Appendix — Township of Liberty v. Wedgewood Ltd. Partnership I
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APPENDIX
TABLE OF CONTENTS
Appendix A: Opinion, United States Court of
Appeals for the Sixth Circui
(June 28, 2010) .
Appendix B Opinion and Order, In the United
States District Court for the
Southern District of Ohio,
Kastern Division,
(September 25, 2008) . 38a
Appendix C Opinion and Order, In the United
States District Court for the
Southern District of Ohio,
Eastern Division,
(October 12, 2006) 64a
Appendix D Order, United States Court of
Appeals for the Sixth Circuit,
(August 31, 2010)
Appendix Constitutional previsions,
statutes, and municipal
ordinances 137a
Appendix F:
Appendix G
Appendix H
Appendix |
Appendix J
Appendix K
Public Statement and
Instructions to Zoning
Department Regarding Future
Administration of Wedgewood
Commerce Center Development
Plan,
(January 19, 2004) ......... 139a
Letter from Liberty Township
Zoning Inspector, Holly Foust, to
Charles Ruma, Wedgewood
Limited Partnership,
(September 30, 2004) . l47a
Decision and Entry, In the Court
of Common Pleas, Delaware
County, Ohio,
(September 22, 2005) ....... 156a
Opinion, Court of Appeals,
Delaware County, Ohio, Fifth
Appellate District,
(January 8, 2007) . | 160a
Findings of act and Conclusions
of Law, Before the Liberty
Township Board of Zoning
Appeals,
(October 23, 2008) L8la
Judgment Entry, In the Court of
Common Pleas of Delaware
County, Ohno,
(June 11, 2009)
Appendix 1:
Opinion, Court of Appeals,
Delaware County Ohio, Fifth
Appellate District,
(April 28, 2010)
Appendix M: Entry declining jurisdiction, The
Supreme Court of Ohio,
(September 29, 2010) .. 238a
APPENDIX A
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 08-4446
[Filed June 28, 2010]
Plaintiff-Appellee,
TOWNSHIP OF LIBERTY, OHIO; BOARD
OF ‘TRUSTEES OF LIBERTY ‘TOWNSHIP;
ROBERT MANN, PEGGY GUZZO, and
CURT SYBERT, in their official
capacities as Liberty Township
Trustees; and HOLLY C. FOUST, in her
official capacity as Liberty Township
Zoning Inspector,
Defendants Appellants
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 04-01069—Algenon L. Marbley, District Judge
IF
4a
Argued: Decen:ver 4, 2009
Decided and Filed: June 28. 2010
Before: GRIFFIN and KETHLEDGE, Circuit Judges;
CARR, District Judge.’
COUNSEL
ARGUED: Michael W. Currie, THOMPSON HINE
LLP, Columbus, Ohio, for Appellants. Joseph R.
Miller, VORYS, SATER, SEYMOUR AND PEASE
LLP, Columbus, Ohio, for Appellee. ON BRIEF:
Michael W. Currie, Scott A. Campbell, O. Judson
Scheaf, III, Michele L. Noble, THOMPSON HINE LLP,
Columbus, Ohio, Lawrence E. Barbiere, SCHROEDER,
MAUNDRELL, BARBIERE & POWERS, Mason, Ohio,
for Appellants. Bruce L. Ingram, VORYS, SATER,
SEYMOUR AND PEASE LLP, Columbus, Ohio, for
Appellee.
GRIFFIN, J., delivered the opinion of the court, in
which KETHLEDGEH, J., joined. CARR, D. J. (pp
21-26), delivered a separate dissenting opinion.
' The Honorable James G. Carr, United States District Judge for
the Northern District of Ohio, sitting by designation
GRIFFIN, Circuit Judge. Defendants Township of
Liberty, Ohio, its Board of Trustees, and its zoning
inspector (collectively the “Township”) appeal the
district court’s order enjoining it from applying a set of
zoning instructions against a parcel of property owned
by plaintiff Wedgewood Limited Partnership I
(“Wedgewood”). This dispute arose more than six years
ago, when Wedgewood applied for a zoning certificate
to develop a Wal-Mart Supercenter (“Wal-Mart”) in
Liberty Township’s Wedgewood Commerce Center. The
Township’s residents rallied against the retail giant,
hoping to prevent the store’s construction. Their
elected Board of Trustees responded by enacting
zoning instructions that adversely affected
Wedgewood’s ability to develop a large commercial
structure on its property. When Wedgewood’s
agreement with Wal-Mart collapsed, it filed this civil
rights action pursuant to 42 U.S.C. § 1983.
We hold that the Township violated Wedgewood’s
procedural due process rights when the Township
adopted zoning instructions that, in effect, amended
the Wedgewood Commerce Center planned unit
development without providing Wedgewood with
notice and an opportunity to be heard. Accordingly, we
affirm the order of the district court granting a
permanent injunction.
On November 18, 1991, the Liberty Township
Board of Trustees (“Trustees”) legislatively approved
the Wedgewood Commerce Center (“WCC”), a planned
unit development (“PUD”) in Liberty Township, Ohio.
A PUD 1s a unique creature of zoning because the
entire development carries one nominal zoning
classification only, but its subdivisions contain many
different kinds of approved land use, including, for
example, zoning for’ single-family dwellings,
multi-family units, schools, recreational facilities, and
commercial developments. The zoning restrictions
applicable in each PUD subdivision “are ascertainable
only by referring to the approved plats for |]
development.” Gray v. Trs. of Monclova Twp., 313
N.E.2d 366, 367, 369 n.4 (Ohio 1974).
Leading up to the November 18, 1991, vote,
parameters for the WCC’s land use were negotiated at
length between the Trustees and Charles Ruma &
Associates, one of the applicants seeking approval for
PUD re-zoning.’ Before voting to approve the WCC,
Trustee John C. Werner asked whether the WCC
development plan, as amended, would be “incorporated
into a document for the Township records.” Mr. David
Dye, an attorney for Charles Ruma & Associates,
responded, “Yes, it would.”
' Charles Ruma is also the president of Wedgewood. In 1991,
Ruma’s company, Charles Ruma & Associates, applied to re-zone
a 345-acre plat of vacant land from “farm residential” to PUD to
develop the WCC
FE
Jd
On February 20, 1992, a document was received by,
and filed with, the Liberty Township Zoning
Commission (“Commission”) entitled “Wedgewood
Commerce Center - Development Standards.” This
document contained, among other things, individual]
development criteria and zoning information for each
subdivision, a map labeled “WCC Land Use Plan|[,]”
and Addendum A, entitled “Wedgewood Commerce
Center Summary of Site Data.” According to this
document (hereinafter “WCC Development Plan” or
“WCCDP”), only subareas 3, 8, and 9 were zoned for
commercial development.*
Nevertheless, between 1992 and 2003, the owners
of subareas 4, 5, 6, and 10, plats all originally
designated for suburban office use only, sought
approval for and obtained permits to build commercial
structures. According to the Township, by late 2003,
subareas 4, 5, 6, and 10 contained approximately
390,611 square feet of commercial space.
Wedgewood owns lot 2069, designated as subarea
3, a 32.36 acre plat of land in the WCC and the subject
of the parties’ protracted litigation. According to the
WCCDP, subarea 3 is zoned for commercial]
development and is allotted a maximum of 220,857
square feet of commercial building space. The square
footage of subareas 3, 8, and 9, when combined, permit
’ Since it was filed with the Commission, the WCCDP has
governed the permissible zoning in the WCC. Liberty Township’s
zoning inspector, Holly Foust, as well as her predecessor, referred
to the WCCDP as the WCC “official book[.]!” The WCCDP is also
labeled, in handwritten script on the front page, “Official Book[.}”
a total of 499,930 square feet of commercial
development in the WCC.
At a public Trustees meeting in September 2003, a
resident of Liberty Township voiced her “concern|[|”
about “rumors” that a Wal-Mart or Lowe’s was moving
into the WCC, asserting that the development was
becoming too “commercial.” The resident asked
Trustee Werner, “can we do anything about it?” He
replied, “those hearings were... years ago, and the
public had their shot then, and basically [the WCCDP]
was approved.”
The rumors proved to be true. In October 20
O3
Wedgewood submitted an application to the
Commission requesting an amendment to the WCCDP,
specifically, six zoning variances to develop a 227,825
square foot Wal-Mart and fueling station on subarea
3.‘ While its variance application was pending, Liberty
Township residents contacted the Commission to
express their objection to the proposed Wal-Mart. On
October 22, 2003, the Commission held a_ public
hearing addressing Wedgewood’s application. After
According to the WCCDP, subarea 8 is a 21.18 acre plat of land
zoned for commercial use and is allotted a maximum of 144,553
square feet of commercial building space. Subarea 9, a 19.71 acre
plat, is also zoned for commercial land use and permits 134,520
square feet of commercial building space. The total acreage of
subareas 3, 8, and 9 is 73.25 acres
* Wedgewood sought these variances, in part, because subarea 3
permitted only 220,857 square feet of commercial development
The proposed Wal-Mart, however, would require an additional
6,968 square feet of commercial space. Thus, Wedgewood needed
an amendment to the WCCDP zoning map to build a commercial
structure on subarea 3 that exceeded its allotted square footage
considering statements from several residents, many
of whom were opposed to the Wal-Mart, the
Commission denied Wedgewood’s application for an
amendment to the WCCDP that would allow subarea
3’s commercial development to exceed 220,857 square
feet
Over the next several months, public opposition to
the Wal-Mart intensified. To address the public’
concerns, the Trustees held two public meetings on
December 1 and 15, 2003. Trustee Peggy Guzzo also
coordinated “petition drivels]” gathering “a total of
1,150 signatures” from anti-Wal-Mart residents. After
these meetings, the Trustees asked Liberty Township’
zoning inspector, defendant Holly Foust, to produce a
report detailing the prior zoning certificates issued by
the Commission and the combined square footage of all
commercial structures located in the WCC
On January 19, 2004, the Trustees issued a “Publi
statement and Instructions to Zoning Department
Regarding Future Administration of Wedgewood
Commerce Center Development Pian” (hereinafte:
“Instructions”). These Instructions, which form the
crux of Wedgewood’s constitutional claims, state, in
relevant part
On a general basis, we have certainly heard our
constituents’ requests and desires to do what i:
possible to deter excessive and regional types of
commercial development in our community. A;
a Board we, like other residents in our
community, are interested in employing ou:
current regulations, and developing and
adopting new regulations, to avoid, as possible,
and limit, where possible, the burdens that “big
box” types of retail facilities place upon the
infrastructure of our community
Extensive review and analysis of the
Wedgewood Commerce Center development
plan, the minutes of the meetings which led to
the approval of that plan, the policies that have
been followed to date in administering that
plan, and the discernable intent of all of the
parties expressed during the conception and the
process which led to the approval of the plan,
has led us to conclude that the ultimately
adopted plan imposed a “floating” maximum of
500,000 sq. ft of “commercial” development in
the Wedgewood Commerce Center. We have
found evidence of the establishment of this limit
in a number of different documents. Moreover,
we have found no documents or proof through
amendment processes which modified this
“overall” square footage cap, as best as we can
conclude. The subject of whether or not an
acreage “cap” also applies has been more
difficult
The analysis reveals that the commercial
development completed to date, and
substantially through the approval process, has
consumed most of the commercial square
footages |sic] imposed by the development plan
as an overall cap
Ya
UJInder these circumstances, we have
determined that, except for a few modest
projects which have already completed the
two-step “major” administrative review process,
all additional applicants seeking to construct
retail or other arguable “commercial”
development in the Wedgewood Commerce
Center will be required to seek approval as a
“major” plan of modification. In other words, we
are instructing our zoning department to refrain
from issuing zoning certificates for any
additional commercial development in_ the
Wedgewood Commerce Center, to issue such
permits only after an approval through the
“two-step” major process has been completed.
Each process will be considered to be an
application to consume any remaining portion of
the square footage limitation, or exceed that
limitation, and as a modification to expand the
acreage limitation which we believe has been
met.
Six months later, Wedgewood filed its application
with the Commission for a zoning permit to build a
smaller, approximately 220,598 square foot Wal-Mart
and fueling station on subarea 3. Unlike its October
2003 application, Wedgewood did not seek a variance
to permit construction that surpassed subarea 3’s
220,857 square feet of approved commercial space.
Wedgewood did not submit its application as a major
plan of modification, as specified in the newly adopted
Instructions.
On September 30, 2004, the Commission denied
Wedgewood’s application for a zoning certificate. In its
denial letter, the Commission stated that the
LOa
Instructions were “made a part of [the Commission’s]
decision by {] reference” and articulated several
reasons for denying the permit, including: (1) failure to
meet the “requirements of the currently effective
[WCCDP]”; (2) “exceed|ing}] the maximum allowable
commercial acreage and [500,000] square footage
limitation|] that were expressly made a part of the
development plan”; (3) failure to obtain WCC
architectural review committee approval; and (4)
inconsistencies with the governing Liberty Township
Zoning Resolution. Wedgewood appealed the
Commission’s denial of its zoning certificate to the
Liberty Township Board of Zoning Appeals (“BZA”).
This appeal (“BZA I”) preceded the ongoing state-court
proceedings that have paralleled Wedgewood’s federal
litigation.
On November 5, 2004, before the BZA decided BZA
I, Wedgewood filed the present action pursuant to 42
U.S.C. § 1983 in the United States District Court for
the Southern District of Ohio. Wedgewood’s federal
complaint alleged, inter alia, that the Trustees’
adoption of the Instructions constituted an
unauthorized amendment to the WCCDP, violating its
in the
alternative, that the WCCDP was unconstitutionally
state and federal due process rights, or,
vague. Several local homeowner associations
intervened and joined the Township’s efforts to dismiss
Wedgewood’s federal complaint. The application of
various abstention doctrines was one of many
arguments advanced by the Township and interveners.
Thereafter, the district court granted in part and
denied in part the parties’ Fed. R. Civ. P. 12(b)(6)
motions and rejected their arguments for abstention.
lla
Subsequently, the parties filed cross-motions for
summary judgment. In September 2008, almost five
years after Wedgewood first applied to construct the
Wal-Mart, the district court granted its motion for
summary judgment with respect to its vagueness and
procedural due process claims. The district court’s
constitutional rulings were dependant upon its finding
that the Instructions amended the WCCDP without
providing Wedgewood with advanced notice and a
hearing in violation of Ohio Rev. Code § 519.12. The
district court’s order enjoined the Township from
enforcing the Instructions and, in particular, the
500,000 square foot floating cap (hereinafter “floating
commercial cap”) against Wedgewood’s property. The
Township timely appeals.
IT.
We have jurisdiction to decide this interlocutory
appeal pursuant to 28 U.S.C. § 1292(a)(1) because the
district court entered a permanent injunction against
the ‘Township. As a general rule, our jurisdiction is
confined to the issues necessary to determine the
propriety of the district court’s injunction. See Gibson
Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d
039, 545 (6th Cir. 2005); Chambers v. Ohio Dep't of
Human Serus., 145 F.3d 793, 797 (6th Cir. 1998); 16
Arthur R. Miller, Edward H. Cooper, Vikram David
Amar, Federal Practice & Procedure §& 3921.1 (2d ed
1996 & 2009 Supp.)
Because the scope of our jurisdiction is limited by
§ 1292(a)(1), we may not reach the Township’s
arguments challenging the district court’s abstention
ruling. The district court’s refusal to abstain is
embodied in its order granting in part and denying in
L2Qa
part the Township’s motion to dismiss, an order that
is not presently before us. See Summers v. Lets, 368
F.3d 881, 889 (6th Cir. 2004). In this regard, we reject
the Township’s perfunctory argument that the district
court’s abstention ruling is “inextricably intertwined”
with its order granting injunctive relief. See United
States v. Phinazee, 515 F.3d 511, 520 (6th Cir. 2008)
(holding that a party forfeits an issue that is “adverted
to ...in a perfunctory manner unaccompanied by
some effort at developed argument.”).
In Summers, we described the narrow scope of our
pendent appellate jurisdiction:
Pendent appellate jurisdiction refers to the
exercise of jurisdiction over issues. that
ordinarily may not be reviewed on interlocutory
appeal, but, may be reviewed on interlocutory
appeal if those issues: are “inextricably
intertwined” with matters over which the
appellate court properly and independently has
jurisdiction. Chambers v. Ohio Dep't of Human
Serus., 145 F.3d 793, 797 (6th Cir. 1998). This
circuit has interpreted “inextricably
intertwined” to mean that the resolution of the
appealable issue “necessarily and unavoidably”
decides the nonappealable issue.
368 F.3d at 889 (some internal citations omitted).
“The ‘inextricably intertwined’ requirement of
pendent appellate jurisdiction is not meant to be
loosely applied as a matter of discretion; rather, such
jurisdiction only may be exercised when the appealable
issue at hand cannot be resolved without addressing
the nonappealable collateral issue.” Chambers, 145
L3a
K.3d at 797 (citing Archie v. Lanier, 95 F.3d 438, 443
(6th Cir.1996)). Moreover, we have previously declined
to exercise our pendent appellate jurisdiction over a
district court’s abstention ruling when the resolution
of that issue “require|s] the application of {a] separate
and distinct legal standard|[.]” Summers, 368 F.3d at
889. Such is the case here. Because we are able to
resolve the propriety of the district court’s injunction
without reaching its abstention ruling, we decline to
review it. See Chambers, 145 F.3d at 797.
Despite its status as the appellant, the Township
also argues that the issues raised by this appeal are
moot. “Simply stated, a case is moot when the issues
presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” Ford uv.
