COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

CUF NEIGHBORHOOD ASSOCIATION,

et al.,
Plaintiffs,
and
CITY OF CINCINNATI ex rel.
CUF NEIGHBORHOOD ASSOCIATION,
et al.,
Relators,
v.
CITY OF CINCINNATI, et al.,
Defendants-Respondents.

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Case No. A-14-07550

Judge Martin

AMENDED MOTION OF
PLAINTIFFS-RELATORS FOR
ISSUANCE OF TEMPORARY
RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

Comes now Plaintiffs-Relators, individually and on behalf of the CITY OF

CINCINNATI, and hereby amend their motion filed earlier on this same date so as to specifically
seek the issuance of a temporary restraining order and a preliminary injunction precluding the
CITY OF CINCINNATI from issuing any permits, certificates or other authorization based upon
Ordinance No. 345-2014 and relating to any proposed developed for an approximately 1.65 acre
piece of property located at 169 West McMillan Street, 2432-2444 West Clifton Avenue and
222-232 Lyon Street (collectively, the Property).
As developed more fully in the Verified Complaint filed concomitantly herewith,
pursuant to Ordinance No. 345-2014 adopted by the City Council of the CITY OF CINCINNATI
on a vote of 7-to-2, the zoning on the Property was changed from either RMX Residential Mixed
Zone District or CC-M Commercial Community Mixed Zone District to a PD District. And the
requirements imposed by Section 1429-05(a) of the Cincinnati Municipal Code is clear and

explicit as to what is required before the zoning on property less than two acres can be changed
to a PD District:
an affirmative recommendation of the City Planning Commission, finding that
special site characteristics exist and the proposed land uses justify development of
the property as a PD.
But as the records of the City of Cincinnati make clear, no such findings were ever made
by the City Planning Commission, even though the Property is only 1.65 acres. Thus, when the
City Council voted to adopt Ordinance No. 345-2014 so as to change the zoning on the Property,
the corporate powers of the City of Cincinnati were clearly abused due to the failure of the
condition precedent mandated by Section 1429-05(a) of the Cincinnati Municipal Code.
The Ohio Supreme Court has held that when a municipality enacts legislation or
ordinances amending a current zoning ordinance, the municipality must satisfy all the procedural
requirements set forth in the applicable code. State ex rel. Osting v. City of Sidney, 2001-Ohio2175 (3d Dist. 2001). In this case, it is beyond cavil that the City Council of the City of
Cincinnati failed to follow and satisfy the procedural requirements within the Cincinnati
Municipal Code when adoption Ordinance No. 345-2014 such that Plaintiffs-Relators have a
substantial likelihood of success on the merits in their challenge to the illegal action by the
Cincinnati City Council.
And as the CUF NEIGHBORHOOD ASSOCIATION functions as the officially
designated representative of the Clifton Heights, University Heights and Fairview communities
to the City of Cincinnati, i.e., the CUF Neighborhood Association has been designated by the
CITY OF CINCINNATI as the community council for the Clifton Heights, University Heights
and Fairview communities, and its interests and the interest of its members go to promoting and
protecting the nature of the Clifton Heights, University Heights and Fairview communities,

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significant and irreparable harm will result if the development is allowed to proceed. For the
requisite finding mandated by Section 1429-05(a) of the Cincinnati Municipal Code serves to
impose a high threshold to avoid the arbitrary use of PD District that would undermine the
natures of a community.
Additionally, due to the clear illegality by which Ordinance No. 345-2014 was passed,
the issuance of an injunction will not cause any harm to any third parties or the general public.
For [i]t has long been the law of Ohio that persons dealing with municipal corporations are
charged with notice of all statutory limitations on the power of such corporations and their
agents, and must, at their peril, ascertain whether all necessary statutory formalities have been
met. Kimbrell v. Seven Mile, 13 Ohio App.3d 443, 445 , 469 N.E.2d 954 (12th Dist. 1984);
accord Welch v. City of Lima, 89 Ohio App. 457, 465, 102 N.E.2d 888 (3d Dist. 1950); Winfield
v. Painesville, 2005-Ohio-3778 32 (11th Dist. 2005). Thus, the issuance of an injunction would
essentially place any developer of the Property in the same position without an injunction being
issued. For even if the City of Cincinnati should issue permits, certificates, etc., the developer of
the property would still be subject to the illegality by which such permits, certificates, etc., were
issued. Williamsburg v. Milton, 85 Ohio App.3d 215, 619 N.E.2d 492 (Ohio App. 12 Dist.
1993)(notwithstanding issuance of a zoning permit by zoning administrator and incurring
significant expenses in reliance thereon by property owner, when such permit was issued in
violation of zoning regulations, injunction would lie against property owner).
Accordingly, sufficient grounds exist to warrant the issuance of the requested temporary
restraining order and preliminary injunction.

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Respectfully submitted,
/s/ Curt C. Hartman
Curt C. Hartman (0064242)
The Law Firm of Curt C. Hartman
7394 Ridgepoint Drive, Suite 8
Cincinnati, OH 45230
(513) 379-2923
hartmanlawfirm@fuse.net
Christopher P. Finney (0038998)
Finney Law Firm LLC
4270 Ivy Point Blvd., Suite 225
(513) 943-6655
chris@finneylawfirm.com
Attorneys for Plaintiffs-Relators
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing motion, together with the Verified Complaint filed
herein, will be served upon the following via e-mail on this the 30th day of December 2014:
Terry Nestor
Acting Solicitor, City of Cincinnati
Terry.Nestor@cincinnati-oh.gov
Tim Burke
Counsel for Gilbane Development
tburke@manleyburke.com

/s/ Curt C. Hartman

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