.E.3d 779, 784 (Nine years

to reverse permit denial); Carlson v. Town of Beaux Arts

Village, 704 P.2d 663, 664 (Wash. App. Div. 1 1985) (Four

years to reverse site application denial).

The Sixth Circuit’s decision to require extraordinary

delay before even considering other factors, such as

economic impact and interference with investmentbacked expectations, also places an unjustified burden on

property owners. Courts applying the extraordinary delay

test have blessed delays lasting many years. See supra at

10. Yet even short delays in the permitting process can

cause significant harm to property owners, see Lockaway

Storage, 216 Cal. App. 4th at 173 (thirty-month delay

caused nearly a million dollars in damages),12 and even

end important projects.13

In the end, permit denials and permit delays cause

significant harm to property owners. Yet governments

routinely look for ways to avoid takings liability. See San

Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621,

655–56, n.22 (1981) (Brennan, J., dissenting). Certiorari is

warranted to ensure the extraordinary delay test does not

nullify the property owner’s right to just compensation.

12. Due to permit delays, a wedding venue in Tampa, FL lost

almost $1 million dollars in canceled events. Erikia Kengi, Many

canceled weddings later, the Rusty Pelican is ready to reopen,

Tampa Bay Times (July 9, 2025) https://www.tampabay.com/news/

business/2025/07/09/many-canceled-weddings-later-rusty-pelicanis-ready-reopen/.

13. Two-year permit delay threatened a much-needed affordable

housing project in Pittsburgh. Andy Sheen, Developers blame city for

delays in big Bakery Square expansion, CBS News (July 26, 2024).

https://www.cbsnews.com/pittsburgh/news/developers-blame-citydelays-bakery-square-expansion/.

CONCLUSION

The petition for a writ of certiorari should be granted.

Dated: July 21, 2025

Respectfully submitted,

A nthony J. Coyne

Diane A. Calta

A dam R. Uth

Mansour Gavin LPA

North Point Tower

1001 Lakeside Avenue,

Suite 1400

Cleveland, OH 44114

(216) 523-1500

Wencong Fa

Counsel of Record

Ben Stormes

Beacon Center of Tennessee

1200 Clinton Street,

Suite 205

Nashville, TN 37203

(615) 383-6431

wen@beacontn.org

Counsel for Petitioners

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED MARCH 7, 2025 . . . . . 1a

A P PEN DI X B — M EMOR A N DU M OF

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

N O R T H E R N DI S T R I C T O F O H I O ,

EASTERN DIVISION, FILED MAY 9, 2024 . . . 15a

A PPEN DI X C — M EMOR A N DU M

OPINION AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE

N O R T H E R N DI S T R I C T O F O H I O ,

EASTERN DIVISION, FILED JULY 22, 2024 . . 26a

A PPENDIX D — OPINION AND ORDER

OF THE COURT OF COMMON PLEAS

FOR THE CUYAHOGA COUNTY, OHIO,

DATED OCTOBER 3, 2023 . . . . . . . . . . . . . . . . . . . 41a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT, FILED MARCH 7, 2025

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 24-3502

RICHMOND ROAD PARTNERS, LLC;

STEP FORWARD,

Plaintiffs-Appellants,

CITY OF WARRENSVILLE HEIGHTS; CITY

OF WARRRENSVILLE HEIGHTS PLANNING

COMMISSION; CITY OF WARRENSVILLE

HEIGHTS BUILDING COMMMISSIONER,

Defendants-Appellees.

Filed March 7, 2025

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

OPINION

Before: BATCHELDER, LARSEN, and RITZ, Circuit

Judges.

Appendix A

LARSEN, Circuit Judge. Richmond Road Partners,

LLC applied for a site plan approval to lease one of

its buildings for use as a Head Start preschool. The

Warrensville City Council denied Richmond Road’s

application. On administrative appeal, a state court

found that the permit denial was arbitrary and ordered

Warrensville to grant the permit. While the administrative

appeal was pending, Richmond Road sued the City, arguing

that the permit denial and delay constituted a regulatory

taking. The district court granted Warrensville’s motion

for judgment on the pleadings, concluding that Richmond

Road had failed to allege a cognizable property interest

or a taking. Richmond Road appeals. We AFFIRM.

In 2022, Richmond Road agreed to lease one of its

properties to Step Forward, an Ohio non-profit school

that provides Head Start early education services for lowincome families in the Cleveland, Ohio area. The relevant

property is zoned as U-7A, which permits “[p]ublic and

private schools, universities, colleges, professional schools,

vocational schools, and related education facilities” or

“[n]onprofit educational and scientific research agencies.”

R. 1-1, PageID 9-10. Richmond Road submitted a site plan

application to the Warrensville Planning Commission

seeking a conditional use permit to open a Head Start

“daycare” center. R. 11, PageID 66. The Planning

Commission and the City Council denied the application

because daycares are not a permitted use. Richmond

Road then resubmitted its application for approval as a

school and/or a non-profit educational agency. Richmond

Appendix A

Rd. Partners v. City of Warrensville Heights, 2024 WL

2080737, at *1 (N.D. Ohio May 9, 2024). The Planning

Commission also denied this second application. The

Commissioners provided little explanation why, merely

voicing that they did not think this was an appropriate

location for a school (despite its being zoned as such). The

City Council also denied Richmond Road’s application. In

March 2023, Richmond Road appealed the denial to the

Cuyahoga County Court of Common Pleas (“state court”)

under Ohio Revised Code § 2506, which allows a party to

appeal final decisions by political subdivisions to the local

county court of common pleas. Id.

Alongside its appeal, Richmond Road filed this

complaint in state court. Richmond Road brought four

claims: (1) seeking a declaration that Warrensville’s permit

denial was arbitrary; (2) arguing Warrensville violated

the Fifth Amendment’s Just Compensation Clause; (3)

seeking a mandatory injunction directing Warrensville

to start state appropriations proceedings to compensate

Richmond Road for lost rents; and (4) a claim under 42

U.S.C. § 1983 for violation of the Fifth and Fourteenth

Amendments and Article I § 19 of the Ohio Constitution.

Id. at *2. Warrensville removed the case to federal court.

In October 2023, the state court resolved the

administrative appeal, finding that the City Council’s

permit denial “ was arbitrary, unreasonable, and

unsupported by the preponderance of the submitted

evidence.” Id. at *1. The state court remanded the matter,

directing Warrensville to grant Richmond Road its

permit.

Appendix A

In May 2024, the federal district court granted

Warrensville’s motion for judgment on the pleadings and

dismissed all claims. It reasoned that the state court’s

administrative decision determining that Warrensville

acted arbitrarily in denying the application mooted

Richmond Road’s request for declaratory relief on

this issue. Id. at *3. The district court then found that

Richmond Road had not adequately alleged a cognizable

property interest in the permit it sought and, even if it had,

it failed to demonstrate a taking because it had not shown

that the delay in getting the permit was extraordinary.

Id. at *3-4. Richmond Road now appeals.1

II.

We review de novo a district court’s grant of judgment

on the pleadings under Federal Rule of Civil Procedure

12(c), applying the same standard of review as a Rule

12(b)(6) decision. Jackson v. City of Cleveland, 925

F.3d 793, 806 (6th Cir. 2019). Courts must construe the

1. Just before filing its notice of appeal, Richmond Road

asked the district court to reconsider its decision under Rule 59(e).

We held the appeal in abeyance pending resolution of the Rule

59(e) motion. In that motion, Richmond Road largely reiterated

its arguments in opposition to judgment on the pleadings. The

district court denied the motion for its previously stated reasons.

Richmond Road did not amend its notice of appeal to include the

Rule 59(e) motion. All that is before us, therefore, is the district

court’s grant of judgment on the pleadings. See JGR, Inc. v.

Thomasville Furniture Indus., Inc., 550 F.3d 529, 532 (6th Cir.

2008) (“[A] court of appeals has jurisdiction only over the areas of

a judgment specified in the notice of appeal as being appealed.”).

Appendix A

complaint “in the light most favorable to the plaintiff”

and accept all well pleaded allegations as true when

determining whether the complaint states, “a claim to

relief that is plausible on its face.” Id. (quoting Doe v.

Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018)). In doing

so, we “focus only on the allegations in the pleadings.”

Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 480,

483 (6th Cir. 2020).

The district court granted Warrensville judgment on

the pleadings, concluding that Richmond Road had failed

to allege a taking within the meaning of either the federal

or Ohio constitutions. We agree.