Wilder, 469 F.3d 500, 504 (6th Cir. 2006) (quoting
Powell v. McCormack, 395 U.S. 486, 496 (1969). “The
test for mootness is whether the relief sought would, if
granted, make a difference to the legal interests of the
parties.” Ford, 469 F.3d at 504 (citation and internal
quotation marks omitted).
The Instructions, as applied to the WCCDP, affect
the permissible zoning in subarea 3. Specifically, the
floating commercial cap provision and the major
modification procedure will continue to inhibit
Wedgewood’s ability to develop a maximum of 220,857
square feet of commercial space on its property. Thus,
contrary to the Township’s position, the evaporation of
Wal-Mart’s offer to purchase subarea 3 does not
extinguish Wedgewood’s legally cognizable interest in
securing a judgment that enforces its right to develop
its property according to the WCCDP zoning as it
existed before the Instructions.
l4a
In this regard, our mootness analysis highlights a
key distinction between Wedgewood’s federal and state
litigation. Wedgewood’s state court proceedings
challenge the zoning inspectors denial of its
application for a zoning certificate to develop a 220,598
square foot Wal-Mart on subarea 3. In contrast,
Wedgewood’s federal litigation involves its claim that
the Trustees violated its procedural due process rights
by enacting the Instructions without notice and a
public hearing. Although each proceeding requires an
interpretation of the WCCDP, the harm aileged and
the relief sought are distinct.
II].
“A party is entitled to a permanent injunction if it
can establish that it suffered a constitutional violation
and will suffer ‘continuing irreparable injury’ for which
there is no adequate remedy at law.” Deja Vu of
Nashville, Inc. v. Metro. Gov't of Nashville & Davidson
County, 466 F.3d 391, 394 (6th Cir. 2006) (citing
Women’s Med. Prof Corp. v. Baird, 438 F.3d 595, 602
(6th Cir. 2006). “In determining whether a district
court has properly granted a permanent injunction, we
review factual findings for clear error, legal
conclusions de novo, and the scope of injunctive relief
for abuse of discretion.” Gibson Guitar Corp., 423 F.3d
at 546 (internal citation and quotation marks omitted).
In the usual course, a district court should conduct
an evidentiary hearing before issuing a permanent
injunction. Moltan Co. v. Eagle-Picher Indus., Inc., 55
F.3d 1171, 1174 (6th Cir. 1995). However, because “no
factual issues remainled] for trial, the district court’s
decision to grant a permanent injunction without such
a hearing [can] still be upheld” if it properly granted
oa
summary judgment for Wedgewood. See Gibson Guitar
Corp., 423 F.3d at 546 (internal citation and quotation
marks omitted). Accordingly, resolution of the
Township’s appeal from the district court’s permanent
injunction requires us to analyze the district court’s
summary judgment rulings as to Wedgewood. /d.
Summary judgment should be granted whenever
“there is no genuine issue as to any material fact and
|| the movant is entitled to a judgment as a matter of
law.” Fed. Civ. P. 56(c). Thus, only disputed material!
facts, those “that might affect the outcome of the suit
under the governing lawl,]” will defeat summary
disposition. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In addition, the standard of review
applicable to cross-motions for summary judgment
does not differ from the standard we apply when
reviewing a Fed. R. Civ. P. 56(c) motion filed by only
one party. Taft Broad. Co. v. United States, 929 F.2d
240, 248 (6th Cir. 1991).
To establish a procedural due process violation
under 42 U.S.C. § 1983, Wedgewood is required to
demonstrate three elements: (1) that it had a life,
liberty, or property interest protected by the Due
Process Clause of the Fourteenth Amendment; (2) that
it was deprived of that protected interest within the
meaning of the due process clause; and (3) that the
state did not afford it adequate procedural rights
before depriving it of its protected interest. See Med.
Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir
2002).°
’ Procedural due process and vagueness claims brought under the
Ohio Constitution are governed by the same legal standards
16a
Wedgewood will prevail on its procedural due
process claim if it: (1) demonstrates that it was
deprived of a liberty or property interest as a result of
an “established state procedure|[,]” which itself violates
procedural due process rights; or (2) establishes that
the Township deprived it of a liberty or property
interest “pursuant to a random and unauthorized act”
and available state remedies would not adequately
compensate it for the loss that it suffered. Merittk v.
Blalock, 983 F.2d 1353, 1365 (6th Cir. 1993); see
Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir.
1991).
Because the district court’s injunction turned on its
conclusion that the Instructions improperly amended
the WCCDP, we begin our analysis with this ruling.
The parties agree that Ohio law governs our
interpretation of the WCCDP. See, e.g., Miamisburg v.
Wood, 739 N.E.2d 410, 412 (Ohio Ct. App. 2000)
(relying upon Ohio law to interpret an Ohio city
ordinance).
When interpreting zoning ordinances, or, in this
instance, the WCCDP, we must presume that the
WCCDP and Instructions “mean what [they] sayl].”
Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 8. Ct. 1862,
1868 (2009) (Stevens, J., concurring). In addition, our
“interpretation of [the WCCDP] should serve to
applicable to the federal constitution. Sorrell v. Thevenir, 633
N.E.2d 504, 511 (Ohio 1994); Warren v. City of Athens, Ohio, 41]
F.3d 697, 704 n.6 (6th Cir. 2005). Thus, we analyze Wedgewood’s
state and federal constitutional claims simultaneously.
Llva
illuminate its meaning, rather than to render portions
of it meaningless.” Cardanit v. Olsten Home
Healthcare, No. 97AP1200833, 1998 WL 549374, at *3
(Ohio Ct. App. July 31, 1998).
Article XIV of the Liberty Township Zoning
Resolution § 14.06(F) states:
Any significant changes to an Approved
Development Plan in a Planned Commercial
and Office District shall be considered an
Amendment to the Zoning Map and shall only
be made in accordance with Article XXVII of
this Resolution.
Article XXVII of the Liberty Township Zoning
Resolution “is ...a restatement of Section 519.12 of
the Revised Code of Ohio[,!” which requires advanced
notice and a public hearing before the Trustees can
adopt an amendment to an existing PUD development
plan.
The Township asserts that the district court erred
when it ruled that the Instructions constituted an
amendment to the WCCDP rather than a clarification
of its existing restrictions, including the floating
commercial cap. It contends that the true amendment
occurred on November 18, 1991, when the Trustees
voted to restrict the WCCDP to 1,000,000 square feet
of office space, 500,000 square feet of commercial
space, and 750 residential units. According to the
° Notably, this provision appears directly below Article XIV
subpart F, which specifically addresses subdivided plats in PUD
developments.
l8a
Township, the 500,000 square foot floating commercial
cap is reflected in the following November 15, 1991,
amendment to the WCCDP:
B. Subarea Development Criteria
Criteria Generally
a) Density
3) Commercial. Gross square footage of
commercial construction shall not
exceed Five Hundred Thousand
(500,000) square feet.
The Township also claims that the floating commercial
cap 1s memorialized in Addendum A of the WCCDP
WEDGEWOOD COMMERCE CENTER
SUMMARY OF SITE DATA
TOTAL MAX: GROSS
LAND USE ACRES BLDG AREA DENSITY
COMMERCIAL 73.26 AC 500,000 S.F 6,825.00
SF/AC
OFFICE 114.68 AC 1,000,000S.F. 8,719.92
sF/AC
RESIDENTIAL 104.14 A‘
The Township further maintains that the floating
commercial cap is recorded in the November 18, 1991,
Trustees meeting notes, wherein it was mentioned
that the WCC would contain “500,000 square feet of
commercial development.”
In response, Wedgewood concedes that the WCCDP
reflects a total gross building area of 500,000 square
feet of commercial space. It counters, however, that a
floating cap on commercia! development was never
contemplated by the parties. According to Wedgewood,
any WCC document that reports a total of 500,000
square feet of commercial space simply reflects a
summary of the WCCDP’s approved commercial land
use 1n subareas 3, 8, and 9 only.
We agree with Wedgewood’s interpretation of the
WCCDP. Accepting the Township’s position, i.e., that
Addendum A’s reference to a “max. gross bldg. area” of
500,000 square feet reflects the parties’ intent to apply
a floating commercial cap to all subdivisions within the
WCC would render meaningless the WCCDP’s express
designation of subareas 38, 8, and 9 as the only
commercial subareas. Put another way, if commercial!
development were permissible or intended in subareas
other than subareas 3, 8, or 9, it would have been
superfluous to assign a specific land use category to
each subarea. In _ addition, the ‘Township’s
interpretation of the WCCDP would require us to
ignore the strong correlation between Addendum A’s
reported 500,000 square feet of commercial building
space and the combined square footage of subareas 3,
8, and 9, which totals 499,930 square feet.
Moreover, Addendum A’s density calculation is
telling. It divides 500,000 square feet of gross
commercial building space by a total acreage area of
73.26 acres, the total acreage of subareas 3, 8, and 9
(within one-hundredth of one point), for a total density
20a
of 6,825 square feet of commercial space per acre
Thus, Addendum A _ specifically configures its
commercial density calculation by dividing the total]
amount of commercial building space permitted in
those subareas with the total acreage of subareas 3, 8,
and 9. This calculation directly contradicts the
Township's claim that the 500,000 square feet of
approved commercial development within the WCC
was not specifically tethered to subareas 3, 8, and 9.
We conclude, as the district court did, that the
WCCDP, as amended, contemplated commercial
development in subareas 3, 8, and 9 only; therefore,
there was no “floating” commercial cap in the WCCDP
before the enactment of the Instructions. In this
regard, we agree with the district court’s conclusion
that, even though the Township and Wedgewood
“turnled| a blind-eye toward the [specific] location
requirements for commercial development expressed
in the [WCCDP] for thirteen years|,] [it] does not
somehow change the maximum allowable commercial
development [permitted] in subareas 3, 8, or 9.”
The ‘Township’s enactment of the floating
commercial cap provision, as articulated in the
Instructions, effectively reduced the total square
footage of commercial space permitted in subarea 3
We therefore hold that the Instructions constituted a
“significant change{] to an approved Development
Plan[,]” thus requiring an “Amendment to the Zoning
Map|.]” See Liberty Township Zoning Resolution
§ 14.06 (F).
Kor these reasons, we conclude that the district
court did not err in ruling that the Instructions
constituted an amendment to the WCCDP that
triggered Ohio Rev. Code §519.12’s advance not!
public hearing requirement:
Next, the ‘Township argues that the district court
erred in ruling that Wedgewood had a protected liberty
interest in the amendment procedures discussed
above. Wedgewood, however, has abandoned the
district court's liberty-based analysis and requests that
we affirm the district court’s favorable ruling on it
procedural due process claim on the separate ground
that it had a property interest in subarea 3’s zoning
before the Trustees enacted the Instruction:
“Property interests, of course, are not created by
the Constitution. Rather they are created and their
dimensions are defined by existing rules” or
understandings that stem from an independent source
such as state law rules or understandings that
secure certain benefits and that support claims of
entitlement to those benefits.” Bd. of Regents of Stat
Colls. v. Roth, 408 U.S. 564, 577 (1972)
“In determining whether [Wedgewood] established
a vested property interest, we must look to substantive
state zoning laws.” Dorr v. City of Ecorse, 305 F. App’x
270, 275 (6th Cir. 2008) (unpublished) (citing Silver t
In its appellate brief, Wedgewood requests this court to reviev
its case “under the property wing of procedural due proce
Moreover, Wedgewood has not provided a liberty-based argument
for our consideration and has therefore forfeited the issue. §
Phinazee, 515 F.3d at
that is “adverted to in a perfunctory manner unaccompanied by
520 (holding that a party forfeits an issue
some effort at developed argument”)
22a
Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031,
1036 (6th Cir. 1992)). In Silver, we stated that a party
obtains a_ protected property right under the
Fourteenth Amendment when it can demonstrate a
“legitimate claim of entitlement’ or a ‘justifiable
expectation’ in the approval of his [building] plan.”
Silver, 966 F.2d at 1036 (citations and quotation
marks omitted).
In Ohio, it is well-established that a landowner’s
right to an existing zoning classification vests upon his
submission of an application for a building or zoning
certificate. Gibson v. Oberlin, 167 N.E.2d 651, 654
(Ohio 1960). However, vesting does not occur unless
the
property owner has complied with all the
legislative requirements for the procurement of
a building permit and his proposed structure
falls within the use classification of the area in
which he proposes to build it, {— if these
conditions are met] he has a right to such
permit, and there is a duty on the part of the
officer charged therewith to issue it.
Zaremba Dev. Co. v. Fairview Park, 616 N.E.2d 569.
971 (Ohio Ct. App. 1992) (quoting Gibson, 167 N.E.2d
at 654).®
It is uncontested that Wedgewood submitted its
application for a zening certificate on June 29, 2004,
~ Itis unclear under Ohio law whether Wedgewood’s October 2003
application qualifies as a building permit under Gibson and
Zaremba Dev. Co.
23a
after the Trustees adopted the Instructions. Because
Wedgewood submitted its application
post-Instructions, the Township argues that
Wedgewood cannot demonstrate a vested property
interest in its zoning classification under Grbson and
Zaremba Dev. Co. We disagree.
The salient issue before us “is whether the Zoning
Commission had the authority under Ohio law to take
the action that it did.” Stile v. Copley Twp., 115 F.
Supp. 2d 854, 865 n.21 (N.D. Ohio 2000). In Stile, a
zoning commission eliminated a formerly permitted
land use classification in a PUD where the plaintiff
owned property. /d. at 859. The plaintiff intended to
sell a section of his property to an automobile
dealership, but the sale collapsed when the parties
discovered that the township’s zoning commission had
eliminated the “community/regional sales” zoning
classification as a “permitted use” in the PUD. Id.
The Stile court ruled that the plaintiff had
demonstrated a protected property interest in the
“community/regional sales” zoning classification
because:
the change made... by action of the Township
Zoning Commission was in the nature of a
zoning amendment... . [and the] action was
beyond the scope of the Zoning Commission’s
authority, since the legislative action of
amending a zoning classification can only be
taken by the Township Board of Trustees after
following the notice and hearing procedures set
forth in Ohio Rev. Code § 519.12.
24a
Stile, 115 F. Supp. 2d at 865 (footnote omitted). Like
the Township here, the township in Stile asserted that
the plaintiff did not have a vested property interest in
the existing zoning classification under Zaremba Dev.
Co. Id. at 865. The district court characterized the
township’s argument as “a red herring|[,]” noting that
the proper issue was whether the zoning commission
had the authority to eliminate the zoning classification
without complying with § 519.12’s notice and hearing
requirements. /d. The district court concluded that the
zoning commission’s actions were improper and
granted the plaintiffs request for injunctive relief. Id.
at 866.
In SuperValu Holdings, Inc. v. Jackson Ctr. Assocs.,
LP, Nos. CA2005-09-085, CA2005-09-089, 2006 WL
1843588, at *4 (Ohio Ct. App. July 3, 2006), the Ohio
Court of Appeals acknowledged the property right
discussed in Stile:
In Stile, a township zoning commission
eliminated a “permitted use” in a Planned
Development District where the plaintiffowned
property. Jd. at 858-859. The plaintiff had
intended to sell part of his property to an
automobile dealership, but such a sale was not
feasible following the elimination of
“community/regional saies” as a “permitted
use.” Id. In Stile, state action affected the
plaintiffs property rights by restricting how the
plaintiff could use his property.
Id. at *4. Although SuperValu Holdings, Inc., does not
expressly adopt Stile’s holding, it acknowledged that a
protectable property interest can arise under Ohio law
when a government entity restricts a landowner’s
20a
ability to use his property. Jd. The facts in Stiles are
similar to the facts in this case.
For these reasons, we conclude the Ohio courts
would hold that, consistent with Roth, Silver, Stile,
and SuperValu Holdings, Inc., Wedgewood had a
“justifiable expectation” that its zoning classification
— its right to develop up to 220,857 square feet of
commercial space on subarea 3 — was vested unless or
until the Commission and Trustees passed an
amendment to the WCCDP comporting with the notice
and hearing requirements set forth in Ohio Rev. Code
§ 519.12. See Silver, 966 F.2d .t 1036 (quoting Roth,
408 U.S. at 577, and Olim, 461 U.S. at 245); Dorr, 305
F. App’x at 275. Specifically, Articles XIV § 14.06 (F)
and XXVII of the Liberty Township Zoning Resolution,
Ohio Rev. Code § 519.12, and the WCCDP itself,
provided the “rules” and “understandings” under Ohio
law “that secure[d] .. . [its] claim[] of entitlement” to
its zoning classification. See Roth, 408 U.S. at 577.
Similar to the plaintiffs in Stile, Wedgewood possessed
a protected property interest in subarea 3’s zoning,
notwithstanding the Trustees’ ultra vires amendment.
See generally, Cole v. Twp. of Clinton, No. 17-91-6,
1991 WL 274246, at *4 (Ohio Ct. App. Dec. 19, 1991)
(unpublished).
Finally, we must analyze whether the Township’s
enactment of the Instructions without providing notice
and a hearing deprived Wedgewood of a protected
property interest within the meaning of the Due
Process Clause. In this regard, it is well-established
that violations of state law do not “automatically
translate into a deprivation of procedural due process
under the United States Consiitution.” DePiero v. City
of Macedonia, 180 F.3d 770, 788 (6th Cir. 1999). The
Supreme Court has described “the root requirement”
of the Due Process Clause as notice and an opportunity
to be heard before one is deprived of a significant
property interest. Cleveland Bd. of Educ. vu.
Loudermill, 470 U.S. 532, 542 (1985).
In Nasterowski Bros. Inv. Co. v. City of Sterling
Heights, 949 F.2d 890 (6th Cir. 1991), a
plaintiff-landowner claimed that the city counsel
violated his procedural due process rights by enacting
a zoning amendment designed to prevent him from
proceeding with his proposed commercial development.
