Vill. of Walton Hills v. Vill. of Walton Hills
| Decision Date | 31 January 2023 |
| Docket Number | 1:20-cv-01772 |
| Parties | VILLAGE OF WALTON HILLS, ex rel, et al., Plaintiffs, v. VILLAGE OF WALTON HILLS, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
On March 15, 2019, Plaintiff HGE Concrete Supply Company LLC (“Plaintiff'), on behalf of itself and as a taxpayer on behalf of the Village of Walton Hills, filed a ten-count Amended Complaint raising the following claims against Defendants Village of Walton Hills, the Planning Commission of Walton Hills, Building and Zoning Inspector Robert Kahnan, and Mayor Donald Kolograf (collectively “Defendants”): (1) Denial of Equal Protection of the Law; (2) Inverse Condemnation; (3) Denial of Procedural and/or Substantive Due Process; (4) Deprivation of Civil Rights under 42 U.S.C. § 1983; (5) Gross Negligence; (6) Injunctive Relief pursuant to O.R.C. § 733.56; (7) Declaratory Relief; (8) Conspiracy; (9) Mandamus action pursuant to O.R.C. § 733.58; and (10) Fraudulent Inducement.[1] (R. 24). On March 29, 2021, Defendants filed their Answer to the Amended Complaint and Counterclaims for Breach of Contract ( the December 28, 2018 Development Agreement); Unjust Enrichment; and Injunctive Relief to prevent alleged dumping and pollution by Plaintiff. (R. 26). Now pending is Defendants' motion for summary judgment on Plaintiff's claims (R. 34), which Plaintiff has opposed. (R. 41). Defendants also filed a reply in support. (R. 44).
This lawsuit revolves around Plaintiff's purchase and use of a property at 710 W. Krick Road located in Walton Hills, Ohio. (R. 24, PageID# 154, 156). Plaintiff is “a ready mix concrete supplier, and has its headquarters and principal place of business” at the aforementioned address. Id.
Around March 7, 2018, Plaintiff's managing member, Jeramy Ennis, became interested in the W. Krick Road parcel (hereafter “the Property”); then Mayor Kevin Hurst informed Ennis the Property was owned by the City of Bedford-not the Village of Walton Hills. (R. 36, Ennis Depo. at 9, 34-35; 36-38). According to Ennis, Mayor Hurst represented that he could streamline the zoning process and have building permits ready within ninety (90) days. Id. at 45-46.
On June 12, 2018, after meetings with Mayor Hurst and Village Engineer Sheehy, Plaintiff purchased the Property for $600,000 from the City of Bedford. ). Before purchasing the Property, Ennis had no understanding that it was zoned as Light Industrial-1 (“I-1”). (R. 36, Ennis Depo. at 45). Unlike Heavy Industrial (“I-2”) zoning, I-1 zoning prohibits rock crushing and outside storage of materials. (R. 34-5, PageID# 379, Exh. D, Aff. of Robert Kalman, Building-Zoning Inspector for the Village of Walton Hills; R. 44-2, PagelD# 1128, Kalman Aff., Exh. B; R. 44-3, PageID# 1182-1183, Declaration of Mark Majewski, Exh. C).
Ennis claims he did not learn the Property was zoned I-1 until after the Property was purchased when he retained Mark A. Henning as an architectural consultant in August of 2018.[3](R. 36, Ennis Depo. at 55-56). The Village of Walton Hills claims it has an easement allowing it to use an undedicated gravel road (“gravel road”), which leads to the Property. (R. 34-5, Aff. of Kalman; R. 37).
Before Henning's retention as an owner representative in early to mid-August of 2018, Plaintiff's architects had submitted preliminary plans but had not yet submitted “a full set of documents for complete planning approval,” and Plaintiff had not yet retained a civil engineer to handle stormwater management and topography issues. (R. 37, Henning Depo. at 31-33). Henning concedes that prior to his retention, Plaintiff had not submitted a set of plans that met Walton Hills' requirements, as they were lacking basic calculations regarding stormwater management. Id. at 31 ()
On August 28, 2018, Plaintiff submitted a set of plans to Walton Hills that included space for a cul-de-sac that the village wanted. Id. at 50-53. Plaintiff's engineer agreed that “Walton Hills and HGE had come to an agreement about not putting in the dedicated roadway and cul-de-sac now,” but would include the roadway and cul-de-sac in the paper plans and readdress the issue in the future. Id. at 55.
