Taxpayers in Huber Heights, Ohio have filed a lawsuit against the City and a local developer over a rezoning of land for a proposed Wal-Mart supercenter. According to the filing, the taxpayers are calling their local government to task for abusing its corporate powers in relation to the rezoning for RG Properties’ development. The lawsuit alleges that the City of Huber Heights “abused its corporate powers in approving the zoning amendment for the proposed Super Wal-Mart store.” The citizens claim that “a special relationship existed between the City and RG Properties that caused the City to approve the rezoning contrary to the City’s Charter and Zoning Code.” The citizens, through the “discovery” process of seeking the City’s and the developer’s documents, are attempting to “unearth this ‘special relationship’ so that it can be determined whether that relationship caused the City to violate its own laws in approving the zone change.” According to the legal brief, RG Properties acquired its interest in the property between February 19, 2001 and May 22, 2001. The City Manager filed an application to rezone the property purportedly as an agent for the property owners, on or about May 25, 2001. The lawsuit charges that the City Manager knew of RG Properties’ ownership of the property when he filed the rezoning application, and intentionally kept that fact a secret from the citizens of Huber Heights as well as its Planning Commission. “It is clear from a review of the City Manager’s comments that he did not want the members of the City Planning Commission or the citizens to know that RG Properties already had an interest in the subject properties. In fact, he made a number of statements to convince the listeners that the City’s ‘developer selection-process’ had barely started,” the lawsuit claims. Planning Commission members were reportedly in the dark about what the proposal might be. At one point, the Chair of the Planning Commission stated: “It is obvious from looking at this plan that this is a big box retailer. A warehouse doesn’t need that many parking spaces. Is it a Wal-Mart? I honestly have no idea. Put my hand on the bible and say that, I have honestly no idea what these proposed specific uses are other than the fact that they are obviously big box retail.” The taxpayers say their City Manager “purposefully misled” the citizens of Huber Heights and the City Planning Commission about the reality of the situation. Notwithstanding protests from many of the local residents, the City proceeded to approve the City Manager’s rezoning application despite the fact that the information provided as part of the application did not comply with the requirements of the Huber Heights Zoning Code. The City Council approved the rezoning in an emergency ordinance, to keep the citizens from putting the issue on the ballot through a referendum. On the same night the City Council approved the rezoning, the Council also adopted a moratorium on development along the Brandt Pike corridor (which included the RG property) so that the City could evaluate the proper land uses that should occur along the corridor, but excepted the RG property from the moratorium. The suit also charges that the City Traffic Engineer’s findings that the nearby interchange was a major bottleneck to smooth travel and labeled it ‘a dangerous location’, was ignored. Yet the City approved a major retail development which will generate approximately 11,000 new vehicle trips per day to that corridor.
The lawsuit concludes that City and RG Properties conspired together to try to get the subject property rezoned without the Planning Commission or the citizens knowing the facts. “In fact, it is Plaintiffs’ position that they not only tried to keep the facts concealed from the public, they took affirmative actions to mislead the Planning Commission and the citizens as to the fact.” For more information on this “abuse of the city’s “corporate powers”, contact Attorney Gary E. Powell of Cincinnati, Ohio at (513) 721-5525.