Id. at 891. The district court granted summary
judgment in favor of the city and denied the
landowner’s request for an injunction prohibiting the
enforcement of the new zoning ordinance against his
property. Jd. at 893. We reversed, holding that the
landowner “was not provided with notice of a proposed
change in the zoning ordinance, a change that would
exert a severely detrimental impact on his ability to
use the property in a manner consistent with his
legitimate expectations — expectations that the City
itself, had encouraged.” Nasierowski Bros. Inv. Co.
949 F.2d at 895. We held:
.
Governmental determinations of a general
nature that affect all equally do not give rise to
a [Constitutional] due process right to be heard.
But, when a relatively small number of persons
are affected on individual grounds, the right to
a hearing is triggered. Falling into that latter
category is the situation where, during the
[zoning] amendment process, a governmental
Cyr7
2éa
unit singles out and specifically targets an
Thus, in these circumstances ithe
plaintiff-landowner] had a right to notice and
hearing vrior to [the] Council’s vote on [the]
proposed amendment. The City’s failure to
afford [the plaintiff landowner] an opportunity
to be heard constituted a denial of procedural!
due process.
Nasterowski Bros. Inv. Co., 949 F.2d at 896 (footnote
omitted).
We find the reasoning of Nasterowski Bros. Inv. Co.
persuasive. Ilere, there is ample evidence in the record
to support the district court’s conclusion that the
Instructions were not “general [in] nature[,]” but
rather targeted or singled-out Wedgewood’s ability to
construct a Wal-Mart on its property. Nasierowski
Bros. Inv. Co., 949 F.2d at 896. Thus, to satisfy the
Due Process Clause, the Township was required to
apprise Wedgewood of the pendency of the Instructions
and provide adequate notice and an opportunity to
present their objections. DePiero, 180 F.3d at 788. The
Township failed to do so.
Accordingly, we he'd that the Instructions, which
purported to clarify the WCCDP, unlawfully amended
it without affording Wedgewood adequate notice and
a hearing in violation of the Due Process Clause and
Ohio Rev. Code § 519.12.
28a
We also conclude that the Trustees’ enactment of
the Instructions constituted “an established state
procedure’ that itself violated Wedgewood’s procedural
due process rights. An “established state procedure” is
defined as “the mechanism that effects a deprivation
or contributes to cause a deprivation[.]” Vinson v.
Campbell County Fiscal Court, 820 F.2d 194, 199 (6th
Cir. 1957) (citation and internal quotation marks
omitted). In Zinermon v. Burch, 494 U.S. 113, 132-39
(1990), the Supreme Court stated that a government
act constitutes “an established state procedure” when
officials with the authority to supply a hearing fail to
provide one even though they should have foreseen the
need to provide such procedural protections. See also
Harris v. City of Akron, 20 F.3d 1396, 1401-02 (6th Cir.
1994); Erwin Chemerinsky, Federal Jurisdiction, § 8.9
at 581 (5th ed. 2007). Here, the Commission and Board
of Trustees are the government entities that should
have foreseen, and could have provided, the exact
procedural protection that Wedgewood claims it was
denied.
LV
We conclude that the district court properly
granted summary judgment in favor of Wedgewood on
: . 9 rere c
its procedural due process claim.” Dixon v. Clem, 492
Because we hold that the district court properly granted
summary judgment in favor of Wedgewood on its procedural due
process claim, our holding is sufficient to affirm the district court’s
permanent injunction. Thus, we do not reach the district court’s
alternate holding that the WCCDP is unconstitutionally vague
See United States v. Elkins, 300 F.3d 638, 647 (6th Cir. 2002)
29a
F.3d 665, 673 (6th Cir. 2007) (“[WJe may affirm on any
grounds supported by the record even if different from
the reasons of the district court.”) (citation and
internal quotation marks omitted). Further, we affirm
the permanent injunction because Wedgewood suffered
a constitutional violation and will continue to suffer
irreparable injury for which there is not an adequate
remedy at law, Deja Vu of Nashuille, Inc., 466 F.3d at
394, and that the scope of the district court’s
injunction does not constitute an abuse of discretion,
Gibson Guitar Corp., 423 F.3d at 546."°
r these reasons, we affirm the district court’s
order granting a permanent injunction against the
‘Township.
(“Courts should avoid [deciding] unnecessary constitutional
questions.” (citing Spector Motor Serv., Inc. v. McLaughlin, 323
U.S. 101, 105 (1944))
10 7 mM
~ We reserve judgment regarding whether the Township may
re-enact the Instructions or their equivalent if it affords
Wedgewood adequate nutice and a hearing
JAMES G. CARR, District Judge, dissenting.
Because my understanding of the law controlling an
aspect of the case before us differs from that of the
majority, | respectfully dissent.
The Due Process Clause of the Fourteenth
Amendment provides that no State shall “deprive any
person of life, liberty, or property without due process
of law.” U.S. Const. Amend. XIV, § 1. To establish a
procedural due process violation under 42 U.S.C.
§ 1983, Wedgewood must show that “(1) [it] had a life,
liberty, or property interest protected by the Due
Process Clause; (2) it was deprived of this protected
interest; and (3) the state did not afford [it] adequate
procedural rights prior to depriving [it] of the property
interest.”’ Waeschle v. Dragovic, 576 F.3d 539, 544 (6th
Cir. 2009) (quoting Women’s Med. Profl Corp. v. Baird,
438 F.3d 595, 611 (6th Cir. 2006)); see also Med. Corp.
uv. City of Lima, 296 F.3d 404, 409 (6th Cir. 2002).
“To have a property interest in a benefit, a person
clearly must have more than an abstract need or
desire for it. He must have more than a unilateral
expectation of it. He must, instead have a legitimate
claim of entitlement to it.” Bd. of Regents of State
Colls. v. Roth, 408 U.S. 564, 577 (1972).
In sum, “a party cannot possess a property interest
in the receipt of a benefit when the state’s decision to
withhold the benefit is wholly discretionary.” Med.
Corp., 296 F.3d at 409. To assert a property interest,
3la
a party must point to a “policy, law, or mutually
explicit understanding that both confers the benefit
and limits the discretion of the City to the rescind the
benefit.” Jd. at 410.
“Property interests, of course, are not created by
the Constitution. Rather they are created and their
dimensions are defined by existing rules’ or
understandings that stem from an independent source
such as state law-rules or understandings that secure
certain benefits and that support claims of entitlement
to those benefits.” Roth, 408 U.S. at 577.
In Ohio, a property owner’s right to an existing
zoning classification vests “upon the filing of the
application for the [building or zoning] permit.” Gibson
v. City of Oberlin, 167 N.E.2d 651, 654 (Ohio 1960);
Zaremba Dev. Co. v. City of Fairview Park, 616 N.E.2d
569, 571 (Ohio Ct. App. 1992).
Wedgewood did not have an application for a zoning
permit or certificate pending at the time the Trustees
enacted the Instructions. The Commission denied
Wedgewood’s variance application and Wedgewood
subsequently withdrew ‘t prior to the Trustees’
enactment of the Instructions.
The parties do not dispute that Wedgewood
submitted its second application for a certificate on
June 29, 2004, after the Trustees enacted the
Instructions.
Because Wedgewood did not have an application
pending at the time of the amendment, it did not,
under Gibson and Zaremba, have a vested property
interest in the zoning classification of the parcel at
issue.
f understand the majority opinion to hold that
Articles XIV § 14.06 (F) and XXVII of the Liberty
Township Zoning Resolution, Ohio Rev. Code § 519.12,
and the WCCDP itself, with the accompanying notice
and hearing requirements, create a property interest.
in the zoning classification. This is so, the majority
indicates, because the procedural requirements which
the corresponding legislative bodies prescribe serve as
a “limit on discretion” sufficient to create procedural
due process rights and, ergo, a property interest
results.
Limits on discretion create property interests,
according to my understanding, only when those limits
are substantive. Experimental Holdings, Inc. v. Farris,
503 F.3d 514, 520 (6th Cir. 2007) (“state procedural
requirements cannot be the types of “limits on
discretion” that are sufficient to find a property
interest. In order for limits on discretion to create
property interests, they must be substantive limits on
discretion.”) (emphasis in original). State procedural
requirements are not sufficient. Jd.; see also Ziegler v.
Aukerman, 512 F.3d 777, 787 (6th Cir. 2008) (holding
that failure to provide a procedure required by state
law does not inherently amount to a federal due
process violation); Brown v. City of Ecorse, 322 F
Appx 443, 446 n.7 (6th Cir. 2009) (unpublished
disposition) (“[Plaintiff] could not bootstrap himself
into Fourteenth Amendment protection by claiming a
property interest in certain procedures that he charge:
were not followed by [defendant].”)
The fact that the state provides procedural rights,
such as notice and a hearing, to protect substantive
rights does not change this fact. Hxperimental
Holdings, 503 F.3d at 520. For example
There would be a substantive limit on discretion
if, for instance, a state could not refuse to renew
a certain occupational license unless the
licensee overcharged customers. The fact that
the state gives the licensee certain procedural
rights in determining the substantive right
(e.g., an oral hearing, appointed counsel, or two
administrative appeals) does not turn those
procedural rights into federal due process
rights. Nor could it, without simply rendering
state procedural law enforceable in federal
court
In the district court case relied on by the majority,
Stile v. Copley Twp., 115 F. Supp. 2d 854, 865 (N.D
Ohio 2000), the court held that a zoning commission’s
amendment of the zoning code violated due process
because the township had not provided adequate
notice and hearing procedures. /d
In a footnote and in response to defendants’
argument that plaintiff's rights had not vested under
Zaremba because he had not “compllied] with all the
legislative requirements for the procurement of a
zoning certificate” the court in Stile found “the
argument of defendants to be no more than a red
herring.” /d. at 865 n.21. The court stated “here, the
issue 1s whether the Zoning Commussion had the
The majority relies on the court's statement a
support for its contention that a property right exist:
in the instant case. The majority also states that in
SuperValu Holdings, Inc. v. Jackson Ctr. Assoc., LP..,
2006 WL 1843588, at *8 (Ohio Ct. App.), the Ohio
Court of Appeals confirmed the property interest found
by the court in Stile. For three reasons, I do not believe
that Stile and SuperValu support the outcome reached
by the majority
~
’
I
First, the plaintiff in Stile had an application
pending for a zoning certificate when the Zoning
Commission amended the development plan. In fact,
the court in Stile stated: “Under Ohio law, a property
owner's right to an existing zoning classification vest:
upon the submission of an application for a building or
zoning certificate.” 115 F. Supp. 2d. at 865 n.21 (citing
Zaremba, 616 N.E.2d at 571). This fact distinguishe
the circumstances in Stile from those here, wher
| note parentheti ally that immediate! preceding the quot
which the majority relies, the court in Stile also stated in respo
to defendants argument
However, the Township Zoning Regulations also requir
ction on an application within 30 days. The township ha
offered no explanation as to why the Zoning Inspector
chose to sit on the application rather than extending thi
applicant the courtesy of a telephone call to tell him that
h appli ation Va not n omphance it!
rulati
Wedgewood had no application pending when thi
Trustees changed the rule
That the court in Siide then discounted defendant
argument that plaintiffs property right “did not vest
under Zaremba because he did not comply with all the
lemislative requirements for the procurement of a
zoning certificate,” id., is inapposite here. The district
court's citation of Zaremba shows it was. not
disregarding the application requirement of Zare mba,
even assuming it could have done so
Most simply put, the landowner in Stile was not, a
Wedgewood does here, asserting it had a property
right, absent a pending application for a building o7
oning certificate, when the change 1n zoning occurred
Second, though I agree with the majority that the
Ohio Court of Appeals recognized the holding of Stile
in SuperValu Holdings, | disagree with the m: ity’
interpretation of this recognition
The Ohio Court of Appeal! imply dist
Stile, stating
‘he principal case cited by appellant, Stvle, 1
inapplicable. In Stil 1 township zoning
commission eliminated a “permitted use” in a
Planned Development District where th
plaintiff owned property. The plaintiff had
intended to sell part of his property to
i1utomobile dealership, but such a sale wa
feasible following the elimination
“community/regional sales’ as a “permitted
Ise "In Stile, state action affected the plaintiff
nehts bv restricting how
36a
could use his property. In this case, Union
Township’s enactment of its zoning
amendments did not affect Supervalu’s property
rights. Specifically, the enactment of the
amendments did not affect the validity or the
enforceability of the restrictive covenants.
SuperValu Holdings, 2006 WL 1843588, at *4.
Although the court in SuperValu recognized, in
passing, the property right identified in Stile, it did not
mention Zaremba, or Gibson. Had the court in
SuperValu interpreted Stile as broadly as the majority
seems to envision — as overruling or distinguishing the
Zaremba/Gibson requirement that property rights
vest only on submission of an application for a zoning
permit or certificate — one would expect at least a
passing reference to these cases. This is particularly
true with regard to Gibson, as it is an Ohio Supreme
Court case and binding authority.
Third, and most importantly, were the decision of
the district court in Stile as broad as the majority
suggests, that holding would contradict binding Sixth
Circuit law, as exemplified by and enunciated so
clearly in Experimental Holdings, 503 F.3d at 520. To
repeat what that court stated and so clearly,
emphatically and unequivocally declared: “state
procedural requirements cannot be the types of ‘limits
on discretion’ that are sufficient to find a property
interest. In order for limits on discretion to create
property interests, they must be substantive limits on
discretion.”
37a
So established and stated, this rule draws the
proverbial bright line for all — landowners, developers
and governmental bodies.
Because Wedgewood had no application pending at
the time of the amendment, and because procedural
limits on discretion cannot, under the law of Ohio and
precedents of this Court, create a property interest,
Wedgewood did not have a vested property interest in
any particular zoning classification. It, therefore,
cannot establish a due process violation
For these reasons, I respectfully dissent.
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTL &N DIVISION
Case No. C2-04-1069
JUDGE ALGENON L. MARBLEY
Magistrate Judge King
[Filed September 25, 2008]
WEDGEWOOD LIMITED |
PARTNERSHIP I,
Plaintiff,
ie
TOWNSHIP OF LIBERTY, OHIO, et. al., }
Defendants.
OPINION AND ORDER
I. INTRODUCTION
This matter comes before the Court on cross-
motions for summary judgment by Plaintiff
Wedgewood [I.imited Partnership I (“Wedgewood LP”
or “Plaintiff’), and Defendants Holly C. Foust, Robert
E. Cape, Peggy Guzzo, and Curt Sybert (collectively,
9a
“Trustees”), the Township of Liberty, Ohio, located in
Delaware County, Ohio (“Liberty Township”), and the
Board of Trustees of Liberty Township (“Board of
Trustees”) (collectively, “Defendants”). For the reasons
that follow, the Court GRANTS summary judgment in
favor of Plaintiff on its procedural due process (Counts
I] & VD and vagueness (Count IIT & VII) claims, and
GRANTS in part and DENIES in part Plaintiffs
request for declaratory relief (Count IX). Accordingly,
Defendants’ motion for summary judgment as to
Counts [I], Hl, VI, and VII is DENIED, and
Defendants’ motion is GRANTED in part and
DENIED in part as to Count IX.
It. STATEMENT OF FACTS'
A. Background
The parties’ dispute centers on the Defendants’
decision to deny zoning approval for Plaintiffs
proposed plan to develop a Wal-Mart Supercenter
within Liberty Township. Defendants assert that they
refused to issue Plaintiff a zoning permit to build the
proposed Wal-Mart because the store would not
comply with Liberty Township’s Zoning Resolution.
Plaintif claims, however, that Defendants’ decision to
deny the requested zoning permit violated its due
process rights and that the Zoning Resolution is an
uncons:itutionally vague ordinance.
‘ The statement of facts is adopted, in part, from the Court’s
October 12, 2006 Order, addressing Defendants’ motions to
dismiss.
1. The Parties
Plaintiff owns an approximately 34-acre lot located
in the “Wedgewood Commerce Center” development
(the “WCC”), a 345-acre mixed-use development within
Liberty Township. The lot, which is the subject of the
instant suit, was platted as lot number 2069 or
“subarea 3” in the WCC Section 1 and recorded as such
in the Delaware County records. In addition to owning
lot number 2069, Wedgewood LP was also one of the
original developers of the WCC. Defendants are
Liberty Township, the Board of Trustees, and the
individual board members in their capacity as
Trustees. Also, the Liberty Township/Powell
Neighborhood Community Watch Foundation has
intervened as a party defendant in the suit.
2. The WCC Development
In June 1991, Plaintiff and others filed an
application to amend Zoning Map to Planned
Commercial (“PC”) to create the WCC, a proposed
planned-unit development (“PUD”). On November 18,
1991, the Board of Trustees anproved the re-zoning
and the parties developed a planned-unit development
plan (the “PUD Plan”). The PUD Plan, and all
1 uray VU. Trustees of Monclova Twp., 313 N.E.2d 366 (Ohio
1974), the Ohio Supreme Court addressed the nature of planned-
unit development (“PUD”) zoning, explaining that PUD zoning
permits those aspects of land development that were normally
regulated by zoning to vary within a geographically-defined area
by bearing a single zoning classification. The Gray court noted
that, “[t}he overall zoning classification in a PUD area can be
termed ‘nominal’ because it does not, by itself, indicate the specific
zoning restrictions in the area. These restrictions are
4la
corresponding plat maps were formally combined into
the “Wedgewood Commerce Center Development
Standards” (“WCC Development Standards”), which
was filed with the Commission on February 2, 1992.
