The city of Hilliard is the defendant in a federal lawsuit filed Aug. 22, according to documents from the U.S. District Court for the Southern District of Ohio.

The plaintiff is 3799 Mill Run Partners LLC of Dublin, the owner of the vacant building at that address.

David Ball, director of communications for Hilliard, said city leaders were aware of the lawsuit and "it's in legal's hands." He directed ThisWeek to city attorney Phil Hartmann for questions.

Hartmann said Aug. 26 the city is "evaluating the claim" before answering the lawsuit, as required by law.

The complaint stems from the action Hilliard City Council took in May 2016 when considering a planned-unit-development modification that was required for Point Blank Range and Gun Shop to open at the building that once was Jed's Fireballs and Brew and a Damon's Grill and Sports Bar.

Point Blank would have been a $3.5 million facility with 30 new jobs and annual revenue of about $3.6 million, Randall Jackson, owner of Dublin-based Jackson Real Estate and Development, told ThisWeek at the time.

Hilliard City Council in May 2016 voted 4-3 in support of the PUD modification, with Tom Baker, Les Carrier, Joe Erb and Kelly McGivern voting in favor of it and Albert Iosue, Nathan Painter and Bill Uttley voting against it.

But the PUD modification failed because, according to then-law director Tracy Bradford, a 5-2 supermajority was required to overturn the negative recommendation of the Hilliard Planning and Zoning Commission.

The range instead opened as Shoot Point Blank in Lewis Center in Delaware County.

Rex Elliott is the Columbus attorney representing 3799 Mill Run Partners.

The city made a mistake, Elliott said, because only a simple 4-3 majority was needed – not a supermajority – to reverse the nonbinding recommendation of the commission.

"It should have been approved," he said.

According to Franklin County Auditor's Office records, 3799 Mill Run Partners LLC purchased the 1.94-acre parcel at 3799 Park Mill Run Drive for $885,000 in March 2015.

A 7,630-square-foot building was constructed on it in 1994.

Elliott represents the LLC, the only plaintiff in the lawsuit, he said, but he acknowledged Jackson was a member of the group. He said he "was not at liberty" to talk about other members of the LLC.

Jackson did not respond to an inquiry about the lawsuit.

Elliott wrote in the complaint that the mistake came to light in January 2019 when Swensons Drive-In Restaurants appealed to City Council to reverse a PUD modification the planning and zoning commission had rejected.

In researching the city code, Bradford said in January, city officials discovered language for the requirement of a council supermajority to act contrary to the recommendation of the planning and zoning commission was absent concerning a PUD.

She also said in January the window to appeal the decision had passed.

Bradford, who resigned effective Feb. 1 as law director, said Aug. 23 she had no comment on the lawsuit.

Council clerk Lynne Fasone articulated the nuance in a communication to City Council, according to the complaint.

"Had the correct simple-majority requirement been applied, the (PUD modification for Point Blank) would have been approved," Elliott wrote.

City Council subsequently adopted legislation that aligned policy to require only a simple majority for City Council to overturn recommendations of the planning and zoning commission for PUD modifications and a regular rezoning.

The complaint seeks "a declaration that the defendant's actions were improper (and) a violation of plaintiff's due process (and) compensatory damages caused by defendants' violations of plaintiff's right under the United States Constitution and Ohio Constitution as set forth above; attorney fees and costs, and any other declaratory, injunctive or other equitable relief this Court deems just and appropriate."

The city has 28 days to answer the lawsuit, after which there typically is a 60-day wait for the court to schedule a case-management conference, "then it's off to the races," Elliott said.

kcorvo@thisweeknews.com

@ThisWeekCorvo