Wedgewood Ltd. P'ship I v. Twp. Of Liberty, 08-4446.

Citation610 F.3d 340
Decision Date28 June 2010
Docket NumberNo. 08-4446.,08-4446.
PartiesWEDGEWOOD LIMITED PARTNERSHIP I, Plaintiff-Appellee,v.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.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

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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.

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

GRIFFIN, J., delivered the opinion of the court, in which KETHLEDGE, J., joined. CARR, D.J. (pp. 355-58), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

Defendants Township of Liberty, Ohio, its Board of Trustees, and its zoning inspector (collectively the Township) appeal the district court's order enjoining it from applying a set of zoning instructions against a parcel of property owned by plaintiff Wedgewood Limited Partnership I (Wedgewood). This dispute arose more than six years ago, when Wedgewood applied for a zoning certificate to develop a Wal-Mart Supercenter (“Wal-Mart”) in Liberty Township's Wedgewood Commerce Center. The Township's residents rallied against the retail giant, hoping to prevent the store's construction. Their elected Board of Trustees responded by enacting zoning instructions that adversely affected Wedgewood's ability to develop a large commercial structure on its property. When Wedgewood's agreement with Wal-Mart collapsed, it filed this civil rights action pursuant to 42 U.S.C. § 1983.

We hold that the Township violated Wedgewood's procedural due process rights when the Township adopted zoning instructions that, in effect, amended the Wedgewood Commerce Center planned unit development without providing Wedgewood with notice and an opportunity to be heard. Accordingly, we affirm the order of the district court granting a permanent injunction.

I.

On November 18, 1991, the Liberty Township Board of Trustees (Trustees) legislatively approved the Wedgewood Commerce Center (WCC), a planned unit development (“PUD”) in Liberty Township, Ohio. A PUD is a unique creature of zoning because the entire development carries one nominal zoning classification only, but its subdivisions contain many different kinds of approved land use, including, for example, zoning for single-family dwellings, multi-family units, schools, recreational facilities, and commercial developments. The zoning restrictions applicable in each PUD subdivision “are ascertainable only by referring to the approved plats for [ ] development.” Gray v. Trs. of Monclova Twp., 38 Ohio St.2d 310, 313 N.E.2d 366, 367, 369 n. 4 (1974).

Leading up to the November 18, 1991, vote, parameters for the WCC's land use were negotiated at length between the Trustees and Charles Ruma & Associates, one of the applicants seeking approval for PUD re-zoning.1 Before voting to approve the WCC, Trustee John C. Werner asked whether the WCC development plan, as amended, would be “incorporated into a document for the Township records.” Mr. David Dye, an attorney for Charles Ruma & Associates, responded, “Yes, it would.”

On February 20, 1992, a document was received by, and filed with, the Liberty Township Zoning Commission (Commission) entitled “Wedgewood Commerce Center-Development Standards.” This document contained, among other things, individual development criteria and zoning information for each subdivision, a map labeled “WCC Land Use Plan[,] and Addendum A, entitled “Wedgewood Commerce Center Summary of Site Data.” According to this document (hereinafter “WCC Development Plan” or “WCCDP”), only subareas 3, 8, and 9 were zoned for commercial development.2

Nevertheless, between 1992 and 2003, the owners of subareas 4, 5, 6, and 10, plats all originally designated for suburban office use only, sought approval for and obtained permits to build commercial structures. According to the Township, by late 2003, subareas 4, 5, 6, and 10 contained approximately 390,611 square feet of commercial space.

Wedgewood owns lot 2069, designated as subarea 3, a 32.36 acre plat of land in the WCC and the subject of the parties' protracted litigation. According to the WCCDP, subarea 3 is zoned for commercial development and is allotted a maximum of 220,857 square feet of commercial building space. The square footage of subareas 3, 8, and 9, when combined, permit a total of 499,930 square feet of commercial development in the WCC.3

At a public Trustees meeting in September 2003, a resident of Liberty Township voiced her “concern[ ] about “rumors” that a Wal-Mart or Lowe's was moving into the WCC, asserting that the development was becoming too “commercial.” The resident asked Trustee Werner, “can we do anything about it?” He replied, “those hearings were ... years ago, and the public had their shot then, and basically [the WCCDP] was approved.”

The rumors proved to be true. In October 2003, Wedgewood submitted an application to the Commission requesting an amendment to the WCCDP, specifically, six zoning variances to develop a 227,825 square foot Wal-Mart and fueling station on subarea 3.4 While its variance application was pending, Liberty Township residents contacted the Commission to express their objection to the proposed Wal-Mart. On October 22, 2003, the Commission held a public hearing addressing Wedgewood's application. After considering statements from several residents, many of whom were opposed to the Wal-Mart, the Commission denied Wedgewood's application for an amendment to the WCCDP that would allow subarea 3's commercial development to exceed 220,857 square feet.

Over the next several months, public opposition to the Wal-Mart intensified. To address the public's concerns, the Trustees held two public meetings on December 1 and 15, 2003. Trustee Peggy Guzzo also coordinated “petition drive[s] gathering “a total of 1,150 signatures” from anti-Wal-Mart residents. After these meetings, the Trustees asked Liberty Township's zoning inspector, defendant Holly Foust, to produce a report detailing the prior zoning certificates issued by the Commission and the combined square footage of all commercial structures located in the WCC.

On January 19, 2004, the Trustees issued a “Public Statement and Instructions to Zoning Department Regarding Future Administration of Wedgewood Commerce Center Development Plan (hereinafter Instructions). These Instructions, which form the crux of Wedgewood's constitutional claims, state, in relevant part:

On a general basis, we have certainly heard our constituents' requests and desires to do what is possible to deter excessive and regional types of commercial development in our community. As a Board we, like other residents in our community, are interested in employing our current regulations, and developing and adopting new regulations, to avoid, as possible, and limit, where possible, the burdens that “big box” types of retail facilities place upon the infrastructure of our community.

* * *

Extensive review and analysis of the Wedgewood Commerce Center development plan, the minutes of the meetings which led to the approval of that plan, the policies that have been followed to date in administering that plan, and the discernable intent of all of the parties expressed during the conception and the process which led to the approval of the plan, has led us to conclude that the ultimately adopted plan imposed a “floating” maximum of 500,000 sq. ft of “commercial” development in the Wedgewood Commerce Center. We have found evidence of the establishment of this limit in a number of different documents. Moreover, we have found no documents or proof through amendment processes which modified this “overall” square footage cap, as best as we can conclude. The subject of whether or not an acreage “cap” also applies has been more difficult.

* * *

The analysis reveals that the commercial development completed to date, and substantially through the approval process, has consumed most of the commercial square footages [sic] imposed by the development plan as an overall cap.

* * *

Under these circumstances, we have determined that, except for a few modest projects which have already completed the two-step “major” administrative review process, all additional applicants seeking to construct retail or other arguable “commercial” development in the Wedgewood Commerce Center will be required to seek approval as a “major” plan of modification. In other words, we are instructing our zoning department to refrain from issuing zoning certificates for any additional commercial development in the Wedgewood Commerce Center, to issue such permits only after an approval through the “two-step” major process has been completed. Each process will be considered to be an application to consume any remaining portion of the square footage limitation, or exceed that limitation, and as a modification to expand the acreage limitation which we believe has been met.

Six months later, Wedgewood filed its application with the Commission for a zoning permit to build a smaller, approximately 220,598 square foot Wal-Mart and fueling station on subarea 3. Unlike its October 2003 application, Wedgewood did not seek a variance to permit construction that surpassed subarea 3's 220,857 square feet of approved commercial space. Wedgewood did not submit its...

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