Cleveland Law Library Weblog

Common Pleas Court Finds Crushing Plant a Nuisance

The Cuyahoga Court of Common Pleas permanently enjoined the defendants from operating a demolition debris crushing plant near several food distributorships.  The trial court found there was overwhelming evidence showing the crushing plant created dust which blanketed the area and created a nuisance.  See written opinion: Granger Materials, Inc. v. Sanson Co. (Mar. 31, 2006), Cuyahoga C.P. Case No. 03-511297;  case docket;  Legal Dust Finally Settles; Crushing Plant to Close by Jim Nichols, The Plain Dealer, April 1, 2006.  Source:  Cuyahoga County Planning Commission Weblog.

Strip Club Asserts that Elyria Zoning Ordinance is Unconstitutional

Diamond Men's Club of Elyria filed a lawsuit in federal court challenging the constitutionality of the City of Elyria's zoning ordinance, 1125.02, which requires that adult entertainment businesses obtain a conditional use permit.  The club asserts that the ordinance violates their First Amendment rights, violates equal protection, is void for vagueness and violates procedural due process.  See complaint filed in D & I Entertainment LLC v. City of Elyria, Northern District of Ohio case no.  1:06-cv-00483.  To read the ordinance in question Download elyria1125.02.pdf .  See also Fight Over Elyria Strip Club Heads to Federal Court, Newsnet5, Mar. 17, 2006. 

Bank Responsible for Upkeep of Property When Bank Locks Out Owner

Mortgage lenders who lock out the homeowner become responsible for housing code violations on the property, even if they leave the homeowner's name on the title.  "Under our code, if you take possession and control of a property, you are responsible for it," Pianka said.   Housing Judge Hammers the Banks by Thomas Ott and Cheryl Diamond, The Plain Dealer, March 15, 2006. See Cleveland Codified Ordinances Section 363.12 and 367.04. The lock out could be pursuant to a foreclosure or ejectment proceeding.

Predatory Lending Bill Passes Senate

The Ohio Senate passed SB 185, the predatory lending bill.  The controversial provisions remain in the bill.  These provisions concern the following changes to ORC 1345.09: (1) limiting damages in all Consumer Sales Practices Act cases to "actual damages" and (2) mandating consumers to pay attorney fees to businesses for filing frivolous claims under the CSPA.  Attorney fees were previously in the discretion of the court.  If a business knowingly violates the CSPA, an award of attorney fees to the consumer is discretionary, not mandatory.  See Ohio Senate Passes Predatory Lending Bill by Reginald Fields, The Plain Dealer, Feb. 23, 2006; Senate to Revise Bill on Lending by Reginald Fields,  The Plain Dealer, Feb. 22, 2006.  See our prior post Predatory Lending Legislation Will Limit Consumer Sales Practices Act Damages.

Accused Predatory Lender Ameriquest Settles with Ohio AG

Sub-prime mortgage lender Ameriquest was accused of various predatory lending and deceptive practices, including inadequate disclosure of prepayment penalties, charging customers inflated  interest rates, permitting fraudulently high property appraisals and encouraging borrowers to misrepresent their income. Ameriquest recently settled with state authorities nationwide, including the Ohio Attorney General and the Ohio Department of Commerce.  In addition to the monetary settlement, Ameriquest must reform its lending practices. See Lender OKs $325 Million in Settlement by Teresa Dixon Murray, The Plain Dealer, Jan. 24, 2006; Ameriquest To Pay $325 Million and Reform Lending Practices, Ohio Attorney General's website.

Long Pending Foreclosure Cases Not Reflected in Judges' Docket Reports

Cuyahoga County citizens complained to the Ohio Supreme Court about the Cuyahoga County Common Pleas Court practice of taking foreclosure cases off the county judges' dockets when the case is referred to a magistrate.  Foreclosure cases that have been pending as long as eight years escape the notice of the Ohio Supreme Court, because they are taken off the judges' dockets and do not appear on the judges' reports to the Supreme Court.  Some have also questioned the Cuyahoga County practice of having a hearing to give property owners one last chance, when homeowners rarely challenge foreclosures.   Cuyahoga Conceals Foreclosure Backlog by Thomas Ott, The Plain Dealer, Jan. 16, 2006. 

Ohio Bill Allows Board of Revision to Foreclose Properties

The Ohio House passed a bill that would permit county treasurers to file tax foreclosure cases with the Board of Revision, instead of the county court.  Cases can be filed with the Board of Revision only if the property is vacant and has at least two years of unpaid property taxes.  The purpose of the bill is to speed up foreclosures, and reduce the backlog of foreclosures some communities are facing.    Bill Would Speed Up Foreclosures by Julie Carr Smyth, The Plain Dealer, Jan. 12, 2005; HB 294. 

City Ordinance Requiring 2 Acre Lots for New Homes is Constitutional

The Ohio Supreme Court held that a city ordinance requiring that new homes be built on two acre lots is constitutional.  See Jaylin Investments v. City of Moreland Hills (2006), 107 Ohio St.3d 339; Ohio Supreme Court Case Summaries; Court Rules for Moreland Hills in Challenge to 2-Acre Lot Size by Tasha Flournoy, The Plain Dealer, Jan. 12, 2005; our previous post: Supreme Court to Hear Moreland Hills Zoning Case. 

Does the Ohio Constitution Permit Eminent Domain Takings for Economic Development?

In  City of Norwood v. Horney , Case No. 2005-1210, 1211, the Ohio Supreme Court is considering whether a city can use its eminent domain powers for private redevelopment.  The U.S. Supreme Court held in Kelo v. City of New London, that takings for economic development could be valid under the U.S. Constitution.  The property owners (appellants) in the City of Norwood case assert that the Ohio Constitution offers more protection to property owners than the U.S. Constitution. 

The attorneys for the property owners made several other arguments:  (1)  The city did not engage in a sound reasoning process to determine the property was deteriorating; (2) The Norwood City charter is such that any property could be declared deteriorating, and is thus unconstitutional; and (3) The city's stated public purpose was not the real reason for its exercise of eminent domain power. See Ohio Supreme Court Oral Argument Summaries; Ohio Court Hears First Case Since Fed Ruling on Homeowner Rights by Andrew Welsh-Huggins, New York Newsday, Jan. 12, 2006; Eminent Domain Battle Goes to Court by T.C. Brown, The Plain Dealer, Jan. 12, 2006. 

The Ohio Legislature has declared a moratorium on takings for economic purposes until the end of 2006.  See Governor Taft Signs Eminent Domain Bill.

City Interference in Flow of Groundwater May be Compensable Taking

The Ohio Supreme Court held that property owners have an interest in groundwater under their land.  Government interference with groundwater may be an unconsitutional taking.  McNamara v. City of Rittman (2005), 107 Ohio St.3d 243, 2005-Ohio-6533; Ohio's Top Court Rules Landowners Own Groundwater by T.C. Brown, The Plain Dealer, Dec. 22, 2005.