Among other things, the WCC Development Standards
required the establishment of an “architectural review
committee” to “exercise control over the design and
final planning of all phases of the development” and to
ensure that the proposed structures fit the “rural
context of Liberty Township.” Further, the WCC
Development Standards provided that development
would occur in five-year phases and would “proceed as
market conditions dictate,” estimating that it would
take approximately ten to twelve years to finish the
project.
Pursuant to the PUD Plan, there were seventeen
subareas created with three different types of
designated use: commercial, residential, and office.
Subareas 3, 8, and 9 were the only subareas zoned for
commercial use. Each was allotted a different amount
of square feet for commercial use, and when added
together, they totaled 499,930 square feet of permitted
commercial use within the overall PUD Plan.’
According to the Liberty Township Zoning Resolution,
in place at that time, in a Liberty Township PC zone,
the developer gets to “craft its own unique zoning that
ascertainable only by referring to the approved plats for the
development.” Jd. at 369. Accordingly, the Gray court. found that
the approval of a PUD plat is the functional equivalent of
“traditional legislative zoning.” Id.
3 oO b «pe ae J >
Subarea 3 was allotted +/- 220,857 square feet; subarea 8 was
allotted +/- 144,553 square feet; and subarea 9 was allotted +/
134,520 square feet.
4?a
applies only to that developer’s parcel.” See Zoning
Resolution §§ 14.01, 14.06(a)-(c) (eff. May 1, 1991). To
allow for this “unique zoning,” each developer’s plan
becomes part of an amendment to the Township’s
zoning code. See id. §§ 14.06(d) (“The Development
Plan as approved by the Township Trustees shall
constitute an amendment to the zoning resolution as it
applies to the lands included in the approved
amendment.”) (emphasis added).
Over the course of the next thirteen years, in
accordance with standard Liberty Township zoning
procedure,* significant development occurred within
the WCC. Some of this development differed from what
was set forth in the PUD Plan. For instance, although
the PUD Plan designated subareas 4, 5, 6, and 10 for
“suburban office use” only, owners of each of these
subareas sought approval for and were granted
permits to build retail and/or commercial structures.
Accordingly, subareas 4, 5, 6, and 10 now comprise
approximately 248,000 square feet. of “commercial”
development, rather than the suburban office space for
which they were initially zoned. Plaintiff asserts that
it had no involvement or input in Liberty Township’s
approval of these zoning changes.
In October 2008, Plaintiff submitted an application
to the Commission for six area variances, to construct
a Wal-Mart Supercenter on WCC lot number 2069.
The parties do not dispute that the proposed Wal-Mart
* Parties seeking to construct buildings on property within Liberty
Township must first apply for a “Zoning Certificate” from the
Zoning Inspector, who must then certify that the proposed
construction is consistent with Liberty Township’s Zoning
Resolution.
43a
store complies with the definition of “commercial” use
under the Liberty Township Zoning Resolution. After
conducting a public hearing on the matter, however,
the Commission denied Plaintiffs variance
applications, and Plaintiff subsequently withdrew
them
Soon after Plaintiff's variance applications were
denied, the Homeowners Associations of Wedgewood,
Camden Lakes, Wedgewood Hills, Falcon Ridge,
Braemar, the Barringtons at Wedgewood Villa
Condominium Association, Big Bear Farms, and
Grandshire,’ detailed their concerns over what they
deemed inconsistencies in the PUD Plan. The Board of
Trustees then ordered the Zoning Inspector, Holly
Foust, to study the history of the administration of the
PUD Plan to alleviate a number of concerns over its
application.
On January 19, 2004, following the Zoning
Inspector’s study, the Trustees issued a_ Public
Statement (the “January 19 Instructions”), which now
governs the procedural administration of the WCC by
the Commission. Importantly, the January 19
Instructions concluded that the PUD Plan imposed a
so-called “floating cap” of 500,000 square feet of
commercial property (the “floating cap”) on all
development within the WCC. Accordingly, the Board
of Trustees instructed the Zoning Inspector to refrain
from issuing any Zoning Certificates for additional
commercial development that would surpass the
500,000 square foot floating cap within the WCC,
r,
»
These groups later formed the Liberty ‘Township/Powell
Neighborhood Community Watch Foundation.
44a
unless or until the PUD Plan had been modified or
amended pursuant to procedures for modifications set
forth in the Liberty Township Zoning Resolution. The
Board of Trustees further indicated that any future
applications for commercial development would be
subject to a “two-step major deviation” development
Plan modification.®
Plaintiff did not submit Zoning Applications under
this heightened “major modification” process. Instead,
on June 29, 2004, Plaintiff, using standard Liberty
Township procedure, applied for zoning permits to
build an approximately 220,598 square foot Wal-Mart
Supercenter and a Murphy Oil gas station in subarea
3. On September 30, 2004, the Zoning Inspector denied
Wedgewood LP’s permit applications explaining that,
in light of the January 19 Instructions, the
applications: (1) failed to meet the requirements for
development plans; (2) exceeded the acreage allowed
© The Board of Trustees wrote:
the commercial development completed to date, and
substantially through the approval process, has consumed
most of the commercial footage imposed by the
development Plan as an overall cap. . . . Under these
circumstances, we have determined that, except for a few
modest projects which have already completed the two-
step “major” administrative review process, all additional
applicants seeking to construct retail or other arguable
“commercial” development in the [WCC] will be required
to seek approval as a “major” plan of modification.
The two-step approval process includes: (1) a review by the
Commission or the Liberty Township Board of Zoning Appeals;
and (2) a review by the Board of Trustees. See Zoning Resolution
§ 14.06(E) (eff. Oct. 3, 2002).
45a
under the floating cap; (3) were incomplete because
they had neither been submitted for approval nor
approved by the WCC architectural review committee;
and (4) were inconsistent with both the Zoning
Resolution and the PUD Plan.
On October 20, 2004, Plaintiff appealed the Zoning
Inspector’s denial to the Liberty Township Board of
Zoning Appeals (“BZA”). At the same time, Plaintiff
also submitted a revised site plan and a letter
withdrawing its permit application for the Murphy Oil
gas station. In its appeal, Plaintiff stated that the
Zoning Inspector had acted improperly in finding that
the proposed construction would exceed the maximum
square footage limitations because the January 19
Instructions, which served as the basis for the
Inspector’s decision, were inaccurate. Further,
Plaintiff asserted that the Zoning Inspector had
incorrectly stated that she could not issue a Zoning
Certificate without the architectural review
committee’s approval as such approval had not been
required in the thirteen years since the PUD Plan had
been approved. Finally, Plaintiff argued that the
Zoning Inspector had mistakenly deemed its
applications incomplete for allegedly failing to meet
variance requests.
The parties currently dispute multiple details of
the PUD Plan. Defendants contend that prior to the
Board of Trustees’ final approval of the PUD Plan, the
Trustees held a public hearing on November 11, 1991,
where it was decided that the WCC would be limited
to the density of one million square feet of office space,
500,000 square feet of retail space, and 750 residential
units. Further, Defendants assert that on November
15, 1991, an amendment was made to the PUD Plan
A6a
that commercial construction could not exceed 500,000
square feet; and that an addendum (“Addendum A”)
was attached to the official filing of the PUD Plan in
February 1992 which also set forth the 500,000
square-foot cap on commercial development. As
support for their contention, Defendants cite to the
minutes from the Commission’s October 1991 and
November 199] meetings. Plaintiff counters that the
parties never agreed to set a floating cap on
commercial development, but rather that the
documentation citing 500,000 square feet of
commercial development simply offer summations of
the commercial use designated for subareas 3, 8, and
9. Moreover, though Plaintiff concedes that it agreed
to the establishment of a WCC architectural review
committee, it contends that the committee has never
met, and the Commission has never before required
the committee’s pre-approval of a party’s zoning
permit application.
B. Procedural History
Because Plaintiff has filed the instant federal! court
action in addition to filing a later suit in state court, a
discussion of the procedural history of both the federal
and state court proceedings is necessary
1. State Court Proceedings
On November 5, 2004, before the BZA had ruled on
Plaintiffs appeal, Plaintiff filed the instant suit
claiming that Defendants’ reliance on the January 19
Instructions, Defendants’ modification of the Zoning
Resolution, and Defendants’ denial of Plaintiff's Wa!
Mart zoning permit application violated Plaintiffs
constitutional rights. After Plaintiff filed this action,
47a
however, administrative activity regarding Plaintiffs
denied zoning permit continued in Liberty Township.
On November 16, 2004, the Liberty Township BZA
onducted a public hearing on Plaintiff's appeal of the
Zoning Inspector’s decision. Although Plaintiff did not
present any testimonial evidence at the hearing, it did
present arguments concerning the content and
meaning of its plans, the development of the
surrounding parcels, and a history of the WCC. On
January 11, 2005, the BZA affirmed the Zoning
Inspector’s September 30 denial of Plaintiff's permit
applications. See BZA Findings of Fact and
Conclusions of Law. Thereafter, on February 8, 2005,
Wedgewood LP filed its Notice of Appeal from the
3ZA’s final decision in state court, pursuant to Ohio
Revised Code § 2506.01.
On March 28, 2005, Plaintiff filed a motion to
supplement the record with additional evidence and to
stay the briefing of the case pending a decision on this
motion. Plaintiff contended that the Board of Trustees’
directive that they must approve, after public hearing,
all commercial development in WCC was “improper
and illegal.” Plaintiff also asserted that the use of
subarea 3 to build an approximately 220,000 square-
foot Wal-Mart store is not a deviation from the PUD
Plan because in 1991, Plaintiff was originally allotted
up to 220,857 square feet for commercial development.
Further, Plaintiff claimed that it was not bound by the
floating cap because no such cap had been set forth in
the WCC Development Standards, and because it had
never agreed to allot a significant percentage of the
purported floating cap to the developers of subareas 4,
5, 6, and 10, who were permitted to construct
commercial buildings in place of the office space set
48a
forth in the PUD Plan. On or about May 13, 2005, the
state court denied Plaintiffs Motion to Supplement the
Record, explaining that in failing to address its
questions and concerns regarding certain documents
and procedures during the BZA hearing, Plaintiff had
effectively waived its right to supplement the record in
the trial court
On July 18, 2005, the parties participated in a
hearing before the Court of Common Pleas for
Delaware County, Ohio, addressing only two narrow
issues: (1) the legal basis for the floating cap on
commercial development in the WCC development;
and (2) whether the PU'D Plan had expired by the time
Plaintiff had submitted its Wal-Mart zoning permit
application. The state court noted that there was a
dearth of evidence on both of the issues in question
explaining
In this case, vital information is missing from
the Liberty ‘Township Board of Zoning Appeal
(“BZA”) record that was submitted to this Court
Scarce, if any, testimony or exhibits were
contained within the record that resolved
questions pertaining to the basis of the zoning
inspector's decision to deny Wedgewood’s
application for a zoning certificate. Further, the
record was also devoid of evidence as to the
legal basis of the 500,000 square-foot
commercial limit imposed upon the WCC; and
evidence as to the affect of the originally
approved {Development Pllan for the WCC on
the commercial limit
See Wedgewood Ltd. P’ship I v. Liberty Twp. Bd. of
Zoning Appeals, Case No. O5CV-F-02-101, Decision
4V¥a
and Entry at 3 (Ohio Ct. Com. PIl.’s Sept. 22, 2005)
(Whitney, J.). Accordingly, the state court remanded
the matter to the Liberty Township BZA to “Carry out
its role as the finder of fact to determine the basis of
the zoning inspector’s decision, as well as provide
documentation for the 500,000 square-foot commercia!
limit [(the floating cap)] on the [WCC] Development
and the affect of the original [PUD] Plan.” /d. Plaintiff
appealed the Court of Common Pleas’ remand order to
the Ohio Fifth District Court of Appeals, which held
that it lacked subject matter jurisdiction to consider
Plaintiffs appeal because the remand did_ not
constitute a final appealable order. Meanwhile, the
record currently before this Court reflects that the
BZA deliberations are still being conducted
2. Federal Court Proceedings
On November 5, 2004, Plaintiff filed this action
this Court asserting its constitutional rights had been
violated. Plaintiffs federal court Complaint assert
nine Counts against Defendants. On October 12, 2006
this Court granted in part and denied in_ part
Defendants’ Rule 12(b)(6) motion to dismiss all Count
The Court refused to dismiss Counts Two, Three, and
Nine Specifically, the Court determined that
{
LOT
Plaintiffs procedural due process and _ void
vagueness claims, under both the tederal and Ohio
constitutions, stated claims upon which relief could br
eranted. The Court also denied Defendants’ motion to
dismiss Plaintiff's declaratory relief claim, withholding
abl
'
judgment pending the resolution of Plaintiff
constitutional claim
5Oa
Hil. STANDARD OF REVIEW
Summary judgment is appropriate where the
record shows that “there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgement as a matter of law.” Fed. R. Civ. P. 56(c).
The movant has the burden of proving the absence of
any genuine issue of material fact. Celotex Corp.
Catrett, 477 U.S. 317, 325 (1986). In determining
whether the movant has carried its burden, the Court
views the evidence in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co. ¢
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The
central inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986)
The standard of review for cross-motions of
summary judgment does not differ from the standard
applied when a motion is filed by only one party to the
litigation. Vaft Broad. Co. v. U.S., 929 F.2d 240, 248
(6th Cir. 1991). And “|t}he fact that both parties have
moved for summary judgment does not mean that the
court must grant judgment as a matter of law for one
side or the other; summary judgment in favor of either
party is not proper if disputes remain as to material
facts. Rather, the court must evaluate each party’s
motion on its own merits... .” /d. (citations omitted)
vila
IV. LAW AND ARGUMENT
A. Due Process
lL. Plaintiffs Liberty Interests
A Plaintuff can make a procedural due process
claim through one of two methods: “(1) [by]
demonstrating that [he] is deprived of property as a
result of [an] established state procedure that itself
violates due process rights; or (2) by proving that
ldjefendants deprived [him] of property pursuant to a
‘random and unauthorized act’ and that available state
remedies would not adequately compensate for the
loss.” Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir
1991). An established state procedure refers to “the
mechanism that effects a deprivation or contributes to
cause a deprivation.” See Vinson v. Campbell County
Fiscal Court, 820 F.2d 194, 199 (6th Cir. 1987). Under
the first-prong of Macene, a plaintiffis not required to
demonstrate the inadequacy of state remedies. Moore
v. Bd. of Educ. of Johnson City Sch., 134 F.3d 781, 785
(6th Cir.1998).
In its October 12, 2006 Order, this Court found that
the January 19 Instructions are administrative in
nature, as opposed to legislative, and are therefore
subject to procedural due process requirements.
Wedgpewwod Ltd. P’ship I. v. Twp. of Liberty, Ohio, 456
F.Supp. 2d 904, 935 (S.D. Ohio 2006); see also, Pickney
Bros., Inc. v. Robinson, No. 98-5097, 1999 WL 8015138,
at *4 (6th Cir. Sept. 30, 1999) (“Governmental
determinations of a general nature that affect all
equally do not give rise to a due process right to be
heard. But, when a relatively small number of persons
are affected on individual grounds, the right to a
hearing is triggered.”). This Court then went on to find
that Plaintiff has a valid liberty interest in the PUD
Plan, and a legitimate procedural due process claim
under the first prong of the Macene test. Id. at 936."
The question presently before the Court is whether,
under a summary judgment standard of review, the
January 19 Instructions constitute an established
state procedure that deprive the Plaintiffofits liberty
interests, and if so, whether that deprivation
contravened notions of due process. Both parties agree
that interpreting the PUD Plan’s meaning is a matter
of law. See State v. Wood, 187 Ohio App. 3d 623, 625
(2000).”
Plaintiff argues that the January 19 Instructions
are an established state procedure that deprive it of its
hberty interests in the PUD Plan because the
Instructions modify the terms of the Plan. Specifically,
Plaintiff argues that the January 19 Instructions
instituted a previously non-existent floating cap on
commercial development that covers the entire PUD
Plan, whereas the original PUD Plan only considered
Defendants spent considerable effort arguing against the validity
of Plaintiffs liberty interest in the PUD Plan, but ignored the fact
that this Court already ruled on the issue as a matter of law
There is no basis for the Court’s legal ruling on the 12(b)(6) motion
to be relitigated upon the filing of motions for summary judgment
“Because the Court found merit in Plaintiff's claim of a procedural
due process under the first-prong of Macene, it did not reach
Plaintiffs second-prong claim
” Because there is no federal law of zoning, federal courts rely on
state court. interpretations tor guidance. See, e.g., League to Save
Lake Tahoe v. Crystal Enterprises, 685 F.2d 1142, 1144 (9th Cir
1982)
commercial development inp three subareas” and
accordingly the commercial development limitations
were only applicable to those areas. Also, Plaintiff
argues that the January 19 Instructions introduced
the requirement. that a/l subsequent commercial
development in the WCC must go through the two-step
major modification process, whereas the original PUD
Plan only required the two-step process for projects
that would constitute a “major deviation” from the
Plan
In support, Plaintiff relies on Nasterowskt Bros
Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 896
(6th Cir. 1991) to argue that when the government
amends a zoning plan in a way that is going to target
a small number of persons on individual grounds, due
process rights to notice and a hearing are implicated
The court in Nasierowski held that a landowner’s due
process rights were violated when his land was re
zoned without prior notice or a hearing concerning the
type of re-zoning that took place. 7d. Plaintiff argues
that their case is analogous because the January 19
Instructions effectively amended the PUD Plan
without regard to established procedures set. forth by
Ohio law and the Liberty ‘Township Zoning Code,’ and
without notice or hearing.
