Litigation and costs to taxpayers
On-line Publishers, Authors File Suit to Contest Constitutionality Of Ohio Law Criminalizing Expressions Of Protected Political Speech On The Internet
Posted May 25, 2017
Cleveland, Ohio -- In a federal lawsuit brought by the UCLA School of Law and an Ohio attorney, three Ohio-based Plaintiffs are challenging a recently enacted Ohio law (HB 151) that purports to criminalize constitutionally protected political and other expression on the Internet on First and Fourteenth Amendment grounds.
Raymond V. Vasvari, Jr. of Cleveland has teamed up with Eugene Volokh of the Scott & Cyan Banister First Amendment Clinic UCLA School of Law to represent Tom Zawistowski, on behalf on the The Portage County TEA Party, Inc., Joseph Mismas, on behalf of Plunderbund LLC, and John Michael Spinelli, an freelance author who reports on politics in Ohio and beyond.
The three Plaintiffs and their counsel are suing, in their official capacity, Ohio Attorney General Mike DeWine, Portage County Prosecuting Attorney Victor Vigluicci and Franklin County Prosecuting Attorney Ron O’Brien, to contest the constitutionality only of the prohibitions in HB 151 [O.R.C. § 2917.21(B)(2)], which became effective August 16, 2016.
Filed in The United States District Court for the Northern District of Ohio Eastern Division, the lawsuit does not contest the prohibition in the law on threatening expression, just that part of the law against abusing and harassing speech.
The three Plaintiffs, who routinely engage in constitutionally protected speech that may be considered provocative by some, are concerned with the following clause in HB 151 as it relates to opinions they may express online about politicians and/or elected officials: “ No person shall knowingly post a text or audio statement or an image on an internet web site or web page for the purpose of abusing, threatening or harassing another person.”
In their capacity as authors and publishers who write, or whose members write and disseminate through the Internet, articles and opinion pieces regarding politics generally and Ohio politics specifically, including articles that from time to time include invective, ridicule and strong language intended to mock, lampoon or call into question the actions, motives and public policy positions of various figures – including without limitation politicians, and the incumbents in and contenders for various public offices. Plaintiffs fear these articles and opinions put them at a credible risk of criminal prosecution under Section 2917.21(B)(2) as when they condemn, sharply criticize or mock government officials and other public figures - should police or prosecutors “believe” their posts were written with the purpose of abuse or harassment.
Having been the subject of, and/or witness to, acts of political, financial and personal retribution by politicians, political parties and elected officials simply for disagreeing with the “party line” or taking a public stand against their candidacy or policies, the Plaintiffs have no doubt that the politicians and elected officials will quickly move to abuse the subjective nature of this statute, using the force of law, to “punish” those citizens they view as enemies. Furthermore, the exemption of “media” from this statute is considered by the Plaintiffs to be an outrageous and audacious attempt to place Ohio’s citizens in a second class, a lower class, in regards to their 1st Amendment Rights to free speech and particularly free political speech - which must not be allowed to stand.
As enumerated in HB 151, a violation of the statute constitutes a misdemeanor of the first degree upon a first offense, and a felony of the fifth degree upon any subsequent offense. In Ohio, misdemeanors of the first degree are punishable by a fine of up to One Thousand Dollars ($1,000.00) and incarceration of no more than six months. Felonies of the fifth degree are punishable by incarceration of six, seven, eight, nine, ten, eleven or twelve months, and a fine not to exceed Two Thousand Five Hundred Dollars ($2,5000.00).
If Plaintiffs succeed, their prayer is for Section 2917.21(B)(2) to be ruled unconstitutionally overbroad and in violation of the First Amendment to the United States Constitution, as made applicable to the states through the Fourteenth Amendment.
Plaintiff Plunderbund Media L.L.C. is an Ohio corporation with its principal place of business in Columbus, Franklin County, Ohio, that publishes an internet web log under the name of Plunderbund that focuses on Ohio and national politics. Articles are carefully researched and factual and use humor and ridicule to make rhetorical points.
