IN THE SUPREME COURT OF OHIO

STATE OF OHIO, EX REL.,CHRISTOPHER J. KARWOWSKI,ET AL.,

Plaintiffs/Appellants,

GRANGER TOWNSHIP OHIO,TRUSTEES

Defendants/Appellees.

Supreme Ct. Case No.: 2008-2179

On Appeal from the Summit County CourtOf Appeals, Ninth Appellate DistrictCase No. 08 CA 0017-M

APPELLEES GRANGER TOWNSHIP, OHIO AND TRUSTEES TERRI BERRY, JOHNGINLEY, JR., AND WILLIAM RIEBAU, JR.'S MEMORANDUM IN OPPOSITION TOAPPELLANTS CHRISTOPHER AND MARCIA KARWOWSKIS' MEMORANDUM IN

SUPPORT OF JURISDICTION

Respectfully submitted,

;^^--, ^ANDREW g^DORMAN (00634t0^'--^MELANY K. FONTANAZZA (0079865)JANIK, DORMAN & WINTER, L.L.P.9200 South Hills Boulevard, Suite 300Cleveland, OH 44147-3521Phone: (440) 838-7600Fax: (440) 838-7601Email: Andrew.Dorman@Janiklaw.com

Metany.Fontanazza@Janiklaw.com

Attorneys for Defendants/Appellees

RLDDEC 10 2008

CLERK OF COURTSUPREME COURT OF OHIO

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TABLE OF CONTENTS

PAGE

Table of Contents ............................................................................................................................ ii

1. This Case Does Not Present any Issues of Public or Great General Interest ............................3

H. Argument Against Appellants' Proposition of Law No. I ........................................................5

A. Appellants Do Not Have Standing To Raise Any Issues Regarding theModification of the Proposed Text and Map Amendments .................................................5

B. The Trial Court Did Not Err in Ruling that the Modification by the GrangerTownship Trustees of the Proposed Text and Map Amendments on March 8, 2005Was Made in Accordance with Ohio Law ...........................................................................6

1. The Karwowskis' Argument that the Twelfth District's Decision inSupervalu Holdings, Inc. v. Jackson Center Assoc. Conflicts with thePresent Case Fails Substantively and Procedurally Because SupervaluHoldings, Inc. involved an Entirely Different Factual Scenario and theKarwowskis Failed to File a Motion to Certify a Conflict . ....................................7

2. The Straightforward Language of R.C. § 519.12(H) Allows the Board ofTrustees to Adopt a Modification of the Zoning Commission'sRecommendations ................................................................................................. 9

III. Argument Against Appellant's Proposition of Law No. II .....................................................11

IV. Conclusion ..........................:....................................................................................................12

Certificate of Service .....................................................................................................................13

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I. THIS CASE DOES NOT PRESENT ANY ISSUES OFPUBLIC OR GREAT GENERAL INTEREST

The Appellees in this case are Granger Township and Trustees Terri Berry, John Ginley,

Jr., and William Riebau, Jr. (collectively "Granger" or "Appellees").

This Honorable Court should not accept jurisdiction of this case as this case does not

present any issues of public or great general interest. In deciding whether to hear a discretionary

appeal, "the sole issue for determination is whether the case presents a question or questions of

public or great general interest." Williamson v. Rubich, 171 Ohio St. 253, 254, 168 N.E.2d 876,

877 (1960); See also In re Appeal of Suspension of Huffer, 47 Ohio St.3d 12, 546 N.E.2d 1308

(1989). Resolution of this issue and whether to accept a case lies solely within the discretion of

this Court. See Article IV, Section 2(B)(2)(e) of the Ohio Constitution; S. Ct. R. M.

In Williamson, this Honorable Court held that cases that involve questions of public or

great general interest must be distinguished "from questions of interest primarily to the parties"

Id.; See also Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393, 67 L. Ed.,

712, 43 S. Ct. 422 (1923) ("it is very important that we be consistent in not granting the writ of

certiorari except in cases involving principles the settlement of which is of importance to the

public as distinguished from that of the parties"). Cases that fall within the latter category do not

satisfy the requirements for discretionary appellate review and, therefore, may not be heard by

this Honorable Court.