Ohio Rev. Code Ann. § 519.12 governs amendments to township
zoning regulations and requires that before amendments can take
effect there must be a public hearing before the zoning
commission and the board of trustees, among other procedural
requirements
Article XXVIII of the Liberty Township Zoning Resolution contains
many of the procedural requirements found in Ohio Rev. Code
Ann. § 519.12
5 la
Defendants retort that the 500,000 square-foot
floating cap and the major modification procedure both
existed before the creation of the January 19
Instructions. Concerning the 500,000) square-foot
floating cap, Defendants cite to Addendum A and the
November 15, 1991 amendments to the PUD Plan
Defendants note that these documents articulate the
500,000 square-foot limitation, using descriptions like
“Total Land Use {for commercial development)” and
“Iglross square footage of commercial construction
shall not exceed Five Hundred Thousand (500,000)
square” feet.” Defendants argue that if these
descriptions were intended to be mere summations of
subareas 3, 8, and 9, they would have explicitly stated
as much. Further, with respect to the major
modification procedure, Defendants argue that it was
incorporated in to Section 14.06(I¢) of the Liberty
Township Zoning Resolution in 1996 and had been
applied to multiple developers prior to the creation of
the January 19 Instructions. Thus, Defendants assert
that this case is distinguishable from Nasierowski
because the January 19 Instructions were only
instructions on how to interpret the PUD Plan, not an
amendment to the Plan as was the case in
Nasterowskt.
Defendants also contend that Plaintiff is quasi-
estopped from arguing that commercial development
in subareas not originally designated for commercial
development docs not count toward the 500,000
square-foot floating cap because Plaintiffknew of that
development and did not object. Defendants argue that
the doctrine of quasi-estoppel prevents Plaintiff from
accepting “the benefits of legislation [here, the PUD
Plan] and then challengling] the burdens which the
legislation imposes.” Fatrland v. Fraley, No. 9827,
ai
1981 Ohio App. LEXIS 13742, at. *8 (9th Dist. Feb. 11,
1981). Here, the allegation is that Plaintiff knew of the
500,000 square-foot limitation, developed commercial
businesses in areas not origimally designated as
commercial, and now wants to exceed the 500,000
square-foot limitation by relying on the PUD Plan’s
originally conceived commercial allowance for subarea
\
The Court finds, as a matter of law, that the
January 19 Instructions amended the PUD Plan.
Addressing the 500,000 square-foot floating cap first,
the Court has two possible interpretations of the PUD
Plan: (1) the 500,000 square-foot limitation discussed
in the November 15 amendments and Addendum A
was meant to work in conjunction with the individual
allowances for commercial development in subareas 38,
8, and 9 (which coincidentally happened to total
approximately 500,000 square feet); or (2) the
discussion of 500,000 square feet in the PUD Plan is
solely a summation of the allowable commercial
development in the three subareas approved for
commercial use.
Ohio Jaw requires deference toward the property
owner when interpreting zoning plans. 2.P. Oil Co. v.
Dayton Bd. Of Zoning Appeals, 672 N.BE. 2d 256, 261
(Ohio App. 2 Dist., 1996) (“Ohio law is clear that in
interpreting a zoning ordinance courts must strictly
construe restrictions on the use of real property in
favor of the property owner.). No such deference is
needed here. Defendants’ interpretation of the PUD
Plan simply makes less sense than that of Plaintiff. If
the 500,000 square feet of commercial development
described in the November 15 amendments and
Addendum A was meant to be independent from the
56a
limitations described in each individual subarea, it
would render the commercial! designations of subareas
3, 8, and 9 meaningless. There would be no point in
having a commercial development limitation that
applied to all seventeen subareas if commercial
development was only intended to be permissible in
three of those subareas. Instead, Plaintiff's
interpretation of the PU] Plan is much more
reasonable. The PUD Plan’s” description — that
commercial development “shall not exceed” 500,000
square feet is consistent with the limitations placed on
subareas 3, 8, and 9, which total approximately
500,000 square feet. Thus, reading it as a summation
ofthe maximum allowable commercial development in
those three subareas is most logical. The fact. that both
parties were willing to turn a blind-eye toward the
location requirements for commercial development
expressed in the PUD Plan for thirteen years does not
somehow change the maximum allowable commercial
development. in subareas 3, 8, or 9. Nowhere in the
PUD Plan is any such “floating cap” condition
mentioned."!
The January 19 Instructions also made the two-
step major modification procedure applicable to all
future commercial development, not just to commercial
development that constituted a major deviation from
the PUD Plan. Whether’ Plaintiffs proposed
development would have been subject to the procedure
is irrelevant. The fact that the requirements of the
1! ’ ~ . >
Because the Court finds no existence of a floating cap on
commercial development, the doctrine of quasi-estoppel 1s
inapplicable. Play tiff does not seek to avoid the responsibilities
of legislation from which it receives benefit, therefore, it cannot be
estopped from something that it 1s not doing.
Jia
PUD Plan were amended by the January 19
Instructions is sufficient to implicate Plaintiffs liberty
interests.
This Court has already held, as a matter of law,
that Plaintiff has a liberty interest in the procedures
set forth under the PUD Pian, and the Court now finds
that Defendants’ January 19 Instructions represent an
amendment tothat Plan. The January 19 Instructions,
therefore, constitute an established state procedure for
due process analysis under Macene because they are
the mechanism that effect the deprivation of Plaintiff's
liberty interests. See Vinson, 820 F.2d at 199.
2. Provision of Due Process
As noted above, in Nasierowski, the Sixth Circuit
held that where a Jandowner’s liberty interests will be
deprived by the passage of an amendment to a zouing
ordinance, notice and an opportunity to be heard are
constitutionally required. Nasierowsk:i Bros. Inv. Co.,
949 F.2d at 896. The plaintiffin Nasierowski was not
provided that opportunity to be heard, and thus the
court ruled that he had been deprived of due process.
Consistent with its holding in Nasierowski, the court
in Macene held that the plaintiff was not deprived of
due process because he had ample notice and
opportunity to be heard under the procedures set. forth
by Michigan law. Macene, 951 F.2d at 706.
Here, Plaintiff was not given notice or an
opportunity to be heard concerning the amendments to
the PUD Plan that took effect with the creation of the
January 19 Instructions, nor were the procedures set
forth in the Liberty Township Zoning Regulation or
section 519.12 of the Ohio Revised Code followed. In its
5Sa
Order denying Defendants’ Rule 12(b)(6) motion to
dismiss Plaintiffs procedural due process claim, the
Court held:
lor thirteen years, the WCC PUD Plan had set
subarea 3 as an approximately 220,000 square-
foot commercial lot. After the January 19
Instructions were issued, however, the size of
any potential development on that lot shrunk
far below the originally allotted square footage.
Defendants cannot unilaterally change the
future of the WCC without providing the public
with both notice and an opportunity to debate
such a change.
Wedgewood Ltd. Partnership I v. Township of Liberty,
Ohio, et. al., 456 F. Supp. 2d 904, 937 (S.D. Ohio 2006).
The Court now finds that there are no genuine issues
of material fact on this claim, and rules as a matter of
law that Plaintiff was denied due process as
guaranteed by the Fourteenth Amendment to the
United States Constitution. Plaintiffs motion is hereby
GRANTED, and Defendants’ motion is DENIED.
B. Void-for-Vagueness Claim
“The void-for-vagueness doctrine’ 1s embodied in
the due process clauses of the fifth and fourteenth
amendments.” D.C. and M.S. v. City of St. Louis, Mo.,
795 F.2d 652, 653 (8th Cir. 1986). A vague regulation
is constitutionally infirm in two significant respects.
First, the doctrine of vagueness “incorporates notions
of fair notice or warning,” and a regulation “violates
the first essential of due process of law” by failing to
provide adequate notice of prohibited conduct. See
Smith v. Goguen, 415 U.S. 566, 572 (1974); Connally v.
Ya
General Constr. Co., 269 U.S. 385,391 (1926) (citations
omitted). In short, a regulation is void-for-vagueness if
it “forbids or requires the doing of an act in terms so
vague that [persons] of common intelligence must
necessarily guess at ifs meaning and differ as to its
application. .. .” Id. Second, the void for vagueness
doctrine prevents arbitrary and_ discriminatory
enforcement. Goguen, 415 U.S. at 573. “A vague law
impermissibly delegates basic policy matters to
policemen, judges, and juries for resolution on an ad
hoe and subjective basis, with the attendant dangers
of arbitrary and discriminatory application” Grayned
v. City of Rockford, 408 U.S. 104, 108-09 (1972).
Generally, courts have found that “[vlagueness
challenges to statutes not threatening First
Amendment interests are examined in light of the
facts of the case at hand.” Nat! Rifle Ass’n of Am. v.
Magaw, 132 F.3d 272, 292 (6th Cir. 1997) (citing
Maynard v. Cartwright, 486 U.S. 356, 361 (1988)). In
other words, the statute must be judged on an as-
applied basis, and a facial challenge before the statute
has been applied is premature. United States uv.
Mazurie, 419 U.S. 544, 550 (1975); United States v.
Hofstatter, 8 F.3d 316, 321 (6th Cir.1993).
Plaintiff brings an as-applied challenge, arguing
that if the January 19 Instructions solely clarify the
PUD Plan’s requirements, and do not represent an
amendment to the PUD Plan, then the PUD Plan is
unconstitutionally vague. Plaintiff rests its claim on
the assertion that the PUD Plan provides no notice of
the obligations and restrictions that are spelled out by
the January 19 Instructions.
60a
Defendants focus their argument on the notion that
it is reasonable to conclude that the 500,000 square
foot limitation and the two-step major modification
were a part of the PUD Plan and Liberty Township
Zoning Regulation before the creation of the January
19 Instructions. Defendants rely on the Supreme
Court’s instructions regarding statutory interpretation
as set forth in INS v. St. Cyr, 533 U.S. 289, 299-300
(2001): “if an otherwise acceptable construction of a
statute would raise serious constitutional problems,
and where an alternative interpretation of the statute
is fairly possible, we are obligated to construe the
statute to avoid such problems.” Defendants also
assert that for Plaintiff to succeed on its vagueness
claim, it “must prove that the enactment is vague not
in the sense that it requires a person to conform his
conduct to an imprecise but comprehensible normative
standard, but rather in the sense that no standard of
conduct is specified at all.” Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 495 n.7
(1982) (internal citations omitted). Defendants argue
that Plaintiff falls well short of demonstrating that it
is impossible to interpret the PUD Plan as containing
the requirements that were allegedly clarified in the
January 19 Instructions.
The Court finds that the PUD Plan is
unconstitutionally vague as applied to Plaintiff.
Defendants’ analysis of the vagueness doctrine is
flawed insofar as it attempts to demonstrate the facial
validity of the PUD Plan. Plaintiff has brought an as-
applied challenge, which does not require analysis of
whether the PUD Plan could have any possible valid
interpretations. See Mazurie, 419 U.S. at 550. Instead,
Plaintiffs claim requires the Court to determine
whether Defendants’ actual application of the PUD
bla
Plan put Plaimtiff on adequate notice of prohibited
conduct. See Gaguen, 415 U.S. at 572. Thus, the St.
Cyr and Hoffman cases cited by Defendants are
inapposite. Both of those cases address facial validity
of legislation, not challenges to the application of
legislation. As discussed in supra section IV(A)}(1),
there is nothing in the PUD Plan that would put
Plaintiff on notice that commercial development
outside of subareas 3, 8, and 9 would cause a
corresponding decrease in the commercial development
permitted within those three subareas—nor did
Defendants’ actions during the thirteen years following
the passage of the PUD Plan give Plaintiffsuch notice.
Further, there is nothing in the Liberty ‘Township
Zoning Regulation that would give a person of common
intelligence notice that a two-step major procedure for
major deviations from the PUD Plan would actually be
applicable for any commercial development
application, even those that did not. propose a major
deviation. Thus, the fact that the January 19
Instructions introduced these requirements and were
relied upon by the Zoning Inspector for her denial of
Plaintiffs application demonstrate that the PUD Plan
is unconstitutionally vague as applied to Plaintiff, and
as a result, Plaintiff suffered injury. The Court,
therefore, GRANTS Plaintiffs motion and DENIES
that of Defendants.
C. State Law Claims
In Counts Six and Seven of the Complaint, Plaintiff
asserts due process and vagueness claims pursuant to
Ohio law. These claims are governed by essentially the
same standards as those applicable to Plaintiffs
federal constitutional claims. See Warren v. City of
Athens, Ohio, 411 F.3d 697, 704 n.6 (6th Cir. 2005)
62a
(citing Sorrell v. Thevenir, 633 N.E.2d 504, 511-12
(Ohio 1994)). Accordingly, insofar as the Court
GRANTS Plaintiffs federal law claims, Plaintiffs
corresponding state law claims are also GRANTED.
D. Declaratory Relief
Although heavily briefed by the parties, Plaintiff's
request for declaratory judgment stating that Plaintiff
is entitled to the zoning permit it seeks has already
been dismissed. See Wedgewood Ltd. P’ship I, 456 F.
Supp.2d at 933 (holding that “{[blecause Plaintiff has
not established a legitimate claim of entitlement to a
zoning permit, nor a justifiable expectation that the
Zoning Inspector would issue the permit, it has no
property interest that could support a substantive due
process claim. . .. The Zoning Inspector denied
Plaintiffs permit applications because Plaintiff failed
to comply with a number of elements of the Liberty
Township Zoning Resolution beyond the floating cap,
and the record does not suggest that the denial was
unwarranted.”). Thus, Plaintiffs request for
declaratory relief regarding the sufficiency of its
zoning applications and entitlement to a zoning permit
is DENIED.
However, in this Order, the Court has granted
Plaintiffs procedural due process and vagueness
claims with respect to the incorporation of the January
19 Instructions in to the PUD Plan. Accordingly, the
Court GRANTS Plaintiffs request to enjoin the
enforcement of the January 19 Instructions. In
particular, it is ordered that Liberty Township may not
ne
ooa
impose a 500,000 square-foot “floating cap” over the
WCC PUD Plan.”
V. CONCLUSION
For the foregoing reasons, the Court GRANTS
summary judgment in favor of Plaintiff on its
procedural due process (Counts IT & VI) and vagueness
(Count III & VII) claims, and GRANTS in part and
DENIES in part Plaintiffs request for declaratory
relief (Count LX). Accordingly, Defendants’ motion for
summary judgment as to Counts II, III, VI, and VII is
DENIED, and Defendants’ motion is GRANTED in
part and DENIED in part as to Count IX.
IT IS SO ORDERED.
__s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 26, 2008
‘’ Defendants also assert that Plaintiffs request for declaratory
relief has been rendered moot by virtue of a newspaper article
reporting that Wal-Mart terminated its real estate purchase
agreement to buy WCC Lot 2069 from Plaintiff. See Wal-Mart
Supercenter Now In Limbo; Retailer Halts Deal to Buy Liberty
Township Site; Columbus Dispatch, p. B1 (Mar. 6, 2008). This
argument lacks merit, however, because it is the Plaintiff who
applied for the zoning permit, the Plaintiff who owns property in
the PUD Plan, and the Plaintiff who has brought suit. The status
of any contractual obligations between Wal-Mart and the Plaintiff
is irrelevant to the issues before this Court
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EKASTERN DIVISION
Case No. C2-04-1069
[Filed October 12, 2006]
WEDGEWOOD LIMITED
PARTNERSHIP L.,
Plaintiff.
TOWNSHIP OF LIBERTY, OHIO
OPINION AND ORDER
.. INTRODUCTION
This matter comes before the Court on thi
following motions: (1) Motion to Dismiss for Lack of
Jurisdiction and/or Motion for Partial Judgment on the
Pleadings by Defendants Holly C. Foust, Robert E
Cape, Kim Cellar, and John C. Werner (collectively,
“Trustees”), the Township of Liberty, Ohio, located in
7:
Opa
Delaware County, Ohio (“Liberty Township”), and the
Board of Trustees of Liberty ‘Township (“Board of
Trustees”) (collectively, “Defendants”); and (2) Motion
to Dismiss for Lack of Jurisdiction and/or for Failure
to State a Claim on Which Relief Can be Granted by
Intervenor Liberty Township/Powell Neighborhood
Community Watch Foundation (“Intervenor”). For the
reasons set forth herein, Defendants’ and Intervenor’s
Motions are GRANTED in part and DENIED tn part
HW. STATEMENT OF FACTS'
' Plaintiff asserts that the Defendants and Intervenor have
“submitted to this Court what [are] essentially [motions] for
summary judgment with hundreds of pages of aitached
exhibits. ...” See Pls.” Response to Intervenor’s Motion to Dismiss
at 14. Plaintiff claims that because the attached exhibits include
“matters outside the pleadings,” the Court should treat the
Motions at issue as motions for summary judgment. See id. at 14-
16 (citing Gilbert v. Joyce, 129 F.3d 1263 (6th Cir. 1997) (“motion
to dismiss is more properly construed as a motion for summary
judgment because the district. court considered matters outside
the pleadings”)). Defendants and Intervenor have attached
identical Exhibits to their respective Motions. The Exhibits follow
(1) Exhibit A - Apphcation for Zoning Permit Filed June 29, 2004
by Wedgewood LP; (2) Exhibit B - September 30, 2004 Decision
Denying Application for Appeal filed by Wedgewood LP; (3)
Exhibit C - October 20, 2004 Application for Appeal filed by
Wedgewood LP; (4) Exhibit D Liberty Township Zoning
Resolution — Effective October 3, 2002; (5) Exhibit EF Liberty
Township Zoning Resolution — Effective May 1, 1991; (6) Exhibit
Kk - WCC Development Standards with Table of Contents; (7)
Exhibit G — October 2, 1991 Liberty Township Trustee minutes;
(8) Exhibit HH October 21, 1991 Liberty Township ‘Trustee
minutes; (9) Exhibit I November 11, 1991 Liberty ‘Township
Trustee minutes; (10) Exhibit J - November 18, 1991 Liberty
Township Trustee minutes; (11) Exhibit K January 19
Instructions; (12) Exhibit L liberty Township Zoning
Resolution, Article XIV — Effective December 8, 2004. Each of the
66a
A. Background
The parties’ dispute centers on the Defendants’
decision to deny zoning approval for Plaintiffs
proposed plan to develop a WaJ-Mart. Supercenter
within Liberty Township. Defendants assert that they
refused to issue Plaintiff a zoning permit to build the
proposed Wal-Mart because the store would not
comply with Liberty Township’s Zoning Resolution.
