Opinion and Order s
This case presents many complex legal issues relating to the approval by popular vote of an amendment to the Charter of the City of Powell, Ohio in November 2014. The Charter Amendment requires that a commission of five prívate citizens be organized to draft a new comprehensive zoning and development plan, which at a minimum would prohibit high-density housing in the City’s Downtown Business District. The Charter Amendment further provides that the new comprehensive plan will not allow a mixed-use development project proposed by plaintiff The Center for Powell Crossing, LLC. Powell City Council had passed an ordinance approving of Powell Crossing’s development plan, which included apartment units, in June 2014.
,The matter is before the court on the motion .of Powell Crossing for a permanent injunction against the enforcement of the Charter Amendment. Powell Crossing argues that the enactment of the Charter Amendment violates due process, subjects it to unequal protection under the law and violates a provision of the Ohio Constitution confining the use of initiative and referendum powers to legislative, as opposed to administrative, actions.
For the reasons set forth below, the court concludes that Powell Crossing, while not entitled to judgment in its favor as to many of its claims, is entitled to judgment as a matter of law as to one of its due process claims and as to its state constitutional claim. The court thus grants permanent injunctive relief against the enforcement of the Charter Amendment.
I. Findings of Fact
The facts are not disputed. The verified complaint states that Powell Crossing is a limited liability company organized under the laws of Ohio. It purchased an 8.3 acre tract of land located at 147 West Olentan-gy Street in Powell, Ohio on January 2, 2013 for $575,000. The land is undeveloped, except for an existing historic structure, and lies within the City’s zoned Downtown Business District.
In August 2013, Powell Crossing submitted an initial design plan for mixed-use development of its property to the City of Powell’s Planning and Zoning Commission. The proposed development, named the Center at Powell Crossing, included sixty-four units of multi-family dwellings and 14,000 square feet of retail space. After receiving positive feedback from the Com
On December 31, 2013, Powell Crossing submitted an Application for Final Development Plan with the City. Both the. City’s Development Staff and the Commission recommended their approval of the Application at the Commission’s February 12, 2014 public meeting.
The Final Plan Application was then sent to the Powell City Council. After five public meetings in which the Plan was considered, City Council approved the Application on June 17, 2014 by a vote of 4 to 3. City Council’s approval of the Final Plan Application was memorialized in Ordinance 2014-10, with'an effective date of July 17, 2014. See Compl., Ex. E.
No administrative appeal of City Council’s approval of the Final Plan Application was filed with the Delaware County Court of Common Pleas under Ohio Revised Code § 2506.01. '
On July 17, 2014, three residents of Powell — Brian Ebersole, Sharon Valvona and Thomas Happensack (the “Petitioners”) — filed three petitions with the Clerk of Powell’s City Council. The first was a petition to put Ordinance 2014-10 to a referendum. The second wás an initiative petition to pass an ordinance repealing Ordinance 2014-10. The third was an initiative petition to amend the Powell City Charter.
The proposed Charter Amendment concerned two matters: (1) creating a new comprehensive plan for zoning and development in the City and (2) revoking Ordinance 2014-10. As to the first matter, the Charter Amendment required that a commission comprised of five presidents of certain Powell-area homeowners associations be organized to make findings and draft a new Comprehensive Plan. See Charter Am., Art. 4, § 14. The Plan would then be submitted to City Council, which must consider the Plan, “make adjustments” necessary and consistent with the citizen commission’s findings and “pas's an ordinance no later than March 31, 2016 legislatively adopting a Final Comprehensive Plan”’ Id., Art. 4, § 18. In no event would the Plan allow “high-density housing,” which is defined to include multifamily dwellings. Id., Art. 4, § 19.
As to the second matter, the proposed Charter Amendment stated that “Ordinance 2014-10 approving a Final Development Plan for the Center of Powell Crossing LLC” is “not in the best interests of the people of the City of Powell.” Charter Am., Second and Third’ Whereas Clauses. It mandated that no action, including construction activity, be taken in reliance upon Ordinance 2014-10 or the Final Development Plan for the Center at Powell Crossing. Id., Uncodified ¶ 1. And it further provided’ that Ordinance 2014-10 would not be permitted under the Final Comprehensive Plan: “The Final Comprehensive Plan legislatively adopted pursuant to Section 18 of this Article IV shall not be compatible with Ordinance 2014-10 and/or the Final Development Plan for the Center at Powell Crossing.. .at 147 W. Olentangy Street.” Id., Art. 4, § 21. The Amendment thus would prevent Powell Crossing from developing its property in the manner approved by Ordinance 2014-10, both upon the passage of the Amendment and continuing with the enactment of a new comprehensive plan. The Amendment did provide, however, that Powell Crossing’s land would remain viable for “other uses,” meaning that Powell Crossing would be able to develop its land for all uses permissible under the zoning code other than high-density housing. See, id., Uncodified ¶ L
Upon receiving notice from the Board of Elections, City Council drafted an ordinance, as required by law, to submit the proposed Charter Amendment to the voters on November 4, 2014. See Ohio Const., Art. XVTII, § 8. The ordinance (Ordinance 2014-41) received its first reading before City Council on August 5, 2014. At the same meeting, City Council voted to table resolutions regarding the referendum petition and the initiative petition to repeal Ordinance 2014-10 until its next meeting two weeks later.
On August 19, 2014,. City Council reviewed all three petitions at a public meeting. Through its legal counsel, Powell Crossing submitted legal briefing and made a statement in support of its protests at the public meeting. See Aug. 19, 2014 Meeting Tr. at 11-19. Upon concluding that the Board of Elections was the appropriate forum to consider Powell Crossing’s protests against the referendum and the initiative to repeal, City Council voted to approve resolutions to forward those measures to the Board. With respect to the Charter Amendment, 'City Council voted unanimously against submitting it to voters. In connection with their votes against adopting Ordinance 2014-41, several Council members acknowledged their reliance on the City Law Director’s opinion that the Charter Amendment was an unconstitutional and standardless delegation of City Council’s legislative authority to private citizens under City of Eastlake v. Forest City Enterprises, Inc.,
On August 21, 2014, Powell Crossing again filed notices of protest with the Delaware County Board of Elections against the referendum and the initiative to repeal. After conducting a hearing on August 26, 2014, the Board voted unanimously to accept the protests. The Board determined that Ordinance 2014-10 was an administrative decision which, under Article II, Section If of the Ohio Constitution, was not subject to the exercise of referendum or initiative powers. The Board further found that the petitions failed to comply with the City Charter’s requirements and the Ohio Secretary of State’s required forms for municipal petitions and referenda.
The Petitioners filed a mandamus action against the Board of Elections in the Ohio Supreme Court to require the referendum and initiative to repeal to be placed on the November 2014 ballot. The Ohio Supreme Court denied the writ. Critical to the Ohio Supreme Court’s decision was its finding that City Council’s approval of the Final Development Plan was an administrative action:
By its terms, Article II, Section If, limits the referendum and initiative power to questions the municipality is “authorized by law to control by legislative action.” See Myers v. Schiering,27 Ohio St.2d 11 ,271 N.E.2d 864 (1971), paragraph one. of the syllabus. Because citizens of a municipality cannot exercise referendum powers greater than what the Constitution affords, an administrative action is beyond the scope of the referendum power. Buckeye Community [Hope Found. v. City of Cuyahoga Falls,82 Ohio St.3d 539 , 544,697 N.E.2d 181 (Ohio 1998)].