Plaintiff Portage County TEA Party is a not for profit Ohio corporation with members in Portage County, Ohio, who are political activists and commentators and frequently engage in robust online discussion of local, state and national politics.
Plaintiff John Michael Spinelli is currently an author for Plunderbund and publishes articles through the blog which, while factual and carefully researched, also use humor and ridicule to make rhetorical points. Mr. Spinelli has been a journalist and reporter for more than fifteen years and in that time has written thousands of articles about people, politics and government both in Ohio and nationwide.
THE CRITICAL NEED FOR A COMPREHENSIVE TOWNSHIP PLAN
Published September 4, 2016
Let it be known that the inclusion of this topic results from its inclusion in the September-October 2016 issue of the Ohio Township News, Volume 51, Number 5, ISSN 1045-3776. We extend heartfelt gratitude to the author of the article, James L. Hartzler, a private planning and zoning consultant. Since 1984 he has assisted over 45 Ohio municipalities and townships regarding comprehensive zoning code revisions. He can be contacted at firstname.lastname@example.org. Additionally, we extend sincere thanks to Heidi Fought, governmental affairs director for Ohio Township Association; Ms. Fought provided her unconditional approval of our use of the following document to help facilitate the improvement of local and county oversight on zoning issues to avoid prohibitively expensive litigation on the backs of county taxpayers. She can be reached at email@example.com.
The article which follows stems from litigation arising from claims made by Apple Group Ltd., that the Board of Zoning Appeals of Granger Township in Medina County denied the developer the use of its parcel when it requested 176 variances to construct 88 residences on 88 acres in violation of Granger Township’s 2-acre requirement for any single residence. The issue originated in 2007 and resulted in a 2008 case in Medina County Common Pleas Court, followed by a case in the Ninth Appellate District (Medina County, 12CA0068M and 12CA0065 M, and finally a trip to the Ohio Supreme Court as Case Number 2014-0301. After a nine-year struggle that involved a letter of amicus curiae filed on behalf of Granger Township by the Ohio Township Association as well as a
We have taken the time to include with this article the video for the oral arguments for Supreme Court Case 2014-0301. The Ohio Supreme Court justices were intensely focused on the issues here, and watching the video provides a fascinating insight into not only the question whether townships must adopt a comprehensive plan that is distinct and separate from the zoning resolution but also whether townships must have a comprehensive plan that preserves their zoning from being invalidated by litigation. Gary F. Werner, a partner of the inimitable Sheldon Berns, Esquire, represents Apple Ltd. Brian Richter, formerly of the Geauga County Prosecutor’s Office and now an assistant prosecutor for the Medina County Prosecutor’s Office, represents Granger Township.
The text below is also available as a PDF file by clicking this link Creating the Township Plan
FIVE YEARS AFTER VIOLATING OHIO REVISED CODE BY STEALING FARM'S PROPERTY RIGHTS, AUBURN TRUSTEE ADMITS TOWNSHIP LOST IN COURT AND “WINDMILL WENT IN.”
Published April 10, 2015
Back in 2010 when Wind in the Woods, an Auburn Township horse farm, graciously informed township Zoning Inspector Frank V. Kikto of the intention of installing a 10kw residential wind turbine with 1/20 of the power of the wind turbines granted to The Pond, a commercial ice skating facility, the farm owners learned the hard way that elected officials had no embarrassment over cheating, lying to, and stealing from the farm owners.
Wind in the Woods experienced the same miscarriage of justice in 2011 under the misguidance of Common Pleas Court Justice David Fuhry in 2011 until the Eleventh District Court of Appeals overturned Fuhry's decision the same way it overturned Fuhry in the Twin Oaks situation. Auburn Township apparently was in a phase of denigrating and depriving farm owners. The wind turbine was installed on October 8, 2015. Farm owners are considering the installation of a second turbine and expect that Auburn Township elected officials will wisely choose not to violate ORC 519.21 again, especially since both farms have been featured in repeated annual seminars at the Ohio Township Association's winter conferences. An internet search under “Jones v Auburn Township Board of Zoning Appeals” and “Schabel v. Troyan” will provide meaningful reading on the topic.
