CUF Motion for TRO

8/10/2019 CUF Motion for TRO

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COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

CUF NEIGHBORHOOD ASSOCIATION,

et al., Plaintiffs,

and

CITY OF CINCINNATI ex rel.

CUF NEIGHBORHOOD ASSOCIATION,

et al.,

Relators,

v.

CITY OF CINCINNATI, et al.,

Defendants-Respondents.

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Case No. A-14-07550

Judge Martin

AMENDED MOTION OF

PLAINTIFFS-RELATORS FOR

ISSUANCE OF TEMPORARY

RESTRAINING ORDER AND

PRELIMINARY INJUNCTION

Comes now Plaintiffs-Relators, individually and on behalf of the CITY OF

CINCINNATI, and hereby amend their motion filed earlier on this same date so as to specifically

seek the issuance of a temporary restraining order and a preliminary injunction precluding the

CITY OF CINCINNATI from issuing any permits, certificates or other authorization based upon

Ordinance No. 345-2014 and relating to any proposed developed for an approximately 1.65 acre

piece of property located at 169 West McMillan Street, 2432-2444 West Clifton Avenue and

222-232 Lyon Street (collectively, the Property).

As developed more fully in the Verified Complaint filed concomitantly herewith,

pursuant to Ordinance No. 345-2014 adopted by the City Council of the CITY OF CINCINNATI

on a vote of 7-to-2, the zoning on the Property was changed from either RMX Residential Mixed

Zone District or CC-M Commercial Community Mixed Zone District to a PD District. And the

requirements imposed by Section 1429-05(a) of the Cincinnati Municipal Code is clear and


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explicit as to what is required before the zoning on property less than two acres can be changed

to a PD District:

an affirmative recommendation of the City Planning Commission, finding that

special site characteristics exist and the proposed land uses justify development ofthe property as a PD.

But as the records of the City of Cincinnati make clear, no such findings were ever made

by the City Planning Commission, even though the Property is only 1.65 acres. Thus, when the

City Council voted to adopt Ordinance No. 345-2014 so as to change the zoning on the Property,

the corporate powers of the City of Cincinnati were clearly abused due to the failure of the

condition precedent mandated by Section 1429-05(a) of the Cincinnati Municipal Code.

The Ohio Supreme Court has held that when a municipality enacts legislation or

ordinances amending a current zoning ordinance, the municipality must satisfy all the procedural

requirements set forth in the applicable code. State ex rel. Osting v. City of Sidney, 2001-Ohio-

2175 (3d Dist. 2001). In this case, it is beyond cavil that the City Council of the City of

Cincinnati failed to follow and satisfy the procedural requirements within the Cincinnati

Municipal Code when adoption Ordinance No. 345-2014 such that Plaintiffs-Relators have a

substantial likelihood of success on the merits in their challenge to the illegal action by the

Cincinnati City Council.

And as the CUF NEIGHBORHOOD ASSOCIATION functions as the officially

designated representative of the Clifton Heights, University Heights and Fairview communities

to the City of Cincinnati, i.e., the CUF Neighborhood Association has been designated by the

CITY OF CINCINNATI as the community council for the Clifton Heights, University Heights

and Fairview communities, and its interests and the interest of its members go to promoting and

protecting the nature of the Clifton Heights, University Heights and Fairview communities,

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significant and irreparable harm will result if the development is allowed to proceed. For the

requisite finding mandated by Section 1429-05(a) of the Cincinnati Municipal Code serves to

impose a high threshold to avoid the arbitrary use of PD District that would undermine the

natures of a community.

Additionally, due to the clear illegality by which Ordinance No. 345-2014 was passed,

the issuance of an injunction will not cause any harm to any third parties or the general public.

For [i]t has long been the law of Ohio that persons dealing with municipal corporations are

charged with notice of all statutory limitations on the power of such corporations and their

agents, and must, at their peril, ascertain whether all necessary statutory formalities have been

met. Kimbrell v. Seven Mile, 13 Ohio App.3d 443, 445 , 469 N.E.2d 954 (12th Dist. 1984);

accord Welch v. City of Lima, 89 Ohio App. 457, 465, 102 N.E.2d 888 (3d Dist. 1950); Winfield

v. Painesville, 2005-Ohio-3778 32 (11th Dist. 2005). Thus, the issuance of an injunction would

essentially place any developer of the Property in the same position without an injunction being

issued. For even if the City of Cincinnati should issue permits, certificates, etc., the developer of

the property would still be subject to the illegality by which such permits, certificates, etc., were

issued. Williamsburg v. Milton, 85 Ohio App.3d 215, 619 N.E.2d 492 (Ohio App. 12 Dist.

1993)(notwithstanding issuance of a zoning permit by zoning administrator and incurring

significant expenses in reliance thereon by property owner, when such permit was issued in

violation of zoning regulations, injunction would lie against property owner).

Accordingly, sufficient grounds exist to warrant the issuance of the requested temporary

restraining order and preliminary injunction.

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Respectfully submitted,

/s/ Curt C. Hartman

Curt C. Hartman (0064242)The Law Firm of Curt C. Hartman

7394 Ridgepoint Drive, Suite 8

Cincinnati, OH 45230(513) 379-2923

[email protected]

Christopher P. Finney (0038998)

Finney Law Firm LLC

4270 Ivy Point Blvd., Suite 225(513) 943-6655

[email protected]

Attorneys for Plaintiffs-Relators

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing motion, together with the Verified Complaint filed

herein, will be served upon the following via e-mail on this the 30th day of December 2014:

Terry Nestor

Acting Solicitor, City of Cincinnati

[email protected]

Tim Burke

Counsel for Gilbane Development

[email protected]

/s/ Curt C. Hartman

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CUF Motion for TRO

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