Golf Vill. N. LLC v. City of Powell

Decision Date09 August 2018
Docket NumberCase No. 2:18-cv-371
Citation333 F.Supp.3d 769
Parties GOLF VILLAGE NORTH LLC, et al., Plaintiffs, v. The CITY OF POWELL, OHIO, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

Joseph R. Miller, Christopher Logan Ingram, John M. Kuhl, Elizabeth S. Alexander, Vorys, Sater, Seymour and Pease LLP, Columbus, OH, for Plaintiffs.

Frank J. Reed, Jr., Yazan S. Ashrawi, Michelle Yvonne Harrison, Frost Brown Todd LLC, Columbus, OH, for Defendants.



Golf Village North LLC and Triangle Properties, Inc. (together, "Plaintiffs" or "Golf Village") move for a temporary restraining order ("TRO"), preliminary injunction, and permanent injunction against Defendants the City of Powell, Ohio (the "City"), David Betz in his official capacity as the City's Director of Development (the "Zoning Administrator"), and their agents (together, "Defendants"). Mot., ECF No. 2 ("Motion"). For the following reasons, Plaintiffs' Motion is GRANTED IN PART and DENIED IN PART . Specifically, the Court GRANTS Plaintiffs' request for a preliminary injunction, DENIES AS MOOT Plaintiffs' request for a TRO, and DENIES Plaintiffs' request for a permanent injunction.


A. Background

In the late 1990s, Plaintiffs acquired more than 900 acres of property in Delaware County to develop a planned community known as the Golf Village Community. Plaintiffs seek to develop a residential hotel on a parcel of that property known as Subarea G (the "Hotel Property").

In 2004, Golf Village prepared a plat (the "Final Plat") for the Hotel Property, which the City approved in September 2004. Ver. Compl. ¶ 29, ECF No. 1. The Final Plat indicates that Lot 3155, a parcel located adjacent to the Hotel Property's east side, would be dedicated to the City for use as a public park. Id. at ¶ 30; Ex. C, ECF No. 1-3. The Final Plat also identifies two private roads—Sheridan and Moreland Streets—that provide ingress and egress from Seldom Seen Road and Sawmill Parkway to the privately-owned lots within the Golf Village Community, including the Hotel Property. Ver. Compl. ¶ 31; ECF No. 1. The eastern side of Sheridan Street as well as the northern and western sides of Moreland Street were constructed on the Hotel Property. Id. at ¶ 38–39.

In May 2010, Golf Village transferred Lot 3155 to the City through a Limited Warranty Deed. Id. at ¶ 40. It is undisputed, however, that Golf Village did not then, nor has it ever, granted Defendants an access easement over the Hotel Property or Sheridan and Moreland Streets for Defendants to access the Park Property. Mot. 1–2, ECF No. 2; Tr. 5, (counsel on behalf of Defendants stating "We admit, all [cards] face up, Your Honor, it was not put in the easement, it was not put in the plat, it was not put in the deed."); Tr. 9, ECF No. 25 (counsel on behalf of Defendants stating "[a]gain, we freely admit there is not an easement referenced in the deed nor the plat....").

On June 22, 2017, Defendant Betz, the City's Zoning Administrator, contacted Golf Village on behalf of the City to request an ingress/egress easement from Seldom Seen Road over Sheridan Street and the Hotel Property to create an entrance to the Park Property. Ver. Compl. at ¶ 44, ECF No. 1. Golf Village did not grant the request. Id. at ¶ 45.

The City revised and finalized its construction plans for the Park ("Construction Plans") in early 2018. The Title Sheet of the Construction Plans states the following in bold, capitalized font: "Approval of these plans is contingent upon the City securing an access easement to the park from Seldom Seen Road along Sheridan Street from the property owner." Ex. A at 1, ECF No. 1-1. The Title Sheet was executed by Defendants on February 9, 2018. Id. It is undisputed that the City approved the Construction Plans without securing an access easement from Golf Village to use the Hotel Property or to use Sheridan and Moreland Streets. Tr. 5, 9, ECF No. 25.

On March 14, 2018, despite not having secured an easement, the City informed its contractor that the City had "made arrangements" to use Golf Village's Hotel Property and Sheridan Street. Ver. Compl. ¶ 48, ECF No. 1; Ex. H, ECF No. 1-8. Shortly thereafter, in April 2018, the City and/or its agents destroyed the curb along the east side of Sheridan Street, built a construction entrance, and began using a portion of Golf Village's Hotel Property to access the Park Property. Ver. Compl. ¶ 52, ECF No. 1. Plaintiffs allege that this was done with no advance notice to Golf Village and without authorization.