Appellees respectfully submit that there are three reasons why this case does not present

questions of public or great general interest. First, this is a simple case involving the

straightforward application of R.C. § 519.12 which presents no grand or complex issues

requiring the expertise of this Honorable Court. Second, and contrary to Appellants' assertions,

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the well reasoned 3-0 decision of the Ninth District Court of Appeals ("Ninth District") is well

grounded in law and fact.

Third, Appellants' contention that the Ninth District's ruling is in conflict with the

Twelfth District's decision in Super Value Holdings, Inc. v. Jackson Center Assoc., 2004 WL

1834272 (12 Dist. 2004) has no merit as there is no legal distinction - to the contrary, the present

case and Super Value Holdings, Inc. involve different factual scenarios that deterniine why the

two cases have a different outcome. Further, even if there were a conflict, pursuant to App. R.

25(A), a party must file a motion to certify a conflict within the later of either ten days of the

appellate court's decision or before the judgment or order of the court has been approved by the

court and filed with the clerk for journalization which Appellants have failed to do.

The Ninth District correctly applied well established Ohio law and determined that the

trial court did not err in granting Granger's Motion for Summary Judgment. The Ninth District

based its decision on the examination of the record before the trial court and correctly concluded

that the Appellants did not have standing to argue whether the trial erred in ruling that the

modification by the Granger Township Trustees of the proposed text and map amendments on

March 8, 2005 was made in accordance with Ohio law.

Therefore, this case is not appropriate for discretionary review as it does not present any

issues of interest, let alone issues of public and/or great general interest. Instead, this case

presents only a dispute over well-established statutory language. Further, no matter how the

issues raised by Appellants are resolved, they do not have standing to raise the claim that they

have on appeal. As such, this Court should not accept jurisdiction.

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II. ARGUMENT AGAINST APPELLANT'S PROPOSITION OF LAW NO. I

Appellant's Proposition of Law No. I addresses the Ninth District's September 29, 2008

Decision holding that the Karwowskis do not have standing to raise the issue of whether the

modification by the Granger Township Trustees of the proposed text and map amendments on

March 8, 2005 was lawful.

A. APPELLANTS DO NOT HAVE STANDING TO RAISE ANY ISSUESREGARDING THE MODIFICATION OF THE PROPOSED TEXT AND MAPAMENDMENTS

The Ninth District's denied any review of the merits of Appellants' claim of whether the

modification by Granger on March 8, 2005 was lawful:

The Karwowskis argue that the Trustees acted outside of thestatutorily prescribed guidelines allowing for the amendment ofzoning statutes, and, in turn, acted without legal authority. TheKarwowskis further argue that the action should be remanded withan order stating that the Trustees violated statutory law in passingthe new zoning regulations and that a hearing should be set todetermine the damages sustained by the Karwowskis. However,this Court does not reach the merits of this argument because theKarwowskis to do have standing to bring this assignment of error.

In the action before the court, the Karwowskis sold the property inquestion for $305,000 in August of 2006. Because of this, thevalidity of the amendments made to the Granger Township zoningscheme have no bearing on the Karwowskis or any of theirproperty. Accordingly, the Karwowskis no longer have a presentinterest in whether the trial court erred in finding the amendments,as adopted, lawful.

(Ninth District September 29, 2008 Order 9[9[7, 9).

The Ninth District did not determine the merits of the Karwowskis' first proposition of

law. A party must have standing for a court to decide the merits of a dispute. City of N. Canton

v. City of Canton, 114 Ohio St.3d 253, 255, 871 N.E.2d 586, 588 (2007). Since the Ninth

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District did not decide this proposition of law number one issue on the merits, this Honorable

Court should not accept jurisdiction.