The test for -determining whether an action is legislative or administrative is “whether the action taken is one enacting a law, ordinance, - or regulation, or executing a law, ordinance, or regulation already in existence.” Donnelly [v. Fairview Park, 13 Ohio St.2d 1 ,233 N.E.2d 500 (Ohio 1968)], at paragraph two of the syllabus. Thus, city ordinances that adopt final development plans pursuant ,to preexisting planned community development, without changing the zoning, are not subject to, referendum. State ex rel. Commt. for the Referendum of Ordinance No. 3844-02 v. Norris,99 Ohio St.3d 336 ,2003-Ohio-3887 ,792 N.E.2d 186 , ¶ 33.
The development authorized by Ordinance No. 2014-10 complied with the preexisting requirements for the Downtown Business District and for the Downtown District Overlay District and did not require any zoning changes.
[T]he board is correct that Ordinance No. 2014-10, because it approves development within the contours of a preexisting zoning code, is not subject to referendum or initiative.
State ex rel. Ebersole v. Delaware Cnty. Bd. of Elections (“Ebersole I”),
Petitioners filed a separate mandamus action regarding the proposed Charter Amendment. The Ohio Supreme Court initially denied the writ, holding:
[T]he proposed charter amendment would be a “standardless delegation of power to a limited group of property owners.” Eastlake at 678,426 U.S. 668 ,96 S.Ct. 2358 ,49 L.Ed.2d 132 . As explained above, undér the proposed charter amendment, a commission composed of five private citizens would be responsible for recommending a new comprehensive zoning and development plan to the city council. The city council would then be required to consider the recommendations and adopt a final plan. But the city council’s authority in this process would be sharply constrained by the findings of the five private citizens on the commission. Specifically, when adoptiñg a final plan, the city council would ■ be permitted to “make adjustments”' to the commission’s preliminary plan only to the extent that they are consistent with the commission’s findings at Phase I. And the proposed charter amendment does not set forth any standards to govern those findings. 'In short, the city council would be deprived of final decision-making authority over zoning matters.
State ex rel. Ebersole v. Powell (“Ebersole II”),
However, on a motion for reconsideration, the Ohio Supreme Court granted the writ of mandamus with respect to placing thé Charter Amendment on the ballot. The Court held that City Council did not have authority to assess the constitutionality of the measure. State ex rel. Ebersole v. Powell (“Ebersole III”),
City Council then approved an Ordinance to place the Charter Amendment on the ballot and filed the measure with the Delaware County Board of Elections on October 8, 2014. On the same day, Powell Crossing filed a notice of protest with the Board. On the next day, Petitioners filed a complaint for a writ of prohibition before the Ohio Supreme Court to prevent the Board from hearing the protest. On October 10, the Supreme Court denied the request for a writ of prohibition and allowed the Board to conduct a hearing on the protest. But the Court granted a writ of mandamus ordering the Board to place the Charter Amendment measure on the ballot regardless of the outcome of the protest hearing.
On October 14, 2014, the Board of Elections passed a resolution finding that Ordinance 2014-10 was an administrative decision not subject to the use of the power to amend the City Charter. See Compl., Ex. L. As it had found with respect to the other two ballot measures, the Board further found that the petition to amend the Charter did not comply with the City Charter’s requirements and the Secretary of State’s required forms. for municipal petitions. But in accord with the Supreme Court’s writ, ¡the Board plaóed the Charter Amendment on the ballot.
The Charter Amendment was approved by the majority vote of Powell citizens on November 4, 2014. At the time the Charter Amendment was enacted, Powell Crossing had not submitted any applications for a construction permit in furtherance of its approved Final Development Plan. See Aff. of David M. Betz, City of Powell Director of Development, ¶ 3.
II. Procedural History
The complaint brings suit under 42 U.S.C. § 1983 and asserts several claims under, the umbrella of-the Due Process Clause of the Constitution: procedural due process, substantive due .process, void for vagueness and unlawful delegation of legislative authority. The complaint also alleges that the Charter Amendment violates' the constitutional prohibition against bills of attainder and violates the Equal Protection Clause. Further, the complaint asserts that the Charter Amendment violates the provision of the Ohio Constitution concerning which matters may be addressed by way of initiative and referendum. See Ohio Const., Art. II, § If. Powell Crossing 'seeks preliminary and permanent injunctive' relief prohibiting the City of Powell from enforcing the Charter Amendment against Powell Crossing, its property or Ordinance 2014-10.
The complaint names the City of Powell as the defendant. The City has adopted a position agreeing with plaintiff that the Charter .Amendment is unlawful — a stance that is consistent with the position the City took in resolving the Notice of Protest in August 2014 and in defending against the Petitioners’ mandamus action before the Ohio Supreme Court. The City nonetheless emphasizes that it has not committed any actions which violate plaintiffs constitutional rights because the Ohio Supreme Court ordered, the City to place the Charter Amendment measure on the ballot and because the City has not taken any steps to enforce the Charter Amendment as to Powell Crossing.
This court held several conferences with the parties, and it became clear that the parties do not dispute the facts. Further, they agree that the legal issues as to whether the Charter Amendment violates plaintiffs constitutional rights are amenable to resolution on- the briefs and that plaintiffs request for preliminary injunc-tive relief should..be consolidated under Fed. R. Civ. P. 65(a)(2) with, a final resolu
On December 5, 2014, the court issued a Standstill Order requiring Powell Crossing to abide by the Charter Amendment and prohibiting the City from taking any action to implement the Charter Amendment as it pertains to Powell Crossing’s development plan. On January 26, 2015, the court granted leave to the Petitioners to file an amicus curiae brief opposing Powell Crossing’s motion for preliminary and- permanent injunctive relief. In that same order, the court instructed the parties .to submit further briefing concerning the issue of whether plaintiffs claims in essence amounted to a takings claim not ripe for review in federal court. Those briefs have been submitted and the matter is now ready for resolution.
On June 2, 2015, the National Association of Home Builders filed a motion for leave to file an amicus curiae brief in support of plaintiffs motion for injunctive relief. The City has filed a notice that it does not oppose the motion for leave but believes that the proposed amicus brief does not substantially add to the court’s consideration of the issues. The court hereby grants .the Association’s motion- for leave but largely agrees with the City’s evaluation of the amicus brief.
III. Standard of Review
Preliminary injunctions are available under Rule 65(a) of the Federal Rules of Civil Procedure. They are extraordinary remedies that are governed by the following considerations: “(1) whether the mov-ant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent a stay, (3) whether. granting the, .stay would cause substantial harm to others, and (4) whether the public interest would be served by granting the stay.” Ohio Republican Party v. Brunner,
Under Rule 65(a)(2), the court may in appropriate circumstances consolidate the request for a preliminary' injunction with a final hearing on the merits of the issues raised by the motion for injunctive relief. See Barden Detroit Casino, L.L.C. v. City of Detroit,
IV. Powell Crossing’s Claims Do Not Amount to an Unripe Takings Claim ‘
Though the complaint does, not allege a violation of the Takings Clause of the Fifth Amendment, Petitioners raise a significant threshold issue in tfyeir amicus brief. Petitioners argue that this court does not have jurisdiction over plaintiffs claims because they amount to a disguised and unripe takings claim. :
Petitioners rely on Braun v. Ann Arbor Charter Twp.,
The court finds that Braun is distinguishable for two reasons. First, Powell Crossing has not asserted a takings claim alongside its due process claims. See Coniston Corp. v. Vill. of Hoffman Estates,
1. Just compensation takings claim. Plaintiff claims that the zoning, applied to his land constitutes a taking of his property without just compensation in contravention of the Fifth Amendment, the remedy sought being the just compensation.
