Wedgewood v. Township of Liberty, Ohio, No. C2-04-1069.

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Writing for the Court: Algenon L. Marbley
• Citation: 456 F.Supp.2d 904
• Parties: WEDGE WOOD LIMITED PARTNERSHIP I., Plaintiff, v. TOWNSHIP OF LIBERTY, OHIO, et. al., Defendants.
• Docket Number: No. C2-04-1069.
• Decision Date: 12 October 2006

456 F.Supp.2d 904 WEDGE WOOD LIMITED PARTNERSHIP I., Plaintiff,
v.
TOWNSHIP OF LIBERTY, OHIO, et. al., Defendants. No. C2-04-1069. United States District Court, S.D. Ohio, Eastern Division. October 12, 2006.

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Bruce Leroy Ingram, Joseph R. Miller, Vorys Sater Seymour & Pease, Columbus, OH, for Plaintiff.

John D. Latchney, Tomino & Latchney LLC, Medina, OH, William Lyle Loveland, Loveland & Brosius, Scott A. Campbell, Michael Wall Currie, Michele L. Noble, 0 Judson Scheaf, William Lyle Loveland, Thompson Hine LLP, Columbus, OH, for Defendants.

OPINION AND ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter comes before the Court on the following motions: (1) Motion to Dismiss for Lack of Jurisdiction and/or Motion for Partial Judgment on the Pleadings by Defendants Holly C. Foust, Robert E. Cape, Kim Cellar, and John C. Werner (collectively, "Trustees"), the Township of Liberty, Ohio, located in Delaware County, Ohio ("Liberty Township"), and the Board of Trustees of Liberty Township ("Board of Trustees") (collectively, "Defendants"); and (2) Motion to Dismiss for Lack of Jurisdiction and/or for Failure to State a Claim on Which Relief Can be Granted by Intervenor Liberty Township/Powell Neighborhood Community Watch Foundation ("Intervenor"). For the reasons set

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forth herein, Defendants' and Intervenor's Motions are GRANTED in part and DENIED in part.

II. STATEMENT OF FACTS¹ A. Background

The parties' dispute centers on the Defendants' decision to deny zoning approval for Plaintiffs proposed plan to develop a Wal-Mart Supercenter within Liberty Township. Defendants assert that they refused to issue Plaintiff a zoning permit to build the proposed Wal-Mart because the store would not comply with Liberty Township's Zoning Resolution. Plaintiff claims, however, that Defendants' decision to deny the requested zoning permit was arbitrary and capricious and violated its constitutional rights.

1. The Parties

Plaintiff, Wedgewood Limited Partnership I ("Wedgewood LP" or "Plaintiff'), owns an approximately 34-acre lot located in the "Wedgewood Commerce Center" development (the "WCC"), a 345-acre mixed-use development within Liberty Township. The lot, which is the subject of the instant suit, was platted as "lot number 2069" or "subarea 3" in the WCC Section 1 in 1994 and recorded as such in the Delaware County records. See Ex. F. In addition to owning lot number 2069, Wedgewood LP was also one of the original developers of the WCC. Defendants are Liberty Township, the Board of Trustees, and the individual board members in their capacity as Trustees.² Also, the Liberty Township/Powell Neighborhood Community

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Watch Foundation ("Intervenor") has intervened as a party defendant in the suit.

2. The WCC Development

In June 1991, Plaintiff and others filed an application for a Zoning Map amendment from FR-1 to Planned Commercial ("PC") to create the WCC, a proposed planned-unit development.³ On November

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18, 1991, the Board of Trustees approved the re-zoning and the parties developed a planned-unit development plan (the "PUD Plan").⁴, ⁵ The PUD Plan, and all corresponding plat maps were formally combined into the "Wedgewood Commerce Center Development Standards" ("WCC Development Standards"), which was filed with the Commission on February 2, 1992. See Ex. F. Among other things, the WCC Development Standards required the establishment of an "architectural review committee" to "exercise control over the design and final planning of all phases of the development" and to ensure that the proposed structures fit the "rural context of Liberty Township." See Ex. F ¶ 3. Further, the WCC Development Standards provided that development would occur in five-year phases and would "proceed as market conditions dictate," estimating that it would take approximately ten to twelve years to finish the project. Id. ¶¶ 7-8.

Pursuant to the PUD Plan, lot number 2069 was zoned "Planned Commercial"⁶ ("PC"). According to the Liberty Township Zoning Resolution in place at that time, in a Liberty Township PC zone, the developer gets to "craft its own unique zoning that applies only to that developer's parcel." See Zoning Resolution §§ 14.01, 14.06(a)-(c) (eff. May 1, 1991).⁷ To allow for this "unique zoning," each developer's

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PC plan becomes part of an amendment to the Township's zoning code. See id. §§ 14.06(d) ("The Development Plan as approved by the Township Trustees shall constitute an amendment to the zoning resolution as it applies to the lands included in the approved amendment.") (emphasis added).