Appellants' brief further fails to cite to a single case to support their position that they

have standing. (Notice of Appeal p. 12). In fact, the Ohio Supreme Court has held that "it is well

settled that the right to appeal can be exercised only by those parties who are able to demonstrate

a present interest in the subject matter of the litigation which has been prejudiced by the

judgment of the lower court." Willoughby Hills v. C.C. Bar's Sahara, Inc., 64 Ohio St.3d 24, 26

(1992); see also Midwest Fireworks Mfg., Co. v. Deerfield Twp. Bd. of Zoning Appeals, 91 Ohio

St.2d 174, 177 (2001). Appellants are critical of the zoning modifications made to the text and

map amendments of their property at a March 8, 2005 public hearing. However, the Karwowskis

subsequently sold the property in question for $305,000 in August 2006. Therefore, as held by

the Ninth District, the amendments made to the zoning scheme do not have any bearing on the

Karwowskis as they no longer have a present interest in whether the trial court erred in finding

the amendments lawful. For this reason, Appellants memorandum in support of jurisdiction

should be denied.

B. THE TRIAL COURT DID NOT ERR IN RULING THAT THEMODIFICATION BY THE GRANGER TOWNSHIP TRUSTEES OF THEPROPOSED TEXT AND MAP AMENDMENTS ON MARCH 8. 2005 WASMADE IN ACCORDANCE WITH OHIO LAW

Even if the Karwowskis had standing to assert their first proposition of law, they still

cannot succeed. The Karwowskis argue that the authority granted under R.C. § 519.12(H) is

virtually unlimited and allows for a completely new re-zoning of property without the benefit of

notice, hearing, or opportunity to reviews changes. The Karwowskis further argue that the

Twelfth District in Supervalu Holdings, Inc. v. Jackson Center Assoc., 2004 WL 1834272 (12`h

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Dist. 2004) established that the authority to modify is limited to "minor issues only." Both of

these arguments have no merit.

1. The Karwowskis' Argument that the Twelfth District's Decision in SupervaluHoldines. Inc. v. Jackson Center Assoc. Conflicts with the Present Case FailsSubstantively and Procedurally Because Supervalu Holdinps, Inc. Involved anEntirely Different Factual Scenario and the Karwowskis Failed to File a Motionto Certify a Conflict.

Appellate Rule 25(A) provides:

A motion to certifv a conflict under Article IV, Section 3(B)(4) of theOhio Constitution shall be made in writinp before the iudkment ororder of the court has been approved by the court and frled by thecourt with the clerk for iournalization or within ten days after theannouncement of the court's decision, whichever is the later. Thefiling of a motion to certify a conflict does not extend the time forfiling a notice of appeal. A motion under this rule shall specify theissue proposed for certification and shall cite the judgment orjudgments. (Emphasis added).

In Cotton v. Fitzpatrick, 98 Ohio St.3d 24, 26, 780 N.E.2d 1019, 1020 (2002), the Ohio

Supreme Court affirmed the court of appeal's decision where an appellant filed his motion to

certify more than three months after the appellate court's decision. Similarly in the present case,

the Karwowskis did not timely file a motion to certify - indeed, they did not file one at all.

Nevertheless, their entire memorandum is based on an alleged conflict with the Twelfth

District's Decision in Supervalu Holdings, Inc. This Honorable Court should affirm the Ninth

District's decision for the Karwowskis failure to timely file a motion to certify pursuant to App.

R.25(A).

Even if Appellants could get past this procedural issues (which they cannot), they still

cannot prevail on their substantive arguments. The Twelfth District's decision in Supervalu

Holdings, Inc. involved an entirely different factual scenario than the present case. In Supervalu,

the Union Township Board of Trustees proposed numerous amendments to the township's

zoning regulations in connection with a development site plan requested by Wal-Mart, wherein

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Wal-Mart wished to demolish its current building and rebuild a "super center." In accordance

with the procedures prescribed in R.C. § 519.12, the Union Township Zoning Commission

conducted a public hearing and recommended the adoption of certain amendments to the

townships regulations.

However, prior to the Union Township's Board of Trustees public hearing, the Board of

Trustees added new amendments relating to commercial parking requirements. The Zoning

Commission had not contemplated nor discussed commercial parking requirements during their

hearing, and therefore, the proposed amendments as approved by the Zoning Commission did

not involve or even mention commercial parking requirements to any extent.

