Viola Park, Ltd. v. PickeringtonViola Park, Ltd. v. Pickerington
For Plaintiff-Appellee
BRUCE L. INGRAM, ESQ.
JILL TANGEMAN, ESQ.
JOSEPH R. MILLER, ESQ.
THOMAS H. FUSONIE, ESQ.
Vorys, Sater, Seymour and Pease, LLP
52 East Gay Street
Columbus, Ohio 43216-1008
For Defendants-Appellants
MARK LANDES
Isaac, Brant, Ledman & Teetor, LLP
250 East Broad Street, Suite 900
Columbus, Ohio 43215-3742
{¶1} Defendant-appellant, City of Pickerington, Ohio, appeals from the July 3, 2008, Judgment Entry of the Fairfield County Court of Common Pleas granting the Motion for Summary Judgment filed by plaintiff-appellee Viola Park, Ltd.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellee Viola Park, Ltd. is interested in developing two adjacent parcels of land located in Violet Township, which is in Fairfield County, Ohio, into a residential subdivision. The parcels are located outside of the boundaries of appellant City of Pickerington. Although appellee was in discussions with Violet Township about the proposed subdivision, such discussions ended when appellant, after hearing about the planned development, urged appellee to have the land annexed to the City of Pickerington.
{¶3} The pre-annexation agreement (hereinafter “annexation agreement“) signed by the parties in the fall of 2000 required appellant City of Pickerington to prepare a petition for annexation within forty five (45) days of full execution of the agreement, to pay all costs and expenses in prosecuting the annexation, and to “not take any action that would result in the Viola Park property becoming non-contiguous to the City [of Pickerington] or otherwise make the Viola Park property not qualify for annexation.” The agreement further called for appellee City of Pickerington to enact a City Service Resolution to provide certain city services, not including water and sewer, to the property and to rezone the property R-4, which is residential with no more than 4 units per acre.
{¶5} “3. Water and Sewer. Viola Park has secured from Fairfield County (County) a letter dated October 12, 2000, a copy of which is attached hereto as exhibit ‘B‘, wherein the County commits to provide water and sewer service for the subject Property. A final engineering plan describing the Water and Sewer service connections shall be prepared by Viola Park within three (3) months of completion of the annexation and will be submitted to the County. Upon approval of the County Engineer a copy of the plan will be given to the City for its information. As regards to the City, Viola Park shall be solely responsible for all cost of construction of the Sanitary sewer and Water lines. It is a condition of Viola Park that the water and sewer be provided by the County.
{¶6} “Viola Park will build the on-site water and sewer improvements per the specifications of the County. Upon completion of the construction of the water and sewer improvements to such specifications, the lines shall be accepted by the County, and thereafter the County shall be responsible for the maintenance and repair of such lines.
{¶7} “4. Storm Water. As to storm water, the property will meet the Storm Water Management Ordinances and Rules of the City of Pickerington and any other regulatory agency which has authority to review storm water disposal. If Viola Park‘s storm water plan meets the above, the City agrees Viola Park may use the creek located on the real property under Viola Park‘s control to discharge storm water from such real property.”
{¶9} No building permits are issued by appellant City of Pickerington until streets and other necessary infrastructures for a subdivision have been constructed. Pursuant to Pickerington Codified Ordinance Section 1258.30, street, sewer, utility and other infrastructure improvements must be constructed “within one year of acceptance of the final plat, contingent upon unforeseen delays or extensions of time by Council,” or the “platting process shall begin anew” and previous plat approvals “shall be null and void.”
{¶10} On or about May 6, 2003, the Pickerington City Council adopted Ordinance No. 2003-41, which imposed a moratorium for one year from the effective date on housing permits in order to control residential growth. The ordinance indicated that the effective date was June 5, 2003. The Ordinance provided that 100 housing permits would be issued during the moratorium and that such permits would be issued based on a quarterly lottery system. On or about May 20, 2003, Ordinance No. 2003-47 was adopted which amended Ordinance No. 2003-41 to provide that the moratorium on housing permits would commence on August 1, 2003.