Plaintiffs allege that the City will continue to enter and use Golf Village's Property if not enjoined. They further insist that the Construction Plans establish that, if not enjoined, the City will also: (1) construct a permanent entrance to the Park over Golf Village's Hotel Property, (2) clear trees and vegetation and fill certain wetlands on the Hotel Property, (3) dig a trench across Golf Village's Hotel Property and through Sheridan Street, and (4) convert Sheridan and Moreland Streets from private roads to public streets. Id. at ¶ 55–60.

On April 19, 2018, Golf Village contacted the City and requested that Defendants cease and desist their activities on Golf Village's Hotel Property. See Miller Deck, Exhibit A ¶ 3, ECF No. 2-1. The City responded, insisting that verbal representations and preliminary planning documents grant authorization allowing entry onto Plaintiffs' Property without an access easement. Id. at ¶ 4. Plaintiffs then filed this action seeking injunctive relief on April 23, 2018.

On May 2, 2018, this Court held an initial hearing on Plaintiffs' request for a TRO. Following the hearing, the parties agreed to a consent injunction order to be put in place for sixty days. Order, ECF No. 20; Order, ECF No. 22. Following a telephone status conference held before this Court on July 5, 2018, the parties agreed to extend the consent injunction for an additional thirty days. Order, ECF No. 27. On July 31, 2018, the parties filed a joint status report indicating, at bottom, that the parties have not and will not be able to resolve this dispute. ECF No. 28. Therefore, the Court will proceed to resolve Plaintiffs' Motion for preliminary injunctive relief on the merits.1


The Court considers four factors when determining whether to grant a request for a preliminary injunction: (1) whether the movant has established a substantial probability of success on the merits; (2) whether the movant would suffer irreparable harm in the absence of an injunction; (3) whether an injunction would substantially harm third parties; and (4) whether an injunction would serve the public interest. Winnett v. Caterpillar, Inc. , 609 F.3d 404, 408 (6th Cir. 2010). The factors are not prerequisites; rather, they must be balanced. Capobianco, D.C. v. Summers , 377 F.3d 559, 561 (6th Cir. 2004). For instance, "a strong showing of irreparable harm, decidedly outweighing harm to the defendant, may justify an injunction even where the movant cannot make a strong showing of likelihood of success on the merits, as long as the plaintiff can show serious questions going to the merits of the suit." Worthington Foods, Inc. v. Kellogg Co. , 732 F.Supp. 1417, 1427 (S.D. Ohio 1990) (citing Frisch's Restaurant, Inc. v. Shoney's Inc. , 759 F.2d 1261, 1270 (6th Cir. 1985) and In re DeLorean Motor Co. , 755 F.2d 1223, 1229 (6th Cir. 1985) ).

Even so, "a district court is not required to make specific findings concerning each of the four factors ... if fewer factors are dispositive of the issue." Jones v. City of Monroe , 341 F.3d 474, 476 (6th Cir. 2003) (citing In re DeLorean Motor Co. , 755 F.2d at 1228 ) (abrogated in part on other grounds); see also American Imaging Servs., Inc. v. Eagle–Picher Indus., Inc. , 963 F.2d 855, 862 (6th Cir. 1992) (stating that the district court is not required to make findings on factors that are not dispositive with respect to the issuance of a preliminary injunction). Further, notwithstanding the requirement to balance the factors, the likelihood of success and irreparable harm factors predominate. Smith v. Husted , No. 2:16-CV-212, 2016 WL 10321579, at *3 (S.D. Ohio Mar. 11, 2016) (Smith, J.). Moreover, "[a]lthough no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal." Gonzales v. National Bd. of Med. Exam'rs , 225 F.3d 620, 625 (6th Cir. 2000) ; see also Michigan State AFL–CIO v. Miller , 103 F.3d 1240, 1249 (6th Cir. 1997) ("While, as a general matter, none of these four factors are given controlling weight, a preliminary injunction issued where there is simply no likelihood of success on the merits must be reversed.").

Similarly, before the Court may issue a permanent injunction, a plaintiff must demonstrate the following:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, L.L.C. , 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) ; see also Audi AG v. D'Amato , 469 F.3d 534, 550 (6th Cir. 2006). In addition, unlike a preliminary injunction, the standard for a permanent injunction requires that a plaintiff show "actual success" on the merits, rather than a mere likelihood of success.

Amoco Prod. Co. v. Village of Gambell , 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987) (internal citations omitted).

The decision whether to grant injunctive relief falls within the sound discretion of the district court. Friendship Materials, Inc. v. Mich. Brick, Inc. , 679 F.2d 100, 102 (6th Cir. 1982) (discussing the district court's discretion in granting preliminary injunctive relief); see also eBay Inc. , ...

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