Ctr. for Powell Crossing, LLC v. City of Powell, Case No: 2:14-cv-2207

• Citation: 173 F.Supp.3d 639
• Decision Date: 25 March 2016
• Docket Number: Case No: 2:14-cv-2207
• Parties: The Center for Powell Crossing, LLC, Plaintiff, v. The City of Powell, Ohio, Defendant.
• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

173 F.Supp.3d 639

The Center for Powell Crossing, LLC, Plaintiff,

v.The City of Powell, Ohio, Defendant.

Case No: 2:14-cv-2207

United States District Court, S.D. Ohio, Eastern Division.

Signed March 25, 2016

Bruce Leroy Ingram, Christopher Logan Ingram, John M. Kuhl, Joseph R. Miller, Columbus, OH, for Plaintiff.

Daniel T. Downey, Melanie J. Williamson, Fishel, Hass, Kim & Albrecht, LLP, Columbus, OH, for Defendant.

Opinion and Order

JAMES L. GRAHAM, United States District Judge

This case presents many complex legal issues relating to the approval by popular vote of an amendment to the Charter of the City of Powell, Ohio in November 2014. The Charter Amendment requires that a commission of five private citizens be organized to draft a new comprehensive zoning and development plan, which at a minimum would prohibit high-density housing in the City's Downtown Business District. The Charter Amendment further provides that the new comprehensive plan will not allow a mixed-use development project proposed by plaintiff The Center for Powell Crossing, LLC. Powell City Council had passed an ordinance approving of Powell Crossing's development plan, which included apartment units, in June 2014.

The matter is before the court on the motion of Powell Crossing for a permanent injunction against the enforcement of the Charter Amendment. Powell Crossing argues that the enactment of the Charter Amendment violates due process, subjects it to unequal protection under the law and violates a provision of the Ohio Constitution confining the use of initiative and referendum powers to legislative, as opposed to administrative, actions.

For the reasons set forth below, the court concludes that Powell Crossing, while not entitled to judgment in its favor as to many of its claims, is entitled to judgment as a matter of law as to one of its due process claims and as to its state constitutional claim. The court thus grants permanent injunctive relief against the enforcement of the Charter Amendment.

I. Findings of Fact

The facts are not disputed. The verified complaint states that Powell Crossing is a limited liability company organized under the laws of Ohio. It purchased an 8.3 acre tract of land located at 147 West Olentangy Street in Powell, Ohio on January 2, 2013 for $575,000. The land is undeveloped, except for an existing historic structure, and lies within the City's zoned Downtown Business District.

In August 2013, Powell Crossing submitted an initial design plan for mixed-use development of its property to the City of Powell's Planning and Zoning Commission. The proposed development, named the Center at Powell Crossing, included sixty-four units of multi-family dwellings and 14,000 square feet of retail space. After receiving positive feedback from the Commission, Powell Crossing filed an Application for Preliminary Development Plan in October 2013. The Commission unanimously approved the Preliminary Plan Application at its November 13, 2013 public meeting.

On December 31, 2013, Powell Crossing submitted an Application for Final Development Plan with the City. Both the City's Development Staff and the Commission recommended their approval of the Application at the Commission's February 12, 2014 public meeting.

The Final Plan Application was then sent to the Powell City Council. After five public meetings in which the Plan was considered, City Council approved the Application on June 17, 2014 by a vote of 4 to 3. City Council's approval of the Final Plan Application was memorialized in Ordinance 2014-10, with an effective date of July 17, 2014. See Compl., Ex. E.

No administrative appeal of City Council's approval of the Final Plan Application was filed with the Delaware County Court of Common Pleas under Ohio Revised Code § 2506.01.

On July 17, 2014, three residents of Powell—Brian Ebersole, Sharon Valvona and Thomas Happensack (the “Petitioners”)—filed three petitions with the Clerk of Powell's City Council. The first was a petition to put Ordinance 2014-10 to a referendum. The second was an initiative petition to pass an ordinance repealing Ordinance 2014-10. The third was an initiative petition to amend the Powell City Charter.

The proposed Charter Amendment concerned two matters: (1) creating a new comprehensive plan for zoning and development in the City and (2) revoking Ordinance 2014-10. As to the first matter, the Charter Amendment required that a commission comprised of five presidents of certain Powell-area homeowners associations be organized to make findings and draft a new Comprehensive Plan. See Charter Am., Art. 4, § 14. The Plan would then be submitted to City Council, which must consider the Plan, “make adjustments” necessary and consistent with the citizen commission's findings and “pass an ordinance no later than March 31, 2016 legislatively adopting a Final Comprehensive Plan.” Id., Art. 4, § 18. In no event would the Plan allow “high-density housing,” which is defined to include multi-family dwellings. Id., Art. 4, § 19.