At the April 6, 2015, Auburn Township Trustee meeting, the guest speaker was Kelly Austin, Vice President for KLA Risk Management Company, an entity which visits the township at three year intervals to discover unnecessary risk and liability undertaken by elected officials and employees. Check out the very brief video featuring Ms. Austin, as she inquires about “the farm” with the wind turbine, a topic she apparently broached during her 2012 non-public meeting with Trustees Eberly, Cavanagh, and Troyan and then Fiscal Officer, Susan Plavcan, replaced in 2013 by appointee Frederick May, a member of the Auburn Board of Zoning Appeals who claimed that A Wind in the Woods was regulatable by Zoning Inspector Kitko on the basis of ORC 519.213 (wind farms consisting of multiple turbines), a theory erroneously supported and later recanted as an error by Judge David Fuhry.
Watch the video. Watch the face of Trustee Cavanagh as he explains to Ms. Austin in twenty seconds or less how “common pleas court ruled against the township and the wind turbine went in.” Watch the expression and composure of Trustee Mike Troyan, who was the first trustee to announce that the township might step in to steal the rights of the wind turbine back in June 2010 and then had to announce in November 2013 that “a wind turbine is an acceptable use for a farm.”
Too bad Mrs. (Matthew) Matheney could not invest in a two-minute reading of ORC 519.21. Do you think she would make a good judge for Geauga County? Think about it, “kids,” in the words of Trustee Troyan, who has claimed in public to have “passed the Ohio Bar Exam the first time out.”
Oh, really, kids???
Ohio’s Authorization of (Limited) Local Control and the Wind in the Woods Farm Case Study by Erik Lange
Published November 16, 2014
Over recent years, a growing number of states have been preempting local control of land use to promote small wind turbines to be installed in more suburban areas. 139 In contrast to this renewable-energy promotion, other states have also preempted local authority over traditional energy sources without preempting regulation of wind energy. For example, Ohio, a home-rule state, 140 has denied its local governments the power to place land-use limitations on drilling for oil and gas. 141 This state preemption of local control over resource extraction is not uncommon. In fact, “many states have taken a more active role in guiding energy siting than is typical for other, even industrial, land uses.” 142 The question addressed by this Note, then, is whether such treatment by the states may be challenged as unconstitutional.
The Introduction discussed an Ohio farm’s failed attempt to overcome local zoning to install a wind turbine. Because the story of Wind in the Woods Farm provides an interesting perspective on the power of local zoning ordinances over wind turbines in Ohio, this Note’s discussion of current regulation of wind turbine sites begins by developing that story further.