The Takings Clause of the Fifth Amendment prohibits

government from taking private property for public use

without just compensation, see U.S. Const. amend. V, and

applies to the states via the Fourteenth Amendment. See

Chi., Burlington & Quincy R.R. Co. v. City of Chicago,

166 U.S. 226, 236 (1897). The Supreme Court has devised

different tests for assessing various types of takings. 2

2. Until recently, a party had to prove that the local

government’s land use decision was sufficiently final, which meant

essentially exhausting state processes before it could bring a

§ 1983 claim for violation of the Fifth Amendment. See Williamson

Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City,

473 U.S. 172 (1985). But the Supreme Court overturned that

requirement, holding that a property owner has an actionable

Fifth Amendment takings claim when the government takes his

property without paying for it, and can therefore bring a § 1983

Appendix A

See Lingle v. Chevron, U.S.A., 544 U.S. 528, 548 (2005)

(discussing the different takings tests). The Court’s test

set forth in Penn Central Transportation Co. v. City

of New York, 438 U.S. 104 (1978) governs the question

here—“whether a [property] use restriction effects a

taking.” Cedar Point Nursery v. Hassid, 594 U.S. 139, 148

(2021). Such takings are commonly known as “regulatory

takings.” Id. at 149. When considering whether a

regulatory taking has occurred, we first ask “whether the

claimant has established a cognizable property interest for

the purposes of the Just Compensation Clause.” Puckett

v. Lexington-Fayette Urb. Cnty. Gov’t, 833 F.3d 590,

609 (6th Cir. 2016) (citation omitted). Next, we apply the

“Penn Central factors” to determine whether a taking

has occurred. Cedar Point, 594 U.S. at 156. Penn Central

directs courts to “balanc[e] factors such as the economic

impact of the regulation, its interference with reasonable

investment-backed expectations, and the character of the

government action.” Id. at 148. The same is true under

Article I § 19 of the Ohio Constitution, which in this

context, tracks the federal rule. 3 See Wymsylo v. Bartec,

claim in federal court at that time without first exhausting state

remedies. Knick v. Twp. of Scott, 588 U.S. 180, 194 (2019).

3. Warrensville correctly explains that the Ohio Supreme

Court has interpreted Article I § 19 of the Ohio Constitution

to provide greater protection than federal law in the physical

takings context when it came to what constitutes a “public use.”

See Norwood v. Horney, 853 N.E.2d 1115, 1136, 1141 (Ohio 2006).

Those greater protections are not at issue here in the regulatory

takings context, however.

Appendix A

Inc., 970 N.E.2d 898, 912-14 (Ohio 2012) (applying Penn

Central).

In this case, we assume that Richmond Road had a

property interest protected by the federal Takings Clause

and the Ohio Constitution. Even so, Warrensville’s permit

denial was not a taking under either federal or Ohio law.

In Agins v. City of Tiburon, the Supreme Court

rejected a landowner’s complaint that a municipality’s

“precondemnation activities” had amounted to a taking.

447 U.S. 255, 263 n.9 (1980), abrogated on other grounds,

Lingle, 544 U.S. 528. The Court reasoned that “[m]ere

fluctuations in value during the process of governmental

decisionmaking, absent extraordinary delay, are ‘incidents

of ownership. They cannot be considered as a ‘taking’ in

the constitutional sense.’” Id. (quoting Danforth v. United

States, 308 U.S. 271, 285 (1939)). Relying on Agins, the

district court in this case concluded that Richmond

Road’s loss of rents during the government’s decisionmaking process, including the appeal to the state court,

did not constitute a taking because the delay was not

extraordinary. Richmond Rd., 2024 WL 2080737, at

*3-4.

When deciding whether a taking occurred under

the Fifth Amendment, federal courts regularly apply

Agins’ “extraordinary delay” standard to administrative

decisions. See, e.g., Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Plan. Agency, 535 U.S. 302, 334-35, 341-42

(2002) (rejecting arguments that a temporary moratorium

on development was a regulatory taking because the

Appendix A

delay was “not unreasonable”); Mich. Chrome & Chem.

Co. v. City of Detroit, 12 F.3d 213 (Table), at *9 (6th Cir.

1993) (applying the “extraordinary delay” standard to

a master airport plan); Bridge Aina Le’a, LLC v. Land

Use Comm’n, 950 F.3d 610, 618, 631 (9th Cir. 2020)

(applying the “extraordinary delay” standard to the

reversion of zoning classifications from urban back to

agricultural); Sunrise Corp. of Myrtle Beach v. City of

Myrtle Beach, 420 F.3d 322, 330 (4th Cir. 2005) (applying

the “extraordinary delay” standard to the issuance of

building permits). The same is true in Ohio. See State ex

rel. Duncan v. Middlefield, 898 N.E.2d 952, 956-57 (Ohio

2008) (endorsing the “extraordinary delay” standard

and holding that “[u]ntil regulatory delay becomes

unreasonable, there is no taking”).

The Supreme Court has been careful to distinguish,

however, between extraordinary delay, which may

constitute a taking, and “the quite different questions

that would arise in the case of normal delays in obtaining

building permits, changes in zoning ordinances, variances,

and the like.” First English Evangelical Lutheran Church

of Glendale v. Los Angeles County, 482 U.S. 304, 321

(1987). So the issue here is whether Warrensville’s delay

in granting the permit is extraordinary or routine. To

resolve that question, courts weigh “all relevant factors,

including the length of the delay,” “bad faith on the part of

the government,” and “any delay that the interestholder’s

conduct caused.” State ex rel. AWMS Water Sols., L.L.C.

v. Mertz, 165 N.E.3d 1167, 1188 (Ohio 2020) (cleaned up);

Wyatt v. United States, 271 F.3d 1090, 1098 (Fed. Cir.

2001) (applying these same factors and the “nature of the

permitting process as well as the reasons for any delay”).

Appendix A

When, as in this case, “a development permit . . . is

denied in a land use regulatory process, but that denial is

later held invalid by a reviewing court,” courts “generally

have rejected” the claim that the delay amounted to

a “compensable [] regulatory taking” under the Fifth

Amendment. Edward H. Ziegler, Jr., First English and

normal delays—Illegal permit denial and temporary

takings, 1 Rathkopf’s The Law of Zoning and Planning

§ 6:28 (4th ed.). Courts frequently hold that the time

necessary for review, including judicial review, falls under

First English’s “normal delay” distinction. Id.; see Sunrise,

420 F.3d at 330 (“As a general rule, a delay in obtaining

a building permit is not a taking but a non-compensable

incident of ownership.”); Smith v. City of Brenham, 865

F.2d 662, 663 (5th Cir. 1989) (holding that a four-year

delay in granting a permit was not sufficient for a taking);

see also Smith v. Town of Wolfeboro, 615 A.2d 1252, 1258

(N.H. 1992) (“The delay inherent in the statutory process

of obtaining [the permit], including appeals to the superior

court and to this court, is one of the incidents of ownership

. . . [which] must be borne by the property owner and does

not give rise to a compensable taking.”); Byrd v. City

of Hartsville, 620 S.E.2d 76, 81 (S.C. 2005) (“[N]ormal

delays in obtaining building permits . . . have long been

considered permissible exercises of the police power.

Until regulatory delay becomes unreasonable, there is no

taking.” (internal citations omitted)). Were that not the

case, “[a] rule that required compensation for every delay

in the use of property would render routine government

processes prohibitively expensive or encourage hasty

decisionmaking.” Tahoe-Sierra, 535 U.S. at 335.

10a

Appendix A

Applying federal and Ohio takings precedent to

Richmond Road’s claims shows there was no taking

here. There was a one-year delay between Warrensville’s

permit denial and the state Court ordering Warrensville

to issue the permit to Richmond Road. In the bureaucratic

world, such delays are not extraordinary. See, e.g., Wyatt,

271 F.3d at 1098 (gathering cases showing that much

longer delays were not extraordinary). What’s more,

the “bulk of the delay that [Richmond Road] claim[s]

was extraordinary was a result of the process to appeal

[Warrensville’s] decision.” Sunrise, 420 F.3d at 330. In

fact, Richmond Road may even have contributed to the

delay by first submitting its application as a “daycare”

facility and submitting the corrected application only

on its second try. Richmond Rd., 2024 WL 2080737, at

*1. Even if we were to agree that a one-year delay was

unreasonable in this situation, Warrensville lacked “any

control over how quickly the case moved under state law

through the various judicial appeals processes.” Sunrise,

420 F.3d at 330. Warrensville was thus not the offending

entity on the delay front up until the state court’s decision.

Cf. Anderson v. Charter Twp. of Ypsilanti, 266 F.3d 487,

498 (6th Cir. 2001) (dismissing a claim of unreasonable

delay against a township because the delay was caused by

the reviewing court). As for bad faith on the government’s

part, Richmond Road does not allege any.

