June 30, 2015

Medina
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Judge: Westfield Twp. rezoning rejection biased, orders new hearing

Judge Christopher Collier

Judge Christopher Collier

A Medina County judge Tuesday threw out the decision of the members of the Westfield Township Board of Zoning Appeals in a controversial rezoning case, ruling that two members of the board were biased.

Linda and Timothy Kratzer had requested a zoning variance to permit the commercial development of 105 acres at 5669 Greenwich Road, which now is zoned primarily for rural homes.

The board rejected the variance request on July 25, 2013, and the Kratzers filed a lawsuit in August.

In overturning the Board of Zoning Appeals 3-2 decision, Medina County Common Pleas Judge Christopher Collier said two board members, Kevin Daugherty and former chairman Michael Schmidt, were not impartial.

“Schmidt and Daugherty were biased for purposes of this matter in that they both had preconceived, public opinions as to the zoning and use of (the Kratzers’) particular property,” Collier wrote in his ruling. “Neither could have been considered impartial.”

Collier said Daugherty, who now serves as chairman, and Schmidt, who’s since been elected trustee, “went so far as to encourage, promote, recruit and sway other members of the community to adopt their views on the situation.”

The judge also pointed out that they tried to sway community members with letters to editors of local newspapers, extensively cross-examined the Kratzers at the hearing, and allowed members of the public to question the Kratzers — even allowing the public to state their opinions during questioning.

“Allowing members of the public to cross-examine the (Kratzers) and the witnesses resulted in a situation where members of the public were engaged to an extent that they were taking over the function and duties of the BZA members,” Collier wrote.

Collier ordered the Board of Zoning Appeal to reconsider the appeal, stating that the Kratzers “are entitled to a hearing before an unbiased BZA.”
Schmidt declined to comment, and Daugherty could not be reached.

The Kratzers’ attorneys, R. Todd Hunt and S. Forrest Thompson, also could not be reached.

Jim Likely, chairman of the Board of Trustees, said an executive session with legal counsel has been scheduled for Monday, when the board is set to meet next.

“Our counsel will help us decide where to go from here — whether we schedule a hearing our appeal the decision.”

The judge’s decision is the latest action in a long-running battle that began in 2008 when Timothy Kratzer announced he wanted to develop a movie theater, some restaurants, a grocery store with a gas station, and two or three big-box stores on the property. The property lies southeast of the interchange of interstates 71 and 76, west of Chippewa Creek.

Kratzer at the time was a township trustee, but abstained from voting on the rezoning request, which was rejected.

The case has bounced between trustees, zoning appeals and common pleas court since then.

Daugherty, Schmidt and board member Wayne Moore voted against rezoning in July 2013. Lee Evans and former member Kathy Lemar voted in favor.

The new hearing, which is not yet scheduled, will be heard before Daugherty, Moore, Evans, John Miller and Keith Simmerer. The board also has an alternate member, Russ Zupanic.

Collier’s decision follows his February ruling that threw out a lame-duck lawsuit settlement on the matter between the township trustees and the Kratzers.

In that ruling, Collier said the settlement — which would have permitted the Kratzers to develop the property commercially and awarded them $15,000 in damages — was not valid because the two outgoing trustees, Gary Harris and Ronald Oiler, reached the agreement just days before they were replaced in office Jan. 1 by Schmidt and William Thombs.

Schmidt and Thombs were elected two months earlier and opposed the agreement.

“Since the new board has withdrawn their consent to the proposed agreement, the settlement agreement is no longer valid or before the court for consideration,” Collier ruled.

The judge also ruled at the time that the Kratzers’ complaint would continue on as two lawsuits: one appealing the appeals board decision and the other challenging the constitutionality of the township’s zoning laws.

The constitutionality case is scheduled for bench trial on March 11.

The Kratzers filed the lawsuits in August 2013 after the appeals board’s decision, which followed a November 2011 referendum in which township voters overwhelmingly defeated a zoning amendment that would have allowed the Kratzers to develop their land commercially.

Township residents have said they oppose development because it would draw increased traffic, which could make it dangerous to move large farming machinery. Others said property values may drop, and police and fire taxes may rise due to increased traffic through the township.

Additionally, they have said there may an increase in crime, noise and light pollution, and water runoff into Chippewa Creek from development could worsen flooding problems in the area.

Contact reporter Nick Glunt at (330) 721-4048 or nglunt@medina-gazette.com. Follow him on Twitter @ngfalcon.