At the Union Township's Board of Trustee's public hearing, the Trustees adopted all of

the amendments, including the additional amendments the Trustees had inserted relating to

commercial parking requirements that had not been discussed, reviewed, considered, or

recommended by the Zoning Commission. Based upon these specific facts, the Twelfth District

held that the amendments added by the Union Township Board of Trustees relating to

commercial parking requirements were void, and that the township was enjoined from taking

further action consistent with those specific amendments. Specifically, the Twelfth District held

in pertinent part:

We find that Union Township did not modify the recommendation of theZoning Commission within the meaning of R.C. §519.12 (H). UnionTownship did not niake "minor changes" to the Zoning Commission'srecommendation. Rather, Union Township added entirely newamendments to the Zoning Resolution that were not discussed orconsidered by the Zoning Commission. Further, the new amendmentswere not related to the other proposed amendments reviewed by theZoning Commission. The Township created new legislation withoutsubjecting that legislation to the requirements of R.C. §519.12. (emphasisadded)

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A review of the record in the present matter makes clear that the Karwowskis' reliance on

Supervalu is misplaced. The record is clear that the Trustees did not add any new amendments

to the Zoning Resolutions as the trustees did in Supervalu. The proposed map amendments

received from the Granger Township Zoning Connnission were to rezone 116 parcels of

property, which included the Karwowskis' Property. Unlike in Supervalu, the Zoning

Commission properly considered the Karwowski Property at the January 13, 2005 and Febrvary

1, 2005 public hearings, as the Zoning Conunission's recommendation proposed to rezone the

Karwowski property along with 115 other parcels of property properties. (R. 67, Amended Joint

Stipulation No. 16). Therefore, Supervalu has no affect on the present case and is not

inconsistent with R.C. § 519.12.

2. The Straightforward Lau2ua2e of R.C. § 519.12(H) Allows the Board ofTrustees to Adopt a Modification of the Zoning Commission'sRecommendations

Even if the Karwowskis had standing to assert their first proposition of law, it still fails

on the merits pursuant to the straightforward language of R.C. § 519.12(H) which provides:

[w]ithin twenty days after such public hearing the board [oftrustees] shall either adopt or deny the recommendations ofthe zoning commission or adopt some modification ofthem. If the hoard denies or modifies the recommendationsof the township zoning commission, the unanimous vote ofthe board shall be required... (Emphasis added)

The Trustees did not act illegally and without statutory authority as the Karwowskis

allege. The clear and unequivocal language of R.C. §519.12 (H) makes it clear that the Trustees

were not required to give written notice of their intent to modify the recommendations of the

Zoning Commission or schedule a public hearing to address proposed modifications. The only

requirement was that the Trustees hold a public hearing and nothing under Ohio law precluded

the Trustees from making modifications at that public hearing. The Karwowskis are essentially

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taking portions of R.C. §519.12 and reading the subsections out of context and out of

chronological order. R.C. §519.12 makes clear that all the written and published notice

requirements occur prior to the Trustee's public hearing. Nowhere in the plain language of the

statute does R.C. §519.12 require the Trustees to give notice that they are modifying the Zoning

Commission's recommendations, as the whole purpose of the public hearing is to allow for both

residents and the Trustees to discuss the issues in an open and public forum.

R.C. §519.12(B) and (F) further do not and did not require that the Zoning Commission

or the Trustees issue written notice because the proposed map and text amendments intended to

rezone more than 10 parcels of property. Nonetheless, the Township satisfied the requirements

of R.C. §519.12(B) and (F). (See Amended Joint Stipulation No. 8 and 19). Per R.C.

§§519.12(D) and (G), the only notice required to be issued by the Zoning Comniission and

Trustees was published notice, which was satisfied as well. (See Amended Joint Stipulation No.

20).

Further, the Karwowskis' position ignores the plain and express language of R.C.

§519.12 (H), which explicitly provides that the Trustees can "modify" the recommendations of

the Zoning Cornmission at their public hearing so long as the modification is done by unanimous

vote as was the case in this matter. The Trustees simply altered the Zoning Commission's

recommendation, consistent with the authority bestowed upon them by R.C. § 519.12(H).

