Embassy Realty Investments, Inc. v. City of Cleveland

976 F. Supp. 2d 931, 2013 WL 5532646, 2013 U.S. Dist. LEXIS 143828
CourtDistrict Court, N.D. Ohio
DecidedOctober 4, 2013
DocketCase No. 1:11CV1545
StatusPublished
Cited by5 cases

This text of 976 F. Supp. 2d 931 (Embassy Realty Investments, Inc. v. City of Cleveland) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Embassy Realty Investments, Inc. v. City of Cleveland, 976 F. Supp. 2d 931, 2013 WL 5532646, 2013 U.S. Dist. LEXIS 143828 (N.D. Ohio 2013).

Opinion

MEMORANDUM OPINION AND ORDER

SARA LIOI, District Judge.

On or about August 7, 2009, defendant City of Cleveland (the “City”) demolished a building owned by plaintiff Embassy Realty Investments, Inc. (“Embassy”), after finding various housing violations that purportedly rendered the property a nuisance. This matter comes before the Court upon the motion of defendants, the City, Ed[935]*935ward Rybka, Ronald O’Leary, Timothy Wolosz, David Cooper, Joseph Denk, Sr., and Peter Stewart (collectively “defendants”), for summary judgment. (Doc. No. 21.) Plaintiffs, Embassy, John Barnes, Jr., and Captain Buffalo Foods, Inc. (collectively “plaintiffs”), oppose the motion (Doc. No. 25-1), and defendants have replied (Doc. No. 27). For the reasons that follow, the motion is granted and all of plaintiffs’ claims are dismissed. The Court declines to exercise supplemental jurisdiction over the counterclaim, and directs the Clerk to close this case.

I. Background

There is no dispute as to the administrative path the City took to raze the building on Embassy’s property. However, because an understanding of the precise course the parties have travelled is needed to properly evaluate plaintiffs’ constitutional claims, the Court will provide an administrative road map.1 Where the parties dispute certain factual findings determined during those administrative proceedings, the Court will present those facts in a light most favorable to plaintiffs as the non-moving parties.

A. The Property is Condemned

The property at issue in this litigation is a parcel of commercial real estate located in Cleveland, Ohio. (Doc. No. 1, Complaint, at ¶ 9.) On December 8, 2008, Embassy purchased the property from plaintiff John Barnes, Jr. (“Barnes”), who had obtained the property from Southeast Cleveland Church of Christ, Inc. (the “church”). Barnes is a shareholder of Embassy. On July 13, 1998, while the property was still owned by the church, the City’s Department of Community Development, Division of Building and Housing (“Building Department”) issued a notice of violation of housing ordinances for the property, and condemned it. (Compl. at ¶ 11.) The notice was served upon the church, with the administrative right to appeal the notice to the Board of Zoning Appeals (“BZA”) and/or the Cleveland Board of Building Standards and Building Appeals (“local BBS/BA”). The church did not appeal the condemnation notice.

The notice was not, however, recorded and, according to plaintiffs, this rendered the notice defective “on both procedural and substantive grounds” and left prospective purchasers unable to “properly ascertain the condition of the property.” (Compl. at ¶¶ 10-11.) Additionally, the City took no further action on the condemnation for more than nine years. Because the notice was not recorded and the City had not acted upon it, Barnes’s title search in 2005 did not uncover the City’s notice of violation. (Id. at ¶ 10.) This, coupled with the fact that the church apparently chose not to disclose the property’s many deficiencies to prospective buyers, meant that Barnes purchased the property unaware that it had been condemned. (Compl. at ¶ 10.)

Barnes had big plans for the property. In 2007, Barnes hired a licensed architect [936]*936to draft plans to remodel the building located on the property. He submitted the plans to the City’s Building Department in order to obtain construction permits, and contracted with plaintiff Captain Buffalo Foods, Inc. (“Captain Buffalo”) to construct a coffeehouse and business offices in the building. (Id. at ¶¶ 12-14; Doc. 24-2 [Exhibit B], Affidavit of John Barnes, Jr., at ¶¶4-5.) On May 2, 2007, the City issued a building permit for the building, which was later withdrawn due to the 1998 violations notice. (Barnes Aff. at ¶ 18.)

On January 9, 2007, the Building Department performed an inspection of the property. Based upon that inspection, on January 10, 2007, the Building Department issued a second notice for building code violations at the property. (Barnes Aff. at ¶ 14.) The notice included a stop work order for illegally constructing a second floor onto the building without proper plan approvals and building permits. The notice, which was issued to Barnes, informed Barnes of his administrative right to appeal to the City’s appeals boards. Barnes never appealed this violation notice to either administrative appeals board.

B. Barnes Seeks Building Permits and Zoning Variances

Instead, between February 2007 and February 2009, Barnes filed four applications for building permits through the Building Department to add a second and third floor to the existing building.2 (Barnes Aff. at ¶¶ 15-20, 23, 30.) Each permit was initially denied by the Zoning Division of the Building Department for not meeting certain zoning codes. Barnes appealed each denial to the BZA, and sought certain zoning variances. After the first denial, the BZA conducted a public hearing on October 29, 2007, and ultimately voted to deny the appeal. Barnes appealed that decision to the common pleas court, but failed to timely serve BZA as required by Ohio Rev.Code § 2506 and the appeal was dismissed. (Id. at ¶ 21.)

On appeal from the second, third and fourth rejected applications, the BZA decided not to conduct a public hearing on the variance requests based on res judicata grounds and denied the appeals. The court of common pleas affirmed the BZA’s decision on the second application, but before the common pleas court could rule on the third appeal, Barnes filed a motion for a temporary restraining order. The common pleas court entered a temporary restraining order blocking the demolition of the building. The matter was resolved when the parties agreed that Barnes would file an application with the local BBS/BA to resolve the demolition issue. (Barnes Aff. at ¶¶ 22, 30.)

On August 5, 2009, the local BBS/BA held a final hearing on the property, and issued an emergency resolution providing for immediate demolition. The City began demolition, but Barnes filed for and received a temporary restraining order from the common pleas court in the third appeal, and the demolition was halted. On August 10, 2009, after an evidentiary hearing, the common pleas court granted the City’s motion to dissolve the temporary restraining order. Barnes did not take a further appeal in the state appellate court. Barnes’s appeal from the denial of his fourth application for a building permit was dismissed on December 15, 2009 because he failed to file a brief on the merits.

[937]*937 C. Embassy Appeals the Condemnation Order

While Barnes was prosecuting his permit applications, Embassy filed an appeal with the local BBS/BA from the original 1998 condemnation violation. Among the issues raised by Embassy was the validity of the notice of condemnation as it applied to subsequent purchasers. The local BBS/BA conducted two public hearings (on June 10, 2009 and August 5, 2009) and conducted a site inspection of the property on August 3, 2009. During the site inspection, it was observed that the building was continuing to deteriorate and was in a state of disrepair. (Doc. No. 21-3, Deposition of defendant Ronald O’Leary, at 1319-20, 1361-2; see, generally, Doc. No.

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Related

Cleveland v. Embassy Realty Invests., Inc.
2018 Ohio 4335 (Ohio Court of Appeals, 2018)
City of Cleveland v. Embassy Realty Invs., Inc.
2018 Ohio 2513 (Ohio Court of Appeals, 2018)
Leath v. Cleveland
2016 Ohio 105 (Ohio Court of Appeals, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
976 F. Supp. 2d 931, 2013 WL 5532646, 2013 U.S. Dist. LEXIS 143828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/embassy-realty-investments-inc-v-city-of-cleveland-ohnd-2013.