2. Due process takings claim. Plaintiff claims that the zoning applied to his property goes too far and destroys the value of his property to such an extent that it amounts to a taking by eminent domain without due process of law. The remedy sought is invalidation of the zoning regulation.
3. Arbitrary and capricious substantive due process claim. Plaintiff claims that the zoning regulation is arbitrary and capricious in that it does not bear a substantial relation to the public health, safety, morals, or general welfare. Two further subcategories may be discerned under this heading: (a) facial and (b) as applied.
4. Equal protection. Either based on suspect class, invoking strict scrutiny, or mere economic discrimination.
5. Procedural due process. Although not discussed by the Eleventh Circuit, there is, of course, a fifth category where plaintiff claims deprivation of procedural due process.
6. First Amendment. A category may also be defined when plaintiff claims that a First Amendment right such as freedom of speech or religion is violated by the zoning ordinance.
Pearson v. City of Grand Blanc,
Powell Crossing’s procedural due process claim does not rest on allegations of “diminution in the value” of the land, nor does.it seek compensation for a taking. Cf. J-II Enterprises, LLC v. Bd. of Comm’rs of Warren Cnty., Ohio,
Further, the thrust of the substantive due process and equal protection claims is that, the Charter -Amendment targeted or singled out Powell Crossing. These claims rest on allegations of arbitrary and unfair treatment and not upon an alleged taking. See Lingle v. Chevron U.S.A., Inc., 544, U.S. 528, 542-43,
- Finally, the court rejects Petitioners’ assertion that Powell Crossing’s claims are so -meritless as to represent an attempt to disguise the claims and. circumvent the exhaustion requirement for a takings claim. See Choate’s Air Conditioning & Heating, Inc. v. Light, Gas, Water Div.,
A. Procedural Due Process
States may not “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1. Procedural due process “is traditionally viewed as the requirement that the government provide a ‘fair procedure’ when depriving someone of life, liberty, or property.” EJS Props., LLC v. City of Toledo,
In order to establish a procedural due process claim, plaintiff must show that “(1) it had a life, liberty, or property interest protected by the Due Process Clause; (2) it was deprived of this protected interest; and (3) the state did not afford it adequate procedural rights.” Daily Services, LLC v. Valentino,
1. Protected Property Interest
Property interests “are created and their dimensions áre defined by existing rules or "understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth,
Powell Crossing argues that its property interest in the' mixed-use development plan vested in October 2013 when it filed an application for approval of its preliminary plan of development. Powell Crossing cites case law stating that “a landowner’s right to an existing zoning classification vests upon his submission of an application for a building or zoning certificate.” Wedgewood,
The court agrees that Powell Crossing has a protected property interest in its mixed-use development plan but finds that the interest vested later than at
“In Ohio, ‘the right to approval of a land-use proposal is determined by the regulation in existence at the time the application is filed.’ ” Ziss Bros. Const. Co., Inc. v. City of Independence, Ohio,
Following the pre-application meeting, the developer may then submit an application for approval of a Preliminary Planned District Development Plan. The Commission conducts a public hearing on the preliminary application and votes on whether to approve it. See City of Powell Code § 1143.11(b)-(g). If the application satisfies the requirements detailed in § 1143.11(c) and is “consistent” with the considerations set out in § 1143.11(g), then “the Commission shall approve the preliminary development plan in principle.” Id., § 1143.11.(g) (emphasis added).
Though § 1143.11 expressly limits the ability of the Planning and. Zoning Commission to reject. an application for the approval of a preliminary development plan, it does not contain language so limiting the discretion of City Council. If the developer receives approval of the preliminary plan application, it then may submit a final plan application that is subject to certification by the Zoning Administrator, a public healing'and recommendation by the Commission, and a public hearing and vote by City Council.' Id., § 1143.11(h)-(n). City Council “shall either adopt or deny the recommendation of the Planning and Zoning Commission or adopt some modification thereof.” Id., § 1143.11(n) (emphasis added). The Code does not require City Council to approve a plan even if the Commission was required to recommend its approval. Thus, the Code gives .City Council broad discretion to approve, reject or modify the Commission’s recommendation, and the act of filing a preliminary development plan application does not create an entitlement to final approval by City Council.
The court nonetheless finds that Powell Crossing did obtain a protected property interest in its development plan when City Council approved the plan. Property owners “have an interest in a discretionary benefit, such as a re-zoning ordinance, after it is conferred.” EJS Props.,
[T]he alleged property interest at stake in both Silver and Triomphe [Investors v. City of Northwood,49 F.3d 198 (6th Cir.1995)] arose from, the failure of the decision-making bodies to approve plain.-tiffs’ proposed use for their respective properties. However, in the case at bar, the City Council actually approved plain- . tiffs’ site plan after having concluded that the site plan conformed with the existing zoning regulations. Thus, the property interest at stake in this -case arose from the City Council’s approval of plaintiffs’ site plan....
Petitioners argue that despite City Council’s approval 'of the Final Development Plan, Powell Crossing does not have a protected property interest because the preliminary plan application failed in the first instance to comply with the Code’s proof-of-financing' requirement. The Code requires a developer to submit evidence with its preliminary plan application “that the applicant has sufficient control over the land and financing to initiate the proposed development plan phase within two (2) years.” City of Powell ' Code § 1143.11(c)(9). It is undisputed that Powell Crossing was not required to submit traditional proof-of-financing documentation. because the City’s Director of Development. “was familiar with Powell Crossing through prior development projects and so considered it responsible.” Ebersole I,
Petitioners argue that the City should not have waived strict compliance with the proof-of-financing requirement. This argument, which raises the issue of whether the Director’s familiarity with the developer’s financial wherewithal counted as evidence of the applicant having sufficient financing, could have been raised through an administrative appeal of Ordinance 2014-10 under Ohio Revised Code § 2506.01. The Ohio Supreme Court found that the very argument Petitioners are now making concerned “an error that the administrative appeal process in R.C. Chapter 2506 exists to correct.” See Ebersole I,
2. Deprivation without Adequate Procedural Rights
Having established a protected property interest in its 'development'plan, Powell Crossing must next establish that it was deprived of it's property interest and that the state failed to .afford it adequate procedural rights. Daily Services,
There is no dispute that Powell Crossing has suffered a deprivation of its, property interest in the Final Development Plan. The Charter Amendment expressly forbids Powell Crossing from taking any action, including construction activity, in furtherance of the Final Development Plan or
The question of what process Powell. Crossing was due is the difficult issue here. The Sixth Circuit has directed courts to determine whether the deprivation is a result of “an established procedure” or is “pursuant to a random and unauthorized act” of a state employee. Daily Services,
a. Random and Unauthorized Act
Powell Crossing asserts that the deprivation it suffered came by means of a random and unauthorized act. Powell Crossing focuses on the latter part of that phrase,
The court, for reasons explained in Section IX below, agrees that certain provisions of the Charter Amendment were the functional equivalent of a. referendum on Ordinance 2014-10 and beyond the scope of the powers reserved to the people by the Ohio Constitution.