Initially, the Wind in the Woods Farm did not have issues with local zoning. By the spring of 2010, the project seemed to have the green light after receiving an agricultural exemption 160 from township zoning laws. 161 By the summer, however, neighbors had begun to oppose the plan, 162 and the owners of the farm had begun to receive resistance from the township officials. 163 The agricultural exemption was ultimately revoked. 164 A township zoning inspector determined that the exemption was not justified because he believed only fifteen percent of the energy generated by the turbine would be used by the farm. 165
In addition to the agricultural exemption, Ohio law does not permit township zoning laws to affect “the location, erection, [or] construction . . . of any buildings or structures of any public utility or railroad, whether publicly or privately owned, or the use of land by any public utility or railroad for the operation of its business.” 166 Wind in the Woods Farm could, seemingly, have taken advantage of this public-utility exception. However, Ohio law does not exempt a “small wind farm” as a public utility, and townships can regulate these structures similarly to how they would regulate other nonexempted structures. 167
Although local zoning rules may have erected a roadblock for Wind in the Wood Farm’s proposal, the township had not yet implemented an all-inclusive, local-zoning ban on wind turbines. By September 2010, two wind turbines had been approved in Auburn Township by the Board of Zoning Appeals, 168 and wind turbines were addressed at a zoning board meeting. 169 To prevent future zoning appeals and lawsuits, the township’s zoning board planned to issue regulations that would allow wind turbine installation in the township under certain conditions. 170 As indicated by the attendance of approximately eighty residents, the community was interested in the proposed zoning amendment. 171 Residents were concerned that wind turbines in the township would create noise problems, risk resident safety, incur costs when the turbines needed to be dismantled, destroy bird populations, cause problems with cattle, and have a negative effect on property value. 172 The zoning board chairman pointed out that the regulation would provide some rules for wind turbines, which were already coming to the township. 173
Despite resident concerns, the zoning board passed a proposed zoning amendment that would permit a single wind turbine. In an attempt to address concerns, the proposed amendment imposed numerous restrictions, including restrictions on height, location, and setback. 174 However, the proposed amendment was not adopted by the township’s board of trustees, and regulations concerning wind turbines have not been promulgated by the township. 175
Whether the citizens opposed to wind turbines entering their township were successful is open for debate. Ultimately, the zoning amendments that would have permitted the installation of wind turbines in Auburn Township under certain circumstances, as proposed in 2011, were not added to the township’s zoning code. But the lack of regulations specific to wind turbines did not stop wind turbines from being installed within the township. 176
Thus, the township’s zoning seemed to have allowed turbines at one location while preventing a turbine installation at a different location—Wind in the Woods Farm. The owners of Wind in the Woods Farm, however, did not simply accept their fate; rather, they pursued their rights in state court, claiming both that the township did not have zoning ordinances in place to restrict a wind turbine on their property and that the township’s zoning board misinterpreted Ohio’s agricultural zoning exemption. 177 The county court of common pleas, however, ruled against the owners without even reaching these issues. 178 Instead, the court simply affirmed the township’s denial of a permit because townships are permitted to regulate wind turbines under Ohio Revised Code section 519.213. 179
At this point, it seemed that the township had won and Wind in the Woods Farm would not be permitted to install a wind turbine, but the owners received an early Christmas present from the Eleventh District Court of Appeals of Ohio. 180 The appellate court held that the court of common pleas erred in determining that a township zoning board could deny a zoning permit for a wind turbine under section 519.213 if the township had no zoning ordinance specific to wind turbines. 181 The township zoning board had taken the position that the township had a general and complete ban on wind turbines. 182 In remanding the case back to the court of common pleas, the appellate court expressed doubt that a general ban actually existed, 183 rejected the lower court’s interpretation that the township’s power to zone small wind farms trumped the agricultural exemption, 184 and expressed a strong suspicion about the township’s interpretation of the agricultural exemption. 185
On remand, the court of common pleas determined that Wind in the Wood’s request for a wind turbine was agriculturally exempt from the township’s zoning regulations. 186 The wind turbine was installed in October 2013. 187 The delay, however, cost the farm $30,000 because it lost the state grant. 188 Accordingly, the farm’s owners have sued the township to recoup these costs. 189
Despite the favorable appellate court ruling, Ohio law seems relatively clear. Unless there is some type of a state exemption that applies, a local government can enact zoning ordinances that restrict, or possibly even prohibit, the installation of wind turbines within its jurisdiction.
For the complete article from the Case Western Reserve Law Review click here
AUBURN TOWNSHIP LITIGATION AND YOUR TAXPAYER DOLLARS
In recent years, Auburn Township has managed to be involved in lots of legal actions against Auburn Township residents. Shouldn't there be a more reasonable way to foster understanding and problem solving than paying a lot of attorneys?
If you have a lot of time, all you have to do is type in Auburn Township Board of Trustees, Auburn Township Zoning Inspector, or Auburn Township Board of Zoning Appeals at the Geauga County Clerk of Courts web site. You will find 11 cases of litigation since 2008.