Accordingly, we cannot agree with Richmond Road

that the denial and subsequent delay in issuing the permit

was a regulatory taking.4

4. Richmond Road represents that, as of the time it filed

its initial appellate brief in our court, Warrensville had “neither

11a

Appendix A

Richmond Road also argues that its claim could be

read to contend that Warrensville violated its substantive

due process rights. It asks us to remand for the district

court to consider that argument. But Richmond Road did

not raise a substantive due process claim in the district

court, so it is forfeited. Bannister v. Knox Cnty. Bd. of

Educ., 49 F.4th 1000, 1011 (6th Cir. 2022).

In its complaint, Richmond Road alleged in the most

general of terms that Warrensville “deprived Plaintiffs of

their civil rights guaranteed by the Fifth and Fourteenth

Amendments.” R. 1-1, PageID 13 ¶ 30. Richmond Road

never alleged anything further concerning a due process

claim, however. In its next filing—its opposition to

judgment on the pleadings—Richmond Road again failed

even to mention its supposed substantive due process

claim when arguing that the district court should not

dismiss its complaint. Richmond Road twice mentions

the Fourteenth Amendment, but only in connection with

the Fifth Amendment, which of course is the source of

the incorporated Takings rights its briefing did discuss.

See Chi., Burlington, 166 U.S. at 236. The district court

understandably did not discuss a Fourteenth Amendment

substantive due process claim when granting judgment

granted [its] Site Plan application nor issued the corresponding

zoning permit” as ordered by the state court, nearly one year

earlier. Nor has Warrensville appealed the court’s decision. Should

Warrensville continue to refuse Richmond Road its court-ordered

permit, its delays might become extraordinary and constitute a

taking, though that question is not before us.

12a

Appendix A

on the pleadings because Richmond Road did not fairly

present that claim. And Richmond Road cannot raise

the argument for the first time on appeal. See Peters

Broad. Eng’g, Inc. v. 24 Cap., LLC, 40 F.4th 432, 443

(6th Cir. 2022) (explaining that appellate courts do “not

ordinarily address new arguments raised for the first

time on appeal”).

Richmond Road finally argues that the district

court abused its discretion by exercising supplemental

jurisdiction over its takings claim under the Ohio

Constitution rather than remanding the claim to state

court. 5 We disagree.

We review a district court’s exercise of supplemental

jurisdiction over state-law claims for an abuse of discretion.

Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir.

2010). In analyzing whether a court abused its discretion,

we weigh the “values of judicial economy, convenience,

fairness, and comity.” Id. “When all federal claims are

dismissed before trial, the balance of considerations

usually will point to dismissing the state law claims, or

5. The district court dismissed Richmond Road’s state

takings claim in its grant of judgment on the pleadings without

explicitly discussing Ohio takings jurisprudence. See Richmond

Rd., 2024 WL 2080737, at *4. In its denial of Richmond Road’s Rule

59(e) motion, the court clarified, however, that “to the extent it was

unclear” in its original opinion, “the Court finds that Plaintiffs

failed to plead a takings claim under Article I, § 19 of the Ohio

Constitution.” R. 27, PageID 306 n.4.

13a

Appendix A

remanding them to state court if the action was removed.”

Id. at 952. But this is not an invariable rule.

We see no abuse of discretion here. Richmond Road

argues that the district court abused its discretion because

(1) a remand would not waste judicial resources since

no discovery has occurred and (2) there are remaining

complex state law questions. But this case was on the

district court’s docket for about eight months before the

court granted Warrensville’s motion for judgment on the

pleadings. The court was thus “familiar with the facts,

and a significant amount of time had been invested in the

litigation by everyone involved.” Stevens v. Saint Elizabeth

Med. Ctr., Inc., 533 F. App’x 624, 633 (6th Cir. 2013).

Moreover, no discovery was needed, as the matter turned

on a question of law. Remanding these claims to state court

when they were easily resolvable in federal court would

have delayed a straightforward resolution, conserving

everyone’s resources. And, as we have explained, Ohio’s

regulatory takings jurisprudence largely mirrors federal

takings law.

Richmond Road argues that the district court should

have remanded the Ohio claims to state court to determine

whether the “substantially advances” test for judging

regulatory takings survives under the Ohio Constitution.

The Ohio Supreme Court, following federal takings law,

adopted that test in State ex rel. Shemo v. City of Mayfield

Heights, 765 N.E.2d 345 (2002). The U.S. Supreme Court

has since abandoned that test for the federal Constitution.

Lingle, 544 U.S. at 540. And at least one Ohio court has

recognized Shemo’s implicit overruling. See State ex rel.

14a

Appendix A

Anderson v. Obetz, 2008 WL 3319285, at *2-3 (Ohio Ct.

App. Aug. 12, 2008). But even if Shemo is still good law, that

would not merit a remand in this case because Richmond

Road did not meaningfully advance an argument under

the “substantially advances” test before the district court

or before us. In sum, the district court did not abuse its

discretion in exercising supplemental jurisdiction over

Richmond Road’s state-law claim.

***

We AFFIRM the district court’s grant of judgment

on the pleadings.

15a

Appendix B

APPENDIX B — MEMORANDUM

OF OPINION

AND ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

OHIO, EASTERN DIVISION, FILED MAY 9, 2024

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CASE NO. 1:23 CV 01662

RICHMOND ROAD PARTNERS, LLC, et al.,

Plaintiffs,

vs.

CITY OF WARRENSVILLE HEIGHTS, et al.,

Defendants.

Filed May 9, 2024

JUDGE PATRICIA A. GAUGHAN

MEMORANDUM OF OPINION AND ORDER

Introduction

This matter is before the Court upon defendants’

Motion for Judgment on the Pleadings. (Doc. 11). This

case arises from a zoning dispute wherein municipal

defendants denied plaintiffs’ site plan application, which

16a

Appendix B

was later approved on administrative appeal. For the

following reasons, the motion is GRANTED.

Facts

Plaintiffs Richmond Road Partners, LLC and

Step Forward filed this Complaint for Declaratory

Judgment and Mandatory Injunction (“Complaint”)

against defendants City of Warrensville Heights, City of

Warrensville Heights Planning Commission (“Planning

Commission”), and City of Warrensville Heights Building

Commissioner. This case was originally filed in the

Cuyahoga County Court of Common Pleas1 and removed

to this Court based on federal question jurisdiction.

Plaintiff Step Forward is an Ohio non-profit school

providing Head Start early education services for lowincome families and children in the Cleveland area.

Plaintiff Richmond Road Partners, LLC owns property

in the city of Warrensville Heights that it agreed to

lease to Step Forward for a Head Start program. The

property is zoned U-7A. Warrensville Heights Ordinance

§ 1143.02 requires that buildings and land in the U-7A

zoning district are used for “public and private schools,

universities, colleges, professional schools, vocational

schools and related educational facilities,” or “non-profit

educational and scientific research agencies.” Compl.

¶¶ 11, 13.

1. Richmond Road Par tners , LLC, et al . v. City of

Warrensville Heights, et al., Cuyahoga County Court of Common

Pleas, CV-23-983040, filed July 27, 2023.

17a

Appendix B

In the fall of 2022, plaintiffs submitted a conditional

use permit application seeking approval to open a Head

Start and daycare facility on the property. 2 The Planning

Commission denied the application and the Warrensville

Heights City Council thereafter accepted the Planning

Commission’s recommendation and denied the application.3

Around November 21, 2022, plaintiffs applied to the

Planning Commission for site plan approval for use of

the property as a school and/or a non-profit educational

agency. Around December 12, 2022, plaintiffs appeared

before the Planning Commission and the application was

denied. According to the Complaint, the commissioners

indicated that they did not believe the property was a good

location “for this type of day care, school, or . . . whatever

you want to call it.” Compl. ¶ 12. The City Council denied

the application on February 7, 2023.

On March 8, 2023, plaintiffs filed an administrative

appeal pursuant to Ohio Revised Code § 2506 with the

Cuyahoga County Court of Common Pleas.4 On October

4, 2023, the court found that defendants’ decision denying

plaintiffs’ application for site plan approval was arbitrary,

2. Richmond Road Partners, LLC, et al. v. Warrensville

Heights City Counsel, et al., Cuyahoga County Court of Common

Pleas, CV-23-976289, Opinion and Order dated Oct. 4, 2023 (Kelley,

K.), at 2 (hereinafter “State Court Order”).

3. Id.

4. Richmond Road Partners, LLC, et al. v. Warrensville

Heights City Counsel, et al., Cuyahoga County Court of Common

Pleas, CV-23-976289, filed Mar 8, 2023.