However, the court finds that the “random and unauthorized act” 'mode of due process analysis is not applicable here. The word “random” (in contrast to the word “established” in the other mode of analysis) provides a critical clue that this area of due process jurisprudence addresses unanticipated deprivations for which the state cannot be reasonably expected to provide predeprivation process. See Hudson v. Palmer,
The placement of the Charter Amendment on the ballot and its passage by voters were not “random” in the sense meant by the case law. This is not a situation in which a state employee lost or destroyed property, as in Parratt and Hudson, or engaged in some other unforeseeable act. See Walsh,
A review of the Supreme Court’s decision in Zinermon v. Burch,
In this case, the allegedly erroneous deprivation had to occur, if at all, at a specific, predictable point in time — on election day, when voters would decide whether to approve the Charter Amendment and thereby nullify Ordinance 2014-10. Further, the state had in place predeprivation process for Powell Crossing. See Hudson,
Thus, the court finds that the deprivation of Powell Crossing’s property interest in the Final Development Plan did not occur by means of a random and unauthorized act of the state.
b. Established State Procedure
The essence of how Powell Crossing alleges it was deprived of its property interest is this — voters enacted a Charter Amendment containing provisions which exceeded the scope of their authority to act by ballot measure under the Ohio Constitution. The deprivation, as noted above, was accomplished by means of established state procedure. See Ohio Const., Art. XVIII, § 9. As such, the basic requirement of the Due Process Clause is that Powell Crossing had notice and an opportunity to be' heard before it was deprived- of its property interest. See Cleveland Bd. of Educ. v. Loudermill,
Powell Crossing characterizes the Charter Amendment as an unauthorized, ultra vires act. However, a violation Of state law does not “automatically translate into a deprivation of procedural due process under the United States Constitution.” DePiero v. City of Macedonia,
The court’s finding that the deprivation came by means of an established state procedure compels the conclusion that Powell. Crossing was due more process (predeprivation notice and opportunity to be heard) than what it has alleged it was due (a postdeprivation hearing under Par-ratt and Hudson)'. Nonetheless, Powell Crossing’s briefs set forth the reason why it belieyes that the process it.did receive was inadequate. See Doc. 2 at 31; Doc. 19 at 14-15; Doci 27 at 14 n.3.
The opportunity to be heard must be “appropriate to the nature of the case,” Loudermill,
Powell Crossing initiated the • predepri-vation hearing process by filing a notice of protest with the Delaware County Board of Elections. See O.R.C. § 3501.39. Upon validating the signatures on the petition, the Board referred 'the matter to City Council. The court discerns no error in that action, nor does Powell Crossing allege any error, as Ohio law required City Council to draft an ordinance to submit the proposed Charter Amendment to the voters. See Ohio Const., Art. XVIII, §§ 8, 9.
After the ordinance to submit the Charter Amendment to voters received r;s first reading by City Council, Powell Ciossing had two weeks to submit legal briefing and prepare for the Council’s next public meeting, During that meeting, counsel for Powell Crossing presented the very position that forms the basis of its procedural due process claim here — that, because the Charter Amendment was a ‘ “disguised” referendum on “an administrative matter, Ordinance 2014-10,” there was “no authority for this to go to the ballot.” See Aug. 19, 2014 Meeting Tr. at 13-15. At the meeting, Petitioners also spoke and' the City’s Law Director provided his opinion that the Charter Amendment was unconstitutional. City Council defeated the ordinance to submit the proposed Charter Amendmént to the voters, with most of the Council members stating'on the record the reasons for their vote. Id, at 83-90.
The court finds that the City Council meeting provided Powell Crossing with a meaningful opportunity to be heard.
The fault :,that Powell Crossing finds with the process is that it was “futile” — ■ that, despite City Council’s rejection of the proposed - ballot measure, as well as the October 14, 2014 resolution of the Delaware County Board of Elections against the measure, the proposed Charter Amendment still appeared on the ballot and was approved by voters. The court is not persuaded by this argument. City Council’s decision had legal effect when it was. rendered. The Ohio Supreme Court explained that “[a]s a result of the-combined action of the -'city, council and the board of elections, none of-the three ballot measures is currently certified for the November 4, 2014 ballot.” Ebersole II,
What made the decisions of the local bodies “futile” was not some infirmity in the process; rather, it was the Ohio Supreme Court’s decision granting a writ of mandamus requiring the Charter Amendment to be placed on the ballot. Ebersole III,
When Powell Crossing complains that the Charter Amendment appeared on the ballot despite the determinations of City Council and the Board of Elections, its complaint really is directed at the Ohio Supreme Court’s decision to not accept the legal theories presented by Powell Crossing and not take-the action it requested. Procedural due process, guarantees Powell Crossing only “an opportunity to be heard, not to a successful outcome.” RBIII, L.P. v. City of San Antonio,
Though not a case, cited by Powell Crossing, the Seventh Circuit’s decision in Club Misty, Inc. v. Laski,
When the Illinois legislature stepped from allowing a precinct’s voters to vote the precinct dry to allowing the voters to expel a particular disfavored licensee, it crossed the line that protects property holders from being deprived of their property without due process of law. Although taverns are not the most popular businesses in some quarters, no principle is suggested that would limit the power claimed by the City to the sale of alcoholic beverages. Its position casts a long shadow over all property rights.
The statute that is challenged in this case does not authorize the voters: to determine, in the manner of zoning, where liquor may be sold.. .it authorizes them to evict a particular, seller, as if they were the judges of a housing court or a judge asked to abate a nuisance.
So the issue “is not too much delegation, but delegation to the wrong body: delegation of judicial decision-making, for example, to people who are not judges.” United Beverage Co. of South Bend, Inc. v. Indiana Alcoholic Beverage Comm’n,760 F.2d 155 , 159 (7th Cir.1985).... That is what Illinois has done and what the due process clause prohibits.
Id.,
Some similarities exist ■ between Club Misty and the case at hand. In both cases, citizens used' available mechanisms to place on the ballot, and approve, measures that deprived a particular property holder of its interest; that is, voters “extinguished a particular person’s property right.” Club Misty,
Further, the exercise of power in a manner that targets or singles out a property owner, without more,' has not been recognized by the Sixth Circuit as a violation of procedural due process in the land use context. In Nasierowski and Wedgewood, the Sixth Circuit held that when “a governmental unit singles out and specifically targets an individual’s property,” the legal consequence is that the property owner is entitled to predeprivation notice and a hearing. Nasierowski,
Finally, it should be noted that the Sixth Circuit has largely treated the issue of targeting by voters as substantive due process and equal protection concerns, and not as a procedural due process concern. See Brookpark Entm’t, Inc. v. Taft,
Accordingly, the court finds as a matter of law that Powell Crossing’s right to procedural due process was not violated.
B. Substantive Due Process
Substantive due process is “[t]he doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed.” Pearson,
In the zoning and land use context, the Sixth Circuit has held that “[substantive due process .. .protects citizens from being subject to ‘arbitrary or irrational zoning decisions.’” Paterek v. Vill. of Armada, Mich.,
Defendant City of Powell argues that the City itself has not violated Powell Crossing’s substantive due process rights. The City notes that its action of putting the Charter Amendment on the ballot was not arbitrary because it did so pursuant to. a writ óf mandamus from the Ohio Supreme Court. See Ebersole III,
The court agrees with the City that Powell Crossing has not identified any arbitrary conduct committed by the City or one of its officials. The City took two actions, both of which it was required by-law to take. In placing the Charter Amendment on the ballot, the City followed the order of the Ohio Supreme. Court. Cf. Cuyahoga Falls,
.Powell Crossing’s substantive due process claim thus hinges on its ability to show that the “substantive result of the [ballot measure] is arbitrary, and capricious, bearing no relation to the police power.” Eastlake,
[Respondents contend that the City violated substantive due process... on the grounds that the City’s submission of an administrative land-úse determination to the charter’s referendum procedures constituted per se arbitrary conduct.
