# Appendix — Township of Liberty v. Wedgewood Ltd. Partnership I > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2736%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2011 - **Citation:** 562 U.S. 1179 ## Text 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 f [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2736%3A2. Public record. Not legal advice.