Ejs Properties, LLC v. City of Toledo
| Citation | 651 F.Supp.2d 743 |
| Decision Date | 27 August 2009 |
| Docket Number | Case No. 3:04CV7312. |
| Parties | EJS PROPERTIES, LLC, Plaintiff, v. CITY OF TOLEDO, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Daniel R. Harpole, Kristin R.B. White, Peter C. Houtsma, Meshach Y. Rhoades, Holland & Hart, Denver, CO, Pariss M. Coleman, II, Cary R. Cooper, Cooper & Walinski, Toledo, OH, Timothy M. Rastello, Holland & Hart, Boulder, CO, for Plaintiff.
Barbara E. Herring, Gary R. Taylor, Keith J. Winterhalter, Mark S. Schmollinger, Department of Law, Jay E. Feldstein, Kalniz, Iorio & Feldstein, Toledo, OH, for Defendants.
Andrew K. Ranazzi, Office of the Prosecuting Attorney—Lucas County, Toledo, OH, for Movant.
Steven J. Paffilas, Office of the U.S. Attorney, Cleveland, OH, for Interested Party.
John A. Borell, Sr., Office of the Prosecuting Attorney—Lucas County, Toledo, OH.
This is a civil rights case in which plaintiff, EJS Properties, LLC [EJS] raises claims under 42 U.S.C. § 1983 and Ohio state law against defendants City of Toledo, and former Toledo City Councilman Robert McCloskey. EJS alleges defendant McCloskey improperly sought $100,000 from Pilkington, N.A. [Pilkington] and EJS in exchange for Council's approval of a proposed re-zoning ordinance. EJS alleges McCloskey and the City Council defeated its ordinance because of its refusal to acquiesce to McCloskey's demand, and EJS suffered damages as a result.
EJS asserts under § 1983 that defendants violated its rights to substantive and procedural due process, equal protection and to petition the government for redress of grievances. It also brings a state law claim against defendants for wrongful interference with business expectancy.1
Pending are defendants' motions for summary judgment [Docs. 219, 221]. Jurisdiction exists under 28 U.S.C. § 1331 and § 1367. For the following reasons I grant summary judgment to defendants City of Toledo and Robert McCloskey on all § 1983 claims. I grant summary judgment to defendant City of Toledo on EJS' claim for tortious interference of business relationships, but deny summary judgment to defendant McCloskey on this claim.
On April 3, 2002, EJS and Pilkington Corporation entered into an Offer to Purchase, whereby plaintiff EJS would acquire about fifteen acres of a forty-three acre parcel owned by Pilkington, and located at 1701 East Broadway, Toledo. The premises covered by the Offer to Purchase included a building formerly used by Pilkington as a technical center. The Offer to Purchase was contingent on re-zoning to permit use of the building by a charter school. EJS intended to enter into a lease agreement with Lake Erie Academy, a charter school, after obtaining approval for re-zoning and concluding its purchase of the property.
In May, 2002, EJS filed a petition with the Toledo-Lucas County Plan Commission seeking a zoning change from the classification M-2 (industrial district) to C-2 (restricted office). The Plan Commission staff recommended that the Commission approve the zoning request only if the designation was changed from an M-2 to an M-3 (planned industrial district), rather than C-2 classification.
EJS accepted the M-3 recommendation. On June 13, 2002, the Plan Commission held a public hearing for the re-zoning request. The Commission recommended re-zoning the site to M-3. It submitted EJS's request to the Zoning and Planning Committee of the Toledo City Council for review.
On July 17, 2002, the Zoning and Planning Committee held a public hearing on the re-zoning request. It voted 7-0 to recommend approval of the proposed re-zoning. Incorporated into ordinance form as Ordinance 643-02, the recommendation was set for consideration at the August 13, 2002, meeting of Toledo City Council.
Sometime during the second half of July, 2002, McCloskey attended a lunch with John Keil, Director of Environmental Health, Safety and Property for Pilkington, and Randy Berg, a negotiator on behalf of management for Pilkington. McCloskey formerly worked at Pilkington, and, as a union negotiator, had helped negotiate a labor agreement that capped the healthcare benefits received by Pilkington retirees.