What becomes apparent is that Auburn Township is engaging in litigation against its farm owners and some other residents. Once upon a time, the Auburn Land Use book talked about the importance and dignity of farming and the need for Auburn Township to recognize the acceptability of agriculture as a land use within the community. That Land Use book was published about 1999 and this is 2011.
The two cases of litigation both requiring Eleventh District Court of Appeals deal with farm issues. Ironically, Ohio Revised Code states that farms in Ohio actually are not subject to township zoning regulations. So why then do both of these two cases have anything at all to do with Auburn Zoning? You would think that Auburn would be happy to be home to serious agricultural venues like fruit growing and harvesting, for example, apple production, blueberries, and grapes and wineries; as well as dairy cattle, goats and sheep, alpacas and llamas, horses and riding schools, hay, grain, and silage production; nurseries, maple syrup, organic products, farmers' markets, etc.
Once upon a time these farming ventures existed side by side with residences and small businesses. Once upon a time the farmer, the resident, and the merchant attended public meetings side by side for the good of the community as well as to gain knowledge. How many of you have attended regular Trustee Meetings the first and third Monday of the month at the building with the hand made sign reading “Admin Bldg”? How many of you have attended an Auburn Township Board of Zoning Appeals meeting at 7 PM the second Tuesday of each month at the same Administration Building? How many of you have attended a Zoning Commission meeting the second and fourth Tuesdays of the month at 7:30 PM?
Do you think you would be knowledgeable about the cost of hiring a lawyer if you needed to undertake litigation? Lawyers typically send out invoices every month so that clients understand the price of legal services. So how is it that Auburn Township's Fiscal Officer Plavcan has claimed that she has no knowledge of the legal cost of lawyers and prosecutors who have represented Auburn officials in the current eleven legal actions cited above? The Fiscal Officer has chosen to say in multiple written responses that the township wrote no checks and paid no money for any legal representation. Does this mean that the attorney representing Auburn Township in the two current agriculturally-related cases is working for free?
If the Auburn Fiscal Officer says that she wrote no checks and paid no monies for legal services, then how does the attorney who typically represents Auburn Township make a living? The attorney, Abraham Cantor, in fact represents a number of Ohio townships on litigation. Recently, Mr. Cantor lost a case in Appeals Court on an agricultural matter in Medina County and another one in Eleventh District Court of Appeals while representing Auburn Township. Who pays the costs in a court case? The party that loses. So in losing at the Eleventh District Court of Appeals, Auburn Township would seemingly become responsible for the court costs.
There is another factor, however, to consider.
When you pay home and auto insurance, you pay a premium to protect your property interest. Do readers understand that when their insurance company pays out too many claims, their premium rates increase?
Auburn Township has had eleven legal claims since 2008. If the Township is not paying its legal expenses, can we conclude that attorneys are free of cost to Auburn Township? Can we conclude that if Auburn's insurance carrier is paying the legal costs, it is a free service to Auburn Township or its taxpayers? Can you predict what might happen to the cost of Auburn Township's insurance rates as a result of too many cases of litigation involving Auburn Township as its elected officials decide to use the courts instead of the meeting room to resolve an increasing number of disputes?
Did you know that when Auburn Township is faced with a claim, the Ohio Township Risk Management Authority (OTARMA) reimburses the township after imposing deductible amounts. For instance, according to OTARMA records, Auburn Township's recent report of vandalism to Adam Hall resulted in a payment, according to a check issued in late August by OTARMA, based on a loss of approximately $2800, with a deductible of $1000, for a payout of about $1800.
Did you know that every time Auburn Township is faced with a case of litigation, it gets the use of the Prosecutor at taxpayer expense as well as access to an attorney appointed by the OTARMA? Will the Prosecutor's Office represent you when you are the subject of a legal claim? For each legal claim for wrongdoing against an Auburn Township elected or appointed official, the Township is required to put up the first $500. Thereafter, Auburn Township is covered for $3,000,000 worth of liability for each occurrence of wrongdoing committed by an elected or appointed official, according to the policy issued to Auburn Township by OTARMA.