{¶12} In the interim, the voters of the City of Pickerington, as part of the November 2002 election, had passed a ballot initiative that limited the future density of single-family residences to two (2) per acre, with an R-2 designation. Since, as is stated above, appellee‘s plats became “null and void“, appellee was affected by the change in density. Appellee was allowed to have four residences per acre on the original plat, but would only be allowed to have two on a new plat.
{¶13} Thereafter, appellee, on August 15, 2003, filed a complaint for declaratory judgment in the Fairfield County Court of Common Pleas in Case No. 03 CV 607. Appellee, in its complaint, alleged that the moratorium on housing permits established by Ordinances 2003-41 and 2003-47 was unconstitutional since it impaired the contract between appellant and appellee and that the moratorium constituted a breach of the parties’ annexation agreement and a taking without just compensation. After the trial court, via an entry filed on November 5, 2003, found Ordinances 2003-41 and 2003-47 to be constitutional, appellee, on or about January 7, 2005, filed a Motion for Leave to file a Second Amended Complaint1 to include all legal claims relating to appellant‘s application of Codified Ordinance 1258.30 to Viola Park‘s property. Such Motion was denied pursuant to an Entry filed on February 3, 2005.
{¶15} Both parties filed Motions for Summary Judgment. As memorialized in a Judgment Entry filed in Case No. 05 CV 490 on February 23, 2006, the trial court granted summary judgment in favor of appellant.
{¶16} On the same date, the trial court, in an entry filed in Case No. 03 CV 607, stated, in relevant part, as follows:
{¶17} “It appearing that the claims raised by Plaintiff in this matter may be either moot or controlled by res judicata as a result of this Court‘s February 23, 2006 Judgment Entry filed in Viola Park, LTD. V. City of Pickerington, Case No. 05 CV 490, the parties are hereby ORDERED to notify this Court on or before March 9, 2006 how they wish to proceed with the present case. Said notice shall be filed as a Memorandum to the Court outlining the respective party‘s position.”
{¶18} Both parties then filed motions regarding the issue of res judicata. Pursuant to a Judgment Entry filed on April 26, 2006, in Case No. 03 CV 607, the trial
{¶19} “The contract between Plaintiff and Defendant was the pre-annexation agreement. This Court determined in Case No. 05CV490 that Defendant did not breach its contract [the pre-annexation agreement] with Plaintiff. Further, in light of the Court‘s determinations in the February 23, 2006 Entry filed in Case NO. 05CV490, as to the self-government, ‘home rule’ doctrine, constitutional issues, contract, estoppel, and fraud issues, this Court finds that the claims that Plaintiff contends remain in this case after the July 14, 2004 Entry have been determined and disposed of by the Entry in Case NO. 05CV490. Thus, those claims are controlled by res judicata and have been rendered moot and Defendant City of Pickerington is entitled to judgment in its favor in the present case.”
{¶20} Appellee then appealed from the trial court‘s February 23, 2006, Judgment Entry, raising the following assignments of error in Case No. 06 CA 17:
{¶21} “I. THE TRIAL COURT ERRED WHEN IT HELD THAT CITY OF PICKERINGTON CODIFIED ORDINANCE SEC. 1258.30, WHICH PURPORTS TO VACATE APPROVED FINAL PLATS THAT HAVE BEEN PROPERLY RECORDED UNDER STATE LAW, IS A CONSTITUTIONAL EXERCISE OF MUNICIPAL HOME RULE AUTHORITY UNDER ARTICLE 18, SECTION 3 OF THE OHIO CONSTITUTION.
{¶22} “II. THE TRIAL COURT ERRED WHEN IT HELD THAT THE RECORDED FINAL PLATS FOR VIOLA PARK WERE VACATED BY THE PROVISIONS OF PICKERINGTON CODIFIED ORDINANCE SEC. 1258.30 EVEN THOUGH THE
{¶23} “III. THE TRIAL COURT ERRED WHEN IT ENTERED SUMMARY JUDGMENT DISMISSING VIOLA PARK‘S ALTERNATIVE CLAIMS FOR BREACH OF CONTRACT AND PROMISSORY ESTOPPEL EVEN THOUGH THE CITY‘S CONDUCT PREVENTED VIOLA PARK FROM RETAINING THE ZONING CLASSIFICATION PROMISED BY THE CITY.”