During a September 10, 2018 meeting that Plaintiff attended with counsel, Walton Hills' law director Bill Mason suggested a Development Agreement, which Plaintiff was “not opposed to.” (R. 36, Ennis Depo. at 78; R. 37, Henning Depo. at 58). Ennis testified that: “[w]e agreed at that meeting we would indicate it on the drawing and give them the room for future development of the cul-de-sac, but it was not a requirement to move forward any longer.” (R. 36, Ennis Depo. at 78). According to an October 1, 2018 letter from Henning, Plaintiff's owner representative, Plaintiff's attorney would shortly submit a Development Agreement for negotiation between Plaintiff and Walton Hills. (R. 37, Henning Depo. at 63, Exh. B). Plaintiff's counsel and the Village went back and forth over the details of the Development Agreement, with multiple drafts exchanged between legal counsel for Plaintiff and the Village. (R. 36, Ennis Depo. at 80-81).
According to Henning, plans submitted on October 2, 2018, were for planning approval despite markings stating “preliminary” or “not for construction.” (R. 37, Henning Depo. at 64, 67). Defendant Robert Kalman, Walton Hills' Building-Zoning Inspector, stated in his affidavit that “the October 2, 2018 plans still required additions regarding riparian setbacks before they could be submitted to ... [the] Planning Commission for review and approval. (R. 34-5, PageID# 380, Kalman Aff. at ¶11).
According to Kalman, on December 3, 2018, Plaintiff submitted its first set of final plans for review and approval by the Planning Commission. (R. 34-5, PageID# 380, Kalman Aff. at ¶12).
On December 18, 2018, Walton Hills' Planning Commission unanimously voted to approve the plans. (R. 34-5, PageID# 380, Kalman Aff. at ¶13). Plaintiff received a building permit ten days later. (R. 36, Ennis Depo. at 96).
On December 28, 2018, all parties signed the Development Agreement for the Property. (R. 37, PageID# 908-916; Exh. E). The agreement prohibits “[c]oncrete recycling, processing, crushing, handling or other activities involved in creating recycled or virgin stone aggregate materials,” limits Saturday operations to 6:30 a.m. until 12:00 p.m., prohibits any operations on Sunday, and prohibits “[d]umping of any kind.” Id. at PageID# 909. The agreement obligated Plaintiff to commence the construction of the plant after it had obtained all necessary permits. Id.
Plaintiff began construction prior to recording all easements in February and March of 2019, and Plaintiff was “able to put the footer in to our building, erect our building and start putting the footer and the slabs for our concrete plant.” (R. 36, Ennis Depo. at 90-91).
On June 22, 2019, Plaintiff began operating its concrete plant at the Property. (R. 36, Ennis Depo. at 27). In his affidavit, Defendant Kalman asserts that Plaintiff began violating laws and breaching the Development Agreement soon after commencing operation, stating that he personally observed Plaintiff “dumping material and concrete refuse” outside of areas where it is permitted to operate. (R. 34-5, PageID# 380, Kalman Aff. at ¶¶16-21).
In August of 2019, Plaintiff submitted plans to add a silo and an enclosure around its concrete plant. (R. 36, Ennis Depo. at 111).
On August 23, 2019, the Village of Walton Hills' law director wrote a letter to Ennis indicating that before proceeding on the building of another structure, the Village of Walton Hills wanted to resolve several issues including the following violations of the Development Agreement: prohibited operation on Sundays; on-site dumping; operation without a Certificate of Occupancy; incomplete plumbing, electrical, HVAC, and final building inspections; lack of a fire inspection; and several others. (R. 36, PageID# 678, Exh. H).
On November 22, 2019, Defendant Walton Hills, through counsel, sent a letter to Plaintiff complaining of Plaintiff's breaches of Village ordinances and the Development Agreement. (R. 36, PageID# 681-683, Exh. J). Among numerous violations, Defendant Walton Hills asserted Plaintiff was violating O.R.C. § 6111.04(A)(1) by “[p]lacing sewage, sludge, sludge materials, industrial waste, or other wastes where they could cause pollution to waters of the state.” Id.
On April 20, 2020, Henning, Plaintiff's owner representative, wrote a letter to Mayor Kolograf requesting the Property be rezoned from I-1 to I-2. .
On May 15, 2020, Henning submitted plans from Polaris Engineering and Surveying that addressed outstanding issues concerning a retention pond. (R. 37, PageID# 928-29; Exh. I).
On June 18, 2020, Plaintiff was issued a Certificate of Occupancy for the Property. (R. 36, PageID# 690, Exh. P). According to Henning, Plaintiff had previously received a “preliminary occupancy permit ... that lasted for quite some time.” (R. 37, Henning Depo. at 75-76).
On May 11, 2021, the Ohio Environmental Protection Agency (EPA) inspected Plaintiff's concrete facility at the Property and found several violations, issuing Notice of Violations (NOV) to Plaintiff on May 11, 2022 and October 21, 2022. (R 44-5, PageID# 1213-1237). These included concrete washout water entering the storm water retention basin via the storm...
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