18a

Appendix B

unreasonable, and unsupported by the preponderance of

the submitted evidence. 5 The court remanded the matter,

directing defendants to grant plaintiffs’ application.6

While the administrative appeal was pending, on

July 27, 2023, plaintiffs filed this Complaint, which

asserts four causes of action. Count I seeks a declaration

that defendants’ decision denying plaintiffs’ application

for site plan approval was unconstitutional, arbitrary,

capricious, unreasonable, and without substantial relation

to the public health, safety and morals. Count II is a

takings claim based upon the Just Compensation Clause

of the Fifth Amendment and made applicable to the

states through the Fourteenth Amendment. Count III

is a request for mandatory injunction to proceed with

appropriations proceedings to compensate plaintiffs for

the alleged taking. Count IV is a claim arising under 42

U.S.C. §§ 1983 and 1988 for violations of the Fifth and

Fourteenth Amendments to the United States Constitution

and Article I, Section 19 of the Ohio Constitution based

on the alleged taking.

This matter is now before the Court upon defendants’

Motion for Judgment on the Pleadings.

5. State Court Order, at 8 (“A review of the entire record

reflects that the decision of Appellee Warrensville Heights City

Counsel of February 7, 2023, denying Appellants’ application

for site plan approval for the location of a preschool/educational

facility . . . was arbitrary, unreasonable, and unsupported by the

preponderance of substantial, reliable, and probative evidence.”).

6. Id.

19a

Appendix B

Standard of Review

A “motion for judgment on the pleadings under Rule

12(c) is generally reviewed under the same standard

as a Rule 12(b)(6) motion.” Mellentine v. Ameriquest

Mortg. Co., 515 Fed. Appx. 419, 2013 WL 560515 (6th Cir.

February 14, 2013) (citing EEOC v. J.H. Routh Packing

Co., 246 F.3d 850, 851 (6th Cir.2001)). “For purposes of a

motion for judgment on the pleadings, all well-pleaded

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 entitled to judgment.”

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581

(6th Cir.2007).

Thus, “[w]e assume the factual allegations in the

complaint are true and construe the complaint in the light

most favorable to the plaintiff.” Comtide Holdings, LLC

v. Booth Creek Management Corp., 335 Fed. Appx. 587,

2009 WL 1884445 (6th Cir. 2009) (citing Bassett v. Nat’l

Collegiate Ath. Ass’n, 528 F.3d 426, 430 (6th Cir.2008)).

In construing the complaint in the light most favorable

to the non-moving party, “the court does not accept the

bare assertion of legal conclusions as enough, nor does it

accept as true unwarranted factual inferences.” Gritton v.

Disponett, 335 Fed. Appx. 587, 2009 WL 1505256 (6th Cir.

2009) (citing In re Sofamor Danek Group, Inc., 123 F.3d

394, 400 (6th Cir.1997). As outlined by the Sixth Circuit:

Federal Rule of Civil Procedure 8(a)(2) requires

only “a short and plain statement of the claim

showing that the pleader is entitled to relief.

20a

Appendix B

Specific facts are not necessary; the statement

need only give the defendant fair notice of what

the . . . claim is and the grounds upon which

it rests.” Erickson v. Pardus, 551 U.S. 89, 93

(2007) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007)). However, “[f]actual

allegations must be enough to raise a right to

relief above the speculative level” and to “state

a claim to relief that is plausible on its face.”

Twombly, 550 U.S. at 555, 570. A plaintiff

must “plead[] factual content that allows the

court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.2012).

Thus, Twombly and Iqbal require that the complaint

contain sufficient factual matter, accepted as true, to

state a claim to relief that is plausible on its face based

on factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged. Twombly, 550 U.S. at 570; Iqbal, 556

U.S. at 678. The complaint must contain “more than labels

and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.” Twombly, 550 U.S. at 555.

21a

Appendix B

Discussion

Defendants argue that the Court lacks subject matter

jurisdiction over this action because the decision of the

Court of Common Pleas directing the defendants to grant

plaintiffs’ site approval application renders plaintiffs’

claims moot. Moreover, defendants argue that plaintiffs

fail to allege a viable taking claim.

A. Count I

In Count I, plaintiffs request a declaration from the

Court that defendants’ decision to deny their site approval

application was arbitrary, capricious, and unsupported

by the evidence. While the Court of Common Pleas

reversed defendants’ decision and directed defendants

to grant plaintiffs’ application, plaintiffs argue that their

claims present issues that have not yet been determined

and were expressly reserved by plaintiffs through their

administrative appeal. Opp. at 10.

“Under Article III of the Constitution, a federal

court’s jurisdiction extends only to actual cases and

controversies. A federal court has no power to adjudicate

disputes which are moot.” Ammex, Inc. v. Cox, 351 F.3d

697, 704 (6th Cir. 2003) (citation and alterations omitted).

Claims become moot “when the issues presented are no

longer ‘live’ or parties lack a legally cognizable interest

in the outcome.” Brandywine, Inc. v. City of Richmond,

Kentucky, 359 F.3d 830, 836 (6th Cir. 2004) (citing County

of Los Angeles v. Davis, 440 U.S. 625, 631 (1978)).

22a

Appendix B

Pursuant to the State Court Order, plaintiffs have

received the relief they now request in Count I.7 Therefore,

because defendants have already been directed to grant

plaintiffs’ site plan application, the motion is granted as

to Count I on the basis that the claim is moot.

B. Counts II, III, and IV

Counts II, III, and IV are all based upon an alleged

violation of the Takings Clause. The Takings Clause of

the Fifth Amendment provides that private property shall

not be taken for public use, without just compensation.

U.S. Const. amend. V. The Fourteenth Amendment made

the Takings Clause applicable to the states. Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 536. Courts apply

“a two-part test to evaluate claims that a governmental

action constitutes a taking of private property without

just compensation.” Coal. for Gov’t Procurement v. Fed.

Prison Indus., Inc., 365 F.3d 435, 481 (6th Cir. 2004).

“First, the court must examine whether the claimant

has established a cognizable “property interest” for the

purposes of the Just Compensation Clause.” Id. (citations

omitted). “Secondly, where a cognizable property interest

is implicated, the court must consider whether a taking

occurred.” Id. (citations omitted).

Defendants argue that plaintiffs do not establish a

takings claim. They argue that “[a]bsent extraordinary

delay, a governmental entity ’s application of its

administrative process for making zoning decisions

7. State Court Order, at 8.

23a

Appendix B

cannot result in a state or federal taking claim.” Mot. at 9.

They argue that there was no delay to the administrative

process, which concluded less than a year after plaintiffs’

site plan application. Id. at 10-11.

Plaintiffs’ allegations supporting their takings claim

are based upon defendants’ denial of their site plan

application prior to the State Court Order directing

defendants to approve it. Plaintiffs argue that defendants

effected a temporary taking from February 7, 2023,

when the City Council denied their site plan application,

to the time a new tenant is found for the property. Opp.

at 13-14. Further, plaintiffs argue that the defendants’

administrative process was unnecessarily delayed due

to the denial of the site plan application, which plaintiffs

submitted only after they were advised that a school was

a permitted use of the building. Id. at 14.

The Court finds that plaintiffs do not establish a

takings claim. Plaintiffs’ anticipated value of rent lost

during the period of the administrative process is not

a cognizable property interest sufficient to support a

takings claim. See Snyder v. Vill. of Luckey Ohio, 2024

WL 556134, at *6-*8 (N.D. Ohio Feb. 12, 2024) (dismissing

takings claim because plaintiffs failed to identify a legally

cognizable property interest where “the physical property

ha[d] not changed hands” and the alleged property interest

taken was the fluctuation in value during the process of

governmental decisionmaking”).

24a

Appendix B

Moreover, even if it was a cognizable property

interest, “[t]he Supreme Court has stated that mere

fluctuations in value during the process of governmental

decisiomaking, absent extraordinary delay, are incidents

of ownership. They cannot be considered as a taking in

the constitutional sense.” Id. at *7 (citing Agins v. city

of Tiburon, 447 U.S. 255, 263 n.9 (1980)) (alterations

omitted). While plaintiffs argue a delay occurred, a oneyear delay is not extraordinary and does not give rise to a

takings claim. See, e.g., id. at *7-*8 (finding two-year delay

not extraordinary); Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 535 U.S. 302, 306 (2002)

(finding thirty-two-month delay not extraordinary); Wyatt

v. United States, 271 F.3d 1090. 1097-1100 (Fed. Cir. 2001)

(finding seven-year delay not extraordinary).

Because plaintiffs do not identify a property interest

to support a takings claim and cannot establish an

extraordinary delay, there is no illegal taking. Accordingly,

the motion is granted as to Counts II, III, and IV.