Plaintiff claims, however, that Defendants’ decision to
deny the requested zoning permit was arbitrary and
capricious and violated its constitutional rights.
1. The Parties
Plaintiff, Wedgewood Limited Partnership |
(“Wedgewood LP” or “Plaintiff, owns = an
approximately 34-acre lot located in the “Wedgewood
Commerce Center” development (the “WCC”), a 345
acre mixed-use development within Liberty Township.
The lot, which is the subject of the instant suit, was
platted as “lot number 2069” or “subarea 3” in the
WCC Section 1 in 1994 and recorded as such in the
Delaware County records. See Ex. F. In addition to
owning lot number 2069, Wedgewood LP was also one
aforementioned Exhibits constitutes a public record. Accordingly,
the Court may take judicial notice of these documents without
converting the Motions into motions for summary judgment. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (“|Als a general
rule, matters outside the pleadings may not be considered in
ruling on a [Rule] 12(b\6) motion to dismiss unless ‘t is converted
into one for summary judgment under [Rule 56].” There are,
however, exceptions to this peneral rule. Courts may conside1
public records, matters of which a court may take judicial notice,
and letter decisions of povernment agencies.”)
o0/a
of the original developers of the WCC. Defendants are
Liberty Township, the Board of Trustees, and the
individual board members in their capacity as
Trustees.” Also, the Liberty ‘Township/Powell
Neighborhood Community Watch Foundation
(“Intervenor’) has intervened as a party defendant in
the suit.
2. The WCC Development
In June 1991, Plaintiff! and others filed an
application for a Zoning Map amendment from I*R-L to
Planned Commercial (“PC”) to create the WCC, a
° |
proposed planned-unit development.” On November 18,
* Though the Sixth Circuit. does not require plaintiffs bringing
section 1983 zoning claims to do so, Piaintiff named each
individual member of the Board of Trustees in his official capacity
as a Defendant. But see, Leach v. Shelby County Sheriff, 89.1 F.2d
1241 (6th Cir. 1989) (the Sixth Circuit does not require plaintiffs
bringing Section 1983 zoning claim to name individual board
members or trustees in their official capacities as defendants)
‘Section 519.021 of the Ohio Revised Code applies to the adoption
of PUD regulations by Ohio townships, providing, in relevant part
Planned-unit developments may be included in the
township zoning resolution under one of the following
procedures
(A) The board of township trustees may adopt planned-unit
development reyzulations that do not automatically apply to
any property in the township, but establish standards that
will apply to property that becomes part of the planned-unit
development as provided in this division. Property owners
who wish to have planned-unit development regulations apply
to their property may apply to have the zoning map amended
pursuant to section 519.12 of the Ohio Revised Code to rezone
68a
their property as a planned-unit development, and no longer
subject to the previously applicable zoning regulations. Once
property has been rezoned as a planned-unit development,
subsequent development on that property shall comply with
the planned-unit development. regulations as determined by
the board of township trustees or township zoning
commission, as applicable. After the designation of the
property as a planned-unit development on the zoning map,
any approval or disapproval of subsequent use or development
of property in a planned-unit development as being: in
compliance with regulations established as authorized by this
division shall not. be considered to be an amendment. or
supplement to a township zoning resolution for the purpose of
section 519.12 of the Revised Code, but may be appealed
pursuant to Chapter 2506 of the Revised Code
(B) Upon the application of property owners, the board of
township trustees may establish a planned-unit development
for their property, designating the property as a planned-unit
development on the zoning map in accordance with the
procedures set forth ip section 519.12 of the Revised Code, and
simultaneously adopting regulations as part of that same
procedure that will apply only to that’ planned-unit
development. Within that development, property is subject to
the planned-unit. development regulations and not to any
other zoning regulations. Compliance with the planned-unit
development regulations shall be determined by the board of
township trustees or township zoning: commission, as
applicable. After the designation of the property as a planned
unit development on the zoning map and the simultaneous
adoption of regulations that will apply only to that planned
unit development, any approval or disapproval of subsequent
use or development of property in a planned-unit development
as being in compliance with regulations established as
authorized by this division shall not be considered to be an
amendment or supplement to a township zoning resolution for
the purposes of section 519.12 of the Revised Code, but may be
appealed pursuant to Chapter 2506 of the Revised Code
(C) Pursuant to section 519.12 of the Revised Code, the board
69a
of township trustees may adopt planned-unit development
regulations and amend the zoning map to rezone property as
planned-unit developments. Any other zoning regulations and
zoning district that exist at the time a_planned-unit
development district is established under this division
continue to apply within the planned-unit development
district unless the board or the township zoning commission
approves an application of an owner of property within the
district to subject the owner’s property to planned-unit
development regulations under this division. Such = an
application shall be made in accordance with the planned-unit
development regulations and shall include a development plan
that complies with the planned unit development regulations
Upon receiving such an application, the board of township
trustees or township zoning commission ... shall determine
whether the application and plan comply with the planned-
unit development regulations. The board’s or commussion’s
determination shall not be considered to be an amendment to
a township zoning resolution for purposes of section 519.12 of
the Revised Code, but may be appealed pursuant to Chapter
2506 of the Revised Code. If the board or commission makes
a final determination that the plan included in the application
comphies with the planned. unit development regulations or if
the board’s or commission’s final determination is one of
noncompliance then if acourt of competent jurisdiction makes
a final nonappealable order finding compliance, the board or
commission, as applicable, shall approve the application and
upon approval shall cause the zoning map to be changed so
that any other zoning district that applied to the property that
is the subject of the owner’s application no longer applies to
that property. The removal of the prior zoning district from
the zoning map is a ministerial act and shall not be considered
to be an amendment or supplement to a township zoning
resolution for the purposes of section 519.12 of the Revised
Code and may not be appealed pursuant to Chapter 2506 of
the Revised Code
As used in this section, “planned-unit development” means a
development which is planned to integrate residential,
commercial, industrial or any other use
70a
1991, the Board of Trustees approved the re-zoning
and the parties developed a planned-unit development
plan (the “PUD Plan”).*.° The PUD Plan, and all
corresponding plat maps were formally combined into
the “Wedgewood Commerce Center Development
Standards” (“WCC Development Standards”), which
was filed with the Commission on February 2, 1992.
See Ex. F. Among other things, the WCC Development
Standards required the establishment of an
“architectural review committee” to “exercise control
over the design and final planning of all phases of the
development” and to ensure that the proposed
See OWO REV. CODE § 519.021.
* Both the Delaware County Regional Planning Commission and
the Liberty Township Zoning Commission (the “Commission”)
rejected developers’ initial proposals regarding a WCC planned
unit development. After extensive negotiations between the
developers and various Trustees, however, the Board of Trustees
approved a revised version of the initial proposals — the PUD
Plan. The parties dispute the details of the negotiations as well as
various clements of the PUD Plan.
In Gray v. Trustees of Monclova Twp., 313 N.E.2d 366 (Ohio
1974), the Ohio Supreme Court addressed the nature of planned-
unit development (“PUD”) zoning, explaining that PUD zoning
permits those aspects of land development that were normally
regulated by zoning to vary within a geographically-defined area
by bearing a single zoning classification. The Gray court noted
that, “[t]he overall zoning classification in a PUD area can be
termed ‘nominal’ because it does not, by itself, indicate the specific
zoning restrictions in the area. These restrictions are
ascertainable only by referring to the approved plats for the
development.” Jd. at 369. Accordingly, the Gray court found that
the approval of a PUD plat is the functional equivalent of
“traditional legislative zoning.” Jd.
Vila
structures fit the “rural context of Liberty Township.”
See Ex. F 4 3. Further, the WCC Development
Standards provided that development would occur in
five-year phases and would “proceed as market
conditions dictate,” estimating that it would take
approximately ten to twelve years to finish the project.
Id. YY 7-8.
Pursuant to the PUD Plan, lot nunmiber 2069 was
zoned “Planned Commercial” (“PC”). According to the
Liberty Township Zoning Resolution in place at that
time, in a Liberty Township PC zone, the developer
gets to “craft its own unique zoning that applies only
to that developer’s parcel.” See Zoning Resolution
$$ 14.01, 14.06(a)-(c) (eff. May 1, 1991).’ To allow for
this “unique zoning,” each developer's PC plan
becomes part of an amendment to the Township's
© “Planned Commercial” zones are alse referred to as “Planned
Commercial and Office” zones. See Intrevenor’s Motion at 8 (citing
Foust Aff, at Tab G, “Oct. 2, 1991 Meeting Minutes”).
Section 14.01, “Planned Commercial and Office District
Purpose,” provides:
The Township, recognizing that with increased
urbanization and population growth comes increased
demands for well organized commercial areas to provide
employment, goods and services to area residents as well
as to provide a balanced economy within the township,
hereby provides for the Planned Commercial and Office
District, intending hereby to promote the variety and
flexibility of land development for commercial purposes
that are necessary to meet these demands while still
preserving and enhancing the health, safety and general
welfare of the inhabitants of the Township.
See Liberty Township Zoning Resolution § 14.01.
T2a
zoning code. See id. §§ 14.06(d) (“The Development
Plan as approved by the Township Trustees shall
constitute an amendment to the zoning resolution as it
applies to the lands included in the approved
amendment.”) (emphasis added).
Over the course of the next thirteen years, in
accordance with standard Liberty Township zoning
procedure,” significant development occurred within
the WCC. Some of this development differed from what
was set forth inthe PUD Plan. For instance, although
the PUD Plan designated subareas 4, 5, 6, and 10 for
“suburban office use” only, owners of each of these
subareas sought approval for and were granted
permits to build retail and/or commercial structures.
Accordingly, subareas 4, 5, 6, and 10 now comprise
approximately 248,000 square fect of “commercial”
development, rather than the suburban office space for
which they were initially zoned. Plaintiff asserts that
it had no involvement or input in Liberty Township's
approval of these zoning changes.
In October 2008, Plaintiff submitted an application
to the Commission for six area variances, primarily
from set-backs, to construct a Wal-Mart Supercenter
on WCC lot number 2069. The parties do not dispute
that the proposed Wal-Mart store complies with the
definition of “commercial” use under the Liberty
" Parties secking to construct buildings on property within Liberty
Township must first apply for a “Zoning Certificate” from the
Zoning Inspector, who must then certify that the proposed
construction is consistent with Liberty Township’s Zoning
Resolution.
Township Zoning Resolution.” After conducting a
public hearing on the matter, however, the
Commission denied Plaintiffs variance applications,
and Plaintiff subsequently withdrew them.
Soon after Plaintiffs variance applications were
denied, the Homeowners Associations of Wedgewood,
Campden Lakes, Wedgewood Hills, Falcon Ridge,
Sraemar, the Barringtons at Wedgewood Villa
Yondominium Association, Big Bear Farms, and
urandshire,”” detailed their concerns over what they
deemed inconsistencies in the PUD Plan. The Board
of Trustees then ordered the Zoning Inspector, Holly
Foust, to “study” the history of the administration of
the PUD Plan to alleviate a number of concerns over
its application.
On January 19, 2004, following the Zoning
Inspector’s study, the Trustees issued a Public
Statement (the “January 19 Instructions”), which now
governs the procedural administration of the WCC by
the Commission. Importantly, the January 19
Instructions concluded that the PUD Plan imposed a
so-called “floating cap” of 500,000 square feet of
commercial property (the “floating cap”) on _ all
9
“Commercial use” includes “commercial and _ office
establishments of all types developed and maintained within an
organized development of associated commercial activities in
accordance with the approved development plan.” See Liberty
Township Zoning Resolution § 14.03(a).
'" These groups later formed the Liberty Township/Powell
Neighborhood Community Watch Foundation
t4a
development within the WCC."' Accordingly, the Board
of ‘Trustees instructed the Zoning Inspector to refrain
from issuing any Zoning Certificates for additional
commercial development within the WCC unless or
until the PUD Plan had been modified or amended
ll nay . .
The January 19 Instructions provide
Extensive review and analysis of the [WCC] development
plan, the minutes of the meetings which led to the approval of
that plan, the policies that have been followed to date in
administering that plan, and the discernable intent of all the
parties expressed during the conception and the process which
led to the approval of the plan, has led us to conclude that the
ultimately adopted plan imposed a “floating” maximum of
500,000 sq. ft. of “commercial” development in the [WCC]. We
have found evidence of the establishment of this limit in a
number of different documents. Moreover, we have found no
documents or proof through amendment processes which
modified this “overall” square footage cap, as best we can
conclude. The subject of whether or not an acreage “cap” also
applies has been more difficult. On the one hand, the
documents clearly show that such acap wascontemplated and
negotiated., and is reflected in several different drawings,
text, and supporting documents. Unfortunately, however, the
documents that exist are at least arguably inconsistent with
respect to the starting point of the cap and acreage basis
Moreover, amendments and changes requested and, in some
cases, approved over the years, may or may not have had the
impact of suggesting or modifying the acreage cap. . .
The analysis reveals that the commercial development
completed to date, and substantially through the approval
process, hasconsumed most of the commercial square footages
imposed by the development plan as an overall! cap. The
analysis also reveals that on an acreage basis, commercial
development to date has exceeded at least two of the acreage
figures evidenced in the documents which constitute the
development plan, as amended.
See Ex. K at 2-3.
pursuant to procedures for modifications set forth in
the Liberty Township Zoning Resolution. The Board of
Trustees further indicated that any future applications
for commercial development would be subject to a
“two-step major deviation” development plan
modification.”
Plaintiff did not submit Zoning Applications under
this heightened “major modification” process. Instead,
on June 29, 2004, Plaintiff, using standard Liberty
Township procedure, applied for zoning permits to
build an approximately 220,598 square foot Wal-Mart
‘“ The Board of Trustees wrote,
the commercial development completed to date, and
substantially through the approval process, has consumed
most of the commercial footages imposed by the development
plan as an overall cap... Under these circumstances, we have
determined that, except for a few modest projects which have
already completed the two-step “major” administrative review
process, all additional applicants seeking toconstruct retatl or
other arguable “commercial” development in the[WCC/ will be
required to seek approval as a “major” plan of modification. In
other words, we are instructing our zoning department to
refrain from issuing zoning certificates for any additional
commercial development in the [WCC], to issue such permits
only after an approval through the “two-step” major process
has been completed. Each process will be considered to be an
application to consume any remaining portion of the square
footage limitation, or exceed that limitation, and as a
modification to expand the acreage limitation which we
believe has been met.
See Def. Intervenor’s Ex. K to Ex. 1 at 2-3 (emphasis added). Tne
two-step approval process includes: (1) a review by the
Commission or the Liberty Township Board of Zoning Appeals
(“BZA”); and (2) a review by the Board of Trustees. See Zoning
Resolution § 14.06(E) (eff. Oct. 3, 2002)
iva
Supercenter and a Murphy Oil Gas Station in subarea
3. On September 30, 2004, the Zoning inspector denied
Wedgewood LP’s permit applications explaining that,
in lght of the January 19 Instructions, the
applications: (1) failed to meet the requirements for
development plans; (2) exceeded the acreage allowed
under the floating cap; (3) were incomplete because
they had neither been submitted for approval nor
approved by the WCC architectural review committee;
and (4) were inconsistent with both the Zoning
Resolution and the PUD Plan.’*
Specifically, in denying Plaintiff's zoning permit application, the
Zoning inspector wrote,
a. The Development Plan for |WCC] remains incomplete,
because at no time has this office received a revised
Development Plan and Plat which in all respects conforms to
the representations and commitments made at the meeting of
the [Trustees] which occurred on November 18, 1991, and at
the hearings which preceded that final hearing. The
applicant, {Wedgewood LP], for the current zoning
application, is an entity that is closely related to the entity
Wedgewood Limited Partnership! which sought and obtained
the rezoning of the land which is now the [WCC], and is also
the Appellant, and the principals of these entitles [sic.| are
directly responsible for the lack of performance in producing
and filing a revised Development Plan which was promised;
b. The request for approval does not meet either the
documented or the promised and agreed upon requirements
of the currently effective Development Plan applicable to the
[WCC] Planned Commercial Zoning District. In the context
ofthe amount of commercial development already constructed
and allowed in the [WCC], the proposed construction would
exceed the maximum allowable commercial acreage and
square footage limitations that were expressly made a part of
the development plan;
On October 20, 2004, Plaintiff appealed the Zoning
Inspector’s denial to the Liberty Township BZA. At the
same time, Plaintiff also submitted a revised site plan
and a letter withdrawing its permit application for the
Murphy Oil gas station. In its appeal, Plaintiff stated
that the Zoning Inspector had acted improperly in
finding its zoning permit applications incomplete.