As to the second matter, the proposed Charter Amendment stated that “Ordinance 2014-10 approving a Final Development Plan for the Center of Powell Crossing LLC” is “not in the best interests of the people of the City of Powell.” Charter Am., Second and Third Whereas Clauses. It mandated that no action, including construction activity, be taken in reliance upon Ordinance 2014-10 or the Final Development Plan for the Center at Powell Crossing. Id., Uncodified ¶ 1. And it further provided that Ordinance 2014-10 would not be permitted under the Final Comprehensive Plan: “The Final Comprehensive Plan legislatively adopted pursuant to Section 18 of this Article IV shall not be compatible with Ordinance 2014-10 and/or the Final Development Plan for the Center at Powell Crossing...at 147 W. Olentangy Street.” Id., Art. 4, § 21. The Amendment thus would prevent Powell Crossing from developing its property in the manner approved by Ordinance 2014-10, both upon the passage of the Amendment and continuing with the enactment of a new comprehensive plan. The Amendment did provide, however, that Powell Crossing's land would remain viable for “other uses,” meaning that Powell Crossing would be able to develop its land for all uses permissible under the zoning code other than high-density housing. See id., Uncodified ¶ 1.

Powell Crossing filed notices of protest against the three petitions with the Delaware County Board of Elections. SeeO.R.C. § 3501.39. On August 1, 2014, the Board of Elections voted to validate a sufficient number of signatures as to each petition, but opted to defer consideration of the grounds of the protests until they were first presented to City Council. The Board notified City Council of its action, and on the same day, August 1, Powell Crossing filed notices of protest with City Council.

Upon receiving notice from the Board of Elections, City Council drafted an ordinance, as required by law, to submit the proposed Charter Amendment to the voters on November 4, 2014. SeeOhio Const., Art. XVIII, § 8. The ordinance (Ordinance 2014-41) received its first reading before City Council on August 5, 2014. At the same meeting, City Council voted to table resolutions regarding the referendum petition and the initiative petition to repeal Ordinance 2014-10 until its next meeting two weeks later.

On August 19, 2014, City Council reviewed all three petitions at a public meeting. Through its legal counsel, Powell Crossing submitted legal briefing and made a statement in support of its protests at the public meeting. See Aug. 19, 2014 Meeting Tr. at 11-19. Upon concluding that the Board of Elections was the appropriate forum to consider Powell Crossing's protests against the referendum and the initiative to repeal, City Council voted to approve resolutions to forward those measures to the Board. With respect to the Charter Amendment, City Council voted unanimously against submitting it to voters. In connection with their votes against adopting Ordinance 2014-41, several Council members acknowledged their reliance on the City Law Director's opinion that the Charter Amendment was an unconstitutional and standardless delegation of City Council's legislative authority to private citizens under City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976). See Aug. 19, 2014 Meeting Tr. at 78-89.

On August 21, 2014, Powell Crossing again filed notices of protest with the Delaware County Board of Elections against the referendum and the initiative to repeal. After conducting a hearing on August 26, 2014, the Board voted unanimously to accept the protests. The Board determined that Ordinance 2014-10 was an administrative decision which, under Article II, Section 1f of the Ohio Constitution, was not subject to the exercise of referendum or initiative powers. The Board further found that the petitions failed to comply with the City Charter's requirements and the Ohio Secretary of State's required forms for municipal petitions and referenda.

The Petitioners filed a mandamus action against the Board of Elections in the Ohio Supreme Court to require the referendum and initiative to repeal to be placed on the November 2014 ballot. The Ohio Supreme Court denied the writ. Critical to the Ohio Supreme Court's decision was its finding that City Council's approval of the Final Development Plan was an administrative action:

By its terms, Article II, Section 1f, limits the referendum and initiative power to questions the municipality is “authorized by law to control by legislative action.” SeeMyers v. Schiering, 27 Ohio St.2d 11, 271 N.E.2d 864 (1971), paragraph one of the syllabus. Because citizens of a municipality cannot exercise referendum powers greater than what the Constitution affords, an administrative action is beyond the scope of the referendum power. Buckeye Community [ Hope Found. v. City of Cuyahoga Falls, 82 Ohio St.3d 539, 544, 697 N.E.2d 181 (Ohio 1998) ].

The test for determining

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