Conclusion

For the foregoing reasons, defendants’ Motion for

Judgment on the Pleadings is granted. 8

8. Although not argued, because plaintiffs could have raised

their state and federal claims alongside an administrative appeal

in the state court, their claims are barred under the doctrine of

res judicata. See Moore, Successor Tr. of Clarence M. Moore &

Laura P. Moore Tr. v. Hiram Twp., Ohio, 988 F.3d 353 (6th Cir.

2021) (finding that administrative appeal pursuant to R.C. 2506

precluded subsequent claims that could have been raised during

25a

Appendix B

IT IS SO ORDERED.

Date: May 9, 2024

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Judge

the appeal) (collecting cases); Landberg v. Newburgh Heights

Police Dep’t, 2018 WL 2899660, at *5 (N.D. Ohio June 11, 2018)

(applying res judicata where plaintiff “could have raised his age

discrimination claims during his administrative appeal in the

Court of Common Pleas”).

26a

Appendix C

APPENDIX C — MEMORANDUM

OPINION AND

ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF

OHIO, EASTERN DIVISION, FILED JULY 22, 2024

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

CASE NO. 1:23 CV 1662

RICHMOND ROAD PARTNERS, LLC, et al.,

Plaintiffs,

vs.

CITY OF WARRENSVILLE HEIGHTS, et al.,

Defendants.

Filed July 22, 2024

JUDGE PATRICIA A. GAUGHAN

MEMORANDUM OPINION AND ORDER

INTRODUCTION

This matter is before the Court upon Plaintiffs’ Fed.

R. Civ. P. 59(e) Motion for Reconsideration. (Doc. 20.)

This case arises from a zoning dispute wherein municipal

defendants denied plaintiffs’ site plan application, which

27a

Appendix C

was later approved on administrative appeal. For the

reasons that follow, the motion is denied.

FACTS

As detailed more fully in this Court’s Memorandum of

Opinion and Order on Defendants’ Motion for Judgment

on the Pleadings, plaintiffs Richmond Road Partners,

LLC (“Richmond Road Partners”) and Step Forward

(collectively, “Plaintiffs”) applied for preliminary/final

site plan approval on November 21, 2022, to open a Step

Forward facility on property owned by Richmond Road

Partners in the city of Warrenville Heights.

On December 12, 2022, Plaintiffs appeared before

Defendant City of Warrensville Heights Planning

Commission (the “Planning Commission”), who denied

the application. On February 7, 2023, Plaintiffs appeared

before defendant Warrensville Heights City Council

(collectively with the Planning Commission, “Defendants”),

who accepted the Planning Commission’s recommendation

and denied the application.

On March 8, 2023, Plaintiffs filed an administrative

appeal pursuant to Ohio Revised Code § 2506 with the

Cuyahoga County Court of Common Pleas.1 On October

4, 2023, that court found in Plaintiffs’ favor, ruling that

Defendants’ decision denying Plaintiffs’ application

1. Richmond Road Partners, LLC, et al. v. Warrensville

Heights City Counsel, et al., Cuyahoga County Court of Common

Pleas, CV-23-976289, filed Mar 8, 2023.

28a

Appendix C

was arbitrary, unreasonable, and unsupported by the

preponderance of the submitted evidence. The court

remanded the matter, directing Defendants to grant

Plaintiffs’ application.

On July 27, 2023, while the administrative appeal

was pending, Plaintiffs filed this civil lawsuit against

Defendants in the Cuyahoga County Court of Common

Pleas. 2 Plaintiffs’ complaint asserted four causes of action.

Count I sought a declaration that Defendants’ decision

denying Plaintiffs’ application was unconstitutional,

arbitrar y, capr icious, unreasonable, and w ithout

substantial relation to the public health, safety and morals.

Count II claimed that Defendants’ denial of Plaintiffs’

application amounted to an unconstitutional regulatory

taking, in violation of the Ohio Constitution and the

United States Constitution. Count III sought an injunction

to initiate appropriation proceedings to determine

compensation for the alleged taking. Lastly, Count IV

claimed that Defendants’ alleged taking violated Plaintiffs’

rights under the Fifth and Fourteenth Amendments to

the United States Constitution and the Ohio Constitution

in violation of 42 U.S.C. §§ 1983 and 1988.

Defendants removed the case to this Court and, on

January 30, 2024, filed a motion for judgment on the

pleadings. Plaintiffs opposed the motion. On May 9, 2024,

this Court granted Defendants’ Motion for Judgment on

the Pleadings and entered judgment in Defendants’ favor.

2 . Richmond Road Par tners , LLC, et al . v. City of

Warrensville Heights, et al., Cuyahoga County Court of Common

Pleas, CV-23-983040, filed July 27, 2023.

29a

Appendix C

On June 6, 2024, Plaintiffs filed the present Motion for

Reconsideration. Defendants oppose the motion.

STANDARD OF REVIEW

The Federal Rules of Civil Procedure do not provide

for motions for reconsideration. The Sixth Circuit,

however, allows for such an operation, reasoning that a

motion to reconsider may be treated as a motion to alter

or amend a judgment under Fed. R. Civ. P. 59(e). See

Rodriguez v. City of Cleveland, 2009 WL 1565956, at *1

(N.D. Ohio June 6, 2009) (citing Smith v. Hudson, 600

F.2d 60, 62 (6th Cir. 1979)). Nonetheless, such motions are

disfavored and seldom granted because they contradict

notions of finality and repose. Id.; see also Wells Fargo

Bank v. Daniels, 2007 WL 3104760, at *1 (N.D. Ohio Oct.

22, 2007); Plaskon Elec. Materials v. Allied-Signal, 904

F. Supp. 644, 669 (N.D. Ohio 1995).

A court may grant a motion to amend or alter judgment

if there has been (1) a clear error of law; (2) an intervening

change in controlling law; (3) newly discovered evidence;

or (4) a showing of manifest injustice. Jones v. Gobbs, 21

F. App’x 322, 323 (6th Cir. 2001) (citing GenCorp, Inc. v.

Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)).

A motion to reconsider “is not designed to give an unhappy

litigant an opportunity to relitigate matters already

decided, nor is it a substitute for appeal.” Sherwood v.

Royal Ins. Co. of Am., 290 F. Supp. 2d 856, 858 (N.D.

Ohio 2003) (citing Sault Ste. Marie Tribe of Chippewa

Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)). “It is

not the function of a motion to reconsider either to renew

30a

Appendix C

arguments already considered and rejected by a court or

‘to proffer a new legal theory or new evidence to support a

prior argument when the legal theory or argument could,

with due diligence, have been discovered and offered

during the initial consideration of the issue.’” McConocha

v. Blue Cross & Blue Shield Mut. of Ohio, 930 F. Supp.

1182, 1184 (N.D. Ohio 1996) (quoting In re August, 1993

Regular Grand Jury, 854 F. Supp. 1403, 1408 (S.D. Ind.

1994)).

ANALYSIS

Plaintiffs argue that this Court should alter or amend

its May 9, 2024 Judgment Entry (the “Judgment Entry”)

dismissing Plaintiffs’ complaint because (1) this Court

committed clear errors of law; (2) newly discovered

evidence supports Plaintiffs’ Takings Clause claim, and

(3) dismissing Plaintiffs’ claims risks a manifest injustice.

The Court will address each argument in turn.

Clear Errors of Law

As explained in this Court’s Memorandum of

Opinion and Order filed contemporaneously with the

Judgment Entry, Plaintiffs claims were dismissed for

two separate reasons. First, Plaintiffs’ Count I (seeking

a declaration that Defendants’ decision to deny Plaintiffs’

application was arbitrary, capricious, and unsupported

by the evidence) is moot because Plaintiffs received

this requested relief in the state court administrative

proceedings. Plaintiffs seem to agree with the Court’s

dismissal of Count I and do not raise any reason in their

31a

Appendix C

Motion as to why Count I should not have been dismissed.

(See Doc. 20, at 6-7 (“[T]he Court determined that only the

claim for declaratory judgment was moot. . . . Plaintiffs

agree with that characterization.”); id. at 9 (“The only part

of [Plaintiffs’] current claim that overlaps the facts of the

[administrative] appeal is the legality of the administrative

determination itself.”).)

Second, Counts II, III, and IV were dismissed because

Plaintiffs failed to plead sufficient facts to establish a

Takings Clause claim. 3 In determining that Plaintiffs’

complaint failed to allege a taking, this Court relied on

Snyder v. Vill. of Luckey, 2024 WL 556134, at *6-8 (N.D.

Ohio Feb. 12, 2024), which in turn relied on the Supreme

Court’s pronouncement in Agins v. City of Tiburon, 447

U.S. 255 (1980), that “[m]ere fluctuations in value during

the process of governmental decisionmaking, absent

extraordinary delay, are ‘incidents of ownership. They

cannot be considered as a “taking” in the constitutional

sense.’” Id. at 263 n.9.