In 2008 OTARMA's insurance premium to Auburn Township was about $12,300 with a discount of $450.
In 2009, with a really good credit of $4775 , the premium paid by Auburn Township was $11,516.
But by 2010, the insurance premium with about a $2300 credit was already up to $13,880. That is an increase of 18.79% over the previous year. Coincidentally there were two legal cases in Geauga County Common Pleas Court claiming Zoning Inspector error filed in 2009.
In 2011, with three pieces of litigation actively going on at the same time, a $100 credit brought the insurance premium to $18,260. That is a 32% increase in the cost of premium in just one year.
The cost of insurance increased from $12,300 in 2008 to $18,260 in 2011. That is a $6000 or almost 50% increase. That is about 12.5% each year. Isn't that quite a bit more than the current rate of inflation of the economy? Where can you put your savings so that you will collect 12.5% return each year?
Is it fair for the Auburn Township Fiscal Officer to represent that Auburn Township is not paying for legal services?
Court ruling allows for wind turbine installation
By JOAN DEMIRJIAN Oct 17, 2013
Published October 23, 2013
AUBURN – Those driving on Munn Road in the township will see a new addition to the landscape. It’s a 120-foot-tall wind turbine on the Wind in the Woods property off Lindsay Lane.
The turbine is expected to generate electricity for the Wind in the Woods horse arena, its air conditioning, heating, equipment and an electric-powered vehicle, all owned by Lindsay Lane residents Tom and Diane Jones.
Stefanie Spear, owner of Expedite Renewable Energy of Moreland Hills, sold the 10-kilowatt Bergy wind turbine to the Joneses. SUREnergy installed it last week after several years in the courts.
Despite many obstacles along the way, it’s in place, Ms. Spear said. It will generate 100 percent of the power for the property, which is about 20 acres. The purpose is to generate power for the site, especially in the winter.
Mrs. Jones said Tuesday they are “ecstatic and pleased” with the turbine’s installation. It took much hard work and diligence.
The Joneses made application to the township in 2010 and received an agricultural exemption; however, that exemption was rescinded by the zoning department in July that year as not being strictly agriculture as a wind farm because excess electricity would be sold back to the grid.
The Joneses went to the township board of zoning appeals, which upheld the township zoning department.
The couple appealed the issue to Geauga County Common Pleas Court, which upheld the township board of zoning appeals. They took the issue to the 11th District Court of Appeals in 2011, which ruled in their favor, reversing the decision of the common pleas court.
The appeals court remanded the issue back to the common pleas court, which found it agriculturally exempt, reversing the BZA in May. That decision gave the Joneses the right to go forward with the project.
The Joneses will receive a federal tax credit and a grant from the U.S. Department of Agriculture to help cover project costs. They are financing it with the $19,000 department of agriculture grant for rural development, but lost out on a $30,000 grant from the state because it exceeded the time limit on the grant application. They will pay $84,000 for the turbine.
The turbine is expected to generate the most power in fall and winter when winds are strongest, Mrs. Jones noted of seasonal output. Their house on a nearby property is powered 100 percent by solar energy. The solar panels also were a project of Expedite Renewable Energy.
Wind in the Woods works with children with autism and learning disabilities, according to Mrs. Jones, who is a retired teacher. She said that, despite the setbacks, they would go through the process again “in a heartbeat.”
“It’s absolutely beautiful,” she said of the turbine, which has the initials WIW painted on it.
UPDATE ON RECENT AUBURN TOWNSHIP LITIGATION:
December 14, 2012
As noted earlier this month, Auburn Township faces two interesting cases of litigation: 12A000837, filed by Kim and Kim Kuehnle, uncle and nephew, dba KKR, Inc; and 12M001060, filed by Jay and Elizabeth Schabel, dba Auburn Twin Oaks Winery.
