Court dismisses federal lawsuit against Hilliard regarding 2016 zoning decision
A federal lawsuit filed last year against the city of Hilliard by a Mill Run property owner has been dismissed by the U.S. Court of Appeals for the Sixth Circuit.
The Sixth Circuit's Dec. 14 decision upheld a ruling in June by the U.S. District Court for the Southern District of Ohio to dismiss the complaint regarding Hilliard City Council's May 2016 vote on a planned-unit-development modification required for Point Blank Range and Gun Shop to open in Mill Run.
Previous story:Hilliard sued over 2016 council vote
The range and gun store were proposed by 3799 Mill Run Partners LLC of Dublin for its building at 3799 Park Mill Run Drive that previously was occupied by Jed’s Fireballs and Brew and a Damon’s Grill and Sports Bar.
The federal lawsuit was filed in the district court by Mill Run Partners in August 2019 after it was discovered during an unrelated zoning matter that city officials had erred in their interpretation of the zoning code in 2016.
City Council in May 2016 voted 4-3 in support of the PUD modification for Mill Run Partners, 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 was said to have failed because, according to Tracy Bradford, the law director at the time, a 5-2 supermajority was required to overturn a negative recommendation by the Hilliard Planning and Zoning Commission.
Bradford's ruling later was found to be incorrect.
Rex Elliott, a Columbus attorney, is representing Mill Run Partners.
Elliott said that the mistake came to light in January 2019 when Swensons Drive-In Restaurants sought to reverse a PUD modification the planning and zoning commission had rejected.
In a similar manner, City Council voted 4-3 to allow the PUD modification, contrary to the recommendation of the planning and zoning commission. With the approval, Swensons eventually opened in September 2019 at 4810 Cemetery Road.
After researching the city code, Bradford said, city officials had 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 modification, for which only a simple majority was required.
“It should have been approved,” Elliott said.
However, the language in the Sixth Circuit decision indicated the court considered it incumbent on the plaintiff to have discovered that error.
The complaint sought to establish “equitable tolling,” an action that allows a plaintiff to pursue a claim outside the normal statute of limitations period, as well as alleging deprivation of property and liberty interests without due process under the Fifth and 14th Amendments.
The complaint also sought compensatory damages in an amount the court "deemed just and appropriate," but the documents did not appear to contain a quantified amount.
Mill Run Partners argued that the proposed modification of the PUD required for the gun shop to occupy should have been permitted by way of City Council’s 4-3 vote in 2016 and implicated both property and liberty interests were violated as a result of the city’s application of an incorrect voting requirement.
In October 2019, the city moved to dismiss the complaint on the grounds that it was filed beyond the two-year statute of limitations and the misinterpretation of a statute did not amount to a due-process violation.
In June, the district court granted the motion to dismiss, which was the decision upheld Dec. 14 by the Sixth Circuit.
In its decision, the Sixth Circuit wrote that “nobody objected to Bradford’s directive and the resolution failed.”
In quoting precedent in other cases involving the establishment of equitable tolling, the Sixth Circuit wrote, “It is well-settled that ignorance of the law alone is not sufficient to warrant equitable tolling.”
According to the decision, Mill Run Partners never alleged it lacked access to Hilliard code in May 2016 or afterward.
“Thus, either by itself or with the aid of counsel, Mill Run Partners could have reviewed the code as soon as the injury occurred on May 23, 2016," the decision said.
“We respect the court’s decision but frankly don’t know how a nonlegal businessperson could possibly know that a city’s decision was legally improper until it was publicized,” Elliott said. “Our client has not yet decided whether to appeal this decision further.”
Phil Hartmann, Hilliard’s law director, said the city “is certainly pleased that the Sixth (Circuit) Court of Appeals has affirmed the earlier ruling of the lower court to deny this claim and dismiss the lawsuit.”
Meanwhile, the building at 3799 Park Mill Run Drive remains vacant.
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.
The range instead opened as Shoot Point Blank in Lewis Center in Delaware County.
According to Franklin County Auditor’s Office records, Mill Run Partners purchased the 1.94-acre parcel at 3799 Park Mill Run Drive for $885,000 in March 2015, and the group remains the owner.
The property's 7,630-square-foot building was constructed in 1994.