Two Powell residents are back in court in an attempt to stop a neighborhood from rising on the former site of the Powder Room shooting range.
Brian Ebersole and Tom Happensack filed suit in June in the Delaware County Court of Common Pleas, asking for an injunction to prevent Powell from issuing building permits for the project, among other requests. The pair in July also filed an appeal of Powell City Council's June decision to approve the final development plan for the Harper's Pointe neighborhood, according to court records.
The latest legal battle extends the fight over Arlington Homes' plan to build 47 single-family houses on the 9-acre site between Grace and Beech Ridge drives east of the city's downtown.
Council initially voted in 2015 to approve a plan to build a 47-unit, standalone condo neighborhood at the site. A successful referendum effort -- led by Ebersole and Happensack, among others -- overturned council's vote later that year.
Arlington Homes' Len Pivar returned to the city in 2016 to seek new zoning for the site to build a similar 47-house neighborhood with a homeowners association instead of a condo association.
Ebersole filed suit with the Ohio Supreme Court, arguing council was violating the city's charter by voting on legislation already rejected by city voters. The high court unanimously rejected Ebersole's argument, with a majority opinion stating he erred by not challenging the legislation in a Delaware County courtroom.
Council went on to vote 6-1 to approve the new final development plan for Harper's Pointe in June.
Ebersole and Happensack's most recent suit claims the city cannot allow the project to go forward without approval from Powell voters.
The suit cites a section of the city's charter that states: "Ordinances rejected or repealed by an electoral vote shall not be re-enacted, in whole or in part, except by an electoral vote."
Along with asking the court to prevent the city from issuing building permits or approving engineering plans for the project, the suit asks the court to declare council's legislation to approve the project void.
The city July 25 filed a motion to dismiss the suit because Ebersole and Happensack lack standing.
"They have not suffered a cognizable legal injury; the city's actions were lawful and proper at all times; and plaintiffs are neither neighboring nor adjacent property owners to the (Powder Room site)," the motion states.
Ebersole and Happensack both live in the Bartholomew Run subdivision south of East Olentangy Street. Harper's Pointe is proposed for land off the north side of the street.
The city's motion claims the residents' suit "amounts to nothing more than a 'not in my backyard' position that lacks merit."
The motion claims "significant changes" to the legislation meant council did not re-enact an ordinance rejected by voters.
In a response to Powell's motion to dismiss filed Aug. 8, Ebersole and Happensack claimed previous state Supreme Court rulings have held all city taxpayers have standing in cases regarding potential violations of a city's charter.
The pair also argued their proximity to the proposed neighborhood gives them standing because they would suffer greater injury from increased air pollution, noise and traffic than other Powell residents if the community is built.