The Kuehnle litigation stems from a denial of a variance from the Auburn Township Board of Zoning Appeals in a July 10 hearing with numerous neighbors of the Kuehnle establishment, The Patio, present for the hearing. The denied zoning application indicated that the proposed outdoor patio was to establish more room for potential clientele and to create more revenue for the tavern/restaurant. The Administrative Appeal lists the reason for the patio is to conform with Ohio Revised Code regarding provisions for smokers in retail establishments.
The Auburn Twin Oaks Winery litigation stems from 2008/2009 decisions by the Auburn Township Board of Zoning Appeals to rule the establishment subject to Auburn Township Zoning. The subsequent decision on the case by the Eleventh District Court of Appeals in May 2011 and the resulting decision of the Ohio Supreme Court to affirm the Eleventh District Court and refuse jurisdiction on the case in October 2011 has vindicated the winery and established that viticulture operations constitute agriculture under ORC 519.21, thereby removing agriculture in townships from zoning restrictions. 12M001060, filed on October 24, 2012, is a mandamus action seeking financial damages from Auburn Township for unlawful and unreasonable legal actions against the winery/viticulture/agricultural operations of Auburn Twin Oaks.
We are struck by the differences in attitude and comportment demonstrated by the Auburn Township Trustees in re these legal actions. During a public hearing of December 3, 2012 (See video recording for Auburn Township Trustees of the same date), Trustees expressed to neighbors gathered the uncertainty of the outcome of the case at the Common Pleas Court and have implied that negotiations achieved by out-of-court dealings are superior to any outcome achieved by Judge Forrest Burt.
The Mandamus filed by Auburn Twin Oaks Winery is apparently being treated differently by the Auburn Township Trustees. On November 19 Geauga County Assistant Prosecutor Bridey Matheney and insurance attorney Abraham Cantor of Concord, Ohio, both representing Auburn Township at a cost borne by Geauga County taxpayers, sought to dismiss the case. That being denied, Auburn Township Trustees have filed a counterclaim asking Judge David Fuhry to impose a permanent injunction against the winery for conducting agriculture/viticulture. Such an action by Judge Fuhry would contradict and defy the 2011 Eleventh District Court of Appeals and Ohio Supreme Court decisions in favor of Auburn Twin Oaks Winery.
There is an apparently huge contradiction in attitude and behavior of the Auburn Township Trustees on these two legal actions.
8 th CASE OF LITIGATION IS FILED AGAINST AUBURN TOWNSHIP TRUSTEES AND BOARD OF ZONING APPEALS ON OCTOBER 24, 2012
HERE WE GO AGAIN!!!!!
November 15, 2012
In a flurry of legal activity, Auburn Twin Oaks LLC has filed a mandamus against the Auburn Township Trustees and the Auburn Township Board of Zoning Appeals. This is the eighth case of litigation against this township filed within the last three years.
You may recall that in 2009 Auburn Twin Oaks Winery was denied an agricultural exemption related to its activities in viticulture, that is, the growing and the selling of grapes. As it played out, Auburn Twin Oaks won a unanimous decision from the Eleventh District Court of Appeals in May 2011. The court upheld the judgment that Twin Oaks is an agricultural and is therefore, not subject, to ANY zoning regulation from Auburn Township.
Auburn Township Trustees, using the argument of Dinardo v. Chester, appealed to the Ohio Supreme Court , but that body refused to hear that case. Twin Oaks' legal victory paved the way for the mandamus that was filed October 24. The mandamus suit seeks financial damages to reimburse Auburn Twin Oaks for the financial costs associated with Auburn Township's illegal action.
The trend to pursue Auburn Township Trustees on the basis of unfounded judgments imposed by the Auburn Township Zoning Inspector, Frank V. Kitko, and the subordinate Board of Zoning Appeals appears to be on the rise as more individuals within Auburn Township are becoming aware of what appears to be illegal actions by township administration.