{¶24} Appellee also appealed from the trial court‘s April 26, 2006, Judgment Entry in Case No. 06 CA 30, raising the following assignment of error:
{¶25} “THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA IN ITS JUDGMENT ENTRY OF APRIL 26, 2006, THEREBY, FINDING THAT VIOLA PARK‘S CONTRACTUAL CLAIMS ASSERTED IN THE INSTANT CASE WERE RENDERED MOOT BY THE TRIAL COURT‘S FEBRUARY 23RD DECISION ENTERED IN THE VIOLA II CASE (NO. 05 CV 490).”
{¶26} Pursuant to an Opinion filed on June 6, 2007, in Viola Park, Ltd v. Pickerington, Fairfield App. Nos. 2006 CA 00017, 2006 CA 00030, 2007-Ohio-2900, appeal not allowed 115 Ohio St.3d 1473, 2007-Ohio-5735, 875 N.E.2d 627, this Court reversed and remanded the judgment of the trial court. In our Opinion, we found that City of Pickerington Codified Ordinance Section 1258.30 impermissibly conflicted with
{¶27} Following remand, both parties moved for summary judgment. Appellant City of Pickerington, in its Motion for Summary Judgment, argued that it was immune from liability under
{¶28} Appellant timely appealed from the trial court‘s July 3, 3008, Judgment Entry, raising the following assignment of error:
{¶29} “THE TRIAL COURT ERRED WHEN IT DENIED CITY OF PICKERINGTON‘S MOTION FOR SUMMARY JUDGMENT SEEKING GOVERNMENTAL IMMUNITY UNDER REVISED CODE CHAPTER 2744 FROM DAMAGES ALLEGEDLY ARISING OUT OF THE ENFORCEMENT OF THE CITY‘S PLAT ORDINANCE.”
{¶30} Appellant, in its sole assignment of error, argues that the trial court erred when it denied appellant‘s Motion for Summary Judgment seeking governmental immunity under
{¶31} The parties, in their respective briefs, urge this Court to address whether the trial court had authority and/or jurisdiction to grant appellee summary judgment on all of appellee‘s claims. Appellant contends that some of appellee‘s claims were moot and that others were not preserved because they were not raised in the previous appeal to this Court.
{¶32} However, this is a limited, statutorily authorized appeal of a denial of summary judgment on sovereign immunity grounds. See, for example, Gregory v. Phillips, Fairfield App. No. 2008 CA 00058, 2009-Ohio-4854. The trial court, in the case sub judice, granted summary judgment to appellee “on all of the counts” in its complaint, thereby finding that appellant was not immune from liability. The trial court also scheduled a hearing on damages at a later date. The only issue before this Court at this time is whether or not the trial court erred in finding that appellant was not immune from liability under
{¶33} Appellant initially argues that the enforcement of zoning ordinances is a “governmental function” and that, under
{¶35} Appellant also maintains that the trial court erred in finding that appellant was not immune from liability for any due process violations. We note that
{¶37} Appellant, in its brief, also argues that the trial court erred in failing to grant appellant immunity with respect to the federal constitutional claims that appellee asserted in its complaint.
{¶38} Appellee, in its complaint, alleged that the plat ordinance and ballot initiative impermissibly impaired the contracts(s) in violation of the
{¶39} However, as is stated above,
{¶40} Finally, appellant argues that the trial court erred in finding that appellant was not immune with respect to appellee‘s breach of contract claims.
{¶41} Pursuant to
{¶42} Appellant‘s sole assignment of error is, therefore, sustained in part and overruled in part.
{¶43} Accordingly, the judgment of the Fairfield County Court of Common Pleas is affirmed in part and reversed and remanded in part.
By: Edwards, J.
Wise, P.J. and
Delaney, J. concur
s/Julie A. Edwards
s/John W. Wise
s/Patricia A. Delaney
JUDGES
JAE/d1124
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Court of Common Pleas is affirmed in part, and reversed and remanded in part. Costs assessed 50% to appellant, City of Pickerington, and 50% to appellee.
s/Julie A. Edwards
s/John W. Wise
s/Patricia A. Delaney
JUDGES