Buckeye Com. Hope Found. v. City of Cuyahoga Falls

Decision Date20 June 1997
Docket NumberNo. 5:96 CV 1458.,5:96 CV 1458.
Citation970 F.Supp. 1289
PartiesBUCKEYE COMMUNITY HOPE FOUNDATION, et al., Plaintiffs, v. CITY OF CUYAHOGA FALLS, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

Virgil E. Arrington, Jr., City of Cuyahoga Falls, Department of Law, Cuyahoga Falls, OH, Jack Morrison, Jr., E. Marie Wheeler, Steven W. Mastrantonio, Amer, Cunningham, Brennan, Akron, OH, for Don Robart.

William E. Schultz, Office of the Prosecuting Attorney, Akron, OH, for Summit County Bd. of Elections.

Roger Gupta, Munroe Falls, OH, pro se.

ORDER

SAM H. BELL, District Judge.

The above-captioned matter came before this Court on the filing of a Complaint by Plaintiffs Buckeye Community Hope Foundation ("Buckeye"), Cuyahoga Housing Partners, Inc., Buckeye Community Three L.P., and the Fair Housing Contact Service, in which they requested injunctive relief from what they alleged to be violations of rights guaranteed by the Constitution's Due Process and Equal Protection Clauses, as well as violation of those rights protected by federal fair housing laws. On November 19-21, 1996, the Court conducted a hearing and took evidence regarding Plaintiffs' request for a preliminary injunction. Ultimately, the Court approved an injunction stipulated to by the parties which enjoined the Defendant Summit County Board of Elections from certifying the results of a referendum concerning the Plaintiffs' ability to build low-income housing on land in Cuyahoga Falls. (Docket # 68.) However, because the Court found there to be no showing of irreparable harm to Plaintiffs, their request for an injunction ordering the Defendant City of Cuyahoga Falls to issue building permits was denied. (Docket # 78.) In the Order denying Plaintiffs' preliminary injunction request, the Court deferred consideration of the merits of the underlying causes of action, concluding that such consideration would be more appropriately addressed after evaluating the Defendants' motions for summary judgment. The Court then referred those motions to Magistrate Judge James D. Thomas for a report and recommendation.

Presently before the Court is the report of the Magistrate, in which he recommends that this Court grant the motions for summary judgment filed by Defendants the City of Cuyahoga Falls, Mayor Don Robart, Clerk of City Council Gregg Wagner, and Chief Engineer Gerald M. Dzurilla. While Defendants largely agree with the Magistrate's analysis or conclusions, Plaintiffs' objections are numerous and weighty. (See docket # s 88, 89, 90.) Since the issuance of the Magistrate's Report and Recommendation, this Court requested the parties to address three questions raised by their briefs and objections, (docket # 94), and they readily complied (docket # s 95 & 98). The issues having thus been well-framed, the Court now issues its opinion.

I. Background.1

There are two areas of background relevant to the consideration of the pending motions: (1) the facts leading up to the proposed development, referendum and filing of this action; and (2) the procedural context of this action. The two areas are discussed below. Initially, however, one procedural matter warrants an introduction here.

As mentioned above, this Court conducted a three day hearing on Plaintiffs' motion for preliminary injunction in November of 1996. This was the second hearing on Buckeye Community Hope Foundation's request for injunctive relief; a preliminary injunction hearing was also held in the state action. Plaintiffs' motion for injunctive relief filed in this Court was denied on December 13, 1996. (Docket # 78.) On the motion of Plaintiffs, the transcript of those proceedings has been accepted for consideration in connection with the pending motions for summary judgment. (See Order of January 22, 1997, Docket # 84.) The Magistrate relied on portions of the three volume transcript in his report, and this Court will also consider that evidence insofar as it is relevant to the motions now before the Court.

Plaintiff Buckeye Community Hope Foundation ("Buckeye Community Foundation") is a not-for-profit 501(c)(3) corporation. (Hearing Transcript, November 19, 20, and 21, 1996 ("Tr.") at pp. 11-13.) It has as its purpose the development of affordable housing through the use of low income housing tax credits. (Id.) Mr. Boone is the President of the Board of Trustees for Buckeye Community Foundation. (Tr. at p. 11.)