Respondents’ [ ] theory of liability has no basis in our precedent. As a matter of federal constitutional law, we have rejected the distinction that respondents ask us to draw, and that the Ohio Supreme Court drew as a matter of state law, between legislative and administrative referendums. In Eastlake v. Forest City Enterprises, Inc., 426U.S. at 672, 675, 96 S.Ct. 2358 , we made clear that because all power stems from the people, “[a] referendum ean-not.. .be characterized as a delegation of. power,” unlawful unless accompanied by “discernible standards.” The people retain the power to govern through referendum “ ‘with respect to any matter, legislative or administrative, within the realm of .local affairs.’” Id., at 67496 S.Ct. 2358 . Cf. James v. Valtierra,402 U.S. 137 ,91 S.Ct. 1331 ,28 L.Ed.2d 678 (1971)_The subjection of the site-plan ordinance to the City’s referendum process, regardless of whether that ordinance reflected an administrative or legislative decision, did not constitute per se arbitrary government conduct in violation of due process.
Powell Crossing’s other theory along these lines is that the Charter Amendment offends substantive, due process because it violates state law prohibitions .against retroactive laws.
Powell Crossing next contends that the Charter Amendment arbitrarily and capriciously singles out Powell Crossing and the Final Development Plan. Powell Crossing’s theory in this regard, however, re-states its equal protection claim in the sense that it focuses on allegedly disparate treatment of plaintiff as compared to similarly-situated property owners.
Again the “critical constitutional inquiry” is whether the Charter Amendment “produces arbitrary or capricious results.” Eastlake,
Powell Crossing argues that the Charter Amendment is an example of “spot zoning.” “‘[S]pot-zoning’ refers to the singling out of a lot or a sinall area for discriminatory or different treatment from that accorded surrounding land which is similar in character.” Willott v. Vill. of Beachwood,
One could respond to the Petitioners’ argument by pointing out that the Commission and others felt that certain measures could be taken to mitigate the proposed development’s effect on traffic. See Compl., Ex. C at PAGEID #289 (Planning & Zoning Commission’s proposal of adding a turn lane and traffic controls' at the railroad crossing); Compl., Ex. D at PAGEID # 356 (comments of Mayor Hri-vank). But see Compl., Ex. D at PAGEID # 348 (comments of traffic engineer Doyle Clear and Councilman Bennehof that “regardless” of any road improvement made for the Powell Crossing development, the volume of traffic will not be reduced). One could also observe that the traffic and safety concerns were sometimes voiced in the context of high-density housing and downtown development as a whole, and not necessarily the discrete impact that Powell Crossing’s development would have.
Even so, this court’s role is not “to act as a super-zoning board.” Schenck v. City of Hudson,
For purposes of due process analysis, it suffices for this court to find that the solution which a majority of Powell voters approved — not allowing the development to be built — cannot be said to lack a rational relationship to the legitimate traffic and safety concerns reflected in the record. See Braun,
Finally, the court notes a short line of judicial opinions that'could arguably support Powell Crossing’s due process claim. These opinions find a due process problem in subjecting property, interests to the “whim” of voters. In a dissenting opinion in Eastlake, Justice Stevens examined the fairness of a city charter provision that required all land use changes to be approved by referendum.
The charter provision was apparently adopted specifically, to prevent multifamily housing... .The restrictive purpose of the provision is crudely apparent on its face. Any zoning change, regardless of how minor, and regardless of its approval by the Planning Commission and the City Council, must be approved by a city-wide referendum.
.. .We need only imagine the adoption of this same provision in a city such as Cleveland. By such a provision, rezoning for a corner gasoline station would require the approval of hundreds of thousands of voters, most of them livingmiles away, and few of them with the slightest interest in the matter. This would be government by caprice, and would seriously dilute the right' of private ownership of property. The law recognizes that the use a person makes of his property must inevitably affect his neighbors and, in some cases, the surrounding community. These real interests are entitled to be balanced against the rights of a property owner; but a law which requires a property owner, who proposes a wholly benign use of his property, to obtain the assent of thousands of persons with no such interest, goes beyond- any reasonable public purpose.
Forest City Enterprises, Inc. v. City of Eastlake,
This theme regarding1 the arbitrary nature of voter action appeared again in Brookpark Entertainment, Inc. v. Taft,
This court remains persuaded that Powell Crossing has not demonstrated a substantive due process violation. Both Justice Stevens and the court in Brookpark found a due process violation in allowing voters to determine the rights of a property holder; it created á potential or “risk” of voters acting for reasons unrelated to the public interest. Brookpark,
Though the implementation of change through..popular referendum does not “immunize it” from constitutional limitations, Hunter v. Erickson,
C. Void for Vagueness
“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., — U.S. -,
“Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.” Maynard v. Cartwright,
Powell Crossing contends that the “Uncodified” paragraph of the Charter Amendment is impermissibly vague. That provision states:
No party, public.or private, shall take any actions, including but not limited to construction activity, in reliance upon Ordinance 2014-10 and the Final Development Plan for the' Center at Powell Crossing LLC, a development of 14,000 sq. ft. of retail in two buildings, preserving the old house for commercial use, and development of 64 apartment residential units on 8.3 acres, located at 147 W. Olentangy Street. The subject property for the Ordinance 2014-10 Final Development Plan shall remain economically viable for other uses, including residential and non-residential uses, notwithstanding this amendment to the City Charter of Powell, Ohio.
Charter Am., Uncodified ¶ 1. Powell Crossing argues that the first sentence of the provision appears to forbid “retail,” “commercial” and “apartment residential” uses of the land, such that it is unclear what “other uses” remain permitted by the provision’s second sentence.
The court finds that Powell Crossing’s interpretation of the provision is not a plausible one. In using the words “retail,” “commercial” and “apartment residential,” the provision merely defines or describes the Final Development Plan. This' exact language is repeated throughout the Charter Amendment in referring to the Development Plan. See Charter Am., Second Whereas Clause and Art. 4, § 21. The first sentence of the Uneodified paragraph forbids actions taken in reliance upon Ordinance 2014-10. It plainly prohibits Powell Crossing from taking any steps in furtherance of its Final Development Plan. The second sentence of the Uncodified paragraph allows for a new plan to be drawn and for the land to be put to any use not forbidden by the Charter Amendment and otherwise permitted by the city’s zoning code. The only use forbidden by the Charter Amendment is “high-density housing.”
Accordingly, the court finds that the challenged provision of the Charter Amendment provides persons of ordinary intelligence fair notice of what is prohibited and is not so standardless that it authorizes or encourages discriminatory enforcement.
D. Unlawful Delegation of Legislative Authority
Powell Crossing’s final due process claim concerns the provisions of the Charter Amendment that require the appointment of a Comprehensive Plan Commission to overhaul the City’s zoning and development plan. Powell Crossing argues that the Charter Amendment’s broad delegation of power to the Commission, comprised of five private citizens, is unconstitutional. The court agrees. The Due Process Clause of the Fourteenth Amendment limits “the manner and extent” to which legislative authority may be delegated to private parties.
In Eubank the Court invalidated a city ordinance that empowered certain owners of property abutting city streets to -establish, within a. specified range, a building set-back line for their street.
[P]art of the property owners fronting on the block determine the extent of use that other owners shall make of their lots, and against the restriction they are impotent. This we emphasize. One set of owners determines not only the extent of use, but the kind of use which another set of owners may make of their property. In what way is the public safety, convenience, or welfare served by con-fernng such power? The statute and ordinance, while conferring the power on some property holders to virtually control and dispose of the property rights of others, creates no standard by which the power thus given is to be exercised; in other words, the property holders who desire and have the authority to establish the line may do so solely for, their own interest, or even capriciously.