The court case is 12M001060, filed in Geauga County Common Pleas Court. The judge of record is David L. Fuhry, the same judge who was reversed in May 2011 by the Eleventh District Court of Appeals. The plaintiff's attorney is David M. Lynch, formerly a mayor in Euclid, whose legal office is in Wickliffe, Ohio.
So.... here we go again! What is so very wrong with this picture in Auburn Township? Would you choose to settle in a community where residents have to go to court against elected officials just to make sure that Ohio Revised Code is upheld? Apparently there are Auburn Township residents willing and able to stand up for their legal rights.
We will keep you informed ….
UPDATE ON ADMINISTRATIVE APPEAL 12A00083
KKR INC v AUBURN TOWNSHIP ZONING INSPECTOR(aka FRANK KITKO)
November 11, 2012
Statements made by Trustee Patrick J. Cavanagh during the course of the November 5, 2012, Auburn Township Trustee Meeting (See videotape of this meeting for this date on the Trustee Page) imply that as a result of an executive session held between Kim Kuehnle and his nephew Kim Kuehnle (KKR Inc), David Ondrey Esq. representing KKR, Rebecca Schlag representing the Geauga Prosecutor's Office on behalf of Auburn Township (Assistant Prosecutor Bridey Matheney has recused herself because of a conflict of interest), and Auburn Township Trustees, Auburn Township will grant KKR its wishes in opposition to the Auburn Township BZA decision of July 2012.
It is interesting that at the original BZA meeting numerous residents expressed their objections the request for a variance by The Patio (owned by KKR Inc) because such variance would diminish residential property values on Wing Road.
Now, it appears, Auburn Township Trustees have come to the realization that under State Law, they would lose the case to KKR Inc. anyway.
The December 3, 2012, meeting will include the right of contiguous neighbors of The Patio to express their opinions. Trustees have indicated per the November 5 meeting that this will NOT be a Public Hearing....
Why is that, Trustee Cavanagh, Trustee Eberly, and Trustee Troyan?
MORE LITIGATION AGAINST AUBURN TOWNSHIP ZONING
October 15, 2012
(7th lawsuit in the last 3 years)
As a result of a July 12, 2012, Board of Zoning Appeals case, Auburn Township is now facing its latest lawsuit, filed August 17 in Geauga County Common Pleas Court under Judge David Fuhry. The case is termed 12A000837, filed by KKR, Inc, of P.O. Box 375 in Newbury Township. KKR is comprised of Kim T. Kuhnle and his nephew Kim Kuhnle.
The case involves the failure of the Kuhnles to get a variance allowing an addition to the existing patio of the tavern known as The Patio. Had the addition been approved, it would have increased the footprint of The Patio considerably.
Although the defendant in the case is listed as Zoning Inspector Frank V. Kitko, the Kuhnles, the operator of The Patio, and Kuhnles' attorney appeared at an executive session at 8:10 P.M. at the Auburn Township Administration Building on the evening of October 15, 2012.
What is wrong with Auburn Township zoning? Why is it necessary for so many individuals to take the township to court at Auburn Township taxpayer expense?
If you were the township's insurance company, Burnham and Flowers, would you want to insure such a liability as Auburn Township? If you were Burnham and Flowers, might you be willing to insure Auburn Township if you could exact a surcharge to cover the township's losses?
More information coming soon about taxpayer dollars being flushed down the toilet...
THE AUBURN TWIN OAKS WINERY IS VINDICATED
The Ohio Supreme Court has dismissed Auburn Township's brief, filed on July 6, 2011, against the Auburn Twin Oaks Winery.
In a statement issued by Chief Justice Maureen O' Connor and filed today, the Ohio Supreme Court has dismissed Case Number 2011-1157 with the following statement: (see full Supreme Court decision here)
“. . .the [Supreme] Court declines jurisdiction to hear the case and dismisses the appeal as not involving any substantial constitutional question.”
See the whole story on this web site's (News) page.