Prior to the development of the complex in question here, Buckeye Community Foundation developed at least four other affordable housing complexes in Ohio. (Tr. at p. 15.) As outlined at the hearing before this bench by Mr. Boone and the Executive Director for Buckeye Community Foundation, Mr. P. Barno, Buckeye Community Foundation acts as a developer for each project. (Tr. at p. 389.) For each project, a separate limited partnership is formed as the investment vehicle to sell the tax credits. In this case, the specific limited partnership is Plaintiff Buckeye Community Three, L.P. ("Buckeye Three Limited"). (Tr. at p. 23.) The limited partnership is the owner of the land and, once it is completed, the development. As the project is developed, Buckeye Community Foundation advances fees and expenses until all the financing, including the tax credits, are finalized.2 Once the complete financial package is arranged and finalized, Buckeye Community Foundation is reimbursed for its expenses in developing the project. Buckeye Community Foundation also receives a "developer's fee" for its services. In this case, the expected fee is $175,000.00. (Boone Dep. at p. 120; Tr. at p. 381.)

To protect each development and its investors, Buckeye Community Foundation forms a separate corporation to act as the general partner for the limited partnership. (Tr. at pp. 22-23.) In this case, Plaintiff Cuyahoga Partners, Inc. ("Cuyahoga Partners"), a for-profit corporation, was formed to serve as the general partner of Buckeye Three Limited.3 (Tr. at p. 23.) Mr. Boone is the president of Cuyahoga Partners. (Boone Dep. at pp. 6-7.) Buckeye Community Hope Foundation is a fifty-one percent owner of Cuyahoga Partner, and the, other forty-nine percent is owned by Little Country Community, Inc., another 501(c)(3) corporation. (Tr. at p. 396.) Thus, Buckeye Community Foundation controls Cuyahoga Partners which in turn controls Buckeye Three Limited.4 (Tr. at pp. 23, 389-390.)

Turning to the events leading to the underlying dispute, Mr. Boone testified that he first contacted the Mayor for the City of Cuyahoga Falls, Don Robart, in the summer of 1995 about the possibility of developing a low income housing complex in Cuyahoga Falls.5 Mr. Boone testified that Hearing Exhibit 23 represents a letter from Buckeye Community Foundation to Mayor Robart dated June 7, 1995. In the letter, Buckeye Community Foundation expressed an interest in developing the land "under the low income housing tax credit program." (Tr. at pp. 20-21.) Mr. Boone indicated that this letter was sent before the purchase of the land for the project. (Tr. at p. 21.) According to Mr. Boone, the Mayor expressed no problems about the proposed development at that time. (Id.)

The real property, located on Pleasant Meadow Boulevard, was purchased on June 12, 1995. (Complaint at ¶ 13.)

Mr. Boone testified that he started working with Cuyahoga Falls Planning Director, Louis Sharpe, in late August/September of 1995 on the details of the development. (Tr. at pp. 30-31.) The financing for the project was secured in November of 1995. (Tr. at p. 21.)

In January, 1996, Buckeye Three Limited, filed an application for a "site plan review" for the seventy-two unit apartment complex in the City of Cuyahoga Falls. (Complaint at ¶ 15.)

On February 21, 1996, the "site plan" was submitted for approval at a meeting of the Planning Commission for Cuyahoga Falls. (Complaint at ¶ 17; Tr. at p. 33.) In connection with the Planning Commission's meeting, Planning Director Sharpe prepared a Staff Summary of the site plan. (See Hearing Exhibit 11; Tr. 128.) This summary recommended approval of the site plan subject to approximately nine conditions agreed to by Mr. Boone. One of the conditions required the developers to erect a fence on one side of the property before the building permit for the apartment complex could issue.

The site plan, including the conditions, was unanimously approved by the Planning Commission at the February 21, 1996 meeting.6 (Complaint at ¶ 17; Tr. at p. 35.) The Planning Commission's recommendation then had to be submitted to and approved by City Council. (Id.) Mayor Robart did not attend the February 21, 1996, Planning Commission meeting. (Tr. at pp. 72-73.)

On March 4, 1996, the Planning Commission's recommendation on the site plan was addressed at a City Council meeting. (Tr. at p. 35.) Mayor Robart attended this meeting. (Tr. at p. 36.) According to Mr. Boone, Mayor Robart "came out against" the project during this meeting and suggested that the issue be tabled. (Tr. at p. 39-40.) The issue was tabled.7 (Tr. at p. 40.)

Another meeting of City Council was held on March 18, 1996. (Tr. at p. 40.) From a review of the materials filed in connection with the motions, one can conclude that this meeting was long and emotional. The minutes reflect that the meeting lasted from 6:15 p.m. until 8:45 p.m. and that several residents expressed their concerns over the development of the complex. Mayor Robart attended the March 18, 1996 meeting and expressed his views in a lengthy statement. (...

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