Eubank,
Thus, a delegation of legislative authority offends due process when it is made to an unaccountable group of individuals and is unaccompanied by “discernible standards,” such that the delegatee’s action cannot be “measured for its fidelity to the legislative will.” Eastlake,
The Charter Amendment provides that the City’s existing plan'for zoning and development is “outdated” and “in need of wholesale revision.” Charter Am., First Whereas Clause. The Amendment establishes a procedure by which a new comprehensive zoning and development plan will be enacted as legislation! The Amendment requires that a Comprehensive Flan Commission be organized and have as its members five presidents of certain Powell-area homeowners associations. Id., Art. 4, § 14. The Commission must follow a three-phase process in drafting a new comprehensive plan to submit to City Council. In Phase I, the Commission makes “findings regarding the current state qf the Powell community’s character and identity in light of current socioeconomic conditions.” Id., Art. 4, § 15. In Phase II, the Commission drafts a “composite plan, identifying specific zones and/or districts that reflect ..the natural, cultural, and visual elements of the City of Powell.” Id In Phase III, the Commission is to “make recommendations, to City Council” in the form of a preliminary comprehensive plan. Id. The Commission must hold at least two public workshops '“to receive public input” regarding the plan. Id., Art. 4, § 16. The Commission then submits its plan to City Council, which may “make adjustments as necessary [and] consistent with the Phase I findings of [the] Comprehensive Plan Commission” and must “pass an ordinance... legislatively adopting a Final Comprehensive Plan.” Id., Art. 4, § 18. Future city ordinances “must comply” with the new plan. Id, Art. 4, § 20.
..The Amendment identifies certain “criteria” that the new comprehensive plan must be “in compliance with”: the “needs
The Charter Amendment’s delegation of power falls well short of satisfying the requirements of due process. As an initial matter, the court finds that the power delegated to the Comprehensive Plan Commission is legislative in nature.
Though not contesting that the new comprehensive plan is legislative in nature, Petitioners argue that the Comprehensive Plan Commission functions merely as an advisory committee. Petitioners highlight that the Charter Amendment calls for the Commission to “make recommendations to City Council” and argue that the Commission’s plan is non-binding..
The court finds that Charter Amendment’s use of the descriptive term “recommendations” in reference to the plan drafted by the Comprehensive Plan Commission is inconsistent -with the unambiguous language of the operative and controlling provisions of the Amendment. The Amendment provides that City Council must legislatively adopt a new comprehensive plan 'that is submitted to it by the Comprehensive Plan Commission. See Charter Am.,-Art. 4, § 18.;That is, there is no source for a new plan other than the one submitted by the Commission. Further, Council's input or discretion regarding the plan is confined to making only those “adjustments as ’necessary [and] consistent with the Phase -1 findings of [the] Comprehensive Plan Commission.” Id. The Amendment leaves no room for independent fact-finding or rule-making by City Council; it is the Commission who
[T]he city council’s authority in this process , would be sharply constrained by the findings of the five private citizens on the commission. Specifically, when adopting a final plan, the city council would be permitted to “make adjustments” to the commission’s preliminary plan only to the extent that they are consistent with the commission’s findings at Phase I. And the proposed charter amendment does not set forth any standards to govern those findings. In short, the city council would be deprived of final decision-making authority over zoning matters.
Ebersole II,
Finally, the delegation' of authority to the Comprehensive Plan Commission is unaccompanied • by discernible standards. The Charter Amendment sets only the vaguest of parameters for the Commission’s fact-finding — that the findings regard “the current state of the Powell community’s character and identity in light of current socioeconomic conditions.” In similar fashion, the Amendment broadly charges the Commission to create a comprehensive plan that serves the “needs and desires” of Powell residents, preserves the .“natural, cultural, and visual elements” of Powell and balances “residential and nonresidential land use.” These are not specific standards by which the Commission must act, but rather are sweeping areas of concern for which the Amendment leaves the Commission with full discretion to formulate policy, with the lone mandate that high-density housing not be allowed in the Downtown Business District. Such a stan-dardless delegation of legislative power to five private citizens, each of whom directly represent the interests of area homeowners’ associations, plainly violates due process of law. See Eubank,
Accordingly, the court finds that the provisions of the Charter Amendment which require the Comprehensive Plan Commission to create a new comprehensive plan are unconstitutional.
VI. Bill of Attainder
Under Article I § 10 of the Constitution, “No State shall...pass any Bill of Attainder.” A bill of attainder is a “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Selective Serv. Sys. v. Minnesota Pub. Interest Research Grp.,
Powell Crossing’s theory regarding the prohibition against bills of attainder is not clear. The complaint made a solitary reference to bills of attainder in one of the counts for a due process violation. See Compl. at ¶ 109(e) (alleging in Count II that Powell Crossing’s “property interests have been singled out and voided through a bill of attainder”). In its motion for in-junctive relief,- Powell Crossing discussed the constitutional prohibition against bills of attainder in the context of its substantive due process claim. See Doc. 2 at 21-22. Powell Crossing’s reply briefs did not mention bills of attainder. See Doc. 19, Doc. 27 at 14 n.3 (not including bill of attainder in its. summary of the claims). Powell Crossing thus appears to be incorporating bill of attainder concepts into its due process claims rather than asserting a stand-alone bill of attainder claim.
Even if the court were to treat the bill of attainder allegations as asserting an independent claim, the claim would fail. The failing is not be with the element of specificity, for the Charter Amendment identifies' Powell Crossing by name, its property by street address and its development plan by ordinance number. See Elgin v. U.S. Dep’t of Treasury,
In determining whether a law inflicts punishment, the court considers: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes; and (3) whether the legislative record evinces a congressional intent to punish.” Selective Serv.,
The Charter Amendment, in preventing Powell Crossing from developing its land in the manner approved by Ordinance 2014-10, does not inflict punishment from a historical ’ perspective. See Foretich v. United States,
Next, as discussed above in relation to the substantive due process claim, the Charter Amendment’s elimination of Powell Crossing’s ability to build high-density housing on its land can be said to further legitimate nonpunitive interests in public safety and reducing traffic congestion, Cf. Gardner v. City of Columbus, Ohio,
Finally,. Powell Crossing has not met its burden of presenting “unmistakable evidence of punitive intent,” Selective Serv.,
Thus, the court finds as a matter of law that the Charter Amendment is not a bill of attainder.
VII. Equal Protection
The Equal Protection Clause provides that “[n]o State shall... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. The Clause protects similarly situated individuals against disparate treatment through government action that “either burdens a fundamental right, targets a suspect class, or has no rational basis.” Center for Bio-Ethical Reform, Inc. v. Napolitano,
Powell Crossing contends that it is similarly situated to a developer known as Liberty Green. Liberty Green received approval from City Council on October 7, 2014 for a mixed-use development in the Downtown Business District. Liberty Green’s plan was for the construction of a commercial building and eleven double-unit,'owner-occupied condominiums on 3.7 acres at 110 South Liberty Street. See Compl., Ex. N; Aff. of David M. Betz, City of Powell Director of Development, ¶ 6. Powell Crossing argues that it received disparate' treatment in that the Charter Amendment revoked its development plan while Liberty Green’s plan was not similarly revoked.