Over the course of the next thirteen years, in accordance with standard Liberty Township zoning procedure,⁸ significant development occurred within the WCC. Some of this development differed from what was set forth in the PUD Plan. For instance, although the PUD Plan designated subareas 4, 5, 6, and 10 for "suburban office use" only, owners of each of these subareas sought approval for and were granted permits to build retail and/or commercial structures. Accordingly, subareas 4, 5, 6, and 10 now comprise approximately 248,000 square feet of "commercial" development, rather than the suburban office space for which they were initially zoned. Plaintiff asserts that it had no involvement or input in Liberty Township's approval of these zoning changes.

In October 2003, `Plaintiff submitted an application to the Commission for six area variances, primarily from set-backs, to construct a Wal-Mart Supercenter on WCC lot number 2069. The parties do not dispute that the proposed Wal-Mart store complies with the definition of "commercial" use under the Liberty Township Zoning Resolution.⁹ After conducting a public hearing on the matter, however, the Commission denied Plaintiff's variance applications, and Plaintiff subsequently withdrew them.

Soon after Plaintiffs variance applications were denied, the Homeowners Associations of Wedgewood, Campden Lakes, Wedgewood Hills, Falcon Ridge, Braemar, the Barringtons at Wedgewood Villa Condominium Association, Big Bear Farms, and Grandshire,¹⁰ detailed their concerns over what they deemed inconsistencies in the PUD Plan. The Board of Trustees then ordered the Zoning Inspector, Holly Foust, to "study" the history of the administration of the PUD Plan to alleviate a number of concerns over its application.

On January 19, 2004, following the Zoning Inspector's study, the Trustees issued a Public Statement (the "January 19 Instructions"), which now governs the procedural administration of the WCC by the Commission. Importantly, the January 19 Instructions concluded that the PUD Plan imposed a so-called "floating cap" of 500,000 square feet of commercial property (the "floating cap") on all development within the WCC.¹¹ Accordingly, the Board

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of Trustees instructed the Zoning Inspector to refrain from issuing any Zoning Certificates for additional commercial development within the WCC unless or until the PUD Plan had been modified or amended pursuant to procedures for modifications set forth in the Liberty Township Zoning Resolution. The Board of Trustees further indicated that any future applications for commercial development would be subject to a "two-step major deviation" development plan modification.¹²

Plaintiff did not submit Zoning Applications under this heightened "major modification" process. Instead, on June 29, 2004, Plaintiff, using standard Liberty Township procedure, applied for zoning permits to build an approximately 220,598 square foot Wal-Mart Supercenter and a Murphy Oil Gas Station in subarea 3. On September 30, 2004, the Zoning Inspector denied Wedgewood LP's permit applications explaining that, in light of the January 19 Instructions, the applications: (1) failed to meet the requirements for development plans; (2) exceeded the acreage allowed under the floating cap; (3) were incomplete because they had neither been submitted for approval nor approved by the WCC architectural review committee; and (4) were inconsistent with both the Zoning Resolution and the PUD Plan.¹³,¹⁴

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On October 20, 2004, Plaintiff appealed the Zoning Inspector's denial to the Liberty Township BZA. At the same time, Plaintiff also submitted a revised site plan and a letter withdrawing its permit application for the Murphy Oil gas station. In its appeal, Plaintiff stated that the Zoning Inspector had acted improperly in finding its zoning permit applications incomplete. Plaintiff also stated that the Zoning Inspector had acted improperly in finding that the proposed construction would exceed the maximum square footage limitations because the January 19 Instructions, which served as the basis for the Inspector's decision, were inaccurate. Further, Plaintiff asserted that the Zoning Inspector had incorrectly stated that she could not issue a Zoning Certificate without the architectural review committee's approval as such approval had not been required in the thirteen years since the PUD Plan had been approved. Finally, Plaintiff argued that the Zoning Inspector had mistakenly deemed its applications incomplete for allegedly failing to meet variance requests.¹⁵

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B. Procedural History

Because Plaintiff has filed the instant federal court action in addition to filing a later suit in state court, a discussion of the procedural history of both the federal and state court proceedings is necessary.

1. State Court Proceedings

On November 5, 2004, before the BZA had ruled on Plaintiffs appeal, Plaintiff filed the instant suit claiming that Defendants' reliance on the January 19 Instructions, Defendants' modification of the Zoning Resolution, and Defendants' denial of Plaintiffs Wal-Mart zoning permit application violated Plaintiffs constitutional rights. After Plaintiff filed this action, however, administrative...