State ex rel. Phillips Supply Co. v. City of Cincinnati
| Decision Date | 26 December 2012 |
| Docket Number | No. C–120168.,C–120168. |
| Citation | 985 N.E.2d 257 |
| Parties | STATE ex rel. PHILLIPS SUPPLY CO., State ex rel. Roy Tailors Uniform Co., Inc, State ex rel. U.S. Bank, N.A., Trustee of the Charles Phillips Ir revocable Trust u/a/d 6/1/1961, State ex rel. Dalton Street Properties, Ltd., Phillips Supply Company, Roy Tailors Uniform Co., Inc., U.S. Bank, N.A., Trustee of the Charles Phillips Irrevocable Trust u/a/d 6/1/1961, and Dalton Street Properties, Ltd., Plaintiffs–Relators–Appellants v. CITY OF CINCINNATI, Amit B. Ghosh, P.E., City Gospel Mission, Foundation of Compassionate American Samaritans, d.b.a. Lord's Gym, Foundation of Compassionate American Samaritans d.b.a. Lord's Pantry, Jobs Plus Employment Network, Inc., and 032811 Holdings, LLC., Defendants–Respondents–Appellees. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Buechner Haffer Meyers and Koenig Co., LPA, and Peter E. Koenig, Cincinnati, for Plaintiffs–Relators–Appellants.
John P. Curp, City Solicitor, Terrance A. Nestor, Chief Counsel, and Sean S. Suder, Assistant City Solicitor, for Defendants–Respondents–Appellees, City of Cincinnati and Amit B. Ghosh, P.E.
Manley Burke L.P.A. and Timothy M. Burke, Cincinnati, for Defendants–Respondents–Appellees City Gospel Mission, Foundation of Compassionate American Samaritans d.b.a. Lord's Gym and Lord's Pantry, Jobs Plus Employment Network, Inc., and 038211 Holdings, LLC.
Taft Stettinius & Hollister, LLP, W. Stuart Dornette and Emily C. McNicholas, Cincinnati, for Amici Curiae, Strategies to End Homelessness, Greater Cincinnati Coalition for the Homeless, Lighthouse Youth Services, Cincinnati Union Bethel, Society of St. Vincent De Paul, Christ Emmanuel Christian Fellowship, Crossroads Church, Metropolitan Area Religious Coalition of
Cincinnati, YWCA of Greater Cincinnati and Talbert House.
Barrett and Weber LPA and C. Francis Barrett, Cincinnati, for Amicus Curiae Columbia Development Corporation.
{¶ 1} This case concerns the proposed relocation of a homeless shelter operated by defendant-respondent-appellee City Gospel Mission to an area of Cincinnati commonly referred to as Queensgate. Plaintiffs-relators-appellants Phillips Supply Company, Roy Tailors Uniform Company, Inc., U.S. Bank, and Dalton Street Properties, Ltd., are neighboring Queensgate businesses and property owners (“Queensgate Businesses”) who are opposed to the shelter's relocation. They filed suit against defendants-respondents-appellees the City of Cincinnati, Amit E. Ghosh, the chief building official of the City of Cincinnati, (“the City”) social service agencies City Gospel Mission, Foundation of Compassionate American Samaritans “FOCAS,” Jobs Plus Employment Network, Inc., and 032811 Holdings, LLC, the owner of the property (“private party appellees”), challenging City Council's decision to pass a “notwithstanding ordinance” to allow City Gospel Mission to operate a homeless shelter at the property.
{¶ 2} In this appeal, they challenge the trial court's judgment upholding the constitutionality of the notwithstanding ordinance. Because the Queensgate Businesses lack standing to pursue their taxpayer claim for injunctive relief, we dismiss that claim. And because they have not raised any genuine issues of material fact in support of their constitutional attack upon the notwithstanding ordinance in their capacity as neighboring businesses and property owners, we affirm the trial court's decision granting summary judgment to the City and the private party appellees on their declaratory judgment claim.
{¶ 3} City Gospel Mission is planning to relocate its existing Over–the–Rhine homeless shelter to a new facility on the property located at 1801–1805 Dalton Avenue (“the Dalton Avenue property”). The Dalton Avenue property is located in an “MG” manufacturing zoning district in a section of the West End neighborhood commonly known as “Queensgate.” The Queensgate Businesses own property and operate businesses directly adjacent to or near the Dalton Avenue property.