The, court finds it unlikely that Powell Crossing and Liberty Green are similarly situated in all relevant respects. To be sure, Powell Crossing and Liberty Green are both land developers who received approval from City Council within a four-month timespan in 2014 to build mixed-use projects, including multi-family dwellings, in the Downtown Business District. Thus, this case is distinguishable from others in which plaintiff landowners wholly failed to identify specific examples of a- similarly situated landowner. See Braun,
But it cannot be overlooked that City Council did not treat Powell Crossing differently from Liberty Green; voters were the ones who approved passage of .the Charter Amendment. The actions Powell Crossing attempts to compare as disparate (the Charter Amendment and .City- Council’s approval of Liberty Green’s plan) came from different decisionmakers.
Even if Powell Crossing and Liberty Green were similarly situated, the court finds that Powell Crossing has not demonstrated that the alleged disparate treatment lacked a rational basis. In the Sixth Circuit, “[a] ‘class of one’ plaintiff may demonstrate that a government action lacks a rational basis in one of two ways: either by negativing every conceivable basis which might support the government action or by demonstrating that the chai-, lenged government action was motivated by animus or ill-will.” Warren,
In the context of zoning and land development, a' court may compare the scale and impact of the plans of purportedly similarly situated landowners. See Braun,
As the. court discussed in relation to the substantive due process claim, the record supports a finding that Powell Crossing’s development would “add an access point and additional drivers to an already maxed out roadway,” Compl., Ex. C at PAGEID #289, and push Olentangy Street past a “tipping point” id Ex. D at PAGEID #353. See 37712, Inc.,
Powell Crossing argues that traffic concerns 'cannot be used to justify disparate treatment because the City, under.state law, must approve an otherwise lawful development plan if traffic considerations are the only objection. See State ex rel. Killeen Realty Co. v. City of E. Cleveland,
Moreover, City Council did in fact approve Powell Crossing’s plan. Again, a different decisionmaker rejected Powell Crossing’s plan. Though state law may limit the discretion of local authorities to consider increased traffic as a determinative factor in reviewing zoning and development applications, federal rational basis case law does not so restrain local authorities, much less the electorate. See Shoemaker v. City of Howell,
Powell. Crossing’s remaining avenue of proving its class-of-one theory is to demonstrate that voters were motivated by animus or ill-will. It has not carried this burden. Powell Crossing argues that proof of animus can be found in the determination of the Delaware County Board of Elections that the ballot petition for the Charter Amendment contained a title and text that was “misleading” because it failed “to convey the full and complete nature and effect of the Petition.” Compl., Ex. L at Resolution ¶3. But the Board did not further explain its determination, and it made no findings as to the Petitioners’ intent or state of mind. The Board found that the written form of the petition was misleading, not that the Petitioners had
Thus, the court thus finds that the equal protection claim fails as a matter of law.
Yin. Severability
The court has concluded that the Charter Amendment contains an unlawful delegation of legislative authority to private citizens. Petitioners argue that if any portion of the Charter Amendment is found to be unconstitutional, the offending language should be severed and the remainder of the Amendment saved.
“Severability of a local ordinance is a question of state law..." City of Lakewood v. Plain Dealer Publ’g Co.,
An issue the court will leave unresolved, as the parties and Petitioners do not raise it, is whether the Powell Charter’s standard for severability varies from the standard for state statutes. The Charter provides that invalid parts do not impair other parts “except to the extent that such other part is wholly dependent for its operation upon the part declared invalid.” Powell City Charter, Art. XII, § 12.02. The “wholly dependent” standard arguably differs from’ the 'Ohio Supreme Court’s “fundamental - disruption of the statutory scheme”' standard. Evén so, the Ohio Su preme Court-applies the “fundamental disruption” standard for state and municipal legislation alike. See State ex rel. Sunset Estate Props., L.L.C. v. Lodi,
In arguing in favor of severability, Petitioners first argue that the court should simply delete the clause providing that City Council “make adjustments as necessary [and] consistent with the Phase I findings of [the] Comprehensive Plan Commission.” But this course of correction would only exacerbate the constitutional violation, because the end result would provide that “City Council shall consider the Preliminary Comprehensive Plan and pass an ordinance legislatively adopting it as a Final Comprehensive Plan.” The already unconstitutionally narrow allowance for City Council to make adjustments to the Plan would be eliminated altogether under Petitioners’ proposed amendment.
Petitioners’ ■ next argument is for the court to “severe the entire citizen’s commission and the Preliminary Comprehensive Plan.” Doc. 13-1 at 37; Under this proposal, the court would rewrite the language of the Amendment to require City Council to draft and enact a Final Comprehensive Plan, with certain stated criteria as guideposts. See Charter Am., Art. 4, § 19 (listing, among other criteria, balancing the “needs and desires” of Powell and balancing “residential and non-residential land use”). .This solves one constitutional problem (the unlawful delegation of legislative authority) but creates another. The Charter Amendment called for a citizen commission to do the work of creating a new comprehensive plan; City Council’s role was largely reduced to rubber-stamping the commission’s plan. Petitioners’ proposal would have this court reassign the work of drafting a new comprehensive plan to City Council. Principles of separation of powers and federalism prevent the court from requiring á local legislative body to draft and enact particular legislation. See, e.g., Philpot v. Patton, Ky.,
Moreover, Petitioners’ second proposal would fundamentally disrupt the scheme approved of by voters. The Charter Amendment reflects the voters’ determination that a citizen commission, and not City Council, be the body entrusted with creating a new comprehensive plan. The Charter Amendment left no room for City Council to make findings or gather public input. Voters wished for the commission’s work to carry such force that City Council hfid to enact it as law and all city ordinances had to comply with it. Thus, for the court to strike the commission from the process and insert or elevate City Council into its .place.would directly contradict the intent of voters. See Eubanks,
It must be noted that there remains one potential approach which the Petitioners have not raised: severing the provisions relating to a new Final Comprehensive Plan and saving the portion effectively revoking Ordinance 2014-10. The court finds that the Charter Amendment should be severed in this fashion. The electorate made their intent clear: they did not want high-density housing allowed on the parcel owned by Powell Crossing. The Charter Amendment represents the voters’ decision that Ordinance 2014-10 is “not in the best interests of the people of the City of Powell” and that Powell Crossing’s development plan had to be brought to a halt immediately.
Effectuating the electorate’s intent as to Powell Crossing’s property does not depend on whether the process of creating a new Final Comprehensive Plan goes forward or not. Although voters wanted to both implement a new Final Comprehensive Plan and nullify Ordinance 2014-10, these goals are merely complimentary, not inseparably, involved. One goal concerns a long-term vision for the entire city; the other simply prevents apartments from being built on a particular parcel.
The language nullifying Ordinance 2014-10 appears in. a discrete part of the Charter Amendment, The Uncodified paragraph of the Amendment establishes a bar against Powell Crossing, and others, from taking action “in reliance upon Ordinance 2014-10 and the Final Development Plan.” The Charter Amendment forbids high-density housing, and the Uncodified paragraph applies that ban to Powell Crossing’s property by stating that the property can be put to any “other uses” permissible under the zoning code. For the court to save the Uncodified paragraph would require only that the term “non-high-density housing” be substituted for the word “other” so that the paragraph would read in part: “The subject property for the Ordinance 2014-10 Final Development Plan shall remain economically viable for non-high-density housing uses, including residential and non-residential uses.”