Plaintiff also stated that the Zoning Inspector had
acted improperly in finding that the proposed
construction would exceed the maximum square
footage limitations because the January 19
Instructions, which served as the basis for the
Inspector’s decision, were inaccurate Further,
c. The application is incomplete because it does not include
the required approval of the [WCC] Architectural Review
Committee;
d. The application is incomplete, internally inconsistent, and
at variance with the requirements of the Liberty Township
Resolution and the standards established and applicable
under the [WCC] Plan in 9 detailed respects with repard to
the Retail building component of the Applications and in 16
ways with respect to the Murphy Oil USA component of the
applications
See Def. Intervenor’s Ex. A, Liberty Township Board of Zoning
Appeals, Case No. BZA04-28, Findings of Fact and Conclusions of
Law at4-5(Jan. 11,2005)(“BZA Findings of Fact and Conclusion
of Law”)
'* In regards to the Wal-Mart Supercenter, the Zoning Inspecto:
cited nine different reasons that Plaintiffs application was
“incomplete” and “internally inconsistent.” Ex. B 7 4.a.i. For
instance, the Inspector explained that though “Section 25.03 of the
Zoning Resolution requires that the site plan show structural
dimensions at the ground|[, njo structural dimensions are provided
on the site plan which has been submitted.” Jd. J 4.b
1 Oa
Plaintiff asserted that the Zoning Inspector had
incorrectly stated that she could not issue a Zoning
Certificate without the architectural review
committee’s approval as such approval had not been
required in the thirteen years since the PUD Plan had
been approved. Finally, Plaintiff argued that the
Zoning Inspector had mistakenly deemed its
applications incomplete for allegedly failing to meet
: ss 15
variance requests.
B. Procedural History
Because Plaintiff has filed the instant federal court
action in addition to filing a later suit in state court, a
discussion of the procedural history of both the federal
and state court proceedings 1s necessary.
'" A factual dispute exists between the parties regarding the
details of the PUD Plan. Defendants and Intervenor assert that
the PUD Plan was to be developed in five-year phases, and they
contend that prior to the Board of Trustees’ final approval of the
PUD Plan, the Trustees held a November 11, 1991 public hearing,
where it was decided that the WCC would be limited to the
density of one milhon square feet of office space, 500,000 square
feet of retail space, and 750 residential units. Further, Defendants
assert that on November 15, 1991, an amendment was made that
commercial construction could not exceed 500,000 square feet. As
support for their contention, Defendants and Intervenor cite to the
minutes from the Commission’s October 1991 and November 1991
meetings. See Ex.’s G through J. Plaintiff counters that the
parties never agreed to set a floating cap on commercial
development. Moreover, though Plaintiff concedes that it agreed
to the establishment of a WCC architectural review committee, it
contends that the committee has never met, and the Commission
has never before required the committee’s pre-approval of a
party’s zoning permit application
ry
19a
1. State Court Proceedings
On November 5, 2004, before the BZA had ruled on
Plaintiffs appeal, Plaintiff filed the instant suit
claiming that Defendants’ reliance on the January 19
Instructions, Defendants’ modification of the Zoning
Resolution, and Defendants’ denial of Plaintiff's Wal-
Mart zoning permit application violated Plaintiffs
constitutional rights. After Plaintiff filed this action,
however, administrative activity regarding Plaintiffs
denied zoning permit continued in Liberty ‘Township.
On November 16, 2004, the Liberty Township BZA
conducted a public hearing on Plaintiffs appeal of the
Zoning Inspector’s decision. Although Plaintiff did not
present any testimonial evidence at the hearing, it did
present arguments concerning the content and
meaning of its plans, the development of the
surrounding parcels, and a history of the WCC. On
January 11, 2005,'° the BZA affirmed Zoning
Inspector’s September 30 denial of Plaintiffs permit
applications. See BZA Findings of Fact and
Conclusions of Law. Thereafter, on February 8, 2005,
Wedgewood LP filed its Notice of Appeal from the
BZA’s “final decision” in state court, pursuant to Ohio
Revised Code § 2506.01.""
‘© Though the appeal was initially scheduled for an earlier date,
at Wedgewood’s request, on December 7, 2004, the appeal was
continued until January 11, 2005.
'? Under Ohio law,
Every final order, adjudication, or decision of any officer,
tribunal, authority, board, bureau, commission, department,
or other division of any political subdivision of the state may
80a
On March 28, 2005, Plaintiff filed a Motion to
Supplement the Record with Additional Evidence and
to Stay the Briefing of the Case Pending a Decision on
this Motion. Plaintiff contended that the Board of
Trustees’ directive that they must approve, after
public hearing, all commercial development in WCC
was “improper and illegal.” Plaintiff also asserted that
the use of lot 2069 to build an approximately 220,000
square foot Wal-Mart store is not a deviation from the
PUD Plan because in 1991, Plaintiff was originally
allotted up to 220,857 square feet for commercial
development. Further, Plaintiff claimed that it was
not bound by the floating cap because no such cap had
been set forth in the WCC Development Standards,
and because it had never agreed to allot a significant.
percentage of the purported floating cap to the
developers of subareas 4, 5, 6, and 10, who were
permitted to construct commercial buildings in place
be reviewed by the court of common pleas of the county in
which the principal office of the political subdivision is located
as provided in Chapter 2505 of the Revised Code, except as
modified by this chapter.
The appeal provided in this chapter is in addition to any other
remedy of appeal provided by law
A “final order, adjudication, or decision” means an order,
adjudication, or decision that determines rights, duties,
privileges, benefits, or legal relationships ofa person, but does
not include any order, adjudication, or decision from which an
appeal is granted by rule, ordinance, or statute to a higher
administrative authority ifa right toa hearing on such appeal!
is provided, or any order, adjudication, or decision that is
issued preliminary to or as a result of a criminal proceeding
OHIO REV. CODE § 2506.01 (West 2006)
Sla
of the office space set forth in the PUD Plan. On or
about May 13, 2005, the state court denied Plaintiff's
Motion to Supplement the Record, explaining that in
failing to address its questions and concerns regarding
certain documents and procedures during the BZA
hearing, Plaintiff had effectively waived its right to
supplement the record in the trial court.
On July 18, 2005, the parties participated in a
hearing before the Court of Common Pleas for
Delaware County, Ohio, addressing only two narrow
issues: (1) the legal basis for the floating cap on
commercial development in the WCC development;
and (2) whether the PUD Plan had expired by the time
Plaintiff had submitted its Wal-Mart zoning permit
application. The state court noted that there was a
dearth of evidence on both of the issues in question,
explaining:
In this case, vital information is missing from
the Liberty Township Board of Zoning Appeals
(“BZA”) record that was submitted to this Court.
Searce, if any, testimony or exhibits were
contained within the record that resolved
questions pertaining to the basis of the zoning
inspector’s decision to deny Wedgewood’s
application for a zoning certificate. Further, the
record was also devoid of evidence as to the
legal basis of the 500,000 square foot
commercial limit imposed upon the WCC; and
evidence as to the affect of the originally
approved [Development P]lan for the WCC on
the commercia! limit.
See Wedgewood Ltd. P’ship I v. Liberty Twp. Bd. of
Zoning Appeals, Case No. 05CV-F-02-101, Decision
82a
and Entry at 3 (Ohio Ct. Com. PI.’s Sept. 22, 2005)
(Whitney, J.). Accordingly, the state court remanded
the matter to the Liberty Township BZA to “carry out
its role as the finder of fact to determine the basis of
the zoning inspector’s decision, as well as provide
documentation for the 500,000 square foot commercial
limit. [(the floating cap)] on the [WCC] Development
and the affect of the original [PUD] Plan.” Jd. The
parties have since appealed the state court’s ruling
and are scheduled to appear for oral argument in the
coming months.
2. Federal Court Proceedings
Plaintiffs federal court Complaint asserts nine
counts against Defendants. Counts one through four,
which Plaintiff brings pursuant to 42 U.S.C. § 1983,
state that Defendants violated Plaintiffs procedural
due process, substantive due process, and equal
protection rights by relying on unconstitutionally
vague ordinances to deny its various applications for
Zoning Permits arbitrarily, capriciously, and willfully.
Particularly, Plaintiff asserts that Defendants’
interpretation of the PUD Plan and the WCC
Development Standards to include the floating cap on
commercial development was arbitrary, capricious,
irrational and discriminatory. Counts five through
eight assert identical claims pursuant to Ohio law.
Count nine requests a declaratory judgment.
Specifically, Plaintiff seeks the following relief: (1)
a declaratory judgment that Plaintiffs proposed
development is in full compliance with all Liberty
Township zoning standards; (2) a declaration that
Defendants’ actions attempting to establish and
enforce the floating cap on commercial development in
S3a
the WCC are improper, impermissible, and a violation
of Plaintiffs due process and equal protection rights;
(3) an order enjoining Defendants from enforcing the
floating cap on commercial development and the
January 19 Instructions against Plaintiff; (4) an order
requiring Defendants to issue Plaintiff a Zoning
Certificate to develop its proposed Wal-Mart store; (5)
an order enjoining Defendants from refusing to issue
a Zoning Certificate for Plaintiffs proposed Wal-Mart
store; (6) compensatory damages, attorney’s fees, costs,
and any other declarative, injunctive, or equitable
relief the Court deems just and appropriate.
On May 20, 2005, the Court granted Intervenor
leave to intervene as a party defendant in the suit. On
August 9, 2005, this Court stayed discovery in the case
pending resolution of the parties’ jurisdictional
motions, and denied Intervenor’s Motion to Postpone
Decisions on Defendants’ Motion for Judgment on the
Pleadings until Briefing is concluded on the Motion to
Dismiss Submitted by Intervenors. Both Defendants’
Motion to Dismiss and/or Motion for Judgment on the
Pleadings and Intervenors’ Motion to Dismiss have
been fully briefed and are now ripe for this Court’s
decision. Because the Court finds that Defendants’
Motion contains issues that overlap with those set
forth in Intervenor’s Motion to Dismiss, the Court will
consider the Motions in tandem.
lil. STANDARD OF REVIEW
A. Dismissal For Lack of Subject
Matter Jurisdiction
Where a defendant raises the issue of lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of
84a
the Federal Rules of Civil Procedure, the plaintiff has
the burden of proving jurisdiction in order to survive
the motion to dismiss. DXL, Inc. v. Kentucky, 381 F.3d
511, 516 (6th Cir. 2004); Moir v. Greater Cleveland
Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).
Motions to dismiss for lack of subject matter
jurisdiction fall into two general categories: facial
attacks and factual attacks. United States v. Ritchie,
L5 F.8d 592, 598 (6th Cir. 1994). A facial attack is a
challenge to the sufficiency of a complaint, and, when
considering the motion, the court must view the
material allegations of that complaint as true and
construe them in the light most favorable to the
nonmoving party. /d. A factual attack is a challenge to
the factual existence of subject matter jurisdiction. Jd.
No presumptive truthfulness applies to the factual
allegations, and the court is free to weigh the evidence
and to satisfy itself as to the existence of its power to
hear the case. Id.; Moir, 895 F.2d at 269. When there
is an attack on the factual basis for jurisdiction, the
district court must weigh the evidence, and the
plaintiff has the burden of proving that the court has
jurisdiction over the subject matter. Golden v. Gorno
Bos., Inc., 410 F.3d 879, 881 (6th Cir. 2005).
B. Motion for Judgment on the Pleadings
A motion for judgment on the pleadings may be
made “la]fter the pleadings are closed but within such
time as not to delay the trial.” FED. R. Civ. P. 12(c).
Pleadings are considered “closed” once a complaint and
answer have been filed. FED. R. Civ. P. 7(a). Where the
Rule 12(c) motion is based on the argument that the
complaint fails to state a claim upon which relief may
be granted, it is judged under the same standard of
85a
review as a Rule 12(b)(6) motion. Morgan v. Church’s
Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987) (finding
“Iwlhere the Rule 12(b)(6) defense is raised by a Rule
12(c) motion for judgment on the pleadings, we must
apply the standard for a Rule 12(b)(6) motion in
reviewing the district court’s decision”).
C. Dismissal for Failure to State a Claim on
Which Relief Can be Granted
A motion to dismiss under Rule 12(b)(6) is designed
to test “whether a cognizable claim has been pleaded
in the complaint.” Scheid v. Fanny Farmer Candy
Shops, Inc. 859 F.2d 434, 4386 (6th Cir. 1988). In
considering such a motion, the Court is limited to
evaluating whether a plainluiff's complaint sets forth
allegations sufficient to make out the elements of a
cause of action. Windsor v. The Tennessean, 719 F.2d
155, 158 (6th Cir. 1983). Dismissal under Rule 12(b)(6)
streamlines litigation by “dispensing with needless
discovery and fact-finding” on claims that are legally
untenable in the first place. See Neitzke v. Williams,
490 U.S. 319, 326-27 (1989).
All factual allegations made by a plaintiff are
deemed admitted and ambiguous allegations must be
construed in his favor. Murphy v. Sofamor Danek Gp.,
Inc., 123 F.3d 394, 400 (6th Cir. 1997). A complaint
should not be dismissed under Rule 12(b)(6) “unless it
appears beyond doubt that the [p]laintiffcan prove no
set of facts in support of his claim which would entitle
him to relief.” Lillard v. Shelby County Bd. of Educ..,
76 F.3d 716, 724 (6th Cir. 1996) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). While the
complaint need not specify every detail of a plaintiffs
claim, it must give the defendant “fair notice of what
S6a
the plaintiffs claim is and the grounds upon which it
rests.” Gazette v. City of Pontiac, 41 F.3d 1061, 1064
(6th Cir. 1994) (quoting Conley, 355 U.S. at 47).
This liberal standard of review does require more
than the bare assertion of legal conclusions. Allard v.
Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)
(citation omitted). Under the federal pleading
requirements, a plaintiff's complaint must include “a
short and plain statement of the claim showing that
the pleader is entitled to relief.” See FED. R. CIv. P.
8(a}(2). The short and plain statement must “give the
defendant fair notice of what plaintiffs claim is, and
the grounds upon which it rests.” A complaint must
contain either direct or inferential allegations with
respect to all the material elements necessary to
sustain a recovery under some viable legal theory. Jd.
(citations omitted).
IV. ANALYSIS
A. Subject Matter Jurisdiction
Before proceeding to the merits of Plaintiffs claims,
the Court must consider Defendants’ and Intervenor’s
arguments that it cannot exercise subject matter
jurisdiction over the matter. First, Defendants and
Intervenor argue that the Court lacks subject matter
jurisdiction over Plaintiffs constitutional claims
because, pursuant to Williamson County Regional
Planning Comm’n. v. Hamilton Bank of Johnson City,
473 U.S. 172, 186 (1985), Plaintiffs procedural due
process, substantive due process, and equal protection
claims are not ripe for review. Second, assuming
arguendo that the Court finds Plaintiffs claims ripe,
Defendants and Intervenor contend that recent
S7a
amendments to Liberty Township’s Zoning Resolution
have mooted Plaintiff's claims. Third, Defendants and
Intervenor assert that Plaintiff does not have standing
to assert its vagueness claim. Fourth, Intervenor
states that, pursuant to San Remo Hotel, L.P. v. City
& County of San Francisco, California, 125 $.Ct. 2491
(2005), this Court should abstain from issuing a
decision on Defendants’ and Intervenor’s Motions if
and/or until the pending state action is resolved. The
Court will consider each of the aforementioned
arguments in turn.
1. Ripeness
The doctrine of ripeness arises from Article II] of
the United States Constitution, which, inter alia,
limits the jurisdiction of federal courts to consideration
of actual cases and controversies, and precludes
federal courts from rendering advisory opinions.
Arnett v. Meyers, 281 F.3d 552, 562 (6th Cir. 2002)
(citing Adcock v. Firestone Tire and Rubber Co., 822
F.2d 623, 627 (6th Cir. 1987)). “Ripeness is more than
a mere procedural question; it is determinative of
jurisdiction. If a claim is unripe, federal courts lack
subject matter jurisdiction and the complaint must be
dismissed.” /d.
Defendants and Intervenor allege that because
Plaintiff did not receive a final decision on its zoning
permit applications or exhaust its administrative
remedies before filing suit in federal court, pursuant to
the rule set forth by the Supreme Court in Williamson
County, its claims are not ripe for this Court’s review.
See 473 U.S. at 186. Plaintiff retorts that under
Nasierowski Brothers Investment Co. v. City of Sterling
Heights, 949 F.2d 890 (6th Cir. 1991), its procedural
Ssa
and substantive due process claims are immediately
cognizable in federal court. Moreover, Plaintiff asserts
that should the Court find the Williamson County
requirements applicable to its due process and equal
protection claims, those claims are ripe because the
Zoning Inspector’s September 30, 2004 denial of its
permit applications amounts to a “final decision.”
In Williamson County, plaintiff, the owner of a
tract of land, filed suit against the county planning
commission and others in federal court, alleging that
the defendants had taken its property without just
compensation in violation of the Fifth and Fourteenth
Amendments. See 473 U.S. at 172. Plaintiff asserted
that although the planning commission had granted it
preliminary approval to construct a_ residential
subdivision, after the plaintiff had spent millions of
dollars on construction, the commission effectively
made building the _ subdivision impossible — by
repeatedly changing its mind about the requirements
of the pertinent zoning laws and_ subdivision
regulations. Id.
The Supreme Court concluded that plaintiffs claim
was not ripe for its review. Williamson County, 473
U.S. at 185. First, the Court found that plaintiff had
not obtained a “final decision” regarding the
application of the zoning ordinance and subdivision
regulations to its property. Jd. The Court reasoned
that there was no finality because the commission’s
objections could have been resolved with variances,
which, if granted would have allowed plaintiff to build
as it desired, eliminating the need for the federal
courts to address the difficult constitutional questions
associated with regulatory takings. See id. at 186-94.