{¶ 4} The proposed facility is classified as a “special assistance shelter” in the Cincinnati Zoning Code. See Cincinnati Municipal Code 1401–01–S11. Special assistance shelters are not permitted by right in any zoning district in the city of Cincinnati. They are conditionally permitted in certain zones and prohibited in others, such as the “MG” manufacturing zoning district. See Cincinnati Municipal Code 1413–05. The “MG” manufacturing zoning district is a permissive zone which, in addition to industrial and manufacturing zoning uses, permits uses such as sexually-oriented businesses, drinking establishments, and power plants, along with residential uses such as transitional housing and loft dwelling units. See Cincinnati Municipal Code 1413–05.
{¶ 5} City Gospel Mission sought approval for a special assistance shelter using the notwithstanding ordinance procedure set forth in Cincinnati Municipal Code 111–5. According to Article VII, Section 6 of the City Charter, zoning ordinances must be reviewed by the City Planning Commission before being enacted by council. If not approved by the commission, notwithstanding ordinances can only be passed by a two-thirds vote of the city council. See Cincinnati Municipal Code 111–5. After review by the planning commission, before a notwithstanding ordinance can be passed by city council, a committee of council must hold a public hearing and make a recommendation on the ordinance. See id.
{¶ 6} Under Cincinnati Municipal Code 111–5, among the issues to be considered by the council committee in making a recommendation to city council on a notwithstanding ordinance are: “[w]hether the proposed application will not have an adverse effect on the character of the area or the public health, safety, and welfare; and whether the proposed application is consistent with the purposes of this code and the zoning district where the subject property is located.” Cincinnati Municipal Code 111–5. The committee can also incorporate limitations or conditions on the use of the property into its recommendation to council in order to ensure that the use of the property is consistent with the character of the area and with the public health, safety, and welfare. Id.
{¶ 7} On June 17, 2011, the City Planning Commission held a public hearing on City Gospel Mission's application for a notwithstanding ordinance. At the conclusion of the hearing, the City Planning Commission rejected the recommendation of the staff of the Department of City Planning and Buildings to deny the notwithstanding ordinance, and unanimously recommended approval of the notwithstanding ordinance. On June 21, 2011, a committee of council, the Livable Communities Commission, held a public hearing on the matter. The Livable Communities Commission, which is comprised of seven of the nine members of city council, recommended approval of the notwithstanding ordinance by the full city council.
{¶ 8} Both the Planning Commission and the Livable Communities Commission heard extensive testimony on the relocation of the shelter to the new site from individuals both in favor of and opposed to the relocation. The Queensgate Businesses' representatives and their counsel appeared at both hearings and presented argument that the notwithstanding ordinance would be detrimental to the public health, safety, and welfare.
{¶ 9} On June 22, 2011, city council passed the notwithstanding ordinance, Ordinance No. 0223–2011, by a vote of 7–2, thereby approving the operation of a special assistance shelter on the Dalton property by the City Gospel Mission. The notwithstanding ordinance contains a preamble which provides the reasons for city council's action, as well as 11 conditions that address any potential impact of the use of the property as a special assistance shelter. Section three of the ordinance further provides that “the property is permitted to be used as a special assistance shelter as limited by the Ordinance, [that] the Property has not been rezoned and remains in a “MG” Manufacturing General zoning district and [that it] shall be treated as such for all other purposes.” The notwithstanding ordinance further provides that the zoning approval to use the property as a special assistance shelter expires if the property is transferred to a party unaffiliated with the City Gospel Mission.
{¶ 10} Following the ordinance's passage, the Queensgate Businesses sent a taxpayer demand letter to City Solicitor John Curp, demanding that he file a taxpayer lawsuit on their behalf. When Curp declined to initiate the requested action, the Queensgate Businesses filed this lawsuit challenging the constitutionality of the notwithstanding ordinance.
{¶ 11} In their first three causes of action, the Queensgate Businesses sought a declaratory judgment 1) that the notwithstanding ordinance is clearly arbitrary and unreasonable and not substantially related to the health, safety, morals, and general welfare of the city of Cincinnati; 2) that they were denied their procedural due process rights protected by the United States and Ohio Constitutions through the enactment of the notwithstanding ordinance; and 3) that the city had violated their equal protection rights by “allowing City Gospel to bypass the procedures for obtaining a zoning change, text amendment, or use variance set forth in the zoning code and charter and obtain a notwithstanding ordinance in an arbitrary and unequal manner.”
{¶ 12} In their fourth and fifth causes of action, the Queensgate Businesses asserted claims for injunctive relief and a writ of mandamus under the taxpayer standing provisions of Ohio law. In count six of their complaint, they requested damages, and in count seven they sought a declaratory judgment that the proposed uses of the York Street property were impermissible in the MG district.
{¶ 13} The private party appellees...
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