Accordingly, the court finds that the Charter Amendment is capable of separation, such that the unlawful provisions re
IX. State Constitutional Claim
Powell Crossing claims that the Charter Amendment is unconstitutional under Article II, Section If of the Ohio Constitution, which reserves the use of referendum and initiative powers by citizens of a municipality for questions on which a municipality is “authorized by law to control by legislative action.” Ohio Const., Art. II, § If. Powell Crossing argues that the Charter Amendment effectively functioned as a referendum on Ordinance 2014-10 and that, ordinances approving final development plans are administrative actions which are beyond the scope of the use of powers reserved in § If. See Ebersole I,
The court has determined that the Charter Amendment contains a delegation of legislative authority which is unlawful under the United States Constitution and that the Charter Amendment is severable. The remaining portion of the Charter Amendment is what the state constitutional claim puts squarely at issue. A federal district court has the discretion to decline to exercise supplemental jurisdiction over a state law claim that “raises a novel or complex issue of State law,” 28 U.S.C. § 1367(c)(1). The claim raised here is not so novel or complex as to warrant the court declining to exercise jurisdiction.
Ohio law plainly establishes that the reservation of powér to the people of a municipality under § If creates a corollary rule: “an administrative action is beyond the scope of the referendum power.” Ebersole I,
It is equally clear that the citizens of Powell subjected Ordinance 2014-10 to the exercise of their initiative and referendum powers. The parties do not dispute that the Charter Amendment began as an initiative petition to amend the Powell City Charter. Comph, ¶ 49(c); Compl., Ex. L.; doc. 13-1 at 13. "While entitled “an initiative petition” (presumably because of the power being exercised to provide for the enactment of a new comprehensive plan), the Charter Amendment also contains provisions that function as a referendum. That is, the Charter Amendment contains two exercises of power combined into one ballot measure: — ah initiative to provide for the creation of a new comprehensive plan and a referendum on Ordinance 2014-10. Cf. Norris,
A referendum refers “to the submission of legislative action to the voters.” State ex
The Charter Amendment does not use typical referendum language, but it did submit Ordinance 2014-10 to the voters. Cf. Thrailkill v. Smith, 106 Ohio St.1, 6,
Petitioners contend that § If does not apply because § 9 of Article XVIII of the Ohio Constitution exclusively governs amendments to city charters. They argue that § 9, which contains no limitation on the types of actions that may be subject to charter amendment, trumps § If s limitation on the use of referendum power. The Ohio Supreme Court rejected this type of argument in Buckeye Community, where it was argued that §§ 3 and 7 of Article XVIII (granting municipalities the power of self-government and the authority to frame, adopt or amend a charter for government) were not subject to the limitation of § If. Voters had attempted to use the power purportedly granted to them under their city charter to reject a city council ordinance that administratively approved of a site plan. The Supreme Court held that § If “is the sole constitutional source of initiative and referendum powers, reserved by the people of the state to the people of each municipality.” Buckeye Cmty.,
Petitioners are correct in observing that § 9 imposes no restraints on the scope of the use of charter amendments. But this overlooks the purpose of that section, which is merely to “prescribe the applicable procedures” by which citizens of a charter municipality may amend their charter. State ex rel. Hackworth v. Hughes,
X. Conclusion
For the reasons stated above, the court finds as a matter of law that plaintiff Powell Crossing is entitled to permanent in-junctive relief on its due process claim that the Charter Amendment contains an unlawful delegation of legislative power and on its state constitutional claim. The court declares the Charter Amendment unconstitutional under the Due Process Clause of the Fourteenth Amendment and unconstitutional under Article II, Section If of the Ohio Constitution. The court hereby invalidates the Charter Amendment in its entirety.
Defendant City of Powell is entitled to judgment as a matter of law as to the remainder of Powell Crossing’s claims.
Powell Crossing shall advise the court within thirty days of the date of this order concerning its intention to seek damages and attorney’s fees.
Notes
. Powell Crossing points to statements made by two City Council members to the effect that they view- their roles-as simply checking whether the developer’s application and proposed use complies with the zoning laws. See Compl., Ex. D at 13-14 (minutes from the June 17, 2014 public meeting in which City Council approved Powell Crossing’s final plan
. In asserting its random and unauthorized act theory, Powell Crossing cites a case, Brookpark Entertainment, Inc. v. Taft,
. Petitioners readily admit that "the practical effect of the charter amendment [was] to nullify the Powell Crossing project.” Doc. 28 at 5 n.5.
. The court does not hold that due process required the meeting before City Council. The court's task is to "look at what process the plaintiff actually received and ask whether it was sufficient to satisfy the Constitution.” McKenna v. Bowling Green State Univ.,
. Because no facts were in dispute, Powell Crossing does not allege that it should have had an opportunity to examine witnesses or present evidence at the meeting.
. The complaint does not assert an independent claim for violations of the state prohibitions against retroactive laws,. Rather, the allegations are made in support of the federal substantive due process claim. See CompL, ¶ 109(f). The only state law claim asserted in the complaint is for a violation of Article II, Section If of the Ohio Constitution.
. See Doc. 2 at 19 ("Nor can the City single out Powell Crossing.. .while ignoring other similarly situated property owners who were approved to construct multi-family residential development....”); id at 22 .("The Charter Amendment does not mention any other property owners or apply the same bar against certain uses to other similarly situated owners.”); Doc. 19 at 5 ("[N]o other property owner is banned from developing its property consistent with the City’s existing zoning— except Powell Crossing... ,"[0]ther landowners in the same zoning district are not prohibited from constructing a ‘high-density housing’ development
. Powell Crossing’s spot zoning argument emphasizes the alleged discriminatory nature of the Charter Amendment, again echoing its equal protection claim. The court believes that the stronger substantive due process argument to be made from the facts is that the Charter Amendment does not rationally serve the City’s interests in public safety.
. In Eastlake,-the Court upheld the provision against a claim that it represented an unlawful delegation of legislative power. Eastlake,
. The court in Brookpark did not categorize its analysis as either procedural or substantive due process. Portions of, the Brookpark opinion are similar to the analysis of Club Misty, an opinion issued nine years later which cited Brookpark but‘did not discuss it. The court in Brookpark stated, for instance, that "the Ohio ‘particular premises’ statute is not a valid delegation of legislative power." Brookpark,
., /‘High-density housing" is expressly defined by the Charter Amendment, and Powell Crossing does not argue that its definition is vague.
. Petitioners incorrectly characterize' the unlawful delegation claim as “a purely state law claim” and argue that the court should abstain not only from deciding "this purely local issue,” doc. 13-1 at 33, but also from deciding Powell Crossing's federal claims until the allegedly local issue is resolved in state court. See Railroad Commission of Texas v. Pullman Co.,
.’ That the voters, rather than a legislative body, delegated the power does not alter the court’s analysis. Citizens Against Rent Control v. City of Berkeley,
. The recitation of’ facts in the complaint alleges that one resident spoke at a City Council meeting in August 19, 2014 and expressed opposition to apartments being built because it would lead to gangs, drug-dealing and a deterioration of the community. Compl., ¶ 63, The complaint also alleges that a proponent of Petitioners’ ballot measures stated on a social -media posting that btiilding apartments would enable lower-income families to move to Powell and thereby threaten home values. See id. ¶65,
These "isolated statements’’ do not suffice to establish the intent of the majority of voters, BellSouth Corp. v. F.C.C.,
. Petitioners press the matter one step further, arguing that Powell Crossing suffered no disparate treatment because the Charter Amendment should be interpreted as likewise prohibiting Liberty Green from-going forward with its development plan. The court declines to address this argument, as Liberty Green’s legal rights are not properly at issue in this case.
. In determining whether employees are similarly situated in Title VII cases, the Sixth Circuit looks to whether the employees at issue "dealt with the same ultimate supervisor” or decisionmaker, McMillan v. Castro,