If this Court accepts the Karwowskis' argument that the Trustees cannot modify the

Zoning Commission's recornmendations, the Trustee's legislative powers would, in essence, be

eviscerated, and the Trustees' role as legislators would be usurped and shifted to the Zoning

Commission. Such a position would render R.C. §519.12 (E) (the Trustees' public hearing

requirement) illusory. Indeed, if the Karwowskis' position were accepted as true, there would be

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no reason to hold a public hearing at all because the Trustees would be bound by the Zoning

Commission's "recommendation" and would not be able to accept public connnent and act upon

that comment.

In sum, the Trustees' modification on one of 116 parcels of property to move the

commercial boundary line did nothing more than move the boundary line from the south aspect

of the Karwowskis' Property to the north aspect of the Karwowskis' property, resulting in the

Property being zoned residential - a minor change to the 116 parcel proposal recommended by

the Zoning Commission.

As the Trustees' modification on March 8, 2005 involved specific matters that were

discussed, reviewed, considered, and recommended by the Zoning Commission at the January

13, 2005 and February 1, 2005 public hearings, the Trustees' modification of the commercial

boundary line on one of 116 parcels was not new legislation. The Resolutions adopted on March

8, 2005 were, therefore, validly enacted and the Karwowskis' argument to the contrary should be

rejected. For these reasons, the Karwowskis' memorandum in support of jurisdiction should be

denied.

III. ARGUMENT AGAINST APPKLLANT'S PROPOSITION OF LAW NO. II

In their second proposition, the Karwowskis assert that a hearing on the matters of illegal

discrimination and the alleged taking of their property should have been allowed. This proposition

of law has no merit for the following reasons.

First, the Karwowskis fails to cite to any authority, case law, or to the record for this

proposition let alone specify why they are entitled to a hearing on two of their six claims. Indeed,

the Karwowskis have not provided any legal basis whatsoever to support their claim that they were

entitled to a hearing.

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Second, the Karwowskis and Grange jointly stipulated to the relevant facts in this case at the

trial level. More importantly, both the Karwowskis and Grange filed cross motions for summary

judgment at the trial level and at that time the Karwowskis did not request a hearing. Now, after the

fact (and after their claims were dismissed by the trial court and affirmed on appeal), the

Karwowskis for the first time allege that they should have received a hearing.

Third, as the Ninth District correctly held, the Trustees were engaged in legitimate

legislative activity and enjoyed both absolute and qualified innnunity for such protected activity

pursuant to R.C. § 2744.03(A)(1). See Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998); Donnelly v.

Fairview Park, 13 Ohio St.2d 1, 3 (1968). Therefore, a hearing is not required.

In sum, the Karwowskis' assertion that they were entitled to a hearing on the issue of illegal

discrimination and taking is unsupported by any case law and any reference to the record and should

be rejected and this Honorable Court should deny the Karwowskis' memorandum in support of

jurisdiction.

V. CONCLUSION

For the foregoing reasons, Granger respectfully requests this Honorable Court to issue an

Order denying discretionary review and denying the Karwowskis' memorandum.

Respectfully submitted,

ANDREW JS'DORMAN (0063410)C-/MELANY K. FONTANAZZA (0079865)JANIK, DORMAN & WINTER, L.L.P.9200 South Hills Boulevard, Suite 300Cleveland, OH 44147-3521Phone: (440) 838-7600Fax: (440) 838-7601Email: Andrew.Dorman@Janiklaw.com

Melany. Fontanazza @ Janiklaw.com

Attorneys for Defendants/Appellees

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CERTIFICATE OF SERVICE

A copy of the foregoing was sent via regular US mail to the following parties on the 9^h

day of December, 2008.

Rodger A. Pelagalli, EsquireRodger A. Pelagalli Co., L.P.A.6659 Pearl Road, Ste. 401Parma Heights, Ohio 44130

Attorney for Appellants

2-4,,One of the Att ,̂ Z'tneys for Defendants/ ellees

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