Second, the Supreme Court recognized that plaintiff
59a
had not yet suffered the injury contemplated by the
Fifth Amendment’s takings clause because it had not
yet been refused just compensation. See Williamson
County, 473 U.S. at 194-95. (“The Fifth Amendment
does not proscribe the taking of property; it proscribes
taking without just compensation...Thus, the State’s
action is not ‘complete’ in the sense of causing a
constitutional injury ‘unless or until the State fails to
provide an adequate post|-|deprivation remedy for the
property loss.”) (citation omitted). Because Tennessee
had an adequate procedure for pursuing inverse
condemnation remedies, plaintiff was required to
utilize that procedure before turning to the federal
courts for assistance. See td.
In holding that plaintiffs claim was not ripe, the
Williamson County court took pains to distinguish the
concept of finality from the somewhat related but
distinct concept of exhaustion of state remedies. See
Williamson County, 473 U.S. at 192-93.’® The reason
the Court required plaintiff to pursue state remedies
first was not so that plaintiff could obtain a judgment
18
The Supreme Court has held that exhaustion, “generally refers
to administrative and judicial procedures by which an injured
party may seek review of an adverse decision and obtain a remedy
if the decision is found to be unlawful or otherwise inappropriate,”
and is not required before a plaintiff may bring a suit predicated
upon 42 U.S.C. § 1983.” Id. (citing Williamson County, 473 U.S.
at 193). Finality, on the other hand, “is concerned with whether
the initial decisionmaker has arrived at a definitive position on
the issue that inflicts an actual, concrete injury... .” Jd. The
purpose of the final decision requirement is to ensure that the
court will know the nature and extent of permitted development
before adjudicating the validity of the regulation that purports to
limitit. See First English Evangelical Lutheran Church v. County
of Los Angeles, 482 U.S. 304 (1987).
QQa
about whether the planning commission’s actions had
violated its rights; that would be an exhaustion
requirement. See Montgomery v. Carter County,
Tennessee, 226 F.3d 758, 765 (6th Cir. 2000)
(discussing Williamson County, 473 U.S. at 193
(“While it appears that the State provides procedures
by which an aggrieved property owner may seek a
declaratory judgment regarding the validity of zoning
and planning actions taken by county authorities,
respondent would not be required to resort to those
procedures before bringing its § 1983 action, because
those procedures are clearly remedial.”) (citation
omitted)). Instead the court required plaintiff to seek
variances so that the city’s planning commission could
have a final chance to determine, once and for all,
whether and to what extent the pertinent zoning laws
and subdivision regulations allowed the plaintiff to
build on his property. Jd. If the planning commission
decided to grant plaintiff all of the variances it needed
to build as it wished, then plaintiff would have the full
use of its property after all and would have no
justiciable takings claim (except possibly for the
interim period during which the tract owner was not
allowed to build). Jd.
The holding of Williamson County, therefore, is
that Fifth Amendment takings claims do not ripen in
zoning cases until: (1) there has been a final decision
by the relevant state decision-maker; and (2) the
property owner has utilized appropriate state inverse
condemnation procedures (or other comparable
alternatives). See Montgomery, 226 F.3d at 765. This
latter requirement applies only if a “reasonable,
certain and adequate provision for obtaining
compensation,” exists in that state Williamson
County, 473 U.S. at 192-94. In this case, Plaintiff has
Qla
not alleged a Fifth Amendment taking, regulatory or
otherwise. Accordingly, the Court must consider
whether the finality and exhaustion requirements of
Williamson County apply to Plaintiffs procedural! due
process, substantive due process, and/or equal
protection claims.
Whether finality is required in any given case
depends on the type of the harm alleged. Hammond v
Saldwin, 866 F.2d 172, 176 (6th Cir. 1989). For
instance, “li]f the injury the [plaintiffs] seek to redress
is harm to their property amounting to a ‘deprivation’
in constitutional terms, a final judgment is required,”
but if the injury is the infirmity of the process, neither
a final judgment nor exhaustion is required.” See
Bowers v. City of Flint, 325 F.3d 758, 762 (6th Cir.
2003) (citing Hammond, 866 F.2d at 176). In essence,
a due process challenge to an_e allegedly
unconstitutional procedure brought under section 1983
is not subject to a finality requirement, while a claim
alleging harm or deprivation of property “is
substantive, and, so, a final judgment (but not
exhaustion) is required.” /d.; see Nasierowski Brothers
Investment Co. v. City of Sterling Heights, 949 F.2d
890 (6th Cir. 1991) (“a procedural due process claim is
instantly cognizable in federal court without requiring
a final decision on a proposed development from the
responsible municipal agency”); see also Hammond,
866 F.2d at 176 (in cases of the present type “the
allegedly infirm process is an injury in itself,’ whereas,
in the context of a takings claim, the alleged injury...
cannot be assessed with any degree of certainty until
the municipality arrives at a final decision”).
Counts one and two of Plaintiffs Complaint, which
assert that Defendants violated Plaintiffs due process
924
nights by arbitrarily, capriciously, and willfully
ignoring Plaintiffs compliance with Defendants’
legitimate zoning standards to deny Plaintiff its
requested Zening Certificates, constitute pure due
process claims. See Complaint J] 29-40. Under the
rule promulgated by Nasierowskt, therefore, the Court
finds that Plaintiff need not comply with the
Williamson finality or exhaustion requirement to
assert these claims.’ “° Accordingly, the Court finds
” The Court notes that the Sixth Circuit has issued many
inconsistent opinions on the issue of whether a_ plaintiffs
procedural and/or substantive due process claims are subject to
Williamson County finality and exhaustion requirements. See
Bigelow v. Michigan Dept. of Nat. Resources, 970 ¥.2d 154, 159
(6th Cir. 1992) (noting that due process claims are immediately
cognizable in federal court without a need for exhaustion but
holding that when substantive and procedural due process claims
arise from a taking the finality requirements must be mct before
those claims could be asserted) (citing Hoehne v. San Benito
County, 870 F.2d 529, 532 (9th Cir. 1989)); see also, Harris v. City
of Akron, 20 F.3d 1395, 1402-03 (6th Cir. 1994) (ignoring the
holding in Bigelow requiring finality as to due process claims
because the case was not presented as a “taking case,” but as a
“pure due process case,” since the relevant takings claims were
already dismissed on finality grounds); Triomphe Investors v. City
of Northwood, 49 F.3d 198, 201, n.2 (6th Cir. 1993) (following
Nasterowski, despite its opinion that the substantive due process
claim at issue was “no different from an ordinary takings claim”);
Bannum, Inc. v. City of Loutsuille, 958 F.2d 1354, 1362-63 (6th
Cir. 1992) (due to the holding in Nasierowski, the city ordinance
prohibiting community treatment centers like plaintiff's, violated
due process although the plaintiff had not exhausted his takings
claims). Despite the aforementioned inconsistencies, however, the
Nasierowski holding remains binding on this Court until either
the Supreme Court issues an inconsistent opinion or the Circuit
Court sitting en banc elects to reconsider the matter. See Plonskt,
1997 WL 33147776, at *5 (citing Seguin v. City of Sterling
Heights, 968 F.2d 584, 590 (6th Cir. 1992) and Salm v. Sec. of
Health & Human Servs., '774 F.2d 685, 689 (6th Cir. 1985)).
“In Choate’s Air Conditioning & Heating v. Light, Gas & Water
Division of the City of Memphis, 16 Fed. Appx. 323, 331 (6th Cir.
2001), plaintiff, a property owner, sued defendant, a municipal
entity alleging that defendant had violated plaintiffs substantive
due process rights by violating an easement-agreement by leasing
a portion of the easement to various telecommunications
companies. The Choate’s court dismissed plaintiffs substantive
due process claim for failing to state a claim on which reliefcan be
granted. /d. at 330. The court subsequently dismissed plaintiff's
remaining claims as unripe under Williamson County, noting that
they were nothing but “repackaged takings claim|[s].” Jd. at
330-31. (“Where a particular Amendment provides an explicit
textual source of constitutional protection against a particular
sort of government behavior, that Amendment, not. the more
generalized notion of substantive due process, must be the guide
for analyzing these claims. .. Indeed, the Fifth Amendment’s Just
Compensation Clause governs the precise claim set forth by
Choate’s.”).
In Vashi v. Charter Twp. of W. Bloomfield, 159 F. Supp. 2d
608(E.D. Mich. 2001), plaintiffs, unsuccessful applicants for a site
plan and special use permit approval for a child daycare center
sued the township and its planning commission members for
conspiracy to violate plaintiffs’ civil mghts, alleged equal
protection and substantive due process violations, and gros:
negligence, contending that they were denied a permit because of
their ethnic and religious status. The Vashi court found that
plaintiffs’ due process and equal protection claims were subject to
the Williamson County finality requirement. See id. at 616. The
Vashi court explained that where plaintiffs were ‘
the legality of the zoning ordinances, or the legality of the process
used by Township to render decisions on Jand use proposal
applications,” but, rather, were “claiming that the defendants
‘not challenging
reached their decision to deny the daycare proposal based on the
illegitimate cnteria ofthe plaintiffs’ ethnicity and race,” plaintiffs’
was not akin to an immediately ripe Nasierowski challenge to a
zoning ordinance. Jd
In its Reply Memorandum, Intervenor contends that as in
Choate’s and Vashi, Plaintiff has merely attempted to repackage
94a
that both counts one and two are ripe for its review.
It is undisputed, however, that Plaintiffs equal
protection claim is subject to the Williamson County
final decision requirement. See Seguin, 968 F.2d at
588; V. Jacobs & Sons v. Saginaw County Dept. of
Public Health, 284 F. Supp. 2d 711, 718 (E.D. Mich.
2003) (plaintiff required to “exhaust” state remedies
for its “as applied” equal protection claim); Bigelow,
970 F.2d at 159 (finding that the Williamson finality
requirement apples to both equal protection and
takings claims). ‘Thus, in this case, a ripe equal
protection claim arising from the denial of Plaintiffs
requested zoning permit must involve a final decision
by the government agency or government agent
responsible for applying Liberty Township’s zoning
regulations to Plaintiffs zoning permit application.
regulatory takings claims as due process claims in an effort to
avoid the ripeness requirements of Williamson County.
Intervenor’s Reply at 18. Intervenor asserts that, as in Vashi,
where plaintiffs asserted that their due process rights were
violated based on their race, here, Plaintiff has alleged that its
due process rights were violated because of Liberty ‘Township’s
bias against Wal-Mart customers. Accordingly, Intervenor argues
that Williamson County finality applies. Though Plaintiff does
assert that Defendants’ bias is at the heart ofits zoning decisions,
Plaintiff also claims that in an effort to keep Plaintiff from
building its sought-after design, Defendants failed to comply with
proper Liberty Township procedure in denying Plaintiffs permit
applications. For instance, Plaintiff claims that if, as Defendants
claim, the January 19 Instructions are truly a legislative
document, they were not passed pursuant to Ohio law or the
procedures set forth in the Liberty Township Zoning Resolution.
Such claims distinguish this case from both Choate’s and Vashi;
thus, the Court finds Nasierowski applicable.
Qa
Plaintiff has satisfied the finality requirement. As
noted above, finality “is concerned with whether the
initial decision-maker has arrived at a definitive
position on the issue that inflicts an actual, concrete
injury. See Bowers, 325 F.3d at 762; see also,
Bannum, 958 F.2d at 1365. In the present case,
Plaintiff made a meaningful application for a zoning
certificate to the Zoning Inspector, and her decision to
deny Plaintiff its requested permit constitutes a final
decision.’
The second prong of Williamson County, requiring
a plaintiff to seek compensation from the state, does
not apply to this case. Courts have held that, “bona
fide equal protection claims arising from land-use
decisions can be made independently from a takings
claim and without being subject to Williamson [County
exhaustion}.” See Cramer v. Vitale, 359 F. Supp. 2d
621, 629 (E.D. Mich. 2005) (citing Forseth v. Vill. of
Sussex, 199 F.3d 363, 370 (7th Cir. 2000) (holding that,
“lalbsent a fundamental right or a suspect class, to
demonstrate a viable equal protection claim in the
land-use context, the plaintiff must demonstrate
*' Although Defendants argue that the Zoning Inspector’s decision
cannot be considered final until state proceedings are complete,
courts within Ohio have long held that appeal under Chapter 2506
of the Ohio Revised Code is a “judicial review of a final
administrative decision” as opposed to an administrative remedy
See Wise v. Milan Twp., 2003 WL 21105080 (N_D. Ohio May 12,
2003); Karches v. City of Cincinnati, 526 N.E.2d 1350 (Ohio 1988);
Alexander v. City of Oakwood, 1993 WL 1318608 (S.D. Ohio Jan.
27, 1993) (“Defendants point to a remedy, an appeal to common
pleas court under [O.R.C.] § 2506.01, that is judicial. This remedy
is judicial, not administrative, and, thus, cannot support a motion
for summary judgment on a claim for failure to exhaust
administrative remedies.”)
Q6a
‘governmental action wholly impossible to relate to
legitimate governmental objectives.”) (citations
omitted)). Accordingly, Plaintiffs equal protection
claim is ripe for its review.
2. Mootness
As noted supra, the jurisdiction of federal courts is
limited to the resolution of actual “cases” ap
“controversies.” See See U.S. CONST. art. IIT, § 2, el.
Raines v. qe 521 U.S. 811, 818 (1997); NRA of ri
Magaw, 132 F.3d 272, 279 (6th Cir. 1997). A case
becomes noe “when ve issues presented are no
longer live or parties lack a legally cognizable interest
in the outcome.” See Cleveland Branch, NAACP ov.
City of Parma, Ohio, 263 F.3d 513, 530 (6th Cir. 2001)
(quoting County of Los Angeles v. Davis, 440 U.S. 625,
631 (1979)). The mootness doctrine posits that cases,
which, due to changed circumstances, can no longer
impact the interests of the litigants, may not be
adjudicated in the federal courts. See DeFunis v.
Odegaard, 416 U.S. 312 (1974) (plaintiffs case
challenging the constitutionality ofa state law school’s
admissions process was found moot; plaintiff was
nearing completion of his final year in law school when
the case reached the United States Supreme Court for
review, and the Court found that its decision would no
longer affect his interests).”
* The Supreme Court has repeatedly described mootness as, “the
doctrine of standing set in a time frame: The requisite persona!
interest that must exist at the commencement of the litigation
(standing) must continue throughout its existence (mootness).”
See, e.g., Friends of the Earth, Inc. v. Laidlaw Environmental
Serus., 528 U.S. 167, 212 (2000); United States Parole Comm'n v
Geraghty, 445 U.S. 388 (1980)
97a
Defendants and Intervenor argue that Plaintiffs
claims are moot because Plaintiff “is no longer entitled
to the development it seeks in this htigation.” See
Intervenor’s Motion at 16. According to Defendants
and Intervenor, because Plaintiff failed to develop lot
number 2069 within three years from the initial
approval of the PUD Plan and failed to apply for and
receive approval from the Commission to extend the
applicability of the WCC Development Standards, the
PUD Plan upon which Plaintiffs claims rely, expired
in 1994. Alternatively, Defendants and Intervenor
contend that Plaintiffs claims are moot due to the
passage of the December 8, 2004 amendments to the
Liberty Township Zoning Resolution. See Ex. L,
§ 14.04(23). Plaintiff counters that according to the
WCC Development Standards, construction in the
WCC was projected to take approximately ten to
twelve years, Plaintiff filed a plat map as required by
the Zoning Resolution, and Defendants have not set
forth facts establishing that the PUD Plan and the
corresponding WCC Development Standards are no
longer applicable. Further, Plaintiff argues that
Defendants cannot foreclose its claims by applying the
most recent amendments to the Liberty Township
Zoning Resolution retroactively.
i. Whether the PUD Plan has Expired
Defendants and Intervenor assert that according to
the Liberty Township Zoning Resolution, because
Plaintiff both failed to develop and failed to file a plat
map for lot number 2069 within three years of the
filing of the PUD Plan and the WCC Development
Standards, Liberty ‘Township’s preliminary approval
of Plaintiffs Planned Commercial (“PC”) zoning of lot
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2069 has expired. Plaintiffcounters that the PUD Plan
has not expired because under the Liberty Township
Zoning Resolution, the only regulations governing
development within the WCC were the WCC
Development Standards, which, rather than expiring
in three years, projected completion of the WCC within
ten to twelve years, occurring “as market conditions
dictate.” See Ex. F |] 7-8. Moreover, assuming
arguendo that the Court finds the three-year
expiration period applicable to Plaintiffs proposed
development, Plaintiffasserts that it properly recorded
all plats, and notes that until this litigation began,
Defendants permitted many other developers to
proceed with construction according to the ten to
twelve year timeline set forth in the WCC
Development Standards.
Pursuant to the PUD Plan, lot 2069 was zoned
“Planned Commercial” (“PC”). In a Liberty Township
PC zone, the developer gets to “craft its own unique
zoning that applies only to that developer’s parcel.” See
Zoning Resolution §§ 14.01, 14.06(a)-(c) (eff. May 1,
1991). To allow for this “unique zoning,” each
* “Planned Commercial” zones are also referred to as “Planned
Commerci« and Office” zones. See Intrevenor’s Motion at 8 (citing
Foust Aff, at Tab G, “Oct. 2, 1991 Meeting Minutes”).
Section 14.01, “Planned Commercial and Office District
Purpose,” provides:
The Township, recognizing that with increased urbanization
and population growth comes increased demands for well
organized commercial areas to provide employment, goods and
services to area residents as well as to provide a balanced
economy within the township, hereby provides for the Planned
Commercial and Office District, intending hereby to promote
99a
developer’s PC plan becomes part of an amendment to
the Liberty Township Zoning Resolution. See Zoning
Resolution §§ 14.06(d) (“The Development Plan as
approved by the Township Trustees shall constitute an
amendment to the zoning resolution as it applies to the
lands included in the approved amendment.”). Further.
the Township’s approval, “shall be for a period of (3)
years to allow the preparation of plats requ
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