According to Keil and Berg, McCloskey asked Pilkington to contribute $100,000 to the East Toledo Retirees' Center, to assist Pilkington retirees with health insurance and/or drug prescription issues, or, according to Berg, for the East Toledo Community Center to buy busses to take retirees to Canada to purchase prescription drugs. Berg and Keil testified McCloskey used language indicative of a quid pro quo agreement. According to Berg, McCloskey stated that, "He needed something to continue to support ... re-zoning" and that if Pilkington did not accede to his demand, he would defeat the re-zoning. Keil said McCloskey presented the $100,000 as "a condition to EJS receiving approval for the re-zoning application" and that McCloskey said that "he would be able to see that [the re-zoning application] was voted down." [Doc. 75]. Pilkington declined to make any contribution to a retirees' fund.
Following that lunch, Keil informed Erich Speckin, owner of EJS, of McCloskey's position. Speckin called McCloskey, who told Speckin "he thought Pilkington needed to give something back to the community to make this project go forward, and without that, he wasn't going to vote in favor of it anymore, and that was his position." [Doc. 68].
After this lunch, McCloskey left voicemail messages for Keil, Berg and Speckin seeking a monetary contribution to the retirees' fund in connection with the pending re-zoning ordinance.2
On August 13, 2002, EJS' re-zoning ordinance came before Toledo City Council for a vote. Councilman Peter Gerken moved to delay the vote on the ordinance for two weeks. According to Gerken, he sought the delay to obtain more information about the development of an industrial corridor and the availability of another industrial parcel, owned by Unitcast, located near the Pilkington East Broadway site.
On August 20, 2002, members of City Council reviewed the ordinance at their bi-weekly Agency Review meeting. Robert Williams, an assistant chief operating officer for the City, attended the meeting to communicate Mayor Jack Ford's position on the re-zoning ordinance for 1701 East Broadway. According to Williams, the Mayor wanted the site preserved for future industrial and commercial use. Nine council members, including McCloskey, attended this meeting.
On August 22, 2002, John Keil of Pilkington sent a letter to all members of Toledo City Council, with a copy sent to the Clerk of Council, Michael Beazley. The letter was also sent to Mayor Ford, and a copy sent to assistant Chief Operating Officer, John Loftus. In that letter, Keil sought support for EJS' request and advised that [Doc. 247, Exh. 11].
On August 27, 2002, Ordinance 643-02, EJS' re-zoning request, came before the Toledo City Council for approval or rejection. The City Council denied EJS' re-zoning request by a vote of 7-4, with Councilman Escobar absent.
Then-President Peter Ujvagi, Tina Skeldon-Wozniak, Wade Kapszukiewicz, Michael Ashford, Wilma Brown, Peter Gerken and Robert McCloskey voted against the ordinance. Gene Zmuda, Betty Schultz, Rob Ludeman and George Sarantou voted in favor of the ordinance. Louis Escobar was absent at the time of the vote.
Four of the council members who voted against the ordinance changed their vote between the July 17, 2002, meeting of the Zoning and Planning Committee, at which all seven Council members in attendance had voted to recommend adoption of the ordinance: Peter Ujvagi, Tina Skeldon-Wozniak, Wilma Brown and McCloskey.
On this same date, the City Council introduced legislation authorizing the expenditure of $50,000 for the purchase of two parcels adjacent to the Unitcast property at 1414 East Broadway to continue the development of the industrial roadway corridor.
EJS contends, inter alia, that McCloskey, as the Council representative from the district to be affected by the proposed re-zoning, was in a position to influence the votes of the members from other districts and the at-large members. This was so, according to EJS, because, as a matter of general custom, members acceded to the desires of the district representative regarding issues related to economic development within the particular district.
During pretrial discovery counsel for EJS deposed the Council members who participated in the August 27, 2002, meeting at which Council rejected the re-zoning ordinance.
Councilperson Wilma Brown, who changed her vote, testified that she followed McCloskey's lead. According to Brown, McCloskey indicated to her that he would vote against the re-zoning ordinance because he thought it appropriate to preserve the land for industrial use. Brown maintained she would only follow his lead if she agreed with him.
Councilpersons Ashford and Kapszukiewicz also testified that, while they had no independent recollection, it was possible that they had some conversations with McCloskey about his position on the rezoning request. They agreed that a district councilperson's opposition to a zoning request was a factor to consider. Councilperson Ashford testified that he "probably would have" asked McCloskey. [Doc. 77]. Kapszukiewicz described a district councilperson's position a "very important thing" or "consideration" and believed other councilpersons shared his view. [Doc. 81].
Councilperson Gerken testified he had no recollection of whether he talked to McCloskey or not, but conceded that it was possible he did, and that council representatives consult with a district council representative on zoning...
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