3. Plaintiffs raise an issue with a footnote at the end of the

Court’s Memorandum of Opinion and Order that noted Plaintiffs’

claims that could have been raised alongside their administrative

appeal are barred under the doctrine of res judicata. Nothing in

that footnote served as the basis for the Court’s dismissal of any

of Plaintiffs’ claims and, therefore, cannot serve as a basis to

alter the Judgment Entry. Even so, Plaintiffs acknowledge that,

under Sixth Circuit authority, “if a plaintiff chooses to pursue an

administrative appeal, claim preclusion may bar a later attempt

to seek the same relief.” (Doc. 20, at 7 (quoting Harrison v.

Montgomery Cty., 997 F.3d 643, 651 (6th Cir. 2021) (emphasis

added by Plaintiffs).) As noted above, Plaintiffs acknowledge that

their Count I seeks the same relief as the administrative appeal.

32a

Appendix C

Plaintiffs argue that the Court’s application of

Snyder is “not analogous” to the present case and “its

proposed application is contrary to law.” (Doc. 20, at 12.)

According to Plaintiffs, Snyder is inapplicable because

the “taking” in Snyder was a delay caused by government

processes, whereas here Plaintiffs frame the taking

as the Planning Commission’s denial itself. Essentially,

Plaintiffs ask this Court to find that an arbitrary,

capricious, and unsupported denial of a site application

amounts to a taking—irrespective of any burden on a

property owner.

Plaintiffs’ position, however, directly contradicts

e st abl i shed F i f t h A mend ment Ta k i ng s Cl au se

jurisprudence. In fact, the “substantially advances”

test that Plaintiffs rely on to support their position was

explicitly abrogated by the Supreme Court in 2005. In

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005), the

Court held that the “substantially advances” test, first

outlined in Agins, “is not a valid takings test, and . . . has

no proper place in our takings jurisprudence.” Lingle,

544 U.S. at 548.4

4. Plaintiffs also cite to State ex rel. Shemo v. City of Mayfield

Heights, 95 Ohio St. 3d 59, 2002-Ohio 1627, 765 N.E.2d 345 (2002).

Although Shemo’s adoption of Agins’s “substantially advances”

test has not been explicitly overruled or abrogated, the Supreme

Court of Ohio seems to have implicitly dropped the “substantially

advances” test from its takings jurisprudence in the wake of

Lingle. See State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd.

of Comm’rs, 875 N.E.2d 59, 65 (Ohio 2007) (citing Lingle for the

applicable standards that establish a taking without reference to

Agins, Shemo, or the “substantially advances” test); see also State

ex rel. Anderson v. Obetz, 2008 Ohio 4064, 2008 WL 3319285, at

*2 (Ohio Ct. App. Aug. 12, 2008) (recognizing Shemo’s implied

overruling).

33a

Appendix C

Without the “substantially advances” test, Plaintiffs

cite no case law to support their position that they can

establish a Takings Clause claim based on the validity

And while the Court acknowledges that the Ohio Supreme

Court has held that Article I, § 19 of the Ohio Constitution affords

greater protection than the federal Takings Clause in certain

instances of physical takings, compare Kelo v. City of N. London,

545 U.S. 469 (2005) (holding that a city’s use of its eminent domain

power to take property for the purpose of economic development

satisfies the “public use” requirement of the federal Takings

Clause), with Norwood v. Horney, 853 N.E.2d 1115 (2006)

(finding that an economic or financial benefit alone is insufficient

to satisfy the public-use requirement of Article I, § 19 of the Ohio

Constitution), Plaintiffs have not alleged a physical taking and,

thus, “the analysis required to determine if a regulatory taking

has occurred under the Ohio Constitution is the same analysis

required to determine if a regulatory taking has occurred under

the U.S. Constitution.” In re Davis, 539 B.R. 334, 345 (Bankr. S.D.

Ohio 2015) (citing Wymsylo v. Bartec, Inc., 970 N.E.2d 898, 914-15

(Ohio 2012) (applying federal regulatory takings jurisprudence

and determining that the regulation in question did not result in

“the type of taking contemplated by either the Fifth Amendment

to the United States Constitution or the Ohio Constitution, Article

I, Section 19”)).

Further, even if the Ohio Constitution affords greater

protection to Plaintiffs’ state-law claims, Plaintiffs have not

offered any independent reason as to why their state-law claims

should survive under Ohio’s takings jurisprudence. As such, to

the extent it was unclear in the Court’s original Memorandum and

Opinion and Order, the Court finds that Plaintiffs failed to plead

a takings claim under Article I, § 19 of the Ohio Constitution and

the Fifth Amendment of the United States Constitution. See State

ex. Rel AWMS Water Sols., LLC v. Mertz, 165 N.E.3d 1167, 1177

(Ohio 2020) (citing State ex rel. Shelly Materials, Inc. v. Clark

Cty. Bd. of Comm’rs, 875 N.E.2d 59, 65 (Ohio 2007)).

34a

Appendix C

of the Planning Commission’s actions alone. 5 Rather, the

Supreme Court has explained that a plaintiff can establish

a Takings Clause claim by alleging either (1) “a ‘physical’

taking,” (2) “a Lucas[ v. S. Carolina Coastal Council,

505 U.S. 1003 (1992)]-type ‘total regulatory taking,’” (3)

“a Penn Central[ Transp. Co. v. City of New York, 438 U.S.

104 (1978)] taking,” or (4) “a land-use exaction violating the

standards set forth in Nollan[ v. Cal. Coastal Comm’n,

483 U.S. 825 (1987)] and Dolan[ v. City of Tigard, 512 U.S.

374 (1994)],.” Lingle, 544 U.S. at 548. Here, Plaintiffs do

not allege a physical taking, a Lucas-type total regulatory

taking, or a land-use exaction. Accordingly, the alleged

5. To the extent Plaintiffs are asking this Court to establish

a new standard for a Takings Clause claim based on the validity

of the underlying government regulation, the Supreme Court’s

takings jurisprudence forecloses Plaintiffs’ request. As the

Supreme Court has explained, the “common touchstone” of

takings jurisprudence is “to identify regulatory actions that are

functionally equivalent to the classic taking in which government

directly appropriates private property or ousts the owner from

his domain.” Lingle, 544 U.S. at 539. Accordingly, the focus in

a takings claim is “the severity of the burden that government

imposes upon private property rights.” Id.

In contrast, Plaintiffs’ suggested focus on the legitimacy of the

Planning Commission’s denial, like the “substantially advances”

inquiry, “reveals nothing about the magnitude or character of the

burden a particular regulation imposes upon private property

rights. Nor does it provide any information about how any

regulatory burden is distributed among property owners.” Id. at

542. A challenge to a regulation’s underlying validity, “is logically

prior to and distinct from the question whether a regulation effects

a taking, for the Takings Clause presupposes that the government

has acted in pursuit of a valid public purpose.” Id. at 543.

35a

Appendix C

regulatory taking of Plaintiffs’ property is assessed under

Penn Central. See Tahoe-Sierra Pres. Council, Inc. v.

Tahoe Reg’l Planning Agency, 535 U.S. 302, 321 (2002).

“[T]he Penn Central inquiry turns in large part,

albeit not exclusively, upon the magnitude of a regulation’s

economic impact and the degree to which it interferes

with legitimate property interests.” Lingle, 544 U.S.

at 540. Also relevant may be the “‘character of the

governmental action’—for instance whether it amounts

to a physical invasion or instead merely affects property

interests through ‘some public program adjusting the

benefits and burdens of economic life to promote the

common good[.]’” Id. at 539. Further, under the Penn

Central framework, courts must focus on “the parcel as

a whole.” Penn Central, 438 U.S. at 130-31 (“‘Taking’

jurisprudence does not divide a single parcel into discrete

segments and attempt to determine whether rights in

a particular segment have been entirely abrogated. In

deciding whether a particular governmental action has

[a]ffected a taking, this Court focuses rather both on the

character of the action and on the nature and extent of

the interference with rights in the parcel as a whole.”);

see also Tahoe-Sierra Pres. Council, Inc., 535 U.S. at 327

(“‘[W]here an owner possesses a full “bundle” of property

rights, the destruction of one “strand” of the bundle is not

a taking.’” (quoting Andrus v. Allard, 444 U.S. 51, 65-66

(1979)). Relying on the standard and principals set forth in

Penn Central, the Supreme Court has stated that “[m]ere

fluctuations in value during the process of governmental

decisionmaking, absent extraordinary delay, are ‘incidents

of ownership. They cannot be considered as a “taking” in

36a

Appendix C

the constitutional sense’” Tahoe-Sierra Pres. Council,

Inc., 535 U.S. at 332 (quoting Agins, 447 U.S. at 263 n.9)

(further citations omitted).

Applying this established takings jurisprudence to

Plaintiffs’ claims, this Court found that any devaluation

in Plaintiffs’ property interests6 caused by the Planning

Commission’s actions was not because of any extraordinary

delay and, thus, as a matter of law, could not establish a

Takings Clause claim. (Doc. 18, at 7 (“While plaintiffs argue

a delay occurred, a one-year delay is not extraordinary and

does not give rise to a takings claim.” (citing Agins (twoyear delay not extraordinary), and Tahoe-Sierra Pres.

Council, Inc. (thirty-two month delay not extraordinary),

and Wyatt v. United States, 271 F.3d 1090, 1097-1100 (Fed.

Cir. 2001) (seven-year delay not extraordinary)).) Plaintiffs

do not cite any case law that suggests the Court applied

incorrect law. Nor do Plaintiffs argue that any devaluation

of their property rights was caused by an extraordinary

delay. Rather, Plaintiffs double down on their contention

that the length of any delay is irrelevant because the

Planning Commission’s denial itself somehow establishes

a taking. For the reasons discussed above, Plaintiffs’

contention is entirely without merit.

6. Plaintiffs take issue with this Court’s finding that they

failed to allege a cognizable property interest based on their lost

rental income. (See Doc. 20, at 13.) However, as the Court held in

its previous Memorandum Opinion and Order and now re-explains

here, even if Plaintiffs alleged a cognizable property interest, they

have failed to allege a taking.

37a

Appendix C

For that reason, and all the aforementioned reasons,

no clear error of law warrants an amendment or alteration

to this Court’s Judgment Entry dismissing Plaintiffs’

claims.

Newly Discovered Evidence

Plaintiffs also contend that newly discovered evidence

supports their Takings Clause claims and warrants

altering the Judgment Entry dismissing the same. This

Court dismissed Plaintiffs’ claims as a matter of law

on Defendants’ Motion for Judgment on the Pleadings.

Fed R. Civ. Pro. 12(c). In reviewing a Rule 12(c) motion,

courts can consider all available pleadings, including the

complaint and the answer. Dudek v. Thomas & Thomas

Attorneys & Counselors at Law, LLC, 702 F. Supp. 2d

826, 832 (6th Cir. 2010) (citing Fed. R. Civ. P. 12(c)). “The

court can also consider: (1) any documents attached

to, incorporated by, or referred to in the pleadings; (2)

documents attached to the motion for judgment on the

pleadings that are referred to in the complaint and are

central to the plaintiff’s allegations, even if not explicitly

incorporated by reference; (3) public records; and (4)

matters of which the court may take judicial notice.” Id.

Courts may not, however, “consider material outside of

the pleadings unless the court converts the motion into

one for summary judgment.” Hickman v. Laskodi, 45 F.

App’x 451, 454 (6th Cir. 2002) (citing Fed. R. Civ. P. 12(c)).

38a

Appendix C

Nevertheless, Plaintiffs now ask this Court to alter

the Judgment Entry and deny Defendants’ Motion for

Judgement on the Pleadings based on “newly discovered”

deposition testimony, which was obtained during fact

discovery while Defendants’ motion was pending. As

Defendants’ properly point out, however, this deposition

testimony is irrelevant to whether the pleadings can

withstand Defendants’ motion and, accordingly, is not a

proper basis for altering the Judgement Entry. (Doc. 24,

at 8.) Plaintiffs do not refute this basic principle in their

reply brief.

For all the aforementioned reasons, no newly

discovered evidence warrants an amendment or alteration

to this Court’s Judgment Entry dismissing Plaintiffs’

claims.

Manifest Injustice

Last, Plaintiffs argue that dismissing Plaintiffs’

claims risks causing manifest injustice by “render[ing]

takings law theoretical and reward[ing] illegal and

dishonest behavior by public officials.” (Doc. 20, at 16.)

“For [a] court to find manifest injustice, there must be

‘a fundamental flaw in the court’s decision that without

correction would lead to a result that is both inequitable

and not in line with applicable policy.’” Sims Buick-GMC

Truck, Inc. v. Gen. Motors LLC, 2017 WL 7792553, at *3

(N.D. Ohio Mar. 1, 2017) (quoting In re Bunting Bearings

Corp., 321 B.R. 420, 423 (Bankr. N.D. Ohio 2004)).

39a

Appendix C

Plaintiffs contend that “[i]f this Court were to hold

that a city could not be sued for damages, including delays

in the ability to use property, caused by unconstitutional

zoning actions, no city could be held responsible as long

as its decision were overturned on appeal for completely

lacking legal basis.” (Doc. 20, at 16.) According to Plaintiffs,

“[a] city could, with impunity, prevent landowners from

using their land in lawful ways and defeat time-sensitive

transactions by unlawfully denying the landowners’

applications and merely permitting their determinations

to be overturned on appeal.” (Id.)

Contrary to Plaintiffs’ argument, as explained above,

the underlying validly of the Planning Commission’s

actions cannot form the basis of Plaintiffs’—or any—

Takings Clause claim. Further, Plaintiffs’ argument that

governments could intentionally, arbitrarily interfere

with landowners’ property rights with impunity is a red

herring. The law provides other avenues to challenge such

allegedly unlawful government actions. See Lingle.

For all the aforementioned reasons, the Court’s

judgment applying established takings jurisprudence

does not risk any manifest injustice and does not warrant

an amendment or alteration to the Judgment Entry

dismissing Plaintiffs’ claims.

40a

Appendix C

CONCLUSION

For the foregoing reasons, Plaintiffs’ Fed. R. Civ. P.

59(e) Motion for Reconsideration (Doc. 20) is DENIED.

IT IS SO ORDERED.

Dated: 7/22/24

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Judge

41a

Appendix

D AND ORDER

APPENDIX D —

OPINION

OF THE COURT OF COMMON PLEAS FOR

THE CUYAHOGA COUNTY, OHIO,

DATED OCTOBER 3, 2023

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

CASE NO. CV 23 976289

RICHMOND ROAD PARTNERS, LLC, et al.,

Plaintiffs-Appellants,

WARRENS VILLE HEIGHTS CITY COUNCIL, et al.,

Defendants-Appellees.

JUDGE KEVIN J. KELLEY

OPINION AND ORDER

This matter comes before the Court on an appeal of

a decision issued by the Appellee Warrensville Heights

City Council, Cuyahoga County, Ohio, on February 7,

2023, pursuant to R.C. Chapter 2506. The parties have

fully briefed the appeal.

FACTS

The record, docket, and transcript indicate the

following: The property at issue is located at 4834

42a

Appendix D

Richmond Road, Warrensville Heights, Ohio. Appellant

Richmond Road Partners, LLC, owns the property.

In the fall of 2022, Appellant Step Forward submitted

a conditional use permit application to seek approval

to open a “Head Start and daycare facility” on the

property. Tr. p.001. Appellee the Warrensville Heights

Planning Commission (“Planning Commission”) denied

the application. On October 18, 2022, Appellee the

Warrensville Heights City Council (“City Council”)

accepted the Planning Commission’s recommendation and

denied Step Forward’s application.

In November 2022, Step Forward submitted an

application before the Planning Commission for site plan

approval for use of the property at issue as a “school

and/or as a nonprofit educational agency.” Tr. p.126. On

December 12, 2022, the Planning Commission denied

the application. On February 7, 2023, the City Council

accepted the recommendation of the Planning Commission

and denied the application. Pursuant to R.C. 2506,

Appellants appealed to this Court from the final decision of

City Council to deny the application for site plan approval

of the “school” and/or “nonprofit educational agency” at

4834 Richmond Road, Warrensville Heights, Ohio.

Appellants set forth two assignments of error herein.

First, City Council erred when it affirmed the decision of

the Planning Commission denying the site plan approval

for the location of a school and/or nonprofit educational

agency in a U-7A District because the decision was not

supported by a preponderance of substantial, reliable,

and probative evidence. Second, City Council erred when

43a

Appendix D

it affirmed the decision of the Planning Commission

denying site plan approval for the location of a school

and/or nonprofit education agency in a U-7A District

because the decision was illegal, arbitrary, capricious and

unreasonable. This Court agrees with Step Forward on

both assignments of error.

II. Analysis

Jurisdiction

This Court has jurisdiction over this matter due to

R.C. Chapter 2506, which states in pertinent part that:

If an appeal is taken in relation to a final order,

adjudication, or decision covered by division

(A) of section 2506.01 of the Revised Code, the

court may find that the order, adjudication, or

decision is unconstitutional, illegal, arbitrary,

capricious, unreasonable, or unsupported by

the preponderance of substantial, reliable, and

probative evidence of the whole record.

R.C. 2506.04.

B. Warrensville Heights Codified Ordinance

Section 1143.02

It is uncontroverted that the property at issue is

zoned U-7A in Warrensville Heights. See City Council

Conclusions of Fact, Tr., p.424. Warrensville Heights City

Codified Ordinance at Section 1143.02 states as follows:

44a

Appendix D

“Building and land in the Class U-7A District

shall be used and buildings shall be designed,

erected, altered or intended for the following:

***

(d) Public and private schools, universities,

colleges, professional schools, vocational

schools, and related educational facilities;

***

(1) Nonprofit educational and scientific research

agencies; . . . ”

Schools, related educational facilities, and nonprofit

educational agencies are not defined in the City’s Code.

Further, the City’s Code does not condition these permitted

uses in any way. The zoning ordinance expressly permits

a school and/or a nonprofit education agency.

The Proposed Use and Evidence of Use as a

School and/or Nonprofit Educational Agency

Both the Planning Commission’s and City Council’s

inquiry is limited to whether the proposed use conforms

with the requirements of WHCO §1143.02, specifically,

whether the proposed use is permitted in the Class U-7A

District as either a school or a nonprofit educational

agency.

45a

Appendix D

In reviewing a zoning ordinance, a court must

first apply the plain and unambiguous language of the

ordinance. Just as with any legislative enactment, the

words in a zoning code must be accorded their usual,

customary meaning. Village of Terrace Park v. Anderson

Twp. Bd. of Zoning Appeals, 2015-Ohio-4602, 48 N.E. 3d

143, ¶ 22 (1st Dist.), citing Olentangy Local Schools Bd.

of Edn. V. Delaware Cty. Bd. of Revision, 141 Ohio St.3d

243, 2014-Ohio-4723, 23 N.E. 3d 1086, ¶ 30.

Further, this Court finds that zoning restrictions are

“ordinarily construed in favor of the property owner.”

Speedway L.L.C. v. Planning Comm’n City of Berea,

2013-Ohio-3433, ¶ 9 (8th Dist.) (quoting Saunders v. Clark

Cty. Zoning Dept., 66 Ohio St.2d 259, 261, 421 N.E.2d 152

(1981). Zoning restrictions “cannot be extended to include

limitations not clearly prescribed.” Id.

In reviewing the transcript, the Court finds the

following testimony supporting the notion that the use is

that of either a school or a nonprofit educational agency:

• Step Forward will employ 33 early childhood

educators who have degrees that range from a CDA

to BS in early childhood education. Tr., p. 005.

• Step Forward will provide up to eight classrooms.

Tr., p. 005.

46a

Appendix D

• Step Forward provides a curriculum. Tr., pp. 141174.

• Step Forward would follow a typical school year

from September through June. Tr., pp. 141-174.

• The Ohio Department of Education describes Head

Start and Early Head Start as programs that

promote school readiness through improved access

to educational . . . services to enrolled children. Tr.,

p. 173.

• Step Forward is eligible for state of Ohio grants

due to its involvement with Head Start and Early

Head Start. Tr., 172.

• The Law Director finds that Step Forward is a nonprofit agency. Tr., p.610.

Despite the voluminous quantity of evidence, including

a transcript of 657 pages, a preponderance of probative

evidence does not exist to support the finding that Step

Forward is not a school and/or nonprofit educational

agency. The assertion that Step Forward is not a school

and/or nonprofit education agency was arbitrary and

capricious. In fact, instead of discussing WHCO 1143.02

in depth, Appellees reached their decision as follows:

o Commissioner Hubbard stated, “ . . . I don’t think

it’s an appropriate site for a school or day care, no

matter what you call it, like I said.” (Tr., p. 609).

47a

Appendix D

o Commissioner Strong stated, “It’s a day care and

a school should not be in that area. That’s all.” (Tr.,

p.609).

o Commissioner Rox stated, “I don’t believe that

that’s the right location for this type of day care,

school, or what do you want, whatever you want to

call it.” “I just don’t believe it is a good location.”

(Tr., p.609, 610).

o Commissioner Howard stated, “I just don’t think

the need is at this location” (Tr., p. 611). “And we

would like to work with you to find another location

here in the city-we just don’t think that this is the

right one.” (Tr., p.612).

In reviewing the statements of the Commissioners,

this Court concludes that these are subjective statements

not based on whether the proposed use is permitted by the

city’s ordinances. In fact, these statements acknowledge

that the proposed use is or may be that of a school, but

they don’t believe that it is an appropriate site.

An agency or commission’s reliance on general

and subjective goals and aspirations instead of specific

statutory or ordinance provisions when evaluating land

use applications is erroneous as a matter of law. Speedway

L.L.C. v. Planning Comm’n City of Berea, 2013-Ohio3433, ¶ 18 (8th Dist.). The record indicates that Appellees’

decision was arbitrary. There is little evidence, let alone

48a

Appendix D

a preponderance of reliable, probative, and substantial

evidence, that Appellees addressed the specific codified

ordinance language. Instead, the evidence shows a

reliance on subjective personal preferences, intentions,

and beliefs. See South Park, Ltd. v. Council of Avon,

2006-Ohio 2846.

Appellees submit as evidence the target age for

children enrolled at the proposed school would not be

considered “school-age.” Tr., p. 602. In reading the City

Ordinance, this Court cannot find any reference to “schoolage” children, or any other terms denoting age or level of

schooling. WHCO, 1143.02. Despite the lack of reference

to “school-age” children in WHCO, 1143.02, Appellees use

the phrase “school-age” children throughout the briefing

of this matter. The Court finds no merit to this line of

argument.

Appellees argue that “Step Forward’s proposed

facility did not qualify as a nonprofit educational agency

or school and its Second Application must be denied.”

Conc. of Fact, ¶ 8. However, no reasoning is articulated

as to how this decision was reached by the Commission.

The Commission does mention that Step Forward’s

proposed facility “aligned with that of a daycare facility

and not a conventional school-based institution.” Conc. of

Fact, ¶ 9. This Court notes that neither “daycare facility”

nor “conventional school-based institution” is mentioned

in WHCO 1143.02. The Commission finds that Step

49a

Appendix D

Forward operates “head start” and “early head start”

programs and is licensed by the Department of Job and

Family Services as a “Child Care Center.” Conc. of Fact,

¶ 10. However, not included in the Conclusions of Fact, is

that the Ohio Department of Education describes Head

Start and Early Head Start as programs that “promote

school readiness through improved access to educational

. . . services to enrolled children.” Tr., p. 173. Yet the

Commission fails to find the same in its Conclusions of

Fact. Also noticeably absent is the fact that Step Forward

is eligible for state of Ohio grants due to its involvement

with Head Start and Early Head Start. Tr., 172. See Also

Appellants’ Reply Brief at Exhibit A.

Further, the Commission does not find that Step

Forward is a nonprofit educational agency, yet the Law

Director stated that Step Forward is a non-profit agency.

Tr., p.610. Appellees offer no explanation as to why

this particular nonprofit agency that promotes “school

readiness through improved access to educational . . .

services to enrolled children” is not a school nor a nonprofit

educational agency. Appellees emphasize “the material

differences between school and educational facilities

uses and the work performed by Step Forward.” Conc.

of Fact, Tr., p.425. The record suggests otherwise. A

review of the record and transcript indicates that at any

given time Step Forward “will employ 33 early childhood

educators who have degrees that range from a CDA to BS

in early childhood education.” Tr., p. 005. Step Forward

50a

Appendix D

will provide up to eight classrooms. Tr., p. 005. Much like

school and educational facilities, Step Forward, provides

a curriculum. Tr., pp. 141-174. Step Forward would follow

a typical school year from September through June. Id.

After a thorough review of the whole record, this Court

finds that the nonprofit agency at issue is either a nonprofit

educational agency, a school, or a related educational

facility as contemplated by Warrensville Heights City

Codified Ordinance at Section 1143.02 regarding property

zoned U-7A.

III. Conclusion

A review of the entire record ref lects that the

decision of Appellee Warrensville Heights City Council of

February 7, 2023, denying Appellants’ application for site

plan approval for the location of a preschool/educational

facility at 4834 Richmond Road, Warrensville Heights,

Oho, was arbitrary, unreasonable, and unsupported by

the preponderance of substantial, reliable, and probative

evidence submitted herein. The denial is reversed and

the matter is remanded to the Appellees to grant the

Appellants’ application.

/s/ Kevin J. Kelley

10/3/23

JUDGE KEVIN